RECORD OF PROCEEDINGS

	IN THE CASE OF:     

	BOARD DATE:           16 March 2004                    
	DOCKET NUMBER:   AR2003087718

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Mr. Mark D. Manning		Chairperson	
	Mr. Hubert O. Fry		Member	
	Mr. Richard T. Dunbar		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests, in effect, that the 30 percent (%) disability rating he was originally assigned at the time he was placed on the Temporary Disability Retired List (TDRL) be reinstated.  

2.  The applicant provides disability processing documents and a supporting statement from counsel in support of his application.  

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 

1.  The applicant is represented by a National Service Officer of the Disabled American Veterans (DAV).  Counsel requests, in effect, reconsideration of the Army Physical Disability Board (PEB) determination made in November 2002.

2.  Counsel states, in effect, that the issue in question is the applicant’s attempt to maintain a 30% rating for his Post Traumatic Stress Disorder (PTSD), which is currently rated at 10% disabling under the Veterans Administration Schedule for Rating Disabilities (VASRD) diagnostic code 9411.  Counsel summarizes the applicant’s service, which includes active duty service in the Untied States Marine Corps between 1968 and 1970, during which he served in combat in Vietnam and earned the following awards:  Combat Action Ribbon; Purple Heart; Vietnam Service Medal with 1 bronze service star; Vietnam Campaign Medal with 60 Device; and other awards that support his honorable active duty service.  

3.  Counsel further outlines the applicant’s service in the United States Army Reserve (USAR) that began in 1985 and ended with his placement on the TDRL in 1998.  During his service in the USAR, the applicant was mobilized in December 1990 in order to serve in support of Operation Desert Storm, and served as a Nuclear Biological and Chemical (NBC) trainer.  In addition, he served as an interrogator in a prisoner of war camp, for which he earned the Bronze Star Medal, for acting to avoid a riot of thousands of Iraqi prisoners, which resulted in saving countless lives.  

4.  Counsel further indicates that the applicant was awarded a 30% disability rating for a PTSD and Major Depression and a 10% rating for Patellofemoral Syndrome, Right Knee, by a PEB on 17 February 1998.  This resulted in the applicant’s placement on the TDRL.  The PTSD evaluation by the PEB was based on the findings of a Medical Evaluation Board (MEB) conducted on 
10 October 1997.  

5.  Counsel points out that the MEB examination maintained that the applicant’s mood at the time was considered stable, but he continued to suffer bouts of hypervigilance, anxiety, flashbacks, and disturbed sleep with depressed mood. This resulted in his being placed on a course of Prozac and Trazodone and receiving psychotherapy.  The examiner provided a diagnosis of PTSD with marked military impairment and a Global Assessment of Functioning (GAF) score of 50.  

6.  Counsel also states that the applicant underwent a reexamination on 1 April 1999, while on the TDRL.  This examination outlined symptoms as impulsive rage, hypervigilance, nightmares, sadness and loss of energy.  It also documented that the applicant was actively enrolled in psychotherapy and was not taking psychotropic medication.  The examiner diagnosed the applicant with PTSD and assigned a GAF of 65.  On 2 June 1999, after evaluating the examination, the PEB decided to retain the applicant on the TDRL.  

7.  The applicant was again reexamined on 22 May 2000.  This examination outlined his symptoms as hypervigilance, nightmares, irritability and emotional instability.  It also indicated that the applicant was incapable of performing any gainful occupation.  The resulting diagnosis was PTSD and he was assigned a GAF of 55.  On 21 June 2000, the PEB again decided to retain the applicant on the TDRL.  

8.  On 9 July 2001, the applicant was once again examined.  His symptoms were again outlined as in previous examinations.  The PTSD diagnosis was confirmed and a GAF of 58 was assigned.  On 3 August 2001, the PEB once again retained the applicant on the TDRL.  

9.  Counsel states that the applicant was again examined for a TDRL evaluation on 11 July 2002.  This examination notes that the applicant continued to display PTSD symptoms.  The examiner noted that the applicant was suffering from nightmares, flashbacks, hypervigilance, emotional instability, and social instability.  This examination also indicated that the applicant had relocated himself to a remote area in Minnesota in order to isolate himself from the general public.  It was further stated that the applicant felt an increase in anxiety and temper problems when he is removed from his isolated residence.  The examination confirmed the PTSD diagnosis and provided a GAF of 65, which was used to reduce the applicant’s PTSD disability rating to 10%.  

10.  Counsel states that on 16 October 2002, the applicant underwent a formal PEB hearing.  At this formal hearing, the applicant provided the PEB with additional medical documentation, which was a Department of Veterans Affairs (DVA) Psychiatric Memorandum, dated 4 October 2002.  In this DVA memorandum, the psychiatrist treating the applicant maintained that the applicant had received treatment from the DVA for the past several years.  He further indicated that the applicant copes with his disability by isolating himself and limiting his social interactions.  The psychiatrist asserted that despite this, the applicant often becomes intermittently overwhelmed with anxiety and depressive symptoms.  He also indicated that the applicant displayed a low stress tolerance, difficulty interacting with others and chronic panic attacks, which prevented him from being able to function in a work setting.  The examining psychiatrist finally assigned a GAF of 48.

11.  Counsel states that in evaluating the applicant’s disability, the Board is tasked to apply the appropriate regulations as directed in Army Regulation 635-40, Department of Defense Instruction (DODI) 1332.38 and 1332.39, and to apply the VASRD as the standard for applying a disability percentage rating.  Counsel further indicates that the GAF scale in the Diagnostic and Statistics Manual IV (DSM-IV) uses a single set of criteria for assessing psychological, social, and occupational functioning in all mental disorders.  The symptoms in the general rating formula for mental disorders are representative examples of symptoms that often result in specific levels of disability.  In the applicant’s case, his GAF scores range from a low of 47 to a high of 65.  

12.  The DSM IV provides that with a GAF score between 41 and 50, an individual is considered to suffer from “Serious” symptoms (e.g. suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g. no friends, unable to keep a job). The DSM IV further provides that with a GAF score between 51 and 60, an individual is considered to suffer “Moderate” symptoms (e.g. flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g. few friends, conflicts with peers and 
co-workers).  

13.  Counsel further states that the criteria annotated in DODI 1332.39 maintains that when evaluating disabilities under Diagnostic Codes 9200-9511 some of the following factors must be considered:  

a.  Functional Impairment - Loss of function is the principal criterion for establishing the level of impairment resulting from mental illness.  Loss of function is reflected in impaired social and industrial adaptability.  Psychoses specifically include disorders that manifest disturbances in perception, thinking, emotional control, and behavior, severe enough to hinder economic adjustment, that is, hinder the applicant’s capacity to perform military duties or to earn a living.  Even psychosis, however, may resolve such that the impact on economic adjustment is minimal to none.  In rating impairment of social and industrial capability, if any, a comparison must be made between pre and post illness adjustment.  All pertinent information provided by the MEB and TDRL interim examinations done by the examining physicians and other competent medical authorities should be reviewed before arriving at a final determination.  Inconsistencies between the clinical data (history, mental status, hospital course, and present condition) and the diagnosed psychiatric condition, or between data provided by different physicians must be resolved before a final rating decision.  Action taken to resolve these differences should be documented in the proceedings.  

b.  Social Impairment - Information that relates to social impairment includes, but is not limited to the following:  living arrangements (by oneself, with parents and siblings, or with wife and children); marital status (single, married, separated or divorced, and the type of relationship (harmony or strife); leisure activity (sports, hobbies, TV, reading, sleeping); acquaintances (male, female, both sexes, many, few).  

c.  Industrial Impairment - Information that relates to industrial impairment includes, but is not limited to the following:  job stability (unemployed, part-time work, full-time job; quit; fired; or promoted); type of job (menial, responsible,
on-the job training, technical, for a relative, or for a private employer); schooling (grade, technical, academic, high school, college, or postgraduate).  Other factors that bear on industrial impairment are:  Mental Competency - (MEB should include a statement as to whether the applicant is competent to handle his or her financial affairs, and to participate in board proceedings); Level of Supervision (there are several levels of supervision, the most disabling is constant hospitalization.  Constant supervision at home or intermittent and repeated hospitalization are disabling factors to be considered.  Being placed in one’s own custody suggests that a lower level of supervision, if any, is required.  

	d.  Medical or Psychotherapy - The type of (potent or mild), the amount (large or small doses) and the route of administrations of medication as well as the frequency (daily, weekly, or as needed) should be considered.  The frequency of psychotherapy and by whom administered (psychiatrist, psychologist, social worker, nurse) also should be considered.  The fact that an applicant is receiving medication and/or psychotherapy does not automatically equate with a certain level of disability.  

14.  Counsel suggests that the regulatory criteria that seems pertinent and that provides a definite 30% disability rating are as follows:  does not demonstrate a significant requirement for hospitalization; displays some signs of symptoms of mental illness on examination; usually requires medication and/or frequent psychotherapy; may experience some job instability; and evidences borderline social adjustment.  

15.  Counsel states that it is obvious that to be considered for a 30% disability, certain aspects of the law must first be met.  First, consideration must be given to the social characteristics of the applicant’s life.  The law provides that living arrangements, marital status, leisure activities, and acquaintances are deemed pertinent for evaluation purposes.  Second, consideration must be given to the industrial aspects of the applicant’s life.  These are annotated as job stability, type of position, and type of schooling.  Third, signs and symptoms must be evident on examination.  Finally, the law references the need but not requirement of medication or psychotherapy.  

16.  Counsel further states that in evaluating the criteria for social instability, the evidence shows in this case that the applicant relocated himself to a remote location in Minnesota in order to isolate himself from the general public.  He has also provided competent medical testimony that he suffers from a low stress tolerance with difficulty interacting with others.  As for the applicant’s industrial aspects, the DVA currently considers him unemployable.  He again has provided competent medical testimony that he suffers from chronic panic attacks and his doctor maintains that his PTSD precludes him from obtaining gainful employment.  Further, the medical documentation of record shows signs of symptoms of mental illness on repeated examinations and the applicant has demonstrated his enrollment in constant psychotherapy.  

17.  Counsel further contends that he and the applicant believe that the Army PEB failed to properly evaluate the applicant’s PTSD.  The evidence of record clearly demonstrates that while the applicant was on the TDRL, his condition remained the same or worsened.  His medical evaluations used from 1997 through 2001, showed GAF scores chronologically ranging from 50 in 1997, 
47 and 65 in 1999, 55 in 2000, and 58 in 2001.  The examination used to reduce his disability rating from 30% to 10% had GAF scores of 65 and 48.  The examinations between 1997 and 2001, outlined symptoms of nightmares, anger, emotional problems, social and industrial instabilities.  These symptoms were again outlined on the evaluation used to reduce his disability rating.  

18.  Counsel indicates that the law states that the usual, but not required, use of medication and/or frequent psychotherapy and signs and symptoms of mental illness on repeated examination supports a disability rating of 30% or more.  In this case, the most recent examination describes a condition that is clearly worse than the initial examination used to place him on the TDRL.  Thus, counsel maintains that there is no evidentiary basis to conclude the applicant’s PTSD has significantly improved.  Clearly, the PEB ignored the informal and formal board levels.  Counsel states that it is his belief that the applicant should be afforded reinstatement of a 30% disability rating for his PTSD and granted a disability retirement.  

19.  Counsel finally indicates that DODI 1332.39 states that when the circumstances of a case are such that two percentage evaluations could be applied, the higher percentage will be assigned if the applicant’s disability more nearly approximates the criteria for that rating.  When, after careful consideration of all reasonable doubt as to which rating should be applied, such doubt will be resolved in favor to the member.  The DAV now requests a careful review of the evidence of record, and anticipates a determination, which reflects sound medical and rating judgment, consistent with the proper application of the regulations.  Further, counsel requests the resolution of reasonable doubt concerning the degree of disability involving the issues in accordance with Army Regulation 635-40.  

CONSIDERATION OF EVIDENCE: 

1.  The applicant’s Personnel Qualification Record (DA Form 2-1) shows that he served on active duty as a member of the USMC from 22 August 1968 through 
27 March 1970.  It also shows that during this period of active duty, he served in the Republic of Vietnam (RVN) from March 1969 through March 1970, and that during this combat service, he earned the Combat Action Ribbon and the Purple Heart, for being wounded in action.  

2.  The DA Form 2-1 further shows that on 15 February 1985, the applicant enlisted in the USAR.  He served in this status until 1998, at which time he was placed on the TDRL.  The record further confirms that during his USAR service, the applicant served on active duty in Saudi Arabia, from 27 December 1990 through 17 May 1991, during Operation Desert Storm.  It also confirms that during this combat tour, he earned the Bronze Star Medal.  

3.  On 10 October 1997, the applicant underwent a MEB examination at Fort Knox, Kentucky.  The applicant’s mental status examination indicated that he suffered from bouts of hypervigilance, anxiety, flashbacks, disturbed sleep, and accompanying mood symptoms.  It further indicated that his symptoms had been improved by medication (Prozac and Trazodone).  The diagnosis indicated that the applicant’s PTSD was treated and incompletely controlled by medications.  It identified his military impairment as marked and his social and industrial impairment as definite.  

4.  On 20 January 1998, a MEB convened at Fort Knox, Kentucky, to consider the applicant’s case.  The MEB Proceedings (DA Form 3947) indicate that the following diagnosed conditions of the applicant were evaluated:  PTSD; Major Depression, Recurrent, with Psychotic Features; History of Alcohol Dependence; Patellofemoral Syndrome with Degenerative Joint Disease; Right Hip Pain with Degenerative Joint Disease; and Status Post Cervical Fracture with No Neurological Changes.  Subsequent to its evaluation, the MEB recommended that the applicant be referred to a PEB.

5.  In February 1998, a PEB convened at Fort Sam Houston, Texas to evaluate the applicant’s case.  The PEB found that he was physically unfit to perform duties in his grade and specialty.  As a result, it recommended a combined physical disability rating of 40% and placement on the TDRL.  

6.  The PEB Proceedings (DA Form 199) indicated that the VASRD codes applicable to the applicant’s medical condition were 9411 and 9434 (PTSD, Major Depression) and 5299 and 5003 (Patellofemoral Pain Syndrome, Right Knee).  The description of the applicant’s disability indicated he suffered from a PTSD that was in partial remission and major depression; in addition, to Patellofemoral Pain Syndrome in the right knee.  It further indicated that his PTSD and Major Depression were rated at 30% and his Patellofemoral Pain Syndrome at 10%.  

7.  On 9 February 1998, the applicant concurred with the PEB findings and recommendations and waived his right to a formal hearing.  As a result, the applicant was placed on the TDRL.

8.  The applicant underwent PEB TDRL reexaminations in April 1999, June 2000, and July 2001 that resulted in the PEB recommending that he remain on the TDRL with no change in his PTSD disability rating.  In 2002, the applicant’s PTSD disability rating was reduced to 10% by a PEB.  This decision was upheld by a formal hearing of the PEB and by the USAPDA.  These medical examinations show the applicant suffered from the same basic PTSD symptoms that were documented in the initial 1998 PEB proceedings.  

9.  On 11 July 2002, the applicant underwent a TDRL examination.  The examination indicated that the applicant had not taken medication for over a year and was anxious to abstain from medicine, he continued to abstain from alcohol, and he had devoted 23 hours a week to working with other veterans in an advocacy role.  However, the PTSD symptoms of nightmares, hypervigilant and occasional flashbacks were reported.  The applicant reported nightmares occurred about once or twice a month and were not ordinarily accompanied by sweats.  While he reported occasional flashbacks, there were not intrusive memories unless set off by work with a veteran.  It further indicated that while he was mildly agoraphobic, he no longer suffered from severe panic, and had somewhat less problems with depression.  However, it does indicate that the applicant was really incapable of being in close contact with people unless this was at his election, and even then, the numbers of people that he could comfortably deal with was small.  

10.  The Mental Status portion of the 11 July 2002 TDRL examination indicated that the applicant’s affect was characterized by tension and anxiety,  His speech was normal, which reflected that the affect and associations were coherent and relevant.  Further, his intellectual functioning was grossly intact and he was sleeping fairly well with occasional war related nightmares; however, he denied amnesias or sleepwalking.  It also indicated that the applicant was not currently seriously depressed or suicidal.  

11.  The PTSD diagnosis on the examination indicated that at the time the applicant’s depressive trends were less prominent than the anxiety and his history of alcohol abuse was in remission.  It also indicated that his psychosocial stressors were moderate and secondary to his physical and mental problems.  Finally, the applicant’s GAF score was estimated at 60.  This examination resulted in the applicant’s PTSD disability percentage being lowered to 10%.  

12.  On 4 October 2002, the Staff Psychiatrist of the DVA medical center in Minneapolis, Minnesota, prepared a letter indicating that the applicant had been treated at that center for the past several years.  He indicated that the applicant continued to be treated at their clinic for his PTSD and dysthymia.  It further indicated that while the applicant intermittently attempted to go without medication, he was usually prescribed Paxil and Trazodone.  The psychiatrist further stated that the applicant continued to be severely affected by his PTSD and depressive symptoms.  Further, he typically coped by isolating himself from others and limiting his social interaction.  Despite this, he often becomes intermittently overwhelmed with anxiety and depressive symptoms.  He displayed a low stress tolerance, difficulty interacting effectively with others, and chronic “panic” attacks” which prevented him from being able to function in a work setting.  The Staff psychiatrist estimated the applicant’s current GAF at 48.  

13.  On 16 October 2002, a PEB convened at Fort Sam Houston, Texas, and conducted a formal hearing at the applicant’s request.  The applicant and his DVA counsel were present at the hearing.  The DA Form 199 published to document this evaluation indicates that the applicant’s PTSD disability (VASRD code 9411) was rated at 10%.  The description of his PTSD condition indicated that it was in partial remission without medication, and that social and industrial adjustment were adequate.  His PTSD condition was rated as mild social and industrial impairment.  The evaluation considered the applicant’s 11 July 2002 TDRL examination, DVA medical records, exhibits and testimony.  The applicant non-concurred with the findings and submitted a rebuttal, which included a statement from the DAV.    

14.  On 22 October 2002, the PEB reviewed the applicant’s rebuttal.  After careful consideration, it found that no change to the original findings was warranted.  In reaching its decision, the PEB determined that a review of the applicant’s rebuttal produced no new objective medical evidence.  The applicant’s case was then forwarded to the United States Army Physical Disability Agency (USAPDA) for final processing.  

15.  On 25 October 2002, the USAPDA Chief, Operations informed the applicant that the USAPDA conclusion was that his case was properly adjudicated by the PEB, which correctly applied the rules that govern the Physical Disability Evaluation System (PDES) in making its final determination.  Further, the applicant was advised that he could apply for a disability rating through the DVA for any service connected disability.  However, the PDES operating under a different set of laws than the DVA, could only compensate soldiers for any service connected or permanently aggravated conditions that caused their separation and only for the degree of impairment at the time of their separation.  

16.  Orders Number D216-12, dated 6 November 2002, issued by the USAPDA, directed that the applicant be removed from the TDRL and discharged from the service with severance pay on 6 November 2002.  These orders confirm the reason for the applicant’s discharge was permanent disability, rated at 20%, and that he held the rank and pay grade of master sergeant/E-8 at the time.  

17.  Part 4 (VASRD), Title 38 (Pensions, Bonus, and Veterans Relief), Code of Federal Regulations (CFR), provides a general rating formula for mental disorders, which includes PTSDs (VASRD Code 9411).  It states, in pertinent part, that a rating of 30% is appropriate when there is an occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events).  

18.  The VASRD general formula guidance indicates that a 10% rating is appropriate when a member has an occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication.  A mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous  medication.

19.  DODI 1332.29 implements the policy, assigns responsibilities, and prescribes procedures, for rating disabilities of members determined to be physically unfit and who are eligible for disability separation or retirement.  Paragraph 6 contains guidance on the essentials of rating disabilities.  It states, in pertinent part, that the VASRD is a guide for evaluating disabilities.  However, because of differences between military department and DVA applications rating policies for specific cases, differences in ratings may result.  

20.  Paragraph 6 of DODI 1332.29 further indicates that unlike the DVA, the Military Departments must first determine whether a member is fit to reasonably perform the duties of his/her office, grade, rank, or rating.  Once a member is determined to be physically unfit for further military service, VASRD percentage ratings are applied to the unfitting conditions.  Percentages are based on the severity of the condition.  

21.  Paragraph 6.2 of DODI 1332.29 provides guidance on applying the higher of two evaluations.  It states that when the circumstances of a case are such that two percentage ratings could be applied, the higher percentage will be assigned only if the member’s disability more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned.  When, after careful consideration of all reasonably procurable and assembled data, there remains a reasonable doubt as to which rating should be applied, such doubt will be resolved in favor of the member.  

22.  Army Regulation 635-40 sets forth policies, responsibilities, and procedures that apply in determining whether a soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. If a soldier is found unfit because of physical disability, this regulation provides for disposition of the soldier according to applicable laws and regulations.  Appendix B provides guidance on the Army’s application of the VASRD.  Paragraph B-107 contains guidance on mental disorder disabilities.  

23.  Paragraph B-107 of Army Regulation 635-40 also states, in pertinent part, that a definite 30% rating is appropriate when a mental disorder condition does not require hospitalization, displays some signs of symptoms of mental illness on examination, usually requires medication and or psychotherapy, usually there is job instability, and there is borderline social adjustment.  It indicates a 10% rating is appropriate when the member displays minimal signs or symptoms with probing, may require medication or psychotherapy, especially during times of stress, displays adequate job adjustment, and adequate social adjustment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim that the 30% disability rating for a PTSD that he was originally assigned at the time he was placed on the TDRL should be reinstated was carefully considered, and it was found to have merit.  

2.  The evidence of record confirms that the applicant was originally processed through the PDES and placed on the TDRL with a 30% disability rating for a PTSD condition based on an evaluation of a PEB.  This rating was upheld through three TDRL reevaluations in 1999, 2000, and 2001.  However, the rating was reduced to 10% in 2002, based on a PEB finding that his condition was in partial remission without medication, and that his social and industrial impairment was rated as mild.  The PEB further indicated that his social and industrial adjustment was adequate.  This PEB determination and rating were upheld in a formal hearing and by the USAPDA.  

3.  The medical evidence of record confirms that the applicant displayed the same basic symptoms during his final PEB evaluation in 2002 as he did when he was originally rated and placed on the TDRL in 1998.  Although there was evidence of improvement without medication and that the applicant had worked with a veterans group in an advocacy role, the attending physician attributed the improvement to the applicant moving to a remote location and removing himself from contact with people, except for groups of his own choosing, and other stressors.  It also confirms that the applicant was still not capable of interaction with people and/or of obtaining gainful employment outside of his self-controlled environment.  

4.  Supporting evidence from the DAV and from a DVA Staff Psychiatrist who treated the applicant for several years confirm that the applicant still suffers from PTSD and depressive symptoms, and that he typically copes by isolating himself from others and limiting his social interactions.  Further, it verifies that the applicant displays a low stress tolerance, difficulty interacting effectively with others, and suffers from chronic panic attacks that prevent him from functioning in a work setting.  

5.  By regulation, a 10% rating is applicable in cases where symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication.  The fact that the applicant is still incapable of interaction with people outside his own environment and to function in a work setting, seems to establish a serious to moderate social and functional impairment, which would place him within the regulatory criteria that supports a definite 30% disability rating.  

6.  Given the regulatory criteria established for the application of the higher of two evaluations, which requires resolution in favor of the member, the applicant’s record contains sufficient evidence showing that his PTSD condition supports a serious to moderate functional and social impairment, as opposed to the mild impairment indicated by the PEB.

7.  In accordance with the regulatory criteria for applying the higher of two ratings and given the reasonable doubt created by the medical evidence in this case, it would be appropriate to resolve this case in favor of the applicant.  Thus, his record should be corrected to show his PTSD condition was rated at 30%, rather than 10%, during his final TDRL evaluation by the PEB.  Further, his record should be corrected to show that based on his combined disability rating of 40%, he was subsequently placed on the Retired List, by reason of permanent disability, on 6 November 2002 in lieu of his discharge of the same date.  

BOARD VOTE:

MM____  __HOF__  __RTD___    GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

a.  showing that he was given a combined disability rating of 40% 
(30% PTSD and 10% Patellofemoral Pain Syndrome) by the 16 October 2002 Physical Evaluation Board; and 

b.  voiding his 6 November 2002 discharge, with severance pay, and showing that he was instead separated, by reason of permanent disability rated at 40%, and placed on the Retired List, in the rank and pay grade of master sergeant/E-8, on that same date.  

2.  That the Defense Finance and Accounting Service (DFAS) pay the individual concerned all back retired pay and allowances due as a result of the correction outlined in the preceding paragraph, minus any disability severance pay the individual concerned may have already received.  

		Mark D. Manning
	                                                CHAIRPERSON

INDEX

CASE ID	AR2003087718	
SUFFIX		
RECON		
DATE BOARDED	2004/02/16	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	2002/11/06	
DISCHARGE AUTHORITY	AR 635-40	
DISCHARGE REASON	Permanent Disability	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  181	108.0400	
2.		
3.		
4.		
5.		
6.