RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD1300216
BRANCH OF SERVICE:  Army	BOARD DATE:  20130814
DATE OF PLACEMENT ON TDRL:  20011129
Date of Permanent SEPARATION:  20021217

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (96B/Intelligence Analyst) medically separated for posttraumatic stress disorder (PTSD).  The CI was a first responder to a helicopter crash where he was exposed to a number of dead soldiers.  Since that incident, he experienced symptoms of PTSD; and was diagnosed and treated for that condition.  He did not respond to treatment adequately enough to meet the requirements of his Military Occupational Specialty.  He was issued a permanent S3 profile and referred for a Medical Evaluation Board (MEB).  The PTSD condition was forwarded to the Informal Physical Evaluation Board (IPEB) IAW AR 40-501.  No other conditions were forwarded intermittent hypertension was identified by the MEB and adjudicated as not unfitting by the IPEB.  The IPEB adjudicated PTSD as unfitting, rated 30% with application of DoDI 1332.39, and placed the CI on Temporary Disability Retired List (TDRL).  The CI was reevaluated almost 10 months later, resulting in removal from TRDL by the IPEB with a 10% rating for PTSD.  The CI appealed to the Formal PEB that affirmed the IPEB’s finding and rating.  The CI was medically separated.

CI CONTENTION:  “I realized what it felt like to lose a fellow soldier in my arms, and my heart has not been the same since.  I still live day to day remembering and respecting those fallen soldiers I helped rescue.  I didn’t seek treatment after active duty which I regret.  Currently in treatment for PTSD at VAMC.”

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e. (2).  It is limited to those conditions determined by the PEB to be unfitting for continued military service and those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The rating for the unfitting PTSD condition is addressed below.  The not unfitting hypertension condition was not contended; and, thus is not within the DoDI 6040.44 defined purview of the Board.  Any condition or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Board for Correction of Military Records.

The Board acknowledges the CI’s information regarding the significant impairment with which his service connected PTSD condition continues to burden him; but, must emphasize that the Disability Evaluation System has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.

RATING COMPARISON:

Final Service FPEB - 20021115	VA* (STR used for Rating) - Effective 20020308	
On TDRL - 20011129	Code	Rating	Condition	Code	Rating	Exam	
Condition		TDRL	Sep.					
Posttraumatic Stress Disorder	9411	30%	10%	Posttraumatic Stress Disorder 	9411	50%**	STR	
No Additional MEB/PEB Entries	No Other Conditions	
Rating:  30%/10%	Rating: 50%	
* Derived from VA Rating Decision (VARD) dated 20020523 (most proximate to date of TDRL entry)
** Rating increased to 100% retroeffective to separation; STR (Service Treatment Records)

ANALYSIS SUMMARY:

Posttraumatic Stress Disorder.  The CI was doing well until 12 February 2001, when he was tasked with recovering dog tags from the bodies of victims killed in a helicopter crash.  Within a few days, he began to be plagued by constant intrusive memories, flashbacks, sleep deprivation due to nightmares, hypervigilance, social isolation, exaggerated startle response and anhedonia.  He also began to reduce important activities, found himself frequently angry, experienced low energy and had trouble making plans.  Within 2 weeks after the event, he sought help at the mental health clinic and began a course of psychotherapy with a trial of anti-depressant medication.  The medication was discontinued after he experienced worsening of a number of his symptoms.  The CI showed some improvement of symptoms over a period of several months and also was helped by some limitations in his duty provided by the unit.  In early September, he was still symptomatic and experienced an exacerbation in his symptoms after the terrorist events of 11 September 2001.  His unit realized that he was not able to fully perform his duty and he was referred for a higher level of care for his PTSD.  The narrative summary (NARSUM) prepared a month prior to TDRL entry noted the CI appeared to be somewhat sad and slightly anxious.  His mood was mildly depressed and his affect was somewhat constricted.  His thought processes were linear and the content revealed the presence of symptoms noted above.  The diagnosis was chronic PTSD, with definite impairment for social and occupational adaptability.  His Global Assessment of Functioning (GAF) was 50, consistent with serious signs or symptoms.  The psychiatrist stated that the CI was not able to perform field duty, not handling or firing weapons and was restricted to a low-stress office environment.  He continued to have great difficulty experiencing enjoyment with any kind of recreational activity and found it very difficult to spend time with others.  He had actively pursued treatment with some benefit; however, the events of 11 September had resulted in a worsening of his condition.

The Board directs attention to its TDRL entry rating recommendation based on the above evidence.  The IPEB applied Veterans Affairs Schedule for Rating Disabilities (VASRD) code 9411, PTSD, and rated the condition at 30% disabling and placed the CI on TDRL.  The VA utilized the same data and applied the same 9411 code, but rated the PTSD at 50%.  The STR does not document the presence of flattened affect, speech impairment, judgment or memory problems, or panic attacks that result in the occupational and social impairment.  The CI’s GAF was consistent with serious symptoms; however, the documentation contained in the STR did not support a 70% rating at the time of TDRL entry.  All members agreed that the §4.130 criteria for a TDRL rating higher than 50% at the time of placement on TDRL were not met.  Therefore the minimum 50% TDRL rating prescribed by §4.129 is applicable.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 50% for the PTSD condition at TDRL entry.

On 5 September 2002, almost 10 months after TDRL entry, the CI was reevaluated by a psychiatrist in preparation for his first TDRL review.  There are several entries in the STR made between the TDRL entry date and 5 September that portray continuing PTSD symptoms with failed medication trials (due to side effects) and hints at reluctant participation in psychotherapeutic treatment.  The 10-month post-TDRL entry NARSUM documents ongoing symptoms consistent with PTSD.  Namely, recurrent flashbacks and nightmares, avoidance of people and places with diminished participation in pleasurable activity and ongoing hypervigilance with periodic startle responses.  AII of these symptoms caused him to only be able to work for a week at a car wash since leaving the Army.  He quit because he felt too overwhelmed.  He had started school on a part-time basis, but felt like that was too much as he must be around people.  His sleep averaged 3-6 hours at best.  He lived alone and had little contact with others.  He failed to continue outpatient VA mental health care for fear of bringing up traumatizing material.  His prior bad experiences with medication made him reluctant to retry that option as well.  The mental status exam revealed linear and goal directed thought processes.  He denied suicidal or homicidal ideation.  His mood was "ok" and his affect was mildly blunted.  Insight, judgment, concentration and memory were normal.  His GAF was 55.

The Board directs attention to its TDRL exit/separation rating recommendation based on the above evidence.  The PEB adjudicated the PTSD as 10% disabling at the time of permanent separation.  The PEB document contained the following statement, “This case was adjudicated IAW DoDI 1332.39, para 6.1.3 which provides for a reduced rating for medical non-compliance.”  In accordance with DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the PDBR to the extent they were inconsistent with the VASRD in effect at the time of the adjudication.  Additionally, non-compliance imposes a significant degree of speculation as to what potential benefit has been forfeited, and no quantifiable deduction is possible or reasonable.  Since there was no Service or VA outpatient evidence proximate to the date of permanent separation, the Board relied heavily on the TDRL evaluation dated 5 September 2002 (10 months after TDRL entry and 3 months prior to final separation) to assess the degree of disability relevant to permanent rating.  That NARSUM documents that the CI was still manifesting the symptoms of PTSD, was only able to work for a week at a car wash and was socially isolated.  He still did not have the flattened affect, speech impairment, judgment or memory problems, or panic attacks identified by the general rating formula for mental disorders for a 50% rating; although he did have occupational and social impairment with reduced reliability and productivity.  His GAF was 55, still consistent with serious signs or symptoms.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a permanent disability rating of 30% for the PTSD condition.

BOARD FINDINGS:  IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication.  As discussed above, PEB reliance on DoDI 1332.39 for rating PTSD was operant in this case and the condition was adjudicated independently of that instruction by the Board.  In the matter of the PTSD condition, the Board unanimously recommends a disability rating of 50%, coded 9411 IAW VASRD §4.129 at TDRL entry.  By a 2:1 vote, the Board recommends a disability rating of 30%, coded 9411 IAW VASRD §4.130 at permanent separation.  The single voter of dissent, who recommended a 50% rating at permanent separation, elected not to submit a minority opinion.

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
Posttraumatic Stress Disorder	9411	50%	30%	
COMBINED	50%	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130502, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

SFMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 
for XXXXXXXXXXXXXXXXXXXXXXX, AR20130021829 (PD201300216)

1.  Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to  constructively place the individual on the Temporary Disability Retired List (TDRL) at 
50% disability rather than 30% for the period 8 March 2002 to 16 December 2002 and and then following this period recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 30%.

2.  I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum:

	a.  Providing a correction to the individual’s separation document showing that the individual was separated by reason of temporary disability effective the date of the original medical separation for disability with severance pay.

	b.  Providing orders showing that the individual was retired with permanent disability effective the day following the TDRL period.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will account for recoupment of severance pay, provide 50% retired pay for the constructive temporary disability retired period effective the date of the individual’s original medical separation and then payment of permanent disability retired pay at 30% effective the day following the constructive TDRL period.  

	d.  Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.

3.  I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have 

shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures.

BY ORDER OF THE SECRETARY OF THE ARMY:

Encl