RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	 	CASE:  PD-2013-00562
BRANCH OF SERVICE:  ARMY		BOARD DATE:  20140819
SEPARATION DATE:  20070617

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (25B/Information Technology Specialist) medically separated for anxiety disorder, not otherwise specified (NOS).  The condition could not be adequately rehabilitated to meet the requirements of her Military Occupational Specialty.  She was issued a permanent L2/S3 profile and referred for a Medical Evaluation Board (MEB).  The anxiety disorder NOS condition was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded four other conditions (lumbago, common migraine, chronic constipation and placenta previa) for PEB adjudication.  The Informal PEB adjudicated anxiety disorder NOS as unfitting and rated it at 10%.  The remaining conditions were determined to be not unfitting and were not rated.  The CI made no appeals and was medically separated.

CI CONTENTION:  “The VA awarded a combination of 90% for the following: right shoulder (dominant) 10%, cervical strain 10%, low back 40%, irritable bowel syndrome 10%, migraines 30%, Anxiety w/ Post traumatic stress disorder and insomnia 50%.”

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 applicant.  The ratings for conditions meeting the above criteria are addressed below.  In addition, the Secretary of Defense directed a comprehensive review of Service members with certain mental health conditions referred to a disability evaluation process between 11 September 2001 and 30 April 2012 that were changed or eliminated during that process.  The applicant was notified that he may meet the inclusion criteria of the Mental Health Review Terms of Reference.  The mental health condition was reviewed regarding diagnosis change, fitness determination and rating in accordance with VASRD §4.129 and §4.130.  Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, may be eligible for future consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Service IPEB – Dated 20070417	VA - (1.5 Mos. Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Anxiety Disorder NOS	9413	10%	Anxiety Disorder with Insomnia	9413	0%	20070504	
Chronic Constipation	Not Unfitting	Irritable Bowel Syndrome w/Constipation	7319	10%	20070504	
Common Migraine	Not Unfitting	Migraine Headaches	8100	0%	20070504	
Other x 2 (Not in Scope)	Other x 4	20070504 	
Combined:  10%	Combined:  30%	
Derived from VA Rating Decision (VARD) dated 20070726 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Anxiety Disorder NOS Condition.  The psychiatric narrative summary (NARSUM) noted the CI deployed to Iraq from March 2004-March 2005 and first sought MH care on 6 October 2005.  The NARSUM recorded at that visit, the CI noted she was not engaged in fire-fights or combat (not among record in evidence).  She reportedly related depressed mood, anxiety and fear while driving, social withdrawal from crowds, sleep disturbance and thoughts about events she witnessed during the deployment.  Her symptoms of agitation and poor sleep begun in Iraq, and she reportedly denied symptoms of hypervigilance, hyperarousal, nightmares, avoidance or numbing.  The CI had not fired her weapon and denied witnessing friends that were wounded or killed in action.  The NARSUM psychiatrist noted the CI was seen a year later in October 2006 for major depression disorder (MDD).  The therapist summary memorandum, dated 20 December 2006, noted the CI had reported symptoms of insomnia, nightmares, chest pain and panic attacks.  No details were provided; however, the therapist noted the CI scored high on the depression scale.  There was no recorded diagnosis.  The memo also noted the CI had been distressed regarding her mother’s long bout with cancer.  On 9 January 2007, a social worker prepared a letter “To whom it may concern” that indicated the CI had been in treatment with the social worker since October 2006, was seen regularly and had multiple symptoms of posttraumatic stress disorder (PTSD).  The social worker stated the CI had been exposed to “many potentially life threatening situations” while in Iraq and after her return from Iraq she had been involved in car accidents and had a miscarriage.  She felt intense fear and helplessness.  The social worker stated she had recurrent and intrusive recollection of events, distressing dreams, flashbacks, avoidance behaviors and detachment from former friends.  The CI also reportedly had symptoms of hypervigilance, irritability, difficulty concentrating, sleep disturbance and an exaggerated startle response.  The social worker did not record a diagnosis.  Treatment records were scarce.  At the psychiatric NARSUM dated 19 March 2007, approximately 3 months prior to separation, the physician noted the CI had received the diagnosis of MDD in October 2006 after she had a miscarriage and had reported guilt feelings related to her mother’s depression and breast cancer.  The CI reportedly stated she felt guilty and responsible for the miscarriage.  The CI received counseling and medication for her depressive symptoms.  The NARSUM psychiatrist noted the CI had been in care with the examiner and at the initial evaluation on 28 November 2006; the CI did not have symptoms consistent with PTSD.  The CI at that time reported auditory and visual hallucinations, persecutory delusions, pressured speech and noted she feared being alone.  Her reported symptoms prompted further evaluations and personality testing.  The examiner noted that psychological testing on 29 November 2006 indicated an exaggerated profile and the test results were deemed invalid.  The psychologist noted the CI’s responses had been “more extreme than those of people hospitalized for severe psychiatric problems.”  The psychiatrist noted the CI presented inconsistent report of symptoms at various times during treatment sessions with other mental health providers.  The first reported PTSD-related symptoms were recorded at the 11 December 2006 visit with the psychologist.  The examiner noted the CI reported two prior suicide attempts by overdose with pills; the first attempt was interrupted by her former boyfriend, she took an overdose (5 pills) in the second attempt.  The mental status examination (MSE) at the NARSUM was essentially normal except for dysphoric mood and congruent affect.  The diagnosis of anxiety disorder NOS was recorded and a Global Assessment of Functioning (GAF) of 70 (mild) was assessed.  The physician noted the diagnostic criteria for PTSD were not met, and opined the CI had mild social/industrial impairment that would likely completely resolve once separated from the military.  The examiner also noted the CI had provided three letters from NCOs who confirmed her emotional state of panic and anxiety during incidents in Iraq (§4.129).

The Board directs its attention to the rating recommendation based on the evidence just described.  The PEB rated the condition of anxiety disorder NOS, coded 9413, at 10%.  The VA rated the condition of anxiety disorder, coded 9434, at 0%, and indicated the rating was based on a 5 June 2007 mental examination that recorded the condition was in full remission.  The VA in a 2008 decision determined that the condition was the result of a highly stressful event and awarded a 50% evaluation under VASRD §4.129, retroactively.  The VA mental examination in 2008 resulted in an award of 30%.  The Board reviewed the records for evidence of inappropriate changes in diagnosis of the MH condition during processing through the military DES.  The evidence of the available records showed the diagnoses of anxiety disorder NOS and depression were rendered.  The Board determined that an MH diagnosis was eliminated in the disability evaluation process.  This applicant therefore did appear to meet the inclusion criteria in the Terms of Reference of the MH Review Project.  The Board acknowledged that the CI had a treatment history of depression; however, the records clearly demonstrated, at the time of separation, full diagnostic criteria for MDD were not met and the exclusion of depression from the MEB was appropriate and therefore, the Board concluded, the appropriate diagnosis for her reported symptoms was anxiety disorder NOS.  The Board noted the diagnosis of depression was listed on the MEB physical DD Form 2808.  The Board noted the CI presented letters from NCOs mentioned in the NARSUM.  The letters verified her anxiety symptoms were present during deployment.  

The Board in compliance with  the provisions of VASRD §4.129 (mental disorders due to traumatic stress) thus noted the provision was applicable in this case and therefore, must assign a disability rating of not less than 50% for an initial period of 6 months following separation, with subsequent fitness and ratings based on the applicable evidence.  The Board considered if there was evidence for a §4.130 rating higher than 50% at the time of separation (presumed Temporary Disability Retired List [TDRL] entry).  The MSE at the NARSUM was essentially normal and the GAF was 70.  There was no evidence in the record of recurrent suicidal behaviors, no visits to the emergency room (ER) for MH treatment, no recurrent psychiatric hospitalizations and no impairment in thinking, or judgment.  The Board concluded the record in evidence did not support a higher than 50% rating at TDRL entry (presumed) and there was insufficient reasonable doubt (IAW VASRD §4.3) for recommending a 70% TDRL entry rating.  The Board next considered the rating at the time of permanent separation.  The Board noted the VA Compensation and Pension mental examination was the only examination available to consider post-separation.  At that examination dated 25 April 2008, approximately 10 months after separation, the CI reported her medication had been helpful, she had worked in the customer service area in the months after separation, was terminated due to “not good to customers.”  The examiner indicated the criteria for PTSD were not met and determined there was no Axis I diagnosis.  A GAF of 75 (minimal, transient, and no more than slight impairment) was recorded, and the examiner stated it was difficult to identify an accurate GAF score “given the level of over-reporting of symptoms.”  The CI had no legal history of violence; there were no visits to the ER for MH issues, no evidence of reported suicidal or homicidal thoughts, or behaviors and no clear evidence of social impairment.  Although she reported limited social interactions and activities, there was insufficient evidence to suggest the reported limitations were the result of the anxiety condition.  The 10% description, “occupational and social impairment due to mild or transient symptoms which decrease work efficiency only during periods of significant stress, or; symptoms controlled by continuous medication,” more accurately reflects the CI’s condition at the time of separation, and following the presumed TDRL period.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that the application of VASRD §4.129 was applicable in this case.  The Board further concluded that there was insufficient cause to recommend a change in the PEB adjudication of the applicant’s permanent separation rating of 10% for the MH conditions.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the conditions of common migraine and chronic constipation were not unfitting.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  These conditions were not profiled or implicated in the commander’s statement and were not judged to fail retention standards.  All were reviewed by the action officer and considered by the Board.  There was no performance-based evidence from the record that any of these conditions significantly interfered with satisfactory duty performance.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for any of the above noted contended conditions.

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.  The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised.  In the matter of the anxiety disorder NOS condition, the Board recommends a disability rating of 50%, coded 9413 IAW VASRD §4.129, followed by a final rating of 10% IAW VASRD §4.130.  In the matter of the contended common migraine and chronic constipation conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board recommends that no change in the applicant’s unfitting condition diagnosis, and that his prior separation be modified to reflect that the applicant was placed on the TDRL at 50% for a period of 6 months (at minimum 50% IAW §4.129 and DoD direction) and then permanently separated with severance pay by reason of physical disability with a final 10% rating as indicated below.

UNFITTING CONDITION	VASRD CODE	TDRL RATING	PERMANENT
RATING	
Anxiety Disorder NOS	9413	50%	10%	
	COMBINED	50%	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130507, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

				

SAMR-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 XXXXXXXXXXXXXXX, AR20140018678 (PD201300562)

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 for six months effective the date of the individual’s original medical separation for disability with severance pay and then following this six month period no recharacterization of the individual’s separation or modification of the permanent disability rating of 10%.

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 as follows:

	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 separated with a permanent combined rating of 10% effective the day following the six month TDRL period with no recharacterization of the individual’s separation.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will provide 50% retired pay for the constructive temporary disability retired six month period effective the date of the individual’s original medical separation and adjusting severance pay as necessary to account for the additional TDRL time in service.

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						     

CF: 
(  ) DoD PDBR
(  ) DVA