RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2013-01428
BRANCH OF SERVICE:  Army	BOARD DATE:  20150520
SEPARATION DATE:  20041204

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Military Police) medically separated for mental health (MH) conditions.  These conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  He was issued a permanent S4 profile and referred for an Medical Evaluation Board (MEB).  Posttraumatic stress disorder (PTSD) and major depressive disorder (MDD), characterized as not meeting retention standards, were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB (IPEB) adjudicated PTSD associated with depressive disorder as unfitting, rated 10%, with likely application of the Department of Defense Instruction (DoDI) 1332.39.  The CI made no appeals, and was medically separated.

CI CONTENTION:  The applicant makes no specific contention in his application.  

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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any condition outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.

RATING COMPARISON:

Service IPEB – Dated 20040923	VA* – 9 Days and 1 Mo. Post-Separation, respectively	
Condition	Code	Rating	Condition	Code	Rating	Exam	
PTSD with MDD	9411	10%	PTSD with MDD	9411	30%	20041213
20050104	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 5	
RATING:  10%	RATING:  30%	
*Derived from VA Rating Decision (VARD) dated 20050210 (most proximate to date of separation (DOS)).

ANALYSIS SUMMARY:

PTSD with MDD.  The MEB narrative summary (NARSUM) documented a 1-year deployment to Iraq beginning February 2003.  In July 2003, the CI began to notice anxious feelings.  He had witnessed the death of a close friend and the wounding of another friend, both in the context of a mortar attack.  He felt helpless as he watched.  His father learned that a member of his unit was killed; 2 days later he died of a heart attack.  The CI noted that he believed his father assumed the soldier who died was him and the situation had caused feelings of guilt and responsibility for his father’s heart attack.  Although the CI remained deployed with anxiety he was able to perform his duties.  By February 2004, he reportedly felt exhausted from poor sleep, daily anxiety, and almost daily nightmares involving the death of the soldiers in his unit.  His symptoms intensified after returning from deployment to his base in Germany.  He developed an exaggerated startle response, flashbacks, and avoidance behaviors. The CI was first seen by mental health providers in June 2004 at which time he was recognized as being at risk for suicide.  On 9 July 2004, he was admitted to the hospital for the diagnoses of PTSD and MDD. One week later, he was evacuated from Germany to the United States to be admitted into the psychiatry unit.  Hospital discharge summary noted he was agitated at the time of admission, but was not suicidal, homicidal or psychotic.

The NARSUM dated 11 August 2004, 5 months before separation, documented the NARSUM examination occurred during the CI’s inpatient hospitalization in July 2005.  The mental status examination (MSE) documented the CI was cognitively intact and cooperative during the interview.  Eye contact was fair but he exhibited slight psychomotor agitation with repeat foot tapping.  His affect was restricted and mood was depressed.  His thought processes were linear and goal-directed.  His thought content consisted of combat memories without hallucination or evidence of thought disorder.  He was not suicidal or homicidal.  Judgment and insight were fair and estimated intelligence was average.  His time on the inpatient unit was without incident, and at discharge (1 week later) he was stable on medication and enrolled in a day treatment program.  The physician noted his PTSD had improved with treatment; however, due to the severity of his PTSD and MDD and his stressors, he was not likely to continue in his MOS and an MEB was recommended.  He was again assessed with chronic PTSD and severe MDD without psychotic features.  His global assessment of functioning (GAF) score documented on the discharge summary was 50 (serious).  The NARSUM documented a GAF of 40 (some impairment in reality testing).  The NARSUM also documented a 4-month history of decreased sleep, nightmares, and daytime flashbacks, increased startled response, and hypervigilance.  The CI reportedly noted at the time of his July hospitalization that his depressive symptoms worsened and included suicidal ideation with thoughts of using a gun on himself.  He noted a family history of depression and several psychosocial stressors within the past year.  In July 2003, he filed for divorce from a wife he had met in Germany and with whom he had a 3-year-old son.  He noted the relationship had turned hostile and marital therapy had failed.  He had lost his father and was still feeling guilty about that and he had witnessed the death of fellow soldiers.  Additionally, one soldier in his squad, who he was very close to, was killed in a motor vehicle accident while on leave.

During a social work examination 13 December 2004 the CI reported additional problems with irritability and anger outbursts.  He had a recent incident at work after another employee called him a baby killer; he had only been on the job for one week.  The CI noted that he was in a supportive relationship with a female and with members of her church; he lived with his mother and she was also supportive.  He found support at work as well.

The VA Compensation and Pension (C&P) mental evaluation, 4 January 2005, 1-month after separation, documented the CI continued with his medication and was still having difficulty with sleep, depression, and symptoms associated with depression.  His MSE recorded no impairment of thought processes, no evidence of psychosis, no suicidal or homicidal ideations, and an absence of panic attacks.  He was noted to be nervous and fidgety.  He reported continued PTSD symptoms, stated that all of his family members were afraid of him and that he had problems with anger management.  The diagnosis of PTSD was recorded and depression was not assessed.  A GAF of 51 (serious) was documented, and the examiner noted that the CI had employment conflict as a stressor (not described).

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the condition of chronic PTSD in partial remission, associated with a severe depressive disorder, without psychotic features, with code 9411 (PTSD) with a 10% disability rating.  Additionally, the PEB used language consistent with the criterion finding the soldier’s disability was the direct result of armed conflict and incurred in the line of duty during a period of war: “Soldier suffers from PTSD from constant combat from period of war February 2003 to February 2004.”  The VA awarded 30% for PTSD with MDD, coded 9411.  All Board members agreed the record clearly demonstrated that the provisions of §4.129 were applicable in this case.  Therefore, the Board in compliance with the provisions of VASRD §4.129 (mental disorders due to traumatic stress) must recommend placement of the CI on the Temporary Disability Retired List (TDRL) with a minimum rating of 50% IAW §4.129 with reassessment after 6 months. The higher 70% rating criteria requires evidence of “occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.”  Available treatment records prior to the constructive TDRL period recorded the CI’s psychiatric hospitalization in the months prior to separation; however at the time of constructive TDRL placement there was insufficient evidence of impairment in judgment or thinking.  His MSE at the NARSUM and VA exams was essentially normal without documentation of impairment in thinking or judgment. The NARSUM examiner documented marked impairment and assigned a GAF of 40; however, that GAF lacked internal consistency since the MSE found no impairment in reality testing.  The Board considered the record in evidence did not support a higher than 50% rating for TDRL placement. The Board concluded there was insufficient reasonable doubt (IAW VASRD §4.3) for recommending a 70% TDRL placement rating.

The Board next determined the permanent rating utilizing VASRD §4.130 MH rating criteria at the time of TDRL removal.  The Board deliberated the PEB’s 10% rating, “occupational and social impairment due to mild or transient symptoms which decrease work efficiency with symptoms controlled by continuous medication” versus a 30% rating for “occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks”.  The VA C&P examination dated 4 January 2005 which was 1-month after separation, was the only evidence available to rate the condition at TDRL removal. The CI’s occupational functioning included a 1-month employment history in a factory environment where in the first week of employment he had a verbal altercation with another employee.  The CI also reported deteriorating relationships with family members and he had difficulty with anger management.  His PTSD symptoms continued, he reported chronic sleep impairment but was also working 40 hours a week.  He had not been hospitalized since July 2004, and although his GAF was 51, his MSE was essentially normal.  Board members agreed that his MH symptoms were not transient or mild, and were not controlled by medication.  After careful deliberation, Board members agreed that the totality of evidence best reflected a 30% level of disability.  After due deliberation, and in consideration of all the evidence and VASRD §4.3 (reasonable doubt), the Board recommends a 30% permanent disability rating for PTSD with MDD.

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.  As discussed above, PEB likely reliance on the DoDI 1332.39 for rating PTSD with depression was operant in this case and the condition was adjudicated independently of that instruction by the Board.  In the matter of the posttraumatic stress disorder, associated with depressive disorder condition, the Board unanimously recommends a TDRL placement rating of 50% in retroactive compliance with VASRD §4.129 as DOD and VASRD directed; and a 30% permanent rating or TDRL removal IAW VASRD §4.130.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified to reflect that the applicant was placed on the TDRL at 50% for a period of 6 months IAW §4.129, and then permanently separated with severance pay by reason of physical disability with a final 
30% rating as indicated below.

UNFITTING CONDITION	VASRD CODE	TDRL RATING	PERMANENT
RATING	
Posttraumatic Stress Disorder with Major Depressive Disorder	9411	50%	30%	
	RATING	50%	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130912, 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 XXXXXXXXXXXXXXXXXXXXXX, AR20150018446 (PD201301428)

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 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 six month 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 six month 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 six month 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:

CF: 
(  ) DoD PDBR
(  ) DVA