RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-01467
BRANCH OF SERVICE:  Army	BOARD DATE:  20140327
SEPARATION DATE:  20080123

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (92Y/Supply Sergeant) medically separated for anxiety disorder, not otherwise specified (NOS).  The CI reportedly began experiencing problems in January 2006 while deployed after five members of his unit were killed.  He indicated he was responsible for handling their belongings.  Upon redeploying he sought treatment in April 2007 and was diagnosed with anxiety disorder NOS.  The CI had also reported migraine headaches since he was 5-years-old, but medication reportedly worked well for that condition.  Despite treatment, his conditions could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty (MOS).   He was issued a permanent P3/S3 profile and referred for a Medical Evaluation Board (MEB), which forwarded anxiety disorder NOS to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded four other conditions for PEB adjudication (see rating chart below).  The Informal PEB adjudicated anxiety disorder NOS as unfitting, rated 10%, with likely application of the VA Schedule for Rating Disabilities (VASRD), but the remaining conditions were determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “I was involuntarily discharged from the military.  I was rated 10% disabled within a year the VA increased my rating to 60%.  I was unaware I could have requested a review of my discharge.  I have believed that I was retired disability not discharged disability.  I did not know there was a difference.  If that would have been made clear I would have fought the discharge percentage.”

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 anxiety disorder, NOS condition is addressed below.  The migraine headaches (as part of 60% VA rating) were specified sufficiently in the application to meet the DoDI 6040.44 scope requirements and are accordingly addressed below.  The other not unfitting conditions of obstructive sleep apnea, costochondritis and right knee pain were not specifically contended and are therefore not in the scope of this board.  Any conditions 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.

RATING COMPARISON:

Service IPEB – Dated 20071211	VA - (3.5 - 4 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Anxiety Disorder, NOS 	9413	10%	Anxiety Disorder, NOS	9413	30%	20080531	
Migraine Headaches	Not Unfitting	Migraine Headaches, Severe	8100	30%	20080506	
Mild Obstructive Sleep Apnea	Not Unfitting	Sleep Apnea	6847	0%	20080506	
Costochondritis	Not Unfitting	NO VA ENTRY	
Right Knee Pain	Not Unfitting	Patellofemoral Pain Right Knee	5299-5261	0%	20080430	
No Additional MEB/PEB Entries	Other x 10	
Rating:  10%	Combined: 60%	
Derived from VA Rating Decision (VARD) dated 20081014.

ANALYSIS SUMMARY:  The Disability Evaluation System has neither the role nor authority to compensate members for later severity or complications of conditions that caused medical separation.  That role and authority is granted by Congress to the Department of Veterans Affairs (DVA), operating under a different set of laws.  The Board considers DVA evidence within 12 months only to the extent it reasonably reflects the disability at time of separation.  The Board acknowledges the CI’s implied contention for rating of his migraine headache condition.  Service disability compensation may only be offered for those conditions that cut short the member’s career.  Should the Board judge this contested condition was most likely incompatible with military service, a disability rating IAW the VASRD based on the degree of disability evidenced at separation, will be recommended.

Anxiety Disorder Condition.  The PEB rating preceded the promulgation of the National Defense Authorization Act 2008 mandate for DoD adherence to the VASRD §4.129.  The Board, IAW DoDI 6040.44 and DoD guidance (which applies current VASRD §4.129 to all Board cases as appropriate), must consider whether the definition of §4.129 is met for any psychiatric condition resulting in medical separation, i.e., “a mental disorder that develops in service as a result of a highly stressful event.”  If the Board judges that application of §4.129 is appropriate, it will recommend a minimum 50% rating for a retroactive 6-month period on the Temporary Disability Retired List (TDRL).  The Board must then determine the most appropriate fit with VASRD 4.130 criteria at 6 months for its permanent rating recommendation, based on evidence most probative for that time period.

According to the psychiatric narrative summary (NARSUM) examiner (3 months prior to separation) the CI’s supervisor voluntarily replaced him on a convoy on 5 January 2006 because the CI (per the supervisor) “needed a break.”  The CI knew all the soldiers killed in the vehicle that day and in addition to packing their belongings he also reportedly took pictures of the vehicle.  He developed insomnia after the event, but declined in-theater mental health (MH) support suggested by his commander and chaplain.  He was later exposed to indirect enemy fire and handled the property of another friend who was killed and then completed his one year deployment in November 2006.  The CI was first seen for MH care in April 2007 and anxiety disorder was diagnosed.  In the context of the death of his grandfather, his wife’s miscarriage and the stresses of the MEB process, the CI noted being more emotional and tearful at work.  The examiner reported ongoing apathy, difficulty being in crowds and disturbing memories of stressful military experiences (particularly the event in which his supervisor and colleagues were killed).  He also endorsed exaggerated startle response, anxiety, difficulty concentrating and avoidance.  Sleep disturbance was reported, but he was also beginning treatment for mild obstructive sleep apnea.  He was taking three psychotropic medications, at least one of which was for sleep.  The mental status exam (MSE) was remarkable for occasional tearfulness, especially when speaking of the death of his supervisor and colleagues.  The Axis I diagnosis was anxiety disorder NOS and a Global Assessment of Functioning (GAF) of 60 was assigned (connoting moderate symptoms or impairment).  The examiner opined that periods of more intense anxiety and mood lability would cause decreased work efficiency.  The commander’s statement on 17 October 2007 reported the CI’s duty performance since his arrival in April 2007 “has been superior.”  He was recognized by the Battalion Commander in October 2007 for “his diligence and hard work as Alpha Battery Supply Sergeant.”  There was no history of insubordination or disciplinary infractions.  The commander noted that “on one or two occasions over the past seven months” he had exhibited manifestations of his conditions that would prevent effective military service.  Examples of those manifestations were “outburst of emotion, headaches, and fatigue from lack of sleep and stress.”  The CI demonstrated the “ability to follow instructions and to perform multiple tasks simultaneously.”  Though the CI’s duty performance as a Supply Sergeant was stated to exceed the commander’s expectations, his inability to handle weapons severely limited his combat duties.  Relationships with peers and superiors were “not unlike any other Soldier in the Battery, except when he is overcome by his anxiety.”  The commander opined that the CI was fit for service in a different MOS.  The MEB NARSUM on 20 November 2007 (2 months prior to separation) noted that although he had been treated with psychotherapy and medication, the CI felt like he only made “about 10 to 20% improvement overall.”  He acknowledged less irritability, but continued experiencing disturbing dreams “I wouldn’t call them nightmares”.  He denied suicidal or homicidal thinking and there were no psychiatric hospitalizations.  The examiner noted the profile limited the work day to less than 12 hours and that a consistent sleep schedule was required.

At a general medical VA Compensation and Pension (C&P) exam on 6 May 2008, 3 months after separation, the CI stated he was taking only one medication “as needed” for headaches.  He worked as a contractor specializing in remodeling homes.  The examiner stated that “his business is taking him all the way between northern Oregon and central California.”  Leisure activities included golfing and reading.  At the MH VA C&P exam 4 months after separation, the CI reported continuing nightmares at varying intervals which began after his stressful deployment experience.  He reported less than four hours of sleep per night, but the examiner did not address sleep apnea or the use of treatment for it.  Encounters with combat Veterans would often trigger nightmares and intrusive memories.  He endorsed hyper-arousal, difficulty in crowds, excessive startle response and some irritability with others (which did not cause significant difficulties).  He denied most avoidance behavior.  Sad mood “at times” began while deployed but became much less frequent after return.  He maintained an interest in most previously enjoyed activities.  There was no history of violence, legal difficulty, suicidal thinking or hospitalization.  Current employment as a remodeling contractor was confirmed.  He had separated from his wife 4 months earlier but denied his irritability played any role in the separation.  It was not reported whether he was receiving ongoing psychotherapy.  An MSE noted a relaxed appearance and good mood, but he became tearful when speaking of his previous traumatic experience.  The remainder of the exam was normal.  The Axis I diagnoses were anxiety disorder NOS and major depression (single episode) in partial remission; the assigned GAF was 60.  The examiner noted any ongoing symptoms “do not appear to be significantly impairing.  He is able to hold down a job, and there is no evidence that his repeated marital difficulties are related in any way to these symptoms.”  Maintenance of an active support system and functioning as an excellent father were noted.  The examiner concluded that “he is not describing any significant vocational difficulties… symptoms are not severe enough to interfere with occupational and social functioning.”

The Board directs attention to its rating recommendation based on the above evidence.  The Board first deliberated whether the DoD mandate for application of VASRD §4.129, as previously elaborated, was applicable in this case.  The clinical record provides enough evidence the CI’s condition arose as a result of highly stressful events that the Board concluded §4.129 is applicable.  The Board therefore recommends a minimum 50% rating for a retroactive 6-month period on the TDRL.

The Board next considered whether a rating higher than 50% was warranted at the time of entry on the constructional TDRL period.  The next higher 70% rating requires “occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.”  Board members agreed these criteria were not approached, so a rating higher than 50% was not supported.

The Board then undertook to determine the most appropriate fit with VASRD §4.130 criteria at the end of the constructional TDRL interval for its permanent rating recommendation.  The most proximate source of comprehensive evidence in this case was the VA C&P examination that took place 4 months after separation.  There was no relevant VA outpatient or civilian provider evidence providing psychiatric details during the 6-month interval.  Since the C&P examination also reflects the stress of transition to civilian life, which is a core intent of §4.129, it carries the preponderance of probative value in the Board’s assessment of a fair permanent rating recommendation, though the service evaluations serve as useful reference points and retain relevant probative value.  The Board considered whether a rating higher than the 10% adjudicated by the PEB was justified.  The 10% rating specifies “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.”  The §4.130 criteria for the 30% rating are “occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.”  The commander’s statement portrayed occupational functioning prior to separation as being at most mildly impaired.  The Board considered that there were “one or two occasions over the past seven months” where symptoms (that weren’t necessarily only related to MH) created some occupational difficulty, that he could work up to a 12-hour duty day and that the commander considered the CI fit for service in a non-combat capacity.  While one or two 30% threshold symptoms were reported at the VA MH C&P exam and a GAF score suggested moderate symptoms or impairment, the examiner specifically stated there was no significant vocational difficulty or interference of symptoms with occupational or social functioning; Board members noted that this was in the context of taking no psychotropic medication.  This exam therefore described no evidence of the “intermittent periods of inability to perform occupational tasks” stipulation of the 30% rating.  The Board agreed the 10% rating most accurately depicted the condition at the time of removal from the constructive 6-month TDRL period.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a TDRL rating of 50% with permanent disability rating upon removal from TDRL of 10% for the anxiety disorder condition, coded 9413.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that migraine headaches 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.  The commander’s statement noted that “on one or two occasions over the past seven months” he (the CI) had exhibited manifestations of his conditions that would prevent effective military service.  One manifestation was “headache.”  The CI indicated on the separation exam that he was a “migraine sufferer (whole life).”  The examiner stated that migraines began in childhood, were now occurring 3-4 times per week and were controlled with headache medication.  The NARSUM examiner reported the CI’s migraines began at age five, and were occurring three times per week.  The CI stated that his single headache medicine “works well.”  The examiner concluded the condition did not fall below retention standards.  The migraine headache condition was not profiled.  This condition was reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that this condition 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 the contended condition of migraine headaches, so no additional disability rating is recommended.
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 prerogatives outside the VASRD were exercised.  In the matter of the anxiety disorder condition, the Board unanimously recommends an initial TDRL rating of 50% in retroactive compliance with VASRD §4.129, as directed by DoD and VASRD §4.130, and a 10% permanent rating at 6-months IAW VASRD §4.130.  In the matter of the contended migraine headaches condition, the Board unanimously recommends no change from the PEB determination as not unfitting.  There were no other conditions in the Board’s scope of review for consideration.

RECOMMENDATION:  The Board recommends that the CI’s disability determination be modified as follows, effective the date of medical separation:

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

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130919, 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, AR20150002997 (PD201301467)

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