RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2013-01872
BRANCH OF SERVICE:  Army	BOARD DATE:  20150604
SEPARATION DATE:  20040413

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated Reserve E-4 (Automated Logistical Specialist) medically separated for posttraumatic stress disorder (PTSD).  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  He was issued a permanent S3 profile and referred for a Medical Evaluation Board (MEB).  The “posttraumatic stress disorder” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated PTSD as unfitting rated 10%, citing criteria from AR 635-40.  The CI made no appeals and was medically separated.

CI CONTENTION:  “He was given a higher rating for his condition by the VA.  His complete submission is at Exhibit A.”

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 conditions 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/Naval 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:

IPEB – Dated 20040301	VA* - (~40 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Post-traumatic Stress Disorder	9411	10%	Post-traumatic Stress Disorder	9411	50%	20070810	
Other x 0 (Not in Scope)	Other x 1	
RATING:  10%	RATING:  50%	
*Derived from VA Rating Decision (VARD) dated 20071119 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:  The Board makes note that the VA Compensation and Pension (C&P) examination dated 10 August 2007 was not available in the evidence before it; and attempt at obtaining the relevant documentation would introduce additional delay in processing the case; and, it was judged by the members that the missing evidence would not materially alter the Board’s recommendations.

Posttraumatic Stress Disorder.  The psychiatric narrative summary (NARSUM) notes the CI reported treatment with anti-depressants while deployed for a provisional diagnosis of PTSD.  He reported symptoms of depression with weight loss, sleep problems, headaches, isolation, nightmares and flashbacks about deployment experiences.  He was medically evacuated from theater with a fractured wrist (26 June 2003) and returned to behavioral health when his medication ran out.  At that time the rule out PTSD diagnosis was continued and his medication was renewed.  Scant mental health (MH) treatment notes in the service treatment record indicated the CI was seen for anxiety and depression symptoms with anger and impulsivity issues.  He was tried on multiple antidepressants which were not beneficial.  

At the psych NARSUM examination performed on 25 November 2003, approximately 5 months prior to separation, the CI reported anxiety attacks and depression symptoms with nightmares and flashbacks.  He reported that he sought MH treatment during deployment because of poor job performance.  He noted he had recently not attended formation because he lacked the motivation and was disciplined with extra duty.  He reported drinking more since deployment (three to four beers), as a way of coping.  There was no formal mental status examination (MSE) documented but the examiner noted that the CI had a flat affect and continued to report lack of motivation, feeling “stressed out,” and flashbacks, but denied any “thought problems,” or suicidal/homicidal ideation (SI/HI).  The CI reported being diagnosed with attention deficit/hyperactivity disorder (ADHD) in childhood, treated with medication for a brief period of time, but denied any other prior MH treatment.  The Axis I diagnosis was PTSD with a Global Assessment of Functioning of 75 (minimal impairment range).  A treatment note dated 24 March 2004, after the psych NARSUM, noted a diagnosis of PTSD and medications for mood and nightmares and an atypical antipsychotic medication.  The commander’s statement indicated the CI was a good soldier but that his profile due to the PTSD diagnosis prohibited his reasonable performance of his duties.

The original VARD dated 19 November 2007 noted that private physician notes indicated treatment for PTSD since December 2006.  The earliest after separation VA outpatient MH notes in the record are from mid-2007 and indicate the CI was treated with anti-anxiety medications by a private physician prior to that.  At VA treatment visits the CI reported that he stopped drinking alcohol in 2005 but notes also documented ongoing cannabis use.  The CI reported ongoing panic symptoms, easy distractibility and impulsivity and exacerbation of depression symptoms.  He reported that he self-medicated with cannabis.  The VA psychiatrist diagnosed anxiety disorder, not otherwise specified (NOS), ADHD NOS, with rule out diagnoses of PTSD and bipolar disorder, and later, possible personality disorder.  Neuropsychological testing was performed on 4 October 2007 and the VA Clinical psychologist diagnosed ADHD and subthreshold PTSD with a Global Assessment of Functioning (GAF) of 51 (on the cusp between serious and moderate impairment).  He was engaged, then married, and was working in 2007, but was fired from one job.  A later note dated 8 April 2008 indicated that that the CI had six jobs in the last year and he reported being “miserable at work and feels like it is difficult to stay in one spot to get the job done.”

The initial, remote (approximately 40 months after separation) VA C&P PTSD examination dated 10 August 2007 is not in the records as noted above, but the original VARD noted the C&P examination MSE findings.  The CI was noted to be oriented with normal grooming.  Behavior was noted to be “grossly inappropriate,” with no further explanation.  Mood and affect were abnormal, with decreased concentration, without evidence of delusions, hallucinations, suspiciousness or panic attacks.  The CI reported paranoia and “hallucinations of combat during flashbacks.”  Obsessional rituals were absent.  Thought processes, memory, abstract thinking and judgment were all noted to be normal.  The examiner described the current impairment as “ reduced reliability and productivity” and noted a GAF of 44 (serious impairment range).

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated PTSD at 10%, and the remote VARD rated it 50%, both coded 9411.  The CI was medically separated for unfitting PTSD, documented by the Service to be the direct result of armed conflict.  The PEB rating was derived from DoDI 1332.39 and preceded the promulgation of the National Defense Authorization Act 2008 mandate for DoD adherence to VASRD §4.129.

The Board, IAW DoDI 6040.44 and DoD guidance (which applies current VASRD 4.129 to all Board cases as appropriate), agrees that the stipulations of §4.129 are met in this case; and,  thus recommends a minimum 50% PTSD rating for a retroactive 6-month period on the Temporary Disability Retired List (TDRL).  Members agreed that there was no evidence to support a rating higher than 50% at TDRL placement.  There was no documentation of symptoms typical of the 70% rating such as suicidal ideation, obsessional rituals, illogical speech, near continuous panic or depression, spatial disorientation, neglect of hygiene and inability to establish relationships.  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 placement.

The Board next engaged to determine the most appropriate rating IAW VASRD §4.130 criteria at 6 months for its permanent rating recommendation.  The most proximate source of comprehensive evidence on which to base the permanent rating recommendation in this case is the psychiatric NARSUM, 5 months prior to separation.  There was no relevant civilian provider or VA C&P or outpatient evidence providing psychiatric details during the 6-month interval, or even within the additional 12-month period defined by DoDI 6040.44 for special consideration to post-separation VA evidence in Board recommendations regarding the CI’s disability at the time of TDRL removal.  The remote VA evidence cited above is useful only insofar as it reflects back to disability at the time of TDRL removal.  In cases such as this, the Board must base its permanent rating recommendation on the evidence at separation, with consideration of information relevant to the TDRL removal time frame (6 months after separation) in the post-separation evidence.  The latter may impose a degree of speculation, and the Board must remain compliant with VASRD §4.3 (reasonable doubt) in its recommendations.

Board settled on deliberation of a 30% rating (occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks) versus a 10% rating (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) at TDRL removal.  The Board considered that at the psychiatric NARSUM the CI reported ongoing PTSD symptoms with anxiety attacks, not improved by psychotropic medication, which resulted in his missing formation once.  However, the commander’s statement indicated that the CI was a good soldier, but the profile limitations due to PTSD now limited where he could be assigned.  The psych NARSUM examiner indicated a GAF of 75 which is typically described as symptoms, if any, that are transient and expectable reactions to psychosocial stressors and are associated with no more than slight impairment in social and occupational functioning.  The available remote post-separation VA evidence supports this level of functioning at TDRL removal in that it indicates the CI, despite self-report of heavy drinking immediately after separation, first sought MH treatment 32 months after separation.  In the initial VA notes the CI reported that he had ceased drinking in 2005, apparently on his own, and was noted to be working and involved in a significant relationship.  

More remotely VA records indicate the CI was having difficulty maintaining employment but also note increased diagnostic uncertainty with confounding of the MH condition diagnosis from substance use and a reconfirmed ADHD diagnosis in addition.  The Board concluded that the evidence in record at TDRL removal most closely met the 10% rating and it would require undue speculation to assign a 30% rating within the 18-month post-separation time frame relevant to the Board’s TDRL removal rating recommendation.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the PTSD condition at TDRL removal.

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 policy by the Board.  In the matter of the PTSD condition, the Board unanimously recommends a disability determination as follows: TDRL at 50% for six months following applicant’s prior medical separation (PTSD at minimum of 50% IAW §4.129 and DoD direction) and then a permanent combined 10% disability separation, both coded 9411 IAW VASRD §4.130.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board unanimously recommends a disability determination as follows: TDRL at 50% for six months following applicant’s prior medical separation (PTSD at minimum of 50% IAW §4.129 and DoD direction) and then a permanent combined 10% disability separation as below:

CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
Posttraumatic Stress Disorder	9411	50%	10%	
RATING	50%	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130918, 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 XXXXXXXXXXXXXXXXXXXX, AR20150012507 (PD201301872)

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