RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2013-01925
BRANCH OF SERVICE: Army 	SEPARATION DATE:  20051116

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-6 (Wheeled Vehicle Mechanic) medically separated for panic disorder.  The panic disorder 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 “panic disorder with mild agoraphobia,” was the only condition forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB adjudicated “panic disorder, with mild agoraphobia” as unfitting, rated 10%, with likely application of DoDI 1332.39.  The CI made no appeals and was medically separated. 

CI CONTENTION:  The applicant contends for a higher rating for his mental health conditions.  The applicant’s 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 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:    

Admin Corrected PEB - Dated 20051024	VA* - (~2 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
PANIC DISORDER, WITH MILD AGORAPHOBIA	9412	10%	PTSD, MDD, MODERATE, PANIC DISORDER WITH AGORAPHOBIA	9411	50%	20060123	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 4	
RATING:  10%	RATING: 60%	
*Derived from VA Rating Decision (VARD) dated 20060816 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

PANIC DISORDER, WITH MILD AGORAPHOBIA.  The DD Form 214 indicated the CI deployed to Iraq from January 2004 until June 2005; however, the record demonstrates that he was evacuated in March 2005 secondary to mental health issues.  The narrative summary (NARSUM) noted that the CI initially presented to behavioral health in February 2005 with the report of marital issues, problems with his commander, and thoughts of self-harm and of shooting his commander.  He also described symptoms of depression and panic attacks.  The CI reported he was present when the dining facility in Iraq was bombed.  He was the NCOIC of the casualty collection point in event of a mass casualty attack.  He recalled hearing a loud explosion and taking cover under his desk in an office about 100 meters away.  He heard people screaming over the radio.  He felt helpless and afraid.  When he went to the main casualty collection point, he “froze.”  He felt guilty; felt he should have done more.  He noted that prior to this experience he did feel stressed but was functioning okay.  He found the bombing a turning point.  He also was exposed to frequent mortar fire.  Additionally, he reported uncontrollable crying spells, intermittent sleeping difficulty and making a lot of mistakes at work because he could not concentrate.  He felt he could not control himself with his weapon, and after this was reported his weapon was removed.  He continued to express safety concerns and had frequent panic attacks with agoraphobia and some “PTSD-type symptoms” such as hypervigilance, intrusive recollections and flashbacks.  On one occasion he made superficial cuts on his forearms.  The CI was prescribed antidepressant medication (Zoloft) to address his depressive symptoms, and anxiolytic medication (Ativan) to control his panic attacks; although his PTSD-type symptoms improved, his anxiety and depression did not improve.  He had suicidal thoughts, and was referred to combat stress for 72-hour monitoring, and was ultimately evacuated.  While stateside, the CI continued with mental health (MH) treatment which included group sessions, various medication trials, and specific individual therapy aimed at reducing stress related to trauma exposure.  He attended the intensive outpatient program (IOP) from 30 March through 22 April and the discharge summary from that program documented staff witnessing 2 episodes of panic attacks.  He also had noted he could not stand in formation for fear of having a panic attack.  The CI also had significant problems with alcohol abuse and had described experiencing withdrawal symptoms.  At one point, he had gained a great deal of weight, which he attributed to the use of alcohol.  At the NARSUM dated 8 August 2005, the CI reported he had panic attacks twice a week, usually at night.  He noted he had them as frequent as 5-6 times a day.  He reported his panic attacks lasted about 5 minutes.  He also had variable moods and was irritable and short-tempered.  His sleep was not good without medications.  He found enjoyment in disc jockeying and playing music on his computer.  He had poor energy and was tired all the time.  Mental status examination (MSE) noted that his affect was anxious and irritable and his mood was described as anxious and moody.  There was no evidence of a formal thought disorder or psychosis.  The examiner noted that the CI was “fixated with getting out of the military as soon as possible.”  His memory and judgment was intact.  The psychiatrist diagnosed panic disorder with mild agoraphobia (he avoided activities which would involve being around crowded places), and opined impairment for further military duty is moderate and mild to moderate for social and industrial adaptability.  Alcohol abuse was also recorded on Axis I and cluster B personality traits was noted on Axis II.  A global assessment of functioning (GAF) score of 60 (borderline mild-moderate) was assessed, and the examiner noted his condition was stable and that his mood had improved despite “very heavy drinking.” It was also noted that the CI lacked motivation for continued service.   The examiner’s clinical recommendation was that he discontinued all alcohol use.

At the VA Compensation and Pension (C&P) mental examination, 2 months after separation, the CI noted he was still married and that his relationship with his wife had remained strained since his return from deployment.  He was not working but was planning to attend college.  He continued avoiding activities which involved crowds, and felt distant and did not socialize with others.  He continued with Zoloft and noted the response had been good, and he had not had any psychiatric inpatient treatment or emergency room visits.  The CI reported additional symptoms of feeling like his life will be shorter because of his experiences.  He also reported decreased interest, and feeling detached from others, sleep disturbance, irritability and anger outbursts.  Additionally, he had difficulty with concentration.  The CI reported he had panic attacks up to 10 times per month which lasted for 30 minutes.  MSE documented that the CI demonstrated intense distress at talking about his experiences, was tearful and anxious.  His affect was anxious and depressed; however, there was no history or evidence of delusions or hallucinations, and suicidal ideation was absent.  Homicidal ideation was absent and judgment was not impaired.  In addition to panic attacks with agoraphobia, the diagnoses of PTSD and MDD were recorded with a GAF of 50 (serious).  The examiner remarked that the CI “intermittently is unable to perform activities of daily living (but can provide self-care)” due to impaired energy and concentration, and was unable to establish and maintain effective work/school and social relationships due to his anxiety.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the condition of panic disorder with mild agoraphobia coded 9412 and assigned a 10% disability rating, noting that his condition “has been complicated by significant alcohol abuse and Axis II factors, requiring apportionment,” thus rated as mild industrial impairment.  This language indicated application of AR 635-40 and/or DODI 1332.39 [rescinded]) for rating the panic disorder with agoraphobia condition.  The VA assigned a rating of 50% for the condition of PTSD, MDD, and panic disorder with agoraphobia.  The PEB rating, as described above, was derived from DoDI 1332.39 and preceded the promulgation of the National Defense Authorization Act (NDAA) 2008 mandate for DoD adherence to Veterans’ Administration Schedule for Rating Disabilities (VASRD) §4.129.  The Board noted the PEB documented that 10A/C (combat-related) was awarded, and his condition was related to conflict in Iraq.  Therefore, all Board members agreed the provisions of §4.129 were applicable in this case.  The Board determined that the record in evidence did not support a rating higher than 50% for TDRL placement.  The next 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 constructive TDRL period demonstrated some impairment in occupational and social functioning; however, no documented evidence to support impairment in judgment or thinking, and no suicidal ideation in the 6 months before separation.  There were no psychiatric hospitalizations, no recorded visit to the emergency room (ER) for mental health issues; his MSE at the NARSUM documented findings that do not approach the 70% disability criteria.  The Board next determined the most appropriate fit with VASRD §4.130 criteria at the end of TDRL for its permanent rating recommendation.  The Board deliberated the evidence for the 50%, 30% and 10% disability rating.  The 50% disability rating requires evidence of “Occupational and social impairment with reduced reliability and productivity due to symptoms such as: flat affect, panic attacks more than once a week, difficulty in understanding complex commands, impaired short and long-term memory and impairment in judgment and thinking…”.  The Board noted the VA C&P exam was the sole source document in consideration.  That examination documented the CI continued with his medication, but was having intermittent difficulty performing some of his activities of daily living; however, he “…has no difficulty understanding commands,” and posed no threat to self or others.  Although it was stated that his intermittent difficulty with performance of activities of daily living was due to impaired energy and concentration, the CI was planning to attend a university.  The CI indicated his wife was supportive and had assisted him on occasion with his activities of daily living.  His MSE documented mild memory impairment and no impairment in judgment or thinking and suicidal ideation was absent. The Board also considered the absence of psychiatric hospitalizations and legal issues, and although the CI reported up to 20 panic attacks per month, there were no visits to the emergency room.  Board members agreed, the 50 % level of disability was not sufficiently supported by the evidence.  The Board also agreed at the time of permanent separation, the 10% disability level criteria did not adequately reflect his condition.  After careful deliberation, Board members agreed that evidence best reflected the 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 the condition of panic disorder with agoraphobia.

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 AR 635-40 and the likely application of 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 Panic Disorder with mild Agoraphobia condition, the Board unanimously recommends an initial TDRL rating of 50% in retroactive compliance with VASRD §4.129 as DOD directed; and a 30% permanent rating 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 placement on the TDRL with a disability rating of 50% for a period of 6 months (IAW §4.129), and then permanent disability retirement as indicated below, effective as of the date of his prior medical separation:  

CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
Panic Disorder with Agoraphobia	9412	50%	30%	
RATING	50%	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131023, 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, AR20150018454 (PD201301925)

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