RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00069
BRANCH OF SERVICE:  Army	BOARD DATE:  20150311
SEPARATION DATE:  20070125

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard E-4 (Bradley Mechanic) medically separated for posttraumatic stress disorder (PTSD).  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  He was issued a permanent S4 profile and referred for a Medical Evaluation Board (MEB).  The PTSD condition was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  Three other conditions (low back pain, knee pain, and headaches) were submitted by the MEB.  The Informal PEB adjudicated “PTSD,” as unfitting, rated 10%, with likely application of AR 635-40.  The remaining conditions were determined to meet medical retention standards.  The CI made no appeals and was medically separated.

CI CONTENTION:  “I believe it should be higher due to flashbacks, nightmares, night tremors, anger, anxiety, cannot be in crowded places and things haven’t gone away.  Some have gotten worse so obviously I will have them forever.  Friends and family have witnessed this first hand and has taken a toll on them and our relationships.  I have trouble sleeping for fear of hurting my wife.  I also have tried to go to different meetings and support groups but it does not seem to help.  The reason I took the 10% even though I was advised against it was due to the conditions of care at Ft. Dix, N.J. at that time and was not allowed to be with my wife.”

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 20070108	VA* - (~7 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
PTSD	9411	10%	PTSD	9411	50%*	20080122	
Other x 3 (Not In Scope)	Other x 13 	
RATING:  10%	RATING:  70%	
*Derived from VA Rating Decision (VARD) dated 20080605 (most proximate to date of separation [DOS]).  *Rating reduced to 30* effective on 20080116.

ANALYSIS SUMMARY:

Posttraumatic Stress Disorder (PTSD) Condition.  The psychiatric narrative summary (NARSUM) documented that the CI had self-referred to mental health (MH) in September 2006 due to symptoms suggestive of PTSD.  The CI had indicated he was exposed to traumatic incidents during his Iraqi deployment 2004- 2005.  He had been involved in an improvised explosive device ambush and mortar attack which killed six Soldiers.  After returning home in April 2005, he began to have symptoms of irritability, flashbacks, nightmares and intrusive thoughts of his combat experiences.  Prior to being mobilized in 2006 he had been irritable, punching holes in walls at home, and getting into arguments with his wife.  Service treatment records were not available for review; however, the NARSUM documented that the CI had been seen at Combat Stress Control in Iraq in 2005, possibly up to six times for counseling and medication management, and noted he had trials of antidepressants and stimulants.  He reportedly had received stimulant treatment during childhood for diagnosis of attention deficit hyperactivity disorder (ADHD).  At the psychiatric NARSUM dated 22 November 2006, the examiner documented that after the CI returned from his 2004-2005 deployment, he was unable to sustain consistent employment except to work as a restaurant bartender and as a manager of an automobile detailing shop for several months prior to volunteering to redeploy.  Due to his symptoms and financial problems, his wife threatened divorce.  The CI reportedly had volunteered to return to Iraq “to ensure that others would come back ok this time,” but currently feared being unable to function in actual combat and failing others.  Mental status examination (MSE) documented a visibly anxious CI with facial flushing, and sweating visible on the forehead and on the palms of his hand.  He was noticeably fidgety, and at times he had mild stuttered speech.  He reported PTSD symptoms of nightmares, hyper-arousal, flashbacks, and avoidance reactions.  His mood was described as depressed and apprehensive with congruent affect.  He demonstrated guilt feelings related to ending his military career.  There was no evidence of psychosis, impairment in cognition, or judgment.  The psychiatrist diagnosed PTSD, chronic and alcohol abuse in remission, and ADHD, childhood onset.  A Global Assessment of Functioning (GAF) score of 50 (serious) was recorded and the physician opined his condition failed retention criteria and will require mental health care for stabilization of his condition.

The Commander’s letter, dated 13 December 2006 documented that the CI during mobilization training, had experienced “traumatic flashbacks” from his previous deployments, and was diagnosed with PTSD.  The commander noted that the CI reported traumatic incidents during the two times he was deployed; however, the last deployments appeared more traumatic as he “watched six of his comrades” die on Thanksgiving Day 2004.  The VA Compensation and Pension (C&P) mental examination, a year after separation in January 2008, noted the CI was re-activated in July 2006 and separated 5 months later for PTSD.  The examiner documented that the CI sought MH care in July 2007 and was provided refills for his medication.  He returned the following month for follow-up; however, had missed two subsequent scheduled appointments.  The CI had no history of psychiatric hospitalizations, or panic attacks, but continued to experience PTSD symptoms.  He noted he had become physically aggressive a couple of times, was irritable and had continued to hit and punch things.  He was working as the manager of his father’s lube shop, and anticipated that one day he would have a share of ownership in the business.  He had a couple of verbally aggressive incidents but was still able to function as the manager.  He had remained married, and indicated his long work hours had made it difficult for him to have other activities.  He spent his time off catching up on sleep.  The MSE was essentially normal except he was anxious, and had facial flushing.  He reported difficulty with concentration and short-term memory, opined to be secondary to ADHD and not PTSD.  The examiner assessed Axis I diagnoses of PTSD, chronic, alcohol abuse in remission, and ADHD, childhood onset; antisocial personality traits recorded on Axis II.  A GAF of 60 (Moderate) was assessed.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the condition of PTSD coded 9411 at 10% for “mild impact on social and industrial capabilities.”  The Board discussed whether the applications of 4.129 applied, and after considerable discussion, all Board members agreed that the preponderance of evidence supported that the provisions of §4.129 were applicable.  The CI had been an active service member for 4 years, then became a reservist, and was activated one year later.  During his 4 year of active duty, he was deployed twice, and during training activation, he became symptomatic.  He demonstrated PTSD symptoms during activation training, and there was no indication from the record in evidence that his PTSD was not the product of his prior deployment experiences.  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 a period of constructive 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 in the 12 months prior to constructive TDRL period recorded no psychiatric hospitalizations, no recorded panic attacks, no recorded visit to the emergency room for MH issues, and no evidence of impairment in judgment or thinking.  His MSE at the NARSUM demonstrated no impairment in thinking or judgment.  The Board considered the record in evidence did not support a higher than 50% rating for TDRL entry.  The Board concluded there was insufficient reasonable doubt (IAW VASRD §4.3) for recommending a 70% TDRL entry rating.  The Board next determined the most appropriate fit with VASRD §4.130 criteria at the removal of TDRL for its permanent rating recommendation.  The Board deliberated the evidence for the 30% versus 10% disability rating.  The 30% disability rating requires evidence of “Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational task.”  The Board noted the VA C&P examination was the only available evaluation conducted within a year of constructive TDRL.  That examination documented continued MH symptoms, two MH visits in the year after separation, an essentially normal MSE, no panic attacks, no psychiatric hospitalizations or visits to the emergency room for MH issues and no legal history.  The CI was working full-time and had not lost any significant time from work due to MH symptoms but had engaged in inappropriate behaviors in the workplace.  Although, the CI reportedly had little time to socialize, the examiner documented signs of moderate disruption of his social relationships due to PTSD, and opined that the CI had been able to function in his job in part because his father owned the business and had understood him.  His GAF was assessed at 60 (borderline moderate to mild).  The Board members concluded that the preponderance of evidence at the time of separation 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.

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 DODI 6130.2 or .3, Chapter 2, for rating PTSD was operant in this case and the condition was adjudicated independently of that policy/ instruction by this Board.  In the matter of the PTSD 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 that the applicant be 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	9411	50%	30%	
	COMBINED	50%	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131219, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXX 
President 
DoD Physical Disability Board of Review

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, AR20150012768 (PD201400069)

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:

Encl						     XXXXXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						         (Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA