RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	    CASE:  PD-2014-00699
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20071122

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Infantryman) medically separated for anxiety disorder.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  He was issued a permanent H2 S3 profile and referred for a Medical Evaluation Board (MEB).  The “anxiety disorder” and “depression” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition (high frequency hearing loss left ear) for PEB adjudication.  The Informal PEB adjudicated “anxiety disorder with elements of depression, which cannot be separately rated due to inter-mixed symptoms” as unfitting, rated 10%.  The remaining condition was determined to be not unfitting.  The CI made no appeals and was medically separated.  

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

Admin Corr IPEB – Dated 20070914	VA* - (~3 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Anxiety Disorder	9400	10%	Anxiety Disorder with Elements of Depression	9434-9400	50%**	20080214	
Other MEB/PEB Conditions x 1 (Not In Scope)	Other x 11	
RATING:  10%	RATING:  20%	
*Derived from VA Rating Decision (VARD) dated 20081009.  
**Original VARD dated 20080331 (most proximate to date of separation (DOS)) rated 9434-9400 “Not Service Connected” 

ANALYSIS SUMMARY:  

Anxiety Disorder.  Service treatment records (STR) indicate the CI deployed to Iraq from December 2005 to November 2006.  He reported multiple combat exposures that began shortly after his arrival.  After the violent death of a friend Soldier who had mentored him, he became “emotionally numb,” socially isolative, increasingly anxious and feared his own death.  He began pushing family and fiancé away. After redeployment, insomnia and nightmares increased.  He had anxiety attacks and reported depersonalization.  He had trouble controlling his anger and began abusing alcohol to sleep and handle his emotions.  He reported to Behavioral Health (BH) with report of sleep problems, nightmares, crying spells, hyperarousal and hypervigilance.  He was treated with individual therapy and medications.  He received a combat infantryman badge.

At the narrative summary (NARSUM), dated July 2007, the CI reported anxiety attacks, hyperarousal, hypervigilance, checking people’s hands for weapons, swerving to the middle of the road while driving if he sees something on the side of the road.  Nightmares and crying spells had decreased and sleep had improved. There were still some feelings of depersonalization, a foreshortened future, sense of doom, intrusive memories and avoidance.  He had good relationships with his parents and was married.  Mental Status exam (MSE) showed a depressed, anxious and irritable mood.  He denied suicidal/homicidal ideation or hallucinations.  Diagnoses of anxiety disorder and depression NOS were rendered with a Global Assessment of Functioning (GAF) of 55 (moderate impairment, symptoms.)  He received an S3 profile.  

The commander’s statement noted the CI had been conducting his job to standard until the death of his mentor, when sleep deprivation symptoms developed that hindered his ability to perform assigned duties.  Since treatment he showed improvement in his ability to perform his duties to standard.  He could not perform all the required tasks of his MOS and his profile allowed no access to firearms or ammunition and no assignments remote from definitive psychiatric care.  

At the VA Compensation and Pension (C&P) exam performed 3 months after separation, the CI reported significant improvement in symptoms through the latter half of 2007 and early 2008.  He was sleeping well with no nightmares, emotional numbing, avoidance, intrusive memories, or hypervigilance.  He could concentrate well and was not isolating or anxious and described himself as quite happy.  He was attending flight school and had nearly earned a private pilot’s license.  He had been working as a barista for one week and was getting along with peers, bosses and customers.  He liked to hike and was in contact with people and getting along with family members.  He had never been psychiatrically hospitalized or attempted suicide.  He was not taking any medications.  MSE was unremarkable.  Diagnosis of PTSD was rendered with a GAF of 80. 

The Board directed its 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 relevant to its recommendations in this case.  The clinical record provides enough evidence the CI’s condition arose as a result of highly stressful events that the Board agrees §4.129 is applicable.  The Board is therefore obligated to 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 the end of the constructional TDRL interval for its permanent rating recommendation.  

The Board next considered if 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 however that these criteria were not approached, and therefore a rating higher than 50% was not supported.

In regards to a recommendation at the time of removal from the constructional TDRL period, the most proximate source of comprehensive evidence in this case was the VA (C&P) examination performed 3 months after separation.  There was no relevant VA outpatient or civilian provider evidence providing psychiatric details during the 6-month interval.  Especially 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.  The Board considered if 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 CI himself noted significant improvement in symptoms.  He was attending flight school, working and was getting along well with supervisors and peers.  He described himself as happy and denied suicidal ideation and psychiatric hospitalizations.  The Board agreed that the 10% rating most accurately depicted the condition at the time of removal from the constructional six-month TDRL period.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a TDRL rating of 50% IAW §4.129, and permanent disability rating after removal from TDRL of 10% for the anxiety disorder condition.    

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.  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 DOD directed, and §4.130; and a 10% permanent rating at 6 months 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 a disability rating of 50% for the prescribed period of TDRL and upon final disposition no re-characterization of separation or modification of the disability rating previously assigned. 

UNFITTING CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
Anxiety Disorder	9400	50%	10%	
COMBINED	50%	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140129, 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 
(TAPD-ZB / XXXXX), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 
for XXXXXXXXXXXXXXXXXX, AR20160003054 (PD201400699)

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:

Enclosures

CF: 
(  ) DoD PDBR
(  ) DVA