RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01103
BRANCH OF SERVICE:  Army	BOARD DATE:  20150618
SEPARATION DATE:  20080819

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Chemical Operations Specialist) medically separated for an anxiety disorder.  The condition could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty, so he was issued a permanent S3 profile and referred for a Medical Evaluation Board (MEB).  The mental health (MH) condition, characterized as “posttraumatic stress disorder” (PTSD) was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition (history of stress fractures, left leg) for PEB adjudication.  The Informal PEB adjudicated “anxiety disorder” as unfitting, rated 10%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining condition was determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “His condition continues to worsen and negatively impact his daily activities.  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 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:

Service IPEB – Dated 20080502	VA - (2 Wks Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Anxiety Disorder…	9499-9413	10%	Posttraumatic Stress Disorder	9411	50%	20080902	
Other x 1 (Not in Scope)	Other x 6		
Rating:  10%	Combined:  50%	
*Derived from VA Rating Decision (VARD) dated 20080912 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:

Mental Health Condition.  Service treatment records show the CI deployed to Iraq twice as convoy security: October 2003-April 2004 and March 2005-February 2006.  At the Post-Deployment Health Assessment (PDHA), dated March 2004, the CI reported he had not seen people wounded, killed or dead during the deployment had not engaged in direct combat where he discharged his weapon, and had not felt in great danger of being killed.  He denied nightmares, avoidance, hypervigilance, feelings of detachment from others.  At the PDHA following the second deployment, dated March 2006, the CI reported he had seen people wounded, killed or dead, had been engaged in direct combat where he discharged his weapon, and felt in great danger of being killed.  He denied nightmares, avoidance, hypervigilance, feelings of detachment from others, or depression but acknowledged he was having serious conflicts with his spouse or friends.  He did not plan to seek counseling for his MH.  However, he was command referred to Behavioral Health (BH) in April 2006 because he was found in possession of a personal fire arm he did not have a permit to carry.  There was marital conflict, and his wife had a restraining order out against him, and he reported drinking heavily.  He was diagnosed with alcohol dependence and partner relational problems.  On another PDHA, dated May 2006, the CI reported he was experiencing nightmares, avoidance, and hypervigilance in the past month and had been drinking more than he wanted to and desired to cut down.  He attended an Anger Control Group until July 2006.  In November 2007, the CI reported he had a flashback while driving and shot at another car, and was arrested for Assault.  A Record of Proceedings under Article 15, dated December 2007 reported the CI had assaulted his wife and another soldier and pointed a handgun at people on 11 November 2007.  He did not return for MH care until November 2007 when he reported decreased sleep, difficulty with concentration, low energy and irritability and was diagnosed with PTSD and alcohol dependence.  He was treated with individual therapy and medication management.  In February 2008, his commander expressed concern that he was making threatening statements about wanting to harm his wife and child.  He stated he did not remember making the statements and that he loved his family.  He received a S3 profile for PTSD, was not allowed to carry a weapon and was referred for a MEB.

A commander’s performance statement, dated 23 February 2008, noted the following: “The CI exhibited psychological conditions that would prevent him from continuing with military service.  His duty performance was steady but limited by treatment and appointments.  He performs with no more supervision required than any other soldier.  His performance before his current condition was exceptional based on accounts from Soldiers who knew him prior to his issue.  His MH (anxiety, depression and PTSD) make him unfit for service…”

An Addendum to the Medical Board, dated 19 March 2008, referenced a commander’s letter that was consistent with the CI’s reports.  During the first and second deployments, he was exposed to combat trauma.  During the second deployment he shot numerous insurgents, and was exposed to dead insurgents and U.S. soldiers.  The letter noted his performance deteriorated after November 2007.  Prior to the first deployment his performance was “considerably higher than that of his peers.”  A mental status examination noted no hallucinations, suicidal or homicidal ideations.  His mood was “frustrated.”  A diagnosis of PTSD was rendered with a Global Assessment of Function (GAF) score of 60 (moderate impairment, symptoms).

The narrative summary, dated 11 April 2008, was partially based on findings from the Addendum.  The summary noted insomnia was the CI’s primary symptom and that he denied other problems.  He was attending an anger management group, a PTSD group and was taking two anti-depression medications.  He was also performing administrative work in the pediatric clinic of the hospital while assigned to the Warrior Transition Unit.  The commander’s letter, dated 22 April 2008, noted that the CI could not work an 8 hour work day due to his chronic PTSD disorder.

At the VA Compensation and Pension (C&P) examination, dated 13 August 2008, (performed a week prior to separation), the CI reported he was irritable, screaming in his sleep, sweating, couldn’t sleep unless he took his medication, had mild depression, and did not feel attached to anyone or anything.  He felt his symptoms resulted from, “seeing all that death.”  He described his symptoms as constant and severe, saying “I’m lucky I haven’t hurt myself or others.”  He felt the symptoms definitely began after the second deployment.  He endorsed flashbacks and depression.  He said his peer relationships were decent.  He admitted to two gun charges and an assault and battery charge while he was stationed in Colorado.  A specific recollection of trauma was an improvised explosive disorder blast after which all he could find of a friend was his arm that was charred.  He spent most of his time doing physical exercise, going to appointments or staying home watching TV or getting on the internet.  Diagnosis of PTSD, approaching severe was rendered with a GAF of 58 (moderate impairment, symptoms.).

The Board directed attention to its rating recommendation based on the above evidence.  The MEB forwarded PTSD as not medically acceptable but the PEB adjudicated the condition as anxiety disorder at 10%, coded 9499-9413.  The PEB determined the PTSD diagnosis did not meet DSM IV criteria due to lack of stressor verification per history via post-deployment questionnaires.  The PEB also noted post-deployment partner relational difficulties and pre-military maladaptive behavioral problems, including alcohol over usage.  The VA rated PTSD, at 50%, coded 9411 based on the prior to separation VA examination.  The Board noted the CI did report on the PDHA questionnaire that he experienced multiple combat stressors after the second deployment and a commander’s statement later confirmed the CI’s report of combat exposure, suggesting that DSM IV criteria for PTSD was met.  There was no evidence in the record of alcoholism, domestic violence or partner-relational problems prior to deployment.  Regardless of final PEB diagnosis, §4.129 does not specify a diagnosis of PTSD, rather it states “mental disorder due to a highly stressful event,” and its application is not restricted to PTSD.  Therefore, the Board considered if application of VASRD §4.129 with a 6-month (50% minimum) period on the Temporary Disability Retired List was indicated in this case (per Board directive from DoD).  Board members agreed that the provisions of VASRD §4.129 were applicable in this case due to the combat experiences.  The Board next considered if a rating higher than 50% was warranted at the time of placement 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 a week prior to separation.  There was no relevant VA outpatient or civilian provider evidence providing psychiatric details during the 6-month interval.  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 §4.130 criteria for the 50% rating are “reduced reliability and productivity.”  The VA examination just prior to TDRL removal, documented significant depression, anxiety, and sleep impairment, representing a moderate level of impairment.  These threshold symptoms supported the 30% level IAW §4.130.  There was a command referred evaluation to BH and legal problems in the past year and the commander’s referenced a significant decline in performance since his deployment, consistent with a 50% disability rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a TDRL placement rating of 50% and permanent disability rating after removal from TDRL of 50% for the PTSD disorder condition, coded 9411.

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 placement rating of 50% in retroactive compliance with VASRD §4.129, as DoD directed, and §4.130; and a 50% permanent TDRL removal 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 as follows, effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE		RATING	
Posttraumatic Stress Disorder	9411	50%	50%	
COMBINED	50%	50%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140301, 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, AR20150015752 (PD201401103)

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 50%.

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 50% 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

2