RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01127
BRANCH OF SERVICE:  Army	BOARD DATE:  20150508
SEPARATION DATE:  20061128

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 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 PTSD condition, characterized as “posttraumatic stress disorder, chronic…” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded two other conditions (back pain and left ankle arthropathy).  No other conditions were submitted by the MEB.  The PEB adjudicated the PTSD condition as unfitting, rated 10%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Permanent disability resulted from combat related injury.”

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:

IPEB – Dated 20061004 	VA* – ~3 Mos. Pre-Separation   	
Condition	Code	Rating	Condition	Code	Rating	Exam	
PTSD	9411	10% 	PTSD	9411	50%	20060818	
Back Pain	Not Unfitting	Lumbar Disk at L3-4, L4-5, and L5-S1	5243	0%	20060818	
Left Ankle Athropathy	Not Unfitting	Left Ankle Arthropathy	5271	0%	20060818	
Other x 0 (Not In Scope)	Other x 6	
RATING:  10%	COMBINED: 60%	
*Derived from VA Rating Decision (VARD) dated 20070209 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

PTSD Condition.  The psychiatric narrative summary (NARSUM) noted the CI was deployed to Iraq in December 2005 and was evacuated to Germany in February 2006 due to back injury, shrapnel wounds to his body, hearing loss to his left ear from a rocket-propelled grenade (RPG) incident, as well as for some emotional issues.  While in Germany he was diagnosed with PTSD.  The CI received a Bronze Star for saving his squad leader after his Bradley Fighting Vehicle was hit by RPGs.  The NARSUM documented several incidents prior to his evacuation from theater that included a rollover incident that rendered him unconscious, another incident where he struck his face and nose on a 50-caliber machine gun, and involvement in a firefight.  The CI also reported he had discharged his weapon on numerous occasions and eliminated several enemy insurgents; he reported he received a Purple Heart as well.  While in Germany the CI reported he had problems with insomnia, flashbacks, hyper-arousability, and anxiety.  A treatment record dated 29 June 2006 recorded the diagnosis of acute stress disorder; this was the last documented mental health (MH) record during the CI’s stay in Germany.  The NARSUM dated 31 August 2006, noted the CI was first seen by the examiner in July 2006 and that he did not have a history of psychotic symptoms or suicidal or homicidal ideations.  The CI took antidepressant medication, medication for sleep, and an anxiolytic medication for anxiety.  His symptoms consisted of nightmares, intrusive recollections of the events in Iraq, sleep disturbance, and problems with concentration and attention.  The mental status examination (MSE) recorded a constricted affect and dysthymic mood; all other aspects were normal.  The examiner diagnosed PTSD, chronic, and assessed mild impairment for social and industrial adaptability and recorded a Global Assessment of Functioning (GAF) score of 60 (moderate).  The VARD dated 9 February 2007 documented there had been pre-discharge VA examinations in August and September 2006 and noted that the 21 September 2006 evaluation, recorded dysthymic mood and constricted affect, but otherwise normal MSE.  A GAF of 60 was documented.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% disability rating for PTSD, coded 9411.  The VA rated at 50% for the PTSD.  Additionally, the PEB noted that the PTSD was directly related to armed conflict in Iraq.  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 the Temporary Disability Retired List (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 prior to the constructive TDRL period recorded no psychiatric hospitalizations, no recorded visit to the emergency room for MH issues, and no evidence of impairment in judgment or thinking.  His MSE at the NARSUM and VA exams was essentially normal without documentation of impairment in thinking or judgment.  The NARSUM examiner documented mild impairment, consistent with the 10% criteria.  The Board considered the record in evidence did not support a higher than 50% rating for TDRL placement.  The Board concluded there was insufficient reasonable doubt (IAW VASRD §4.3) for recommending a 70% TDRL placement rating.  The Board next determined its permanent rating recommendation for the most appropriate fit with VASRD §4.130 criteria at the end of the TDRL period.  The Board deliberated the evidence for the 50%, 30% and 10% disability ratings.  The 50% rating criteria requires evidence of occupational and social impairment with reduced reliability and productivity due to symptoms such as flattened affect, impairment in thinking and judgment, and panic attacks more than once a week.  The 30% rating requires evidence of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal) due to symptoms such as depressed mood, anxiety, panic attacks, chronic sleep impairment, and mild memory loss.  The NARSUM examination was the sole source document in evidence most proximal to separation.  The NARSUM recorded a mild degree of impairment for occupational functioning; however, it documented occasional difficulty with sleep, dysthymic mood, and a GAF of 60 (moderate).  The Board also noted the commander’s statement opined that as a result of his mental illness his unit was not able to use him in a productive manner; however, it also noted his physical impairments prevented him from fulfilling the requirements of his MOS.  After careful deliberation, Board members agreed that the totality of 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 PTSD.

Contended PEB Conditions (Back Pain and Left Ankle Arthropathy).  The Board’s main charge is to assess the fairness of the PEB’s determination that the back pain and the left ankle arthropathy were not unfitting.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The back pain and the left ankle conditions were not profiled or judged to fail retention standards.  All available records were reviewed and considered by the Board.  There was no performance-based evidence from the record that any of the contended conditions significantly interfered with satisfactory duty performance.  After due deliberation, and in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the back pain and left ankle arthropathy conditions and so no additional disability ratings are recommended.

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 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.  In the matter of the contended back pain and left ankle anthropathy conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.  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 was 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%:

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 20140305, 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, AR20150014195 (PD201401127)

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						     

CF: 
(  ) DoD PDBR
(  ) DVA