RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01705
BRANCH OF SERVICE:  Army	BOARD DATE:  20141125
SEPARATION DATE:  20040225

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (67T/U-60 Helicopter Repairer) medically separated for a panic disorder.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  He was issued a permanent S4 profile and referred for a Medical Evaluation Board (MEB).  The condition, characterized as “panic disorder with agoraphobia (fear of places from which it is hard to escape or avoid embarrassment),” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The PEB adjudicated the condition (same nomenclature) as unfitting, rated at 10%, referencing Army Regulation (AR) 635-40 and citing criteria of Department of Defense Instruction (DoDI) 1332.39.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Please consider all conditions.”

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 those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The rating for the unfitting panic disorder is addressed below; and, no additional conditions are within the DoDI 6040.44 defined purview of the Board.  Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Service IPEB – Dated 2003119	VA - Effective 20100826 (6½ Years Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Panic Disorder With Agoraphobia	9412	10%	Panic Disorder with Agoraphobia	9412	10%	20101013	
Other x 0  (Not in Scope)	Other x 7 	
Combined:  10%	Combined:  20%	
Derived from VA Rating Decision (VARD) dated 20101229 (most proximate to date of separation)

ANALYSIS SUMMARY:  The Board notes that the earliest VA evaluation was over 6 years after the DOS.  DoDI 6040.44 provides for consideration of post-separation VA findings, particularly within 12 months of separation, although the Board’s recommendation is premised on the degree of disability at separation.  Therefore the evidence from the record was assigned the determinant probative value with respect to the Board’s recommendation.  The Board also acknowledges that the remote VA examination is missing from available records, but it was judged by the members that the additional delay in a possibly futile attempt to retrieve this evidence was unwarranted; given that its temporally marginal probative value would not significantly affect a recommendation premised on impairment at separation.

Panic Disorder.  Although the source records are not present in the available service treatment record (STR), the narrative summary (NARSUM) confirms that the CI first presented to mental health (MH) in June 2002 complaining of a 2-year history of frequent panic attacks associated with physiologic symptoms (diaphoresis [sweating], shortness of breath and chest pain).  According to the NARSUM, these symptoms were brought under control with medication (Zoloft) and, he was able to deploy to Kuwait in March 2003.  The earliest MH entries in the STRs document psychiatric screening in Kuwait in early May 2003, followed by prompt forward evacuation to Landstuhl and then redeployment to CONUS.  One of these providers documented a recurrence of anxiety symptoms soon after arriving in Kuwait with 10 to 25 minute episodes of “panics ... unprovoked ... in some situations (such as chow hall),” accompanied by physiologic symptoms “tachycardia, diaphoresis, tunnel vision, feelings of impending doom, shortness of breath, etc.”  A behavioral health consult 2 days after arrival to CONUS related that the CI believed he had been previously stabilized and that the problem was “no place to go be by myself to calm down in Kuwait.”  The examiner documented, “patient presents with no suicidal/homicidal ideation, or delusions, auditory/visual hallucinations.  Affect full range, mood euthymic (normal).”  There are no source MH records in evidence which document the CI’s progress and treatment over the ensuing 6 months prior to the NARSUM on 5 November 2003 or the subsequent 6-month interval between the NARSUM and separation.  The NARSUM details a course of medication adjustments and group therapy with “minimal improvement;” and, documents psychological testing (Minnesota multi-phasic personality inventory) which “indicated that the service member experienced significant anxiety, which is consistent with a diagnosis of panic disorder.”  There is no STR evidence of suicidal ideation or attempts, serious disciplinary or legal issues, alcohol/substance abuse or psychiatric crisis/hospitalization.

The NARSUM, in addition to providing the historical evidence as above, provided a good description of the CI’s “present status” as excerpted below:
Despite psychotherapeutic and psychopharmacological interventions, there has been only transient improvement in the service member's symptoms.  He continues to experience periodic panic attacks, which have increased in frequency since August 2002.  Despite the panic attacks, he has continued to work in his MOS.  This has been accomplished in the setting of the supportive environment afforded by his unit and with intensive outpatient mental health assistance.
The CI was prescribed a single medication (Lexapro) and was compliant with treatment.  The NARSUM mental status examination noted “slight psychomotor agitation” (fidgety) and a “mildly anxious” affect, but was otherwise normal.  There was no suicidal ideation, delusional or hallucinatory symptoms, speech disturbance, objective cognitive impairment or other abnormality.  The Global Assessment of Functioning assignment was 55 (moderate range of impairment).  The DoDI 1332.39-derived assessment of social and industrial impairment was “definite,” and assessment of military impairment was “severe.”  The Axis I diagnosis was “panic disorder with agoraphobia” as forwarded by the MEB.  The commander’s performance documented, “[CI’s] duty performance is satisfactory.  His psychological impairments prevent him from fulfilling the requirements of a 61T10.  His condition [prevents] this unit from utilizing him in a productive manner.”  As noted above, there was no temporally probative VA or other post-separation evidence in this case.

The Board directed attention to its recommendations based on the above evidence.  As noted above, the PEB’s 10% rating was derived from criteria of DoDI 1332.39 (E2.A1.5); and, with reference to the NARSUM assessment of same, the PEB’s DA Form 199 stated, “IAW AR 635-40, Appendix B-107, paragraph e, Soldier's impairment for social and industrial adaptability is more accurately described as mild, not definite.”  The Board first deliberated whether the VA Schedule for Rating Disabilities (VASRD) §4.129 (for any “mental disorder that develops in service as a result of a highly stressful event”) are applicable to this case.  
All members agreed that, although the panic disorder was exacerbated by the Kuwait deployment, it is clear that it pre-dated those stressors and that the condition did not result from them.

The Board thus turned to deliberation of a fair rating recommendation at the time of separation; this derived from criteria of VASRD §4.130 and based on the disability evidenced in the record at the time of separation.  Members agreed that VASRD §4.130 criteria for a 50% rating (“occupational and social impairment with reduced reliability and productivity,” and exampling acute features not in evidence) were not met.  Deliberations thus settled on recommendations for a 10% rating (“occupational and social impairment due to mild or transient symptoms which decrease work efficiency…only during periods of significant stress”) vs. a 30% rating (“occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks”).  The NARSUM excerpt makes clear that fairly severe and frequent panic attacks persisted at separation (and were possibly still worsening), and it may be fairly concluded that the CI’s condition was not fully controlled and stabilized.  Both the NARSUM and the commander’s statement confirm that, although he was able to function occupationally, the CI required accommodation to do so and could not function to full capacity.  This is difficult to reconcile with “mild or transient” symptoms as per the 10% description and easily satisfies the “occasional decrease in work efficiency” specified in the 30% description.  After due deliberation, considering all of the evidence and conceding VASRD §4.3 (reasonable doubt), the Board recommends a 30% rating for the panic disorder.

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 40-501 and DoDI 1332.39 rating was operant in this case; and, the psychiatric condition was adjudicated independently of that guidance by the Board.  In the matter of the Panic Disorder with Agoraphobia, the Board unanimously recommends a disability rating of 30%, coded 9412 IAW VASRD §4.130.  There were no other conditions within the Board’s scope of review for consideration.

The Board recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Panic Disorder with Agoraphobia	9412	30%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140421, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

XXXXXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXXXXX, AR20150008229 (PD201401705)

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 recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 30% effective the date of the individual’s original medical separation for disability with severance pay.  

2.  I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days form the date of this memorandum:

	a.  Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement 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 date of the original medical separation for disability with severance pay.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 30% effective the date of the original medical separation for disability with severance pay.

	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						     XXXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						          (Review Boards)
CF: 
(  ) DoD PDBR
(  ) DVA