RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02408
BRANCH OF SERVICE:  Army  	SEPARATION DATE:  20080109

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Special Electronic Device Repairer) medically separated for an anxiety disorder, not otherwise specified (NOS), condition.  The condition could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty (MOS).  He was issued a permanent S3 profile and referred for a Medical Evaluation Board (MEB).  The anxiety disorder NOS, condition, was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “anxiety disorder NOS,” as unfitting, rated 10%, citing criteria of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.  

CI CONTENTION:  The applicant requests consideration of all conditions 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 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 20071115	VA* - (~4 Mos. Pre-Separation)  -	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Anxiety Disorder, NOS	9413	10%	PTSD	9411	50%	20070924	
Other x 0 (Not In Scope)	Other x 2	
RATING:  10%	RATING:  60%	
*Derived from VA Rating Decision (VARD) dated 20080107 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

Anxiety Disorder, NOS Condition.  Service treatment records noted the applicant was deployed to Iraq from 16 November 2005 – 03 November 2006.  At a Post Deployment Health Assessment (PDHA) in October 2006, he denied seeing someone wounded, killed, or dead, but felt in great danger of being killed and denied nightmares, avoidance, hypervigilance, depression or detached feelings over the previous month.  He indicated he planned to seek counseling for his mental health.  He later reported traumatic exposures that included running over an Iraqi child in January 2006 and mortar attacks.  After his return he reported night terrors, confusion, numbness, and avoidance of crowds.  He walked into Mental Health (MH) clinic December 2006 with report of nightmares, hypervigilance in crowds and feeling like hurting the guy who was with his wife while he was in Iraq.  He received a diagnosis of anxiety disorder and was referred for outpatient counseling.  Follow-up notes dated 2 April 2007 indicated since March 2007, he was taking two medications for depression and one for sleep.  He was “much better, less anxious and less depressed.”  He was undergoing a divorce and custody battle from his wife.  He missed four MH follow up visits and case was closed 14 May 2007.  He then returned on 22 May 2007 to report his unit felt he was deployable and several 3822-R forms (Report of Behavioral health Evaluation for administrative discharge due to personality disorder/misconduct) were sent.  His mood was dysthymic and diagnoses of MDD and PTSD were noted. 

On the MEB DD Form 2807, Report of Medical History, dated 7 July 2007, the CI indicated he had anxiety/panic attacks, difficulty with sleep, memory loss, depression and counseling.  The profiling section of the DD Form 2808, Report of Medical Examination listed a diagnosis of PTSD and anxiety disorder and assigned an S3 profile.  The physician examiner was silent about the criteria in support of a PTSD diagnosis.  On the Report of Medical Assessment, dated 8 June 2007, the CI reported he had been hospitalized for 2-3 weeks due to PTSD.  He received a Global Assessment of Functioning (GAF) of 70 (mild impairment, symptoms) 24 July 2007 and a diagnosis of MDD.  He had a nightmare of Iraq the previous night and requested a statement from MH so that he did not have to go to work that day.  The social worker refused.  The commander’s statement, dated 25 July noted he was not mentally able to perform the duties of his MOS but was working within the battalion from hours ranging from 0600 to 1600 hours per day.  He did not have counseling for the past three months due to a special duty assignment.

The VA Compensation and Pension (C&P) exam, dated 24 September 2007, performed 3 months before separation, included an interview with the CI, a review of the claim file and medical records, including community mental health clinic records.  The CI reported anger, avoidance, and detachment, loss of interest, anxiety, sleep problems, increased startle response, and difficulty with concentration.  He reported to MH Clinic every 2 weeks for treatment and took a medication for sleep, a medication for depression, and two medications for anxiety 4-5 times per week.  He worked about 60 hours per week and planned to return to college and work part-time.  He talked to his parents and to his sister several times per week and had a girlfriend he saw every day.  He did outdoor and indoor chores.  He had two men friends with whom he ate and watched movies twice per week.  He read and watched television.  MSE was essentially unremarkable, with exception of a somewhat anxious affect and some decreased sleep.  A diagnosis of PTSD was rendered with a GAF score of 80 (absent or minimal symptoms).  He had occasional decrease in work efficiency and intermittent inability to perform occupational tasks.  The VARD assigned a disability rating of 50% for PTSD/Anxiety disorder.

At the Psychiatric narrative summary (NARSUM), dated 15 October 2007, the CI reported flashbacks daily, avoidance of reminders of Iraq, guilt about being alive and nightly nightmares at times. He cried a great deal when alone.  He was taking two psychotropic medications and a medicine for panic attacks 1-3 times per week.  He attended a weekly PTSD group.  He got along with his command and was on rear detachment.   He could wear his uniform to work and stay all day if no weapons were involved.  He cried during the mental status exam (MSE), appeared depressed, felt hopeless and expected a short life but denied suicidal ideation.  A diagnosis of anxiety disorder nos was rendered with a GAF of 45 (serious impairment, symptoms).  There was no evidence to support his claim of exposure to a traumatic event.  Impairment for military duty was marked and impairment for social and industrial adaptability was mild.  The psychiatry examiner noted the MEB had been written IAW PEB guidance in the diagnosis of PTSD.  The MEB forwarded a diagnosis of anxiety disorder, NOS and the PEB noted it was unfitting.  The CI concurred with the PEB findings.

The Board directed its attention to its rating recommendation based on the above evidence.  Disability associated with any psychiatric condition, regardless of the diagnosis or multiple diagnoses, is subsumed under a single rating using the same criteria IAW VASRD §4.130.  The PEB rated at the condition at 10%, coded 9413 (anxiety disorder), and the VA rated the condition at 50%, coded 9411 (PTSD), under the VASRD §4.130.  The service cited no evidence and no collateral contacts to support a relationship between the soldier’s symptoms and exposure to a traumatic event, psychiatric rating of social impairment as mild, and the CI working 0600-1600 hours daily as reason for the 10% rating.  The VA cited application of 4.129 as the basis for their rating.

The Board first considered if the definition of VASRD §4.129 was met for the unfitting MH condition resulting in medical separation; i.e., “a mental disorder that develops in service as a result of a highly stressful event.”  The Board members noted the CI initially denied seeing anyone killed, wounded or dead during deployment and referenced only marital difficulties during his first visit to the MH clinic.   The Board members agreed that although some contribution of service stressors to his MH condition was present, the overwhelming stressors stemmed from his marital/family difficulties (divorce, custody).  Therefore, the requisite §4.129 link that the condition occurred “as a result of a highly stressful event” was not adequately satisfied.  The Board therefore will consider only the VASRD §4.130 impairment present at separation for a single rating recommendation.  Members considered if there was evidence for a §4.130 rating higher than 10% at time of separation.  The §4.130 criteria for a 10% rating is “Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication.”  A 30% rating requires “occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks.”

Board deliberations centered on the discrepancy between the minimal social and occupational impairment/mental health symptoms documented by the C&P evidence and the significant impairment/symptoms documented in the NARSUM evidence.  The pre-separation evidence contained a C&P exam that documented a GAF of 80.  While the applicant reported symptoms of anxiety, sleep impairment and depression, he was working 60 hours per week, reporting to MH clinic bi-weekly and taking medication.  Although he reported the symptoms of detachment, he had plans for college, had good relationships with family and friends, had daily contact with his girlfriend, and had several interests and activities.  MSE noted no distress and few symptoms. The examiner noted a review of all medical records to date and did not cite evidence of a 2-3 week hospitalization for PTSD, which the applicant had reported on his Medical Assessment in 2007.  Three weeks after the C&P exam, the NARSUM exam documented a GAF of 45.  Although the applicant reported combat stressors, the examiner noted there was no evidence in the record to support his claims.  The applicant reported daily flashbacks, nightmares at times, avoidance and guilt, and panic attacks.  He was working all day and getting along with his command.  During the MSE, he cried, expressed hopelessness and expectation of a shortened future.  This was a marked difference from his presentation during the C&P exam.  The examiner noted mild impairment for social and industrial function but marked impairment for military function.  The commander noted that although he could not mentally perform the duties of his MOS, he was working a full day and performed a special duty assignment for three months without counseling. 

The Board concluded that there was not adequate reasonable doubt favoring the next higher 30% rating, and agreed that at the time of separation the condition more nearly approximated the criteria for the 10% rating.  After due deliberation, 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 PEB fitness determination 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 nos condition and IAW VASRD §4.124, the Board recommends no change in the PEB adjudication.  There were no other conditions within the Board’s scope of review for consideration.  

RECOMMENDATION:  The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination. 

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140523, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MEMORANDUM FOR Commander

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXXXXXXX AR20160004497  (PD201402408)

I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual.  Under the authority of Title 10, United States Code, section 1554a, I accept the Board's recommendation and hereby deny the individual's application.
This decision is final.  The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application  have been notified of this decision by mail.

BY ORDER OF THE SECRETARY OF THE ARMY:

Enclosure 

CF:
(  ) DoD PDBR 
(  ) DVA