RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02845
BRANCH OF SERVICE:  Army	BOARD DATE:  20150529
DATE OF PLACEMENT ONTO TDRL:  19990724
DATE OF REMOVAL FROM TDRL:  20010126

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-3 (Light Wheeled Vehicle Mechanic) medically separated for posttraumatic stress disorder (PTSD) condition.  The condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty but was authorized to perform an alternate physical fitness test.  She was issued a permanent L3S4 profile and referred for a Medical Evaluation Board (MEB).  The “posttraumatic stress disorder” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition (bilateral retropatellar pain syndrome) for PEB adjudication.  The Informal PEB (IPEB) adjudicated “post-traumatic stress disorder” as unfitting, rated 30%, 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 placed on the Temporary Disability Retired List (TDRL).  Approximately 29 months later, the IPEB considered the condition stable for a final rating and adjudicated the PTSD condition as unfitting, rated 10%.  The CI made an appeal but later withdrew the appeal 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 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:

Final PEB – 20011126	VA Rating Decision1 - 19990722	
TDRL Placement – 19990724	Code	Rating	Condition	Code	Rating
Proximate	
Condition		TDRL
Place-ment	TDRL Removal			TDRL2
Place-ment	TDRL3 Removal	
Posttraumatic Stress Disorder	9411	30%	10%	Posttraumatic Stress Disorder	9411	30%	50%	
Bilateral Retropatellar Pain Syndrome	Not Unfitting	Degenerative Joint Disease, Knees, Bilateral	5099-5010	10%	10%	
		Right Knee Patellofemoral Syndrome	5099-5014	*	10%	
		Left Knee Patellofemoral Syndrome	5099-5014	*	10%	
Other x 0 (Not in Scope)	Other x 0	
RATING:  30% → 10%	RATING:  40% → 60%	
* Conditions were not identified on original VARD dated 19990722.
1. Most proximate to TDRL Placement
2. Rating derived from C&P exam dated 19990408, ~4 mos. pre-TDRL placement.
3. Rating derived from C&P exam dated 20011011, ~2 mos. pre-TDRL removal. 

ANALYSIS SUMMARY:

Posttraumatic Stress Disorder (PTSD) Condition.  Service treatment records document the CI enlisted in August 1997 and was sexually assaulted in April 1998 by a Non-commissioned officer (NCO) and helped by his girlfriend, a friend of hers.  She pressed charges.  In June or July 1998, she noted symptoms that included social withdrawal, poor sleep, irritability, dysphoria, tearfulness an increased anxiety.  Her mood worsened and she developed suicidal ideation with a plan.  She was seen in Mental Health (MH) Clinic in September 1998, denied suicidal ideation, and said she wanted to deploy to Bosnia with her unit.  She arrived later in September 1998 and saw a MH provider and reported persisting symptoms of anhedonia, anxiety, vigilance, and trouble concentrating.  She received anti-depression medication and returned to Ft. Hood to testify in the alleged rapist’s court martial trial.  The alleged rapist was convicted of “adultery” and the charges regarding the rape were dismissed.  She expressed anger, frustration, increased emotional lability, and loss of faith in the military during an evaluation in November 1998, prior to returning to Bosnia.  She returned and in late January 1999, the suicidal ideation returned with a plan.  She was hospitalized twice in Bosnia, diagnosed with PTSD, and air evacuated to Landstuhl Medical Center.  She reported continuing symptoms in addition to a lack of support from her unit and “retaliation.”  Discharge diagnosis was PTSD, mild to moderate.  She returned to Ft. Hood in February 1999 and reported hypervigilance, flashbacks to her trauma, persistent nightmares, a strong impulse to avoid service members in uniform, and depression.  A MEB for PTSD due to sexual assault was initiated.  The commander’s statement, dated March 1999, noted her duty performance was sub-standard, that she expressed discomfort working around male soldiers and was the only female in the maintenance section, and could not handle the stressful environment of the US Army.

At the VA Compensation and Pension (C&P) exam for mental disorders and PTSD, performed 4 months prior to separation, the CI reported she lived on post and her attacker lived nearby.  She avoided all activities that could aggravate her situation and bring her into contact with military personnel.  She reported depression, with periods of crying, flashbacks when she was a NCO, insomnia, occasional suicidal thoughts, nightmares whose content she could not recall once per week, and anxiety and panic attacks.  The medication and the counseling had helped, “a little bit.”  She planned to go back to school and become a teacher and a coach.  A diagnosis of PTSD was rendered and she received a Global Assessment of Function (GAF) of 60 (moderate symptoms, impairment.)
At the narrative summary (NARSUM), on 14 June 1999, (a week prior to TDRL placement) the CI reported persisting symptoms as previously described.  She remained in weekly psychotherapy and continued to take psychotropic medication daily.  The mental status examination (MSE) noted a depressed mood, and a sad and flat affect.  A diagnosis of PTSD was rendered with a GAF of 50 (moderate symptoms, impairment.)

At the psychiatric NARSUM TDRL re-examination, dated 6 June 2001, (performed 5 months prior to TDRL removal), the CI reported some problems with sleep, nightmares, uneasiness in crowds especially if there are a lot of men, avoidance of social relationship with a man and situations where she might be alone with a man.  She felt irritability, emotional numbing, poor self-esteem, and lots of fears.  MSE was notable for a serious to sad facial expression, a serious and somewhat flattened tone, occasional smiles, and persistently depressed and apprehensive mood.  She was a college student, was studying psychology and elementary education and doing relatively well.  A diagnosis of PTSD due to sexual assault while in the service and major depression (associated with PTSD) was diagnosed with a GAF of 50 (moderate symptoms, impairment.)  She was taking three psychotropic medications that seemed to be working reasonably well.

A VA Behavioral Examination, dated October 2001, (performed 2 months prior to TDRL removal), noted she had been seeing a therapist at the University she attended.  Her complaints included depression, a decrease in short-term memory, “trust issues,” difficulty being around strange men, generalized anxiety and social withdrawal, disrupted sleep, and not “handling stress well.”  She reported ongoing daily symptoms of PTSD despite anti-depression and anti-anxiety medications with only partial responses.  She had frequent nightmares and episodes of increased anxiety that sounded like panic attacks and short-term memory loss.  She had completed a year of college and wanted to teach kindergarten or first grade.  She had not returned to school that semester because she had a “seizure,” suspected to be due to stress.  She reported her symptoms of depression and need for social isolation had caused her to miss three or four classes per subject per semester.  She had not dated since the rape, had minimal social contacts, but had joined a sorority to for her to be around others.  She enjoyed reading and sports, and playing on a co-ed softball team.  The examiner noted her psycho-social adjustment had been significantly impaired by the sexual assault.  MSE noted poor eye contact, restricted affect, dysphoric mood with low energy and motivation, poor concentration and disrupted sleep.  A diagnosis of PTSD, major depression, and panic attack were made with a GAF of 40 (severe impairment, symptoms.)  The examiner opined the GAF score related to PTSD was 45, related to depression was 45, and related to panic disorder was 60.  The VA rating decision noted the GAF score was 56 (perhaps a typo since the average of the three GAFs was 50) and awarded the CI a disability rating of 50%.
 
The Board directed attention to its rating recommendation based on the above evidence. Both the PEB and VA adjudicated PTSD with a disability rating of 30%, coded 9411 at TDRL placement.  The Board first considered if application of VASRD §4.129 with a 6-month (50% minimum) period on the TDRL 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 rape.  The Board then considered if there was evidence for a §4.130 rating higher than the §4.129 minimum mandated 50% at time of TDRL placement.  The Board agreed that the §4.130 criteria for a rating higher than 50% were not met near the time of separation, and therefore the minimum 50% initial TDRL rating is applicable.  The Board directs attention to its permanent rating recommendation at TDRL removal based on the above evidence.  At TDRL removal, the PEB adjudicated PTSD with associated depressive reaction with a rating of 10% and the VA adjudicated PTSD, major depression, and panic disorder with a disability rating of 50%.  It was noted that during the TDRL period, the applicant was additionally diagnosed with MDD.  The PEB incorporated the diagnosis of MDD into the PTSD rating.  The PTSD and MDD diagnoses are not separately ratable since such ratings would be based on the same social and occupational impairment and is prohibited by VASRD §4.14 (avoidance of pyramiding; the granting of more than one rating for the same impairment).  The Board considered whether a criterion higher than the PEB’s 10% was warranted.  A rating of 30% would require occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.  Both the MEB and VA examination, prior to TDRL removal, documented depression, anxiety, panic attacks, mild memory loss, and sleep impairment.  These threshold symptoms supported the 30% level IAW §4.130.  She had completed a year of college, had joined a sorority, and was able to play on a co-ed softball team, which did not support a 50% rating for reduced reliability and productivity.  There had been no hospitalizations, emergency room visits for MH problems, or legal problems in the past year.  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 30% for the PTSD disorder condition, coded 9411.

Contended Bilateral Retro Patellar Pain Syndrome Condition.  The Board’s main charge is to assess the fairness of the PEB’s determination that bilateral retro patellar pain syndrome was not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The CI reported bilateral knee pain that began during basic training and became progressively worse.  X-ray of the knees 2 weeks prior to TDRL placement showed spurring of the lateral aspect of the left patella as a result of a degenerative process.  She received a L3 profile for bilateral retro patellar pain syndrome one month prior to TDRL placement.  The NARSUM orthopedics addendum showed a full range-of-motion, no joint line tenderness, and no instability and suggested this was a repetitive overuse syndrome which should improve after leaving the military.  The C&P examination demonstrated no limited or painful motion, swelling, or effusion.  The syndrome was profiled but was not implicated in the commander’s statement and was not judged to fail retention standards.  The condition was reviewed and considered by the Board.  There was no performance based evidence from the record that bilateral retro patellar pain syndrome significantly interfered with satisfactory duty performance.  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 Bilateral retro patellar pain syndrome 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.  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 §4.130; and a 30% permanent rating at 6 months IAW VASRD §4.130.  In the matter of the contended bilateral retropatellar pain syndrome condition, the Board unanimously recommends no change from the PEB determination 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 as follows, effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
PTSD 	9411	50%	30%	
COMBINED	50%	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140525, 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 AR20160003438 (PD201402845)

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 rather than 30% disability for the period 24 July 1999 to 5 February 2002
and then following this 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 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 TDRL period.

c. Adjusting pay and allowances accordingly. Pay and allowance adjustment will
account for 50% retired pay for the constructive temporary disability retired period and
then payment of permanent disability retired pay at 30% effective the day following the
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:

CF:
( ) DoD PDBR
()DVA