RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03244
BRANCH OF SERVICE:  Army  	SEPARATION DATE:  20050406

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Petroleum Supply Specialist) medically separated for Posttraumatic Stress Disorder (PTSD), rated at 10%.  , 

CI CONTENTION:  He was not evaluated for TBI with migraine headaches/seizures, tinnitus, IBS with incontinence, walking disabilities and erectile dysfunction.  His conditions continue 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.  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 Records/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 Veterans Affairs Schedule for Rating Disabilities (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 20050214	VA* - (~2 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
PTSD	9411	10%	PTSD	9411	50%	20050607	
Left Eye Injury	Not Unfitting 	Left Eye Condition	6099-6009	NSC	20050617	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 0 	
RATING:  10%	RATING:  50%	
*Derived from VA Rating Decision (VARD) dated 20050819 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

PTSD.  The narrative summary (NARSUM) documented the CI deployed to Iraq from April 2003 until July 2004, and was exposed to multiple traumatic events including mortars and improvised explosive devices (IEDs).  One IED incident was particularly difficult; he reportedly witnessed metal ripping a man’s head off.  Although he reported having difficulty with sleep, frequent nightmares, self-isolation, decreased level of interest, ruminations, increased irritability, and fatigue, he did not seek mental health care until September 2004.  On 25 September 2004, the CI presented to the emergency room for a suspected suicide attempt, recorded as an “unintentional overdose” of the pain medication he took for his wisdom tooth extraction.  The CI noted he had never been hospitalized psychiatrically but did admit to prior suicide attempts in middle school (pills) and in high school (Russian roulette).  There was also a reported history of childhood physical, emotional and sexual trauma.  The NARSUM dated 22 November 2004, approximately 5 months before separation, documented the CI has difficulty with falling and staying asleep.  Since returning from deployment he has been distracted and finds it difficult to complete tasks.  His memory is poor and his concentration is decreased.  His relationship with his girlfriend has also deteriorated.  He has decreased appetite with weight loss and has flashbacks that are triggered with loud noises.  He began taking an antidepressant medication (Paxil) in September with some improvement but his sleep continued to be disturbed due to nightmares.  Trazodone (antidepressant commonly used for sleep) provided some relief.   Mental status examination (MSE) recorded depressed and anxious mood and an anxious affect. Psychomotor activity was recorded as “lethargic.”  Thought content was noted to have focused “on the current occupational problems and symptoms that continue to go unresolved.”  He denied suicidal thoughts and endorses a history of homicidal thoughts.  His judgment and insight were judged to be poor.  The examiner noted that the CI had some feeling of guilt over events in Iraq and endorsed feeling betrayed by the chain of command on issues experienced in Iraq.  The physician recorded the diagnoses of PTSD, major depression, and personality disorder NOS with Cluster B traits, and assigned a Global Assessment of Functioning (GAF) score of 50 (borderline moderate to serious).  The examiner noted there has been some benefit with medication; however, he remains symptomatic and his impairment for social and industrial adaptability is ‘considerable’.  At the VA Compensation and Pension (C&P) mental examination, 2 months after separation, the CI noted he was living with his grandmother and had remained in the relationship with his girlfriend; however, noted their relationship was not good.  He was not working, had not been able to find employment and had no friends.  He was not in any psychiatric treatment or taking any psychotropic medication, and had never been hospitalized for his condition.  The CI also reported he made a suicide attempt by overdosing on his pain medication (recorded previously as unintentional, September 2004) as the result of depression and emotional difficulties related to his experience in Iraq.  The CI noted that his problem with sleep, concentration, irritability, hypervigilance, poor memory, poor appetite, and poor energy continued.  He endorsed additional symptoms suggestive of depression.  MSE documented poor eye contact, slow speech of low volume, and evidence of psychomotor slowness.  His affect was flat and blunted, and there was no evidence of a formal thought disorder or psychosis and suicidal and homicidal ideation was absent.  The diagnoses of PTSD and depression were recorded with a GAF of 48 (serious symptoms or impairment).

The Board directed attention to its rating recommendation based on the above evidence.  The PEB coded PTSD with major depression and personality disorder NOS 9411 and assigned a 10% rating, noting that his conditions were mild, not considerable, requiring psychotropic medication and outpatient treatment.  The VA assigned a rating of 50% for PTSD.  The PEB rating, as described above, was derived from DoDI 1332.39 and preceded the promulgation of the National Defense Authorization Act (NDAA) 2008 mandate for DoD adherence to Veterans’ Administration Schedule for Rating Disabilities (VASRD) §4.129.  The Board, IAW DoDI 6040.44 and DoD guidance (which applies current VASRD §4.129 to all Board cases as appropriate), must consider if the definition of §4.129 is met for any psychiatric condition resulting in medical separation; i.e., “a mental disorder that develops in service as a result of a highly stressful event.”  If the Board judges that application of §4.129 is appropriate, it will recommend a minimum 50% rating for a retroactive 6-month period on the Temporary Disability Retired List (TDRL).  The Board must then determine the most appropriate fit with VASRD 4.130 criteria at 6 months for its permanent rating recommendation, based on the facts in evidence which are most probative for that interval.  The Board noted the PEB documented that 10A/C (combat-related) was awarded, and PTSD was related to conflict in Iraq. Therefore, all Board members agreed the provisions of §4.129 were applicable in this case.  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 constructive TDRL period demonstrates some impairment in occupational and social functioning; however, no documented evidence to support impairment in judgment or thinking in the year prior to separation except for an overdose that was recorded as unintentional.  There were no psychiatric hospitalizations, no recorded visits to the emergency room (ER) for mental health issues, and MSE at the NARSUM and VA both documented findings that do not approach the 70% disability 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 the most appropriate fit with VASRD §4.130 criteria at the end of TDRL for its permanent rating recommendation.  The Board deliberated the evidence for the 50%, 30% and 10% disability rating.  The 50% disability rating requires evidence of “occupational and social impairment with reduced reliability and productivity due to symptoms such as: flat affect, panic attacks more than once a week, difficulty in understanding complex commands, impaired short and long-term memory and impairment in judgment and thinking…”  Available evidence for review during the TDRL period consists of mental health treatment records from the VA and the C&P exam.  As noted above, the VA assigned a 50% rating for PTSD based on symptoms documented at the exam.  MH progress note dated 3 October 2005 documented continued problems with sleep, weight loss due to poor appetite, nightmares, and some instability in his relationship with girlfriend.  Records noted he was not employed but was seeking employment and was physically capable of employment.  He was hospitalized on 18 October 2005 after expressing homicidal ideation towards a family member.  At the time of admission, he had not slept in 2 days; he was “overly sedated” and was having difficulty staying awake during the admission interview.  He was admitted from the clinic due to depression, use of alcohol, and thoughts of homicide towards his mother.  He was taking two antidepressant medications (Celexa and Effexor) and Zyprexa (antipsychotic).  Hospital course documented “high levels of hyperarousal and paranoia” and depression.  His symptoms did improve; however, after spending 3 weeks in the in-patient unit, he was discharged with a GAF of 49 and a referral to an in-patient residential treatment program for PTSD.  On his day of discharge from the acute unit, he was admitted to the inpatient residential treatment program and was discharged nearly 3 months later, against medical advice.  At the time of discharge he had improved, his girlfriend was pregnant with his child, and he continued to have a good family support system.  After careful deliberation, Board members agreed that the totality of evidence best reflected the 50% level of disability.  After due deliberation, and in consideration of all the evidence and VASRD §4.3 (reasonable doubt), the Board recommends a 50% permanent disability rating for the condition of PTSD.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the status post left eye injury 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 available record demonstrates that the CI was prescribed corrective lens to address visual acuity, and there was no other treatment rendered for an eye condition.  The left eye condition was not profiled or implicated in the commander’s statement and was not judged to fail retention standards.  There was no performance based evidence from the record that this condition 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 left eye condition and so no additional disability rating is recommended.

BOARD FINDINGS:  In the matter of the PTSD with major depression and personality disorder NOS condition, the Board unanimously recommends an initial TDRL rating of 50% in compliance with VASRD §4.129 as DOD directed; and a 50% permanent rating IAW VASRD §4.130.  In the matter of the contended left eye injury, 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.  

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

CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
Posttraumatic Stress with Major Depression	9411	50%	50%	
RATING	50%	50%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140701, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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, AR20160004419 (PD201403244)

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:

CF: 
(  ) DoD PDBR
(  ) DVA