RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03368
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20050502

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E5, Interrogator, medically separated for “anxiety disorder, not otherwise specified (NOS)” with a disability rating of 10%.  

CI CONTENTION:  The severity of her injuries were aggravated by the actions of her chain of command and the attending medical personnel.  The CI’s 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 Physical Evaluation Board (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.  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 based upon a 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:  

SERVICE PEB - 20050502	VARD - 20051110	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Anxiety Disorder, Not Otherwise Specified	9413	10%	Post-Traumatic Stress Disorder	9411	100%	20050716	
Orthopedic Injuries…	Not Unfitting	Ulnar Nerve Sensory Neuropathy with Scar, Right Upper Extremity (Major)	8516	30%	20050713	
		Right Shoulder Strain (Major)	5099-5024	10%		
		Residuals, S/P Arthroscopic Surgery, Left Knee with Scars	5299-5260	10%		
		Right Intercostal Strain	5399-5321	10%		
		Residuals, Right Knee Arthroscopic Surgery Associated with Residuals, S/P Arthroscopic Surgery, Left Knee with Scars	5260	NSC		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  100%	

ANALYSIS SUMMARY:  

Anxiety Disorder (NOS).  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s anxiety disorder condition began in November 2003 after a helicopter crash in which she was injured and members of her unit were killed.  The CI was diagnosed and treated for posttraumatic stress disorder (PTSD) with weekly therapy and an antidepressant medication (Zoloft) by the VA.  In September 2004 the CI was referred to a military psychiatrist and a hypnotic agent (Ambien) was added.  Psychological testing in October 2004 (MMPI-II and Trauma Score Inventory) and a psychologist’s clinical interview were supportive of the diagnosis of anxiety disorder NOS, and indicated the CI no longer met the criteria for PTSD.  

Despite treatment with medication and psychotherapy, the CI’s anxiety disorder NOS condition did not improve sufficiently to meet the requirements of the CI’s military specialty and she was referred for MEB.  The MEB forwarded “Anxiety Disorder, Not Otherwise Specified” for PEB adjudication.  

The MEB NARSUM examination on 16 December 2004 (4 months prior to separation) noted complaints of episodic anxiety symptoms (with physiologic reactivity) which included irritability, insomnia, nightmares, crying spells and decrease in pleasurable activities, avoidance, and hyper-startle.  The mental status examination (MSE) was notable for an anxious affect and mild irritability.  There was no active suicidal ideation, delusional or hallucinatory symptoms, or other symptoms suggestive of psychosis, speech disturbance, objective cognitive impairment, or other abnormality.  

The psychiatrist diagnosed anxiety disorder NOS manifested by continued anxiety in situations that remind the CI of the crash, specifically, riding elevators and flying in aircraft, which result in psychological and physiological reactivity.  The stressors were “Significant, helicopter crash in Afghanistan in which eight members of her unit were killed and in which the (CI) sustained injuries.”  Impairment for military duty was “severe” and impairment for social and industrial adaptability was “definite.”  The Global Assessment of Functioning (GAF) was 59 (in the moderate symptom range).  

At the VA Compensation and Pension (C&P) examination in July 2005, performed 2 months after separation, the CI reported weekly therapy and treatment with Zoloft.  She endorsed continuous symptoms of avoidance, sleep difficulties, irritability, outbursts of anger, exaggerated startled response, memory loss, difficulty with concentration, hypervigilance, and depression.  The CI was not employed and was attending school.  The MSE was notable for depressed and anxious mood and affect.  Thought processes were abnormal with preoccupation of the helicopter crash.  The examiner indicated that abstract thinking was absent, impulse control was impaired, and memory was moderately abnormal, in that the (CI) had difficulty with the retention of highly learned materials and remembering to complete tasks.  Speech, communication, and judgment were normal.  There was no active suicidal or homicidal ideation, delusional or hallucinatory symptoms, panic attacks, ritualistic obsessions, or other symptoms suggestive of psychosis, speech disturbance, or other abnormality.  The psychiatrist diagnosed PTSD (specifying criteria A through F) and GAF was 65 (in the mild symptom range).  Summary stated “She has occasional difficulty performing activities of daily living.  She has difficulty with memory and concentration.  She gets distracted easily.  Her social relationships are diminished.  She is socially withdrawn and isolated. She prefers to be by herself.  She has difficulty understanding simple commands, and has difficulty with complex (two- to three-step) commands.”  

The VARD summarized treatment notes from May 2005 to 9 November 2005 (6 months after separation) which showed “symptoms of nightmares, insomnia, intrusive thoughts, flashbacks, depression, anxiety, mood swings, anger, and memory loss.  Noted is that you are unable to hold a job and that you were only able to manage one summer college class due to these symptoms, namely because of the inability to fully concentrate.  A diagnosis of post-traumatic stress disorder was given.”  There was a neuropsychological evaluation in September 2007 (28 months after separation) with extensive testing that suggested normal cognitive function with performance aligning with PTSD symptoms.  The diagnoses were “PTSD, Depression/Anxiety NOS.”  The next VA PTSD C&P examination was in July 2009 (4 years remote from separation) and documented continued symptoms with “reduced reliability and productivity due to PTSD symptoms.”  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under the 9413 code (Anxiety disorder, not otherwise specified), citing requirement for psychotropic medication and outpatient treatment and specifying that “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 VA assigned a 100% rating using the 9411 code (Posttraumatic stress disorder) based on the VA C&P examination 2 months after separation and treatment notes up to 6 months after separation, citing work and school history with total occupational impairment and significant social impairment.  The VA decreased the PTSD rating to 70% effective September 2008 (40 months after separation) based on the neuropsychological evaluation in September 2007 and treatment notes.  

The Board considered whether the provisions of VASRD §4.129 (Mental disorders due to traumatic stress) was applicable.  The Board determined that the anxiety disorder NOS condition was due to a “highly stressful event” as used in the VASRD, and that application of §4.129 was appropriate in this case.  The Board therefore recommended a minimum 50% rating for a retroactive 6‐month period on the Temporary Disability Retired List (TDRL).  All Board members agreed that the §4.130 criteria for a rating higher than 50% at the time of placement on the TDRL using the pre-separation examinations were not met; and, therefore the minimum 50% TDRL rating prescribed by §4.129 is applicable.  

The Board turned to its rating recommendation at the time of removal from the TDRL – as prescribed by §4.129 (6 months after placement on TDRL in this case).  The most proximate source of comprehensive evidence on which to base the permanent rating recommendation in this case is the VA C&P examination performed 2 months after separation and treatment notes up to 6 months after separation from active duty and placement on the TDRL.  As regards to the rating recommendation at the time of removal from the TDRL and permanent disability disposition, all members agreed that the VA examination and treatment notes indicated increased symptoms and increased disability from the pre-separation evaluations.  The Board agreed that the §4.130 threshold for a 30% rating were well‐exceeded and deliberation therefore settled on consideration of a 100%, 70% or 50% permanent rating recommendation.  There were no persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name to warrant a 100% rating.  

The VA examination clearly documented post-separation worsening with “occasional difficulty performing activities of daily living,” but good hygiene; abnormal mood and affect; impaired impulse control, abnormal thought processes, abnormal memory, and isolation from friends and family.  The GAF did not align with the exam findings, and the examiner stated that the CI’s thought process was pre-occupied and interfered with function at school.  The CI was unemployed.  VA treatment notes documented the CI was having flashbacks that were interfering in her ability to carry on normal activities of daily living, had intrusive thoughts, nightmares,  inability to focus, and daily mood swings, easy startling, depression, anxiety, withdrawal, difficulty with relationships, and disorganized thinking.  In combination, the proximate post-separation VA examinaiton and clinical notes from May 2005 to 9 November 2005 (6 months after separation) indicated deficiencies in work, school, thinking, and mood that more closely approximated the 70% rating criteria of “occupational and social impairment, with deficiencies in most areas.”  

After due deliberation, considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a retroactive 6-month period of TDRL with a rating of 50% (in accordance with §4.129), and a permanent rating of 70% for the anxiety disorder NOS (9413) condition IAW §4.130.  

Contended PEB Conditions.  The MEB forwarded Axis III (mental health stressors) of “orthopedic injuries sustained in crash,” and diagnosis #2 “internal derangement of medial meniscus posterior horn, treated surgically in January 2004 [left knee]” as medically acceptable.  The PEB stated “MEBD diag 1 Axis III and diag 2 not unfitting, not rated.”  The Board’s main charge is to assess the fairness of the PEB’s determination that “orthopedic injuries sustained in crash” and the left knee condition were not unfitting.  The STR indicated that the orthopedic injuries sustained in the crash, or exacerbated by the crash, were the left and right knees, the right shoulder/elbow, and the rib cage/sternum.  No orthopedic conditions were profiled or judged to fail retention standards.  The commander’s statement indicated the CI suffered injuries of both legs, and her ribs, and had undergone surgery for her knee disorder; and was still undergoing therapy for her physical injuries.  Orthopedic evaluation in February 2005 documented a normal gait with normal bilateral knee ranges of motion without laxity or instability.  The CI had right shoulder and cubital tunnel (elbow) peripheral nerve conditions prior to the crash and following the crash had right shoulder motion with abduction and flexion above 140 degrees (normal 180) with painful motion and subjective sensory loss in areas below the elbow.  There was no weakness and electrodiagnostic testing in November 2004 was normal.  There were scant entries related to chest wall pain, and no entries for breathing difficulties.  There was no performance-based evidence from the record that any orthopedic condition significantly interfered with satisfactory duty performance at separation.  After due deliberation, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for any of the contended conditions and so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the anxiety disorder NOS condition, the Board unanimously recommends an initial TDRL rating of 50% in retroactive compliance with VASRD §4.129, and a 70% permanent rating at 6 months IAW VASRD §4.130.  In the matter of the contended “orthopedic injuries sustained in crash,” and diagnosis #2 “internal derangement of medial meniscus posterior horn, treated surgically in January 2004 [left knee]” conditions, the Board unanimously agrees that it cannot recommend either for additional disability rating.  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 the prior medical separation:  

CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
Anxiety Disorder, NOS	9413	50%	70%	

The following documentary evidence was considered:
Exhibit A.  DD Form 294, dated 20140708, 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 XXXXXXXXXXXXXXXXXX, AR20160017175 (PD201403368)

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 re-characterize the individual’s separation as a permanent disability retirement with the combined disability rating of 70%.

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 70% 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