RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03590
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20050611

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Information Technology Specialist, medically separated for “anxiety disorder,” with a disability rating of 10%.

CI CONTENTION:  “Please consider all conditions.”  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 - 20050210	VARD - 20060315	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Anxiety Disorder, Not Otherwise Specified	9413	10%	Anxiety Disorder	9400	0%	STR	
Attention Deficit Hyperactivity Disorder, Combined Type	Not Rated	Attention Deficit Hyperactivity Disorder	9499-9410	0%		
Moderate Occupational and Marital Stress	Not Unfitting	No VA Placement	
Irritable Bowel Syndrome		Irritable Bowel Syndrome	7319	0%	STR	
Chronic Mid Back Pain		Degenerative Joint Disease, Thoracic Spine	5237-5010	0%		
Chondromalacia Patella		Degenerative Joint Disease, Right Knee	5260-5010	0%		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  0%	

ANALYSIS SUMMARY:  

Anxiety Disorder, not otherwise specified (NOS).  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s anxiety disorder NOS began in April 2003.  The CI initially presented to Behavioral Health (BH) for symptoms of anger and frustration due to multiple personal stressors.  In June 2003, he was evaluated for medications for symptoms of anxiety, insomnia, decreased energy and irritability exacerbated by recent stressors.  He also reported attention and concentration problems since childhood and notes in the STR indicated he was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) in early adolescence.  The CI reported treatment with various psychotropic medications (noted antidepressants) previously and also counseling in childhood for depression.  The CI was given diagnoses of generalized anxiety disorder (GAD) and ADHD and was prescribed an antidepressant with antianxiety effects and sleep medication.  

The CI deployed for a few months and returned in September 2004.  Following return, notes in the STR indicated the CI experienced waxing and waning anxiety symptoms, often in relation to family and occupational stressors.  His medications were aggressively managed, with medications being frequently adjusted, changed and added for anxiety with depression, ADHD, and sleep management.  In late March 2003 the CI called his psychiatrist and reported worsened difficulty concentrating and increased anxiety, forgetting things, being late and frequently being in trouble.  He reported “all kinds of things come into my head at once.”  The psychiatrist noted the CI was stuttering.  The CI denied decreased need for sleep or excessive energy, and noted he had symptoms like this at times before, but had never been in as much trouble.  His medications were changed to treat the possibility of “some form of bipolar disorder.”  However, the CI reported increased anxiety on the new medication and his medication was changed back again.  

A few days later in April 2004 the CI was sent for a mental status evaluation (MSE) by his command due to his duty performance.  At the time the psychiatrist noted the CI had no history of hospitalization, self-harm, or suicidal ideation (SI).  On the MSE the CI was neatly groomed and dressed.  His mood was anxious with a congruent affect and he exhibited psychomotor agitation.  His speech was “often broken during the interview.”  Thought processes and memory were intact, but the CI was easily distracted.  There was no evidence of SI/homicidal ideation (HI) or psychotic features.  The diagnoses remained GAD and ADHD and a MEB was recommended.  Routine mental health (MH) visits that followed noted persistent MH symptoms that varied in intensity related at times to occupational or personal stressors, or medication changes, and the CI noted he was suffering from a gastrointestinal problem, later noted to be diagnosed as irritable bowel syndrome (IBS) related to his anxiety disorder.  

On 4 October 2004, the CI was seen as an emergency walk-in with complaints of poor sleep and a lot of distress due to IBS symptoms.  He reported he was in “serious trouble at work.”  He reported that he had looked and sounded so bad that his command had sent him home to quarters.  The MH evaluation noted the CI was very upset, with some thoughts of hurting himself, but denied he would ever do anything.  A partial hospitalization program (PHP) to stabilize the CI was recommended.  When the CI was evaluated by a psychiatrist for the PHP on 6 October 2004, the psychiatrist noted the CI had been in multiple altercations at work and had been upset to the point of throwing things at home, and was being considered for a demotion due to his behavior and performance at work.  Hospital admission as a psychiatric inpatient was recommended and the CI declined, but he agreed to the PHP.  

On 1 November 2004, the CI did not show up at formation and a Non-Commissioned Officer (NCO) went to his house and the CI did not answer the door.  The NCO broke into the house and found the CI sleeping and the house “trashed.”  The CI was brought to the hospital for evaluation and was admitted due to suicidal statements.  The CI denied that a medication overdose was a suicide attempt, but also related a prior unsuccessful suicide attempt after a second Article 15 for being late, and the CI was hospitalized for approximately 3 weeks for SI without plans or intent.  The inpatient discharge summary noted that the CI had been in the PHP for a few weeks, with worsening depression symptoms.  During hospitalization the CI was treated with “standard” treatments.  He behaved appropriately and was cooperative with treatment plans.  The psychiatrist noted he had noticeable anxiety regarding return to his unit “manifested by IBS symptoms and headaches, which would resolve with talk therapy.”  The CI was reassured he would be getting a MEB.  At the time of discharge the CI’s MSE was normal and he was not thought to be a threat to himself or others.  The Axis I diagnosis was Major Depressive Disorder (MDD) with an Axis II Personality disorder, NOS, that based on psychological testing was felt to be secondary to his Axis I pathology.  At the time of discharge his medications included an antidepressant, anti-anxiety medication, and medications for IBS.  The MEB forwarded “generalized anxiety disorder” and “attention deficit hyperactivity disorder” for PEB adjudication.  

At the MEB NARSUM examination on 15 December 2004, 6 months prior to separation, the CI reported “I can’t handle the stress.”  The MSE performed on 13 December 2004 noted the CI was well groomed.  He denied any history of alcohol abuse or illicit drug use.  Eye contact was poor with psychomotor agitation.  His mood was anxious with a congruent affect and the examination was otherwise unremarkable.  Standardized psychological testing was noted to be consistent with anxiety and depression, but did not suggest a significant cognitive disorder or a personality disorder.  The examiner’s assessment of the CI’s current condition was recurrent episodes of anxiety and insomnia causing disruption in work and family life.  The depression was thought to be a response to the chronic anxiety and the separate MDD diagnosis was dropped, and a personality disorder diagnosis was not thought to be supported given his Axis I diagnosis of a severe anxiety disorder.  The Axis I diagnoses were GAD and ADHD with a Global Assessment of Functioning (GAF) of 60, which is in the moderate range of impairment on this scale.  

At a MH visit on 28 December 2004, the CI reported he was doing “fairly well due to reduced work schedule” and there had also been some changes to medication.

The commander’s statement dated 12 January 2005 indicated normal military duties and responsibilities caused the CI distress and indicated that due to poor judgement and decision-making the CI could not be relied upon.  

The CI failed to attend VA Compensation and Pension (C&P) evaluations scheduled in late September and early October 2005.  There were no VA MH outpatient treatment notes in record within 12 months after separation.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the anxiety disorder NOS, 10%, coded 9413 (anxiety disorder, NOS).  The VA service-connected anxiety disorder, but rated 0% based upon the CI’s failure to attend the scheduled VA C&P examinations 4 months after separation.  All Board members agreed that the evidence of the record did not support a traumatic stressor as the cause of the mental condition for which application of VASRD §4.129 would be appropriate.  

The Board considered whether the evidence at the time of separation supported a rating higher than the 10% rating adjudicated by the PEB according VASRD §4.130 criteria.  The commander noted that the CI’s symptoms were frequently exacerbated by routine military activities and responsibilities and the MH MEB NARSUM indicated the CI experienced recurrent anxiety that continued to cause disruption in work and family functioning despite intensive treatment.  All members agreed that the CI’s disability due to the MH condition exceeded the 10% rating, specified as “occupational and social impairment due to mild or transient symptoms which decrease work efficiency only during periods of significant stress, or; symptoms controlled by continuous medication” and did not meet the threshold for the 70% rating.  The deliberation therefore settled on consideration of a 30% versus a 50% permanent rating recommendation, specified as “occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal)” and “occupational and social impairment with reduced reliability and productivity,” respectively.  The MH treatment notes indicated that the CI had recurring problems with anxiety symptoms which at times caused intermittent inability to perform at his job or at home, at other times he was able to function adequately despite some persistent anxiety symptoms.  
The Members agreed that the evidence above supports that CI’s disability due to his MH condition at the time of separation was more nearly approximated by the 30% rating criteria, rather than the 50%.  At the time of separation, the CI did not evidence chronic symptoms such as abnormal speech, frequent panic attacks, difficulty understanding complex commands, or memory problems reflecting retention of only highly learned material- symptoms which help to discriminate between the 30% and 50% ratings, which share some overlapping criteria such as depressed mood, anxiety and panic attacks.  The PEB did not rate the ADHD condition, which according to DoDI 1332.38, Enclosure 5 is a condition not constituting a disability and was not eligible for disability rating.  The PEB also adjudicated “moderate occupational and marital stress” as not unfitting.  All mental health conditions (other than eating disorders) are provided a single 4.130 rating based on total social and occupational functioning.  Therefore, any occupational and social impairment related to the ADHD or “moderate occupational and marital stress” is subsumed in the Board’s §4.130 rating recommendation and no additional rating is recommended.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 30% for the anxiety disorder NOS condition, coded 9413.  

Contended PEB Conditions: Irritable Bowel Syndrome (IBS), Chronic Mid Back Pain and Chondromalacia Patella.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended conditions were not unfitting.  

IBS.  IBS was listed on the permanent profile.  However, the IBS was noted throughout the STR to be associated with the CI’s anxiety disorder.  IAW VASRD §4.14 (avoidance of pyramiding), more than one ratings may not be provided for the same symptoms under different diagnoses.  The disability due to the IBS syndrome, which waxed and waned with anxiety symptoms, is subsumed in the Board’s §4.130 rating recommendation for the anxiety disorder.

Chondromalacia Patella.  The CI was diagnosed with stress fracture of the right tibia and bilateral shin splints in 2002 and given an L2 profile.  At a MEB orthopedic addendum on 27 December 2004, 5 months before separation, the CI reported right knee pain without swelling aggravated by activity for the last 6 months without specific injury.  The knee examination was normal except for pain with patellar compression.  The L2 was changed to an L3 profile at the time of the MEB; however, an alternate Army Physical Fitness Test (APFT) walk event was permitted.  The knee condition was not implicated in the commander’s statement.  There was no performance based evidence from the record that the knee condition significantly interfered with satisfactory duty performance prior to the CI’s referral to the physical disability process for his MH condition and there was also no performance-based evidence that the knee condition impaired duty performance at separation, although requiring some physical limitations.  

Chronic Mid Back Pain.  The chronic mid back pain condition was not profiled or implicated in the commander’s statement.  There was no performance-based evidence from the record that the back 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 the contended IBS, chronic mid back pain, or chondromalacia conditions and so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the anxiety disorder condition, the Board unanimously recommends a disability rating of 30%, coded 9413 IAW VASRD §4.130.  In the matter of the contended moderate occupational and marital stress, irritable bowel syndrome, chronic mid back pain, and chondromalacia patella conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.  In the matter of the contended attention deficit hyperactivity disorder condition, the Board unanimously agrees that it cannot recommend it 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	PERMANENT RATING	
Anxiety Disorder, Not Otherwise Specified	9413	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140728, w/attachments
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 XXXXXXXXXXXXXXXXXXXXX, AR20160017714 (PD201403590)

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 re-characterize 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 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 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.

			       
						      					
Enclosure
					
CF: 
(  ) DoD PDBR
(  ) DVA