RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03703
BRANCH OF SERVICE:  Army	BOARD DATE:  20150629
SEPARATION DATE:  20050503

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Food Service Specialist) medically separated for a mental health (MH) condition.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  He was issued a permanent L2/S4 profile and referred for an Medical Evaluation Board (MEB).  Generalized anxiety with panic and globus hystericus and posttraumatic stress disorder (PTSD), were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded gastroesophageal reflux (GERD), chronic rhinitis, retropatellar pain syndrome, pes planus, and correctable vision conditions for PEB adjudication.  The Informal PEB adjudicated generalized anxiety disorder with globus hystericus and symptoms of PTSD as unfitting, rated 10% with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be not unfitting.  The CI made no appeals 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:

IPEB - Dated 20040411	VA* - (~4 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Generalized Anxiety Disorder with Globus Hystericus and Symptoms of PTSD	9400-9411	10%	PTSD (Claimed as PTSD and Anxiety Disorder)	9411	30%	20040902	
GERD	Not Unfitting	GERD	7399-7346	0%	20040901	
Chronic Rhinitis	Not Unfitting	Rhinitis	6522	0%	20040901	
Retropatellar Pain Syndrome [Bilateral]	Not Unfitting	Right Knee, Retropatellar Pain Syndrome	5299-5010	0%	20040825	
		Left Knee, Retropatellar Pain Syndrome	5299-5010	0%	20040825	
Pes Planus	Not Unfitting	Pes Planus	5276	0%	20040825	
Correctable Vision	Not Unfitting	No VA Placement	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 2	
RATING:  10%	RATING:  30%	
*Derived from VA Rating Decision (VARD) dated 20041116 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Generalized Anxiety Disorder (GAD) with Globus Hystericus and Symptoms of PTSD.  The CI deployed to Iraq April 2003 as a cook and he was subject to frequent mortar attacks.  The most severe incident occurred in July 2003 when four or five Iraqis surrounded his truck and one reached through his window and held a knife to his throat.  He drew his weapon and they scattered.  He subsequently developed tightness, pressure in his chest and difficulty swallowing.  The swallowing became so problematic he could only swallow water and lost 20 lbs.  He sought medical attention in August 2003 but developed more anxiety and panicky feelings and was evacuated to Landstuhl, Germany.  He reported he was having nightmares that disrupted his sleep and received medicine for anxiety and.  Gastroenterology (GI) and pulmonary consultations in Germany did not reveal abnormalities to explain his symptoms.  He had difficulty swallowing solid food for several days, panic attacks, and insomnia and was referred to MH.  A diagnosis of acute stress disorder was rendered.  Repeat GI studies showed the presence of mid esophageal rings, treated by dilatation.  A diagnosis of GERD plus panic attacks was rendered.  It was concluded that globus hystericus was part of the panic attack syndrome.  A memo from the chief of psychiatry to the commander in September 2003, noted the applicant had returned from Iraq with anxiety and panic of such magnitude it impaired his ability to swallow because of severe muscle spasms that required mechanical dilation to open.  Despite ongoing MH treatment with medication and PTSD group therapy, on December 2003, he was admitted to the hospital for 3 days because of severe anxiety and depression, saying he “isn’t going to make it at this rate.”  Discharge diagnoses were GAD and PTSD with a Global Assessment of Function (GAF) of 65 (mild impairment, symptoms).

The MEB psychological narrative summary (NARSUM), dated 2 March 2004 (performed 2 months prior to separation), noted the CI was no longer working as a cook but had been reassigned to less stressful duties.  He continued to have anxiety and panic symptoms that were moderately severe and required psychotherapy and medication.  She still had frequent nightmares that had decreased with higher doses of medication.  He was taking medications for sleep, anxiety, and depression.  Mental status examination (MSE) showed an affect that varied with the degree of anxiety.  If the anxiety was high, he had tightness in his throat and difficulty swallowing with stuttering and frequent nervous vocal inflections.  He showed visible signs of panic with a red face and wide open eyes.  Diagnoses of GAD and PTSD were rendered with a GAF of 55 (moderate impairments, symptoms.)  The examiner noted he seemed to have difficulty with peers and officers and had difficulty with fatigue and stress under minimal stressful circumstances.  Impairment for social and industrial function was considerable.

The MEB general NARSUM, dated 4 March 2004, listed a diagnosis of GAD with panic and globus hystericus and PTSD that fell below retention standards.

At the VA Compensation and Pension (C&P) examination for PTSD performed 4 months after separation, the CI reported he still had nightmares that occurred 2 of 3 nights and had more than 20 different nightmares in the last month.  He endorsed symptoms of PTSD, said memory was poor and carried a weapon at times for defense.  He worked temporally at Home Depot in deliveries and was hoping to go back to school in the fall.  He lived with his fiancé and their relationship was good.  He was in contact with friends from the military but did not go out or enjoy many activities.  He remained in outpatient psychiatric care.  MSE showed he was preoccupied and he endorsed moods that were primarily anxious and at times despondent.  A diagnosis of PTSD was rendered with a GAF score of 49 (serious symptoms, impairment).

The Board directed attention to its rating recommendation based on the above evidence.  The Board, IAW DoDI 6040.44 and DoD guidance (which applies current VASRD 4.129 to all Board cases as appropriate), agrees that the stipulations of §4.129 are met in this case; and, will thus recommend a minimum 50% GAD with PTSD 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.  The PEB noted the CI “said to function fairly well if maintained in a low stress environment.”  However, the MEB psychological NARSUM examiner noted a functioning score of 55, compatible with moderate impairment and symptoms.  There was insufficient evidence for a rating higher than the minimum 50% applied per §4.129 at the time of TDRL placement.

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 4 months after separation.  Since the C&P examination 4 months after separation also reflects the stress of transition to civilian life, which is a core intent of §4.129, it carries the highest probative value in the Board’s assessment of a fair permanent rating recommendation at the 6 month rating timeframe.  The MEB psychological NARSUM evaluation nevertheless serves as a useful reference point and retains relevant probative value.  The MEB noted impairment for social and industrial adaptability as moderate while the C&P examination indicated a severe level of impairment.  The VA psychiatrist noted the CI continued to have PTSD symptoms, remained in outpatient psychiatric care, temporally worked at Home Depot, lived with his fiancé, maintained contact with some friends but did not go out to activities.

Relevant VA outpatient follow up evidence, September 2004, providing psychiatric details exactly at the 6-month interval documented the CI’s report that his PTSD was getting worse.  He had cried for over an hour regarding a news story regarding a kidnapping.  He reported worsening and recurrent nightmares in the last 2 weeks.  He had lost his Home Depot job but was working construction.  His brother’s home had burned down and he was financially stressed.  He was living with his fiancé and only seemed happy with her.  He remained in mental health treatment, taking medication and engaging in psychotherapy.  His MSE showed more sadness and anxiety at moderate to severe levels.  He was near tears several times.  Diagnoses were PTSD, panic disorder in remission with more anxiety and some agoraphobia and depression secondary to PTSD with a GAF score of 60 (on the cusp of moderate to mild.)  The examiner noted that multiple additive stressors exacerbated PTSD symptoms.  Symptoms from the VA and the outpatient follow up exam noted his symptoms were moderate and best align with the VASRD 30% criteria of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 50% for 6-months of constructive TDRL and a 30% permanent rating thereafter for the GAD with PTSD condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that GERD, chronic rhinitis, pes planus, correctable vision, and retropatellar pain syndrome were 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.  Retropatellar pain syndrome was profiled as L2, but he had a normal gait, no laxity or effusion of the knees, could walk or bike at his own pace and distance, had no limitation of motion, and was able to perform light duties in the dining facility.  The other conditions were not profiled or implicated in the commander’s statement and were not judged to fail retention standards.  All evidence was reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that these conditions 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 GERD, chronic rhinitis, pes planus, correctable vision, and retropatellar pain syndrome and 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.  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 GAD with 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, GERD, chronic rhinitis, pes planus, correctable vision, and retropatellar pain syndrome the Board unanimously recommends no change from the PEB determinations 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	TDRL RATING	PERMANENT
RATING	
General Anxiety Disorder with Symptoms of PTSD	9400-9411	50%	30%	
RATING	50%	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140730, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAMR-RB						
MEMORANDUM FOR Commander

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXX, AR20160003776 (PD201403703)

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 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 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 30% 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