RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	 CASE:  PD-2014-03845
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20050924

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E7, Telecommunications Operations Chief, medically separated for “post-traumatic stress disorder (PTSD),” with a disability rating of 10%.  

CI CONTENTION:  The CI contends, via an attached brief submitted by his attorney, that he should have been first placed on the Temporary Disability Retired List (TDRL) and then received a permanent rating of 70%.  His complete submission, with attachments, 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 - 20050718	VARD - 20060426	
Condition	Code	Rating	Condition	Code	Rating	Exam	
PTSD	9411	10%	PTSD	9411	NSC	STRs	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  NSC	

ANALYSIS SUMMARY:  

PTSD.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s condition began after multiple deployments between 1990 and 2003.  He experienced traumatic exposures during three of the deployments.  In December 2003 he attempted suicide.  He began weekly therapy in June 2004.  The MEB forwarded PTSD for PEB adjudication.  At the MEB examination (recorded on DD Forms 2807 and 2808) dated in early 2005, 8 months prior to separation, the CI reported chronic insomnia which developed in 1993 but had now worsened in the previous 6-8 months.  The MEB NARSUM examination on 10 January 2005, 8 months prior to separation, noted complaints of stress, nightmares, anger, flashbacks, hypervigilance, decreased concentration, increased need to be alone, low energy, depressed mood, increasing irritability, deteriorating marital relationship and worries, pre-occupation about his most recent deployment to Iraq.  He remained in therapy through the time of the NARSUM examination.  His therapist noted that medication and therapy had helped him to control his anger and not get into problems with his command.  Medications included a sleep aid and an antidepressant.  His therapist also noted, “His symptoms had abated to some degree but were still very prevalent and prevented deployment and the ability to fulfill his military obligations.”

He was scheduled to redeploy in early 2005 but stated he was afraid to go since he might freeze and get people killed.  He spent most of his time listening to music and talking with friends.  He divorced after an 11-year marriage and later was in a long distance relationship with a divorcee.  A mental status examination dated 6 June 2004 showed anxiety, occasional tearing and crying, good memory, flat affect, mixed mood between anxiety and depression, as well as preoccupation with disturbing thoughts and memories of violent experiences during his previous deployment. He denied suicidal and homicidal ideation but in the past had often had suicidal thoughts.  The NARSUM examiner rendered a diagnosis of PTSD with a Global Assessment of Functioning score (GAF) of 60 (moderate bordering on mild symptoms, impairment).  Impairment for social and industrial adaptability was moderate.  He would require continued treatment for an indefinite period. 

The commander’s statement, dated February 2005, noted he was performing numerous essential tasks associated with the rear detachment but not associated with his occupational specialty.  He had numerous responsibilities but the medication and lack of sleep had taken a toll on his daily performance.  He was not able to perform basic tasks associated with being a soldier.  Four days prior to separation the VA assigned a disability rating of 70% due to MEB notes that he required higher doses of medication to control his anger, possible destructive behaviors, obsessive irritability, uncontrollable worry, and moderate impairment for social/industrial adaptation.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the PTSD condition 10%, coded 9411, while the VA denied service-connection for the PTSD condition due to his failure to report on February 2006 for psychiatric examination and a confirmed diagnosis.  A second VARD, within a year of separation, rated PTSD at 70% (based upon STRs). 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% rating for a retroactive 6-month period on the Temporary Disability Retired List (TDRL).  The Board next considered if a rating higher than 50% was warranted at the time of placement on the constructional TDRL period.  The next higher 70% rating requires “occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.”  Board members agreed however that these criteria were not approached, and therefore a rating higher than 50% was not supported. The Board then determined the most appropriate permanent rating recommendation to fit with VASRD 4.130 criteria at 6 months removal from the TDRL.

The most proximate source of comprehensive evidence on which to base the permanent rating recommendation in this case is the NARSUM examination performed 8 months before separation.  There was no other relevant VA outpatient or civilian provider evidence providing psychiatric details during the 6-month interval.  The Board considered whether a rating higher than 10% was warranted.  The §4.130 criteria for a 10% rating is “symptoms controlled by continuous medication,” for a 30% rating it is “occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks.”
 
The NARSUM examination noted the CI required weekly therapy, increased anti-depression medication and the addition of a sleep aid to quell his anger.  Yet, his therapist noted that despite this intensive therapy, his symptoms were still very prevalent.  He received a GAF score in the moderate range.  Board members therefore concluded that the 30% rating most accurately depicted the condition at the time of removal from TDRL. 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 PTSD condition.

BOARD FINDINGS:  In the matter of the PTSD condition, the Board unanimously recommends a disability rating of 50%, coded 9411 IAW VASRD §4.129 for 6 months from the time of discharge consistent with a constructive period of TDRL and then a permanent disability rating of 30% IAW VASRD §4.130.  There were no other conditions within the Board’s scope of review for consideration.  

The Board, therefore, 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	
PTSD	9411	50%	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140812, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

Dear 

I accept the recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) to constructively place you on the Temporary Disability Retired List (TDRL) at 50% disability for six months effective the date of your original medical separation for disability with severance pay and then following this six month period re-characterize your separation as a disability retirement with the combined disability rating of 30%.  Enclosed is a copy of the Board's recommendation and record of proceedings for your information.

The constructive TDRL period and the re-characterization of your separation as a disability retirement will result in an adjustment to your pay providing you 50% retired pay for six months from the date of your original medical separation and then 30% disability retired pay effective the date following the constructive six month TDRL period, minus the amount of severance pay you were previously paid at separation.

The accepted DoD PDBR recommendation has been forwarded to the Army Physical Disability Agency for required correction of records and then to the U.S.
Defense Finance and Accounting Service to make the necessary adjustment to your
pay and allowances.  These agencies will provide you with official notification by mail as soon as the directed corrections have been made and will provide information on your retirement benefits.  Due to the large number of cases in process, please be advised that it may be several months before you receive notification that the corrections are completed and pay adjusted.  Inquiry concerning your correction of records should be addressed to the U.S. Army Physical Disability Agency, (AHRC-DO, 

A copy of this decision has also been provided to the Department of Veterans Affairs and to the counsel you listed on your application, 

Sincerely,

Deputy Assistant Secretary of the Army

Enclosure