RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03899
BRANCH OF SERVICE:  Army 	
DATE PLACED ON TDRL:  20040404
DATE REMOVED FROM TDRL:  20061204

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an National Guard E5, Food Service Specialist, medically separated from the Temporary Disability Retired List (TDRL) for “posttraumatic stress disorder (PTSD),” with a disability rating of 10%.

CI CONTENTION:  The CI requested that the Board review all of his 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 – 20040202/20060919	VARD - 20051020	
Condition	Code	Rating	Condition	Code	Rating
Proximate	
		TDRL
Placement	TDRL Removal			TDRL
Placement	TDRL
Removal	
PTSD	9411	30%	10%	PTSD w/Depression	9411	50%	50%	
Right Shoulder Pain	5099-5003	0%	Not Unfitting	R/Shoulder….S/P Surgery	5201	20%	20%	
COMBINED RATING:  30% → 10%	COMBINED RATING OF ALL VA CONDITIONS:  70%	

ANALYSIS SUMMARY:  

Posttraumatic Stress Disorder (PTSD).  According to the service treatment records and the MEB narrative summary (NARSUM), the CI developed symptoms of PTSD after serving in Vietnam in 1970 that worsened after his December 2002 activation.  He had nightmares, slept with a knife in his bed for protection, had flashbacks of events during Vietnam, was irritable and had difficulty concentrating.  The CI had 2 treatment contacts for his condition.  First in 1979 when he attended a group session for PTSD and decided not to return, and in 1986 he was prescribed an antidepressant medication by a psychiatrist which he took briefly and self-discontinued within a few weeks.  In July 2003 he self-referred to mental health (MH) due to increased difficulty interacting with others at work, hypervigilance, and depressive symptoms.  He was prescribed medications and talk therapy.  The CI had no recorded visits to the emergency room (ER) and no history of psychiatric inpatient treatment.  His condition had not improved sufficiently enough to allow for continued service, therefore, he was referred to the MEB.

At the MH addendum evaluation dated 24 December 2003, approximately 7 weeks prior to TDRL placement, the CI reported intrusive thoughts, nightmares, flashbacks, hypervigilance, irritability, difficulty sleeping, problems concentrating and other symptoms.  He noted that he had lost many friends during Vietnam, and he was exposed to experiences where he feared for his life.  The CI also reported a chronically sad mood, social isolation, anger and intermittent suicidal ideation. He took medications and was participating in psychotherapy at the time of the addendum.  It was noted that he was having a moderate positive response to treatment but had continued with significant impairment in his social and occupational functioning,  
 
The mental status examination (MSE) recorded that he was pleasant and cooperative and displayed psychomotor agitation which was not described.  There was no evidence of a thought disorder or psychosis and suicidal or homicidal ideation was not present.  His affect was noted as blunted with a reported “so-so” mood.  There was no evidence of cognitive impairment or impairment in judgment.  The diagnoses of PTSD and major depressive disorder (MDD) recurrent were recorded.

The VA Compensation and Pension (C&P) mental examination was accomplished 6 months after TDRL placement.  The CI reported he was activated to duty in 2002 and was sent to Europe and performed mostly airport security in Germany.  He noted that he had continued his prescribed medication and therapy and had no inpatient psychiatric care.  The CI married his 4th wife 12 days after TDRL placement and noted the relationship was not doing well in large part due to his inability to find employment.  He was working as a volunteer at a church and food pantry.  The CI reported that his medication had improved his mood and without the medication he was irritable.  He noted his nightmares were now infrequent and his flashbacks had “pretty well gone away.”  He was still hypervigilant.  He also reported regret for being discharged from service.

The MSE recorded a mildly restricted affect with a euthymic mood.  Evidence of psychosis, disturbance in thoughts or impaired judgment was absent.  He denied suicidal or homicidal ideation and history of panic attacks.  A Global Assessment of Functioning (GAF) score of 55 for moderate symptoms and or impairment was recorded.

The TDRL removal examination was conducted on 4 April 2006, approximately 8 months prior to retirement.  At the examination, the CI reported he continued to have a few PTSD and depressive symptoms.  He had continued taking medications and had monthly psychotherapy sessions The CI had not worked since TDRL placement, and reported his only activity was attending church and babysitting his grandchildren.  There was no documentation of a recent divorce or problems in his marriage.  The MSE noted that the CI was “somewhat jovial” and spoke in a loud voice.  He was anxious at times but the remainder of his examination was unremarkable.  The examiner noted that the CI underwent psychological testing in February 2006 that indicated mild to moderate depression.  The psychiatrist diagnosed PTSD, chronic, treated, in partial remission.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the condition of PTSD with depression coded 9411, at 30%, for “definite social and industrial impairment.”  The PEB also noted that the condition was not the result of combat related injury and was not the result of a direct result of armed conflict or caused by an instrumentality of war.  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 apply 4.129 to PTSD unfitting conditions for applicants discharged after September 11, 2001, and assign a disability rating of not less than 50% for PTSD unfitting conditions for an initial period of 6 months following separation, with subsequent fitness and PTSD ratings based on the evidence.  The VA rated the condition of PTSD with depression at 50% coded 9411.  The Board proceeded with the rating recommendation based on the evidence at TDRL placement.  The criteria for the higher rating of 70% was reviewed.  At the time of the NARSUM, the CI was stable on his medication and noted there had been moderate improvement in his condition; however, he continued to have some difficulty.  His MSE noted no evidence of impaired thought process, or any evidence of psychosis or impaired judgment.  He had no history of suicidal or homicidal thinking or any psychiatric hospital admissions, and his condition did not require treatment in the ER.  The commander’s statement did not comment on a MH condition or symptoms suggestive of impairment in occupational functioning related to a MH condition.  All Board members agreed that examination did not justify the 70% level of disability at TDRL placement, and could only support the 50% 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 TDRL removal mental examination documented a history consistent with mild and transient symptoms or impairment.  The CI was not employed but noted his condition was stable enough to allow him to care for his grandchildren.  He noted symptoms were responsive to medication, but he continued to have problems with sleep and irritability.  He had no hospitalizations, or domestic violence incidents.  He continued to attend church services.  The TDRL psychiatrist opined that his condition was in partial remission, and his MSE was relatively unremarkable.  After deliberating, Board members agreed that the best description of his condition was reflected in the 10% disability rating criteria.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a 50% disability rating at TDRL placement and a permanent 10% disability for the condition of PTSD with depression.

Chronic Right Shoulder Pain.  According to STR and the MEB NARSUM, the CI sustained a yanking injury to his right shoulder while getting off a vehicle in August 1999.  Since that time he has had pain with any overhead use of his arm.  He was diagnosed with right subacromial impingement and right acromioclavicular arthritis.  In February 2000, the CI underwent arthroscopic distal clavicle resection surgery without complication.  MRI dated 28 March 2003 suggested a partial tear or tendinopathy of the right shoulder joint and no evidence of a tear.  Despite treatment, the right shoulder condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty, so he was referred for a MEB.  

The orthopedic addendum on 4 December 2003, 2 months before TDRL placement, noted that the CI continued to have pain in the right shoulder that was relieved by shaking the shoulder.  Abduction of the shoulder was painful and he had pain at night.  His pain was documented as intermittent and moderate.  Physical examination of the right shoulder recorded his shoulder was stable and that he had “excellent shoulder motion” with discomfort and 150 degrees of abduction (normal 180).  The examiner noted that abduction over 90 degrees was painful.  At the VA Compensation and Pension (C&P) examination in July 2004 (5 months after TDRL placement) the physical examination of the right shoulder recorded ROM flexion to 150 degrees and abduction to “about 90 degrees” (normal 180 each) with pain.  There was no evidence of shoulder instability.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 0% rating coded analogously 5099-5003 (arthritis) for moderate intermittent pain.  The VA assigned a 20% rating under the 5201 code (arm, limitation of motion) based on the C&P examination recording of abduction to 90 degrees (at shoulder level).  The Board considered all applicable coding options and noted the condition was not compensable under any code related to limitation of motion, or dislocation, or malunion.  Although the C&P examination documented an estimate ROM of 90 degrees, this ROM was not consistent with the goniometric ROM recorded at the orthopedic addendum closest to TDRL placement.  However, the Board agreed the condition was compensable IAW VASRD §4.59 for painful motion recorded at the orthopedic addendum.  The Board next considered the evidence at TDRL removal.  The TDRL removal examination was accomplished in June 2006, 6 months before separation.  The CI reported that his right shoulder hardly bothers him, is "almost fine."  ROM documented flexion to 153 degrees, and abduction to 131 degrees.  Pain on motion was not recorded.  The examiner noted that his condition was resolving and that his pain was intermittent and slight.  The PEB found the right shoulder condition, not unfitting, and the Board found there was not a preponderance of evidence that the right shoulder condition was unfitting at the time of separation.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the right shoulder pain condition at TDRL placement and no change in the PEB fitness determination for the right shoulder at permanent separation.

BOARD FINDINGS:  In the matter of the PTSD with depression condition, the Board recommends a disability rating of 50%, coded 9411 for the TDRL interval and a permanent disability rating of 10%, coded 9411 IAW VASRD §4.130.  In the matter of the right shoulder condition, the Board recommends a disability rating of 10%, coded 5099-5003 for the TDRL interval, and no change in the PEB fitness determination at separation.  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, effective as of the date of the prior to medical separation:  

CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
Post-Traumatic Stress Disorder with Depression	9411	50%	10%	
Chronic Right Shoulder Pain	5099-5003	10%	Not Unfitting	
COMBINED	60%	10%	

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

SAMR-RB																		

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

08 DEC 2016

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for 
 (PD201403899)

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 60% disability rather than 30% for the period April 4, 2006 to December 3, 2006 and then following this period no recharacterization of the individual’s separation or modification of the permanent disability rating of 10%.

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 as follows:

	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 separated with a permanent combined rating of 20% effective the day following the TDRL period with no re-characterization of the individual’s separation.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will provide 60% retired pay for the constructive temporary disability retired period effective the date of the individual’s original medical separation and adjusting severance pay as necessary to account for the additional TDRL time in service.

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:

Enclosures

CF: 
(  ) DoD PDBR
(  ) DVA