RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-01237
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20041002
DATE PLACED ON TDRL:  20041002	
DATE REMOVED FROM TDRL:  20051230

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E4, Motor Transport Operator, medically separated from the Temporary Disability Retired List (TDRL) for “Posttraumatic Stress Disorder (PTSD),” with a disability rating of 10%.

CI CONTENTION:  “Diagnosed with PTSD related to MST.”  The complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The panel’s scope of review is defined in DoDI 6040.44.  It is limited to review of disability ratings assigned 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 or non-compensable.  Any conditions outside the panel’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 panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The panel’s assessment of the PEB rating determination is based on 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(s) at the time of separation.  The panel 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 panel 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 –20050927	VARD - 20041001	
Condition	Code	Rating	Condition	Code	Rating
Proximate	
		TDRL
Placement	TDRL Removal			TDRL
Placement	TDRL
Removal	
Post-Traumatic Stress Disorder and Major Depressive Disorder	9411	30%	10%	Post-Traumatic Stress Disorder	9411	50%	50%	
COMBINED RATING:  30% → 10%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

Post-Traumatic Stress Disorder and Major Depressive Disorder.    According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s PTSD condition began 10 April 2003 after a sexual assault on post.  She reported the incident 4 days later to her sergeant and to the police.  She underwent psychiatric evaluation at behavioral health and reported sleep difficulty associated with nightmares about the incident, crying uncontrollably, guilt and embarrassment and paranoia that the perpetrator was watching to harm her again.  She was diagnosed with depression and acute stress disorder, prescribed anti-anxiety medication and placed on convalescent leave for 3 months to remove her from the stressful military environment.   She returned home and received outpatient therapy weekly and met with a psychiatrist who added anti-depression medication.  She was unable to return to college or gain employment due to her symptoms.  She had overwhelming paranoia when she saw males in military uniform.  The MEB forwarded “post-traumatic stress disorder” and “major depressive disorder (MDD)” for PEB adjudication.  

The MEB NARSUM examination on 9 February 2004, 8 months prior to separation, noted complaints of significant exacerbation of her symptoms after her return to her post to undergo MEB.  She was unable to cope with living in the barracks and was sent to Medical Hold where she required private quarters with her own bathroom.  She felt generalized anxiety associated with the paranoia, depressed mood, sleep and appetite difficulties, nightmares, flashbacks, hypervigilance, estrangement, constricted affect and a sense of foreshortened future.  She had significant problems in social and occupational impairment.  She had responded poorly to prolonged psychotherapy and medication, which currently included a nightly anti-anxiety medication and anti-depression medication and anti-anxiety medication as needed during the day.  She was unable to return to college due to problems with inattention, focus and concentration and overwhelming depression.  She was unable to gain employment.  Mental status exam (MSE) showed significant psychomotor agitation related to her anxiety, soft speech, depressed mood and constricted affect which became tearful and emotional as she discussed her problems.  Diagnoses of PTSD and MDD were rendered.  The examiner noted she had significant psychological symptoms related to her diagnoses despite 10 months of ongoing therapy and psychiatric medication management with significant problems in social and occupational impairment.   

At the 23 June 2004 VA Compensation and Pension (C&P) evaluation, performed 4 months before TDRL placement, the CI reported persistent dreams of her attacker who threatened to kill her.  She was embarrassed and humiliated and felt estranged from family.  She had sleep difficulties throughout the night as well as nightmares, but was constantly tired and had difficulty showing emotion.  She remained on active duty in the National Guard on medical leave but felt stressed out, had panic attacks, some obsessive compulsive traits and rituals, intrusive memories of the rape and no libido.  She was living in a platonic relationship with her boyfriend for 7-8 months.  MSE revealed a melancholy and depressed mood with passive suicidal ideation a week ago.  She felt overwhelmed and hypervigilant.  Diagnoses of PTSD and MDD were rendered with a Global Assessment of Function (GAF) score of 50 (serious bordering on moderate symptoms, impairment.)

At the TDRL NARSUM examination 25 August 2005, 4 months before TDRL removal the CI reported she had had continued her medication but had stopped seeing the psychiatrist in April 2004 since the Army stopped paying for the visits.  She had continued medications but could not recall what they were.  She remained symptomatic with nightmares of her threatening assailant approaching her 4-5 times per week, avoidance of crowds, military people and strange males.  She reported she was unable to tolerate males in uniform.  The CI reported she had persisting symptoms, especially with anxiety, sleep difficulties, nightmares, and avoidance of social contacts.  She avoided the cafeteria or football games due to anxiety and had not been able to date or make new friends.  She hardly went anywhere and had broken contact with her family due to symptoms as she was estranged from her parents.  She was unable to discuss the rape.  She had worked in a restaurant 2-3 days per week for 8 months but quit due to the stress and anxiety caused by the crowded restaurant.  She had taken a full load of classes and received straight A’s with a goal to attend graduate school.  She did not do anything except go to classes, study and watch television.  She was often nervous and scared in her apartment.  MSE showed mild agitation and the male examiner noted she was “noticeably nervous” during the exam.  Diagnoses of PTSD and MDD were rendered with GAF of 65 (mild symptoms, impairment.)  The examiner recommended she remain on TDRL with continued outpatient care.  She failed to report for the C&P examination 12 December 2006.  

A Clinical Summary, dated 9 September 2006, noted the CI was in individual counseling weekly or more as needed.  She was taking anti-depression and anti-anxiety medication but still felt sad.  She had continuing symptoms of PTSD, including feelings of estrangement and detachment from family and others and occasional suicidal ideation.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the PTSD condition 30%, coded 9411 (PTSD) at TDRL placement, citing failure to progress adequately to continue military service.  The VA rated the PTSD condition 50% coded 9411 (PTSD), based on the VA C&P examination 4 months before TDRL placement, citing symptoms and GAF score of 50 (serious.)

The panel first considered if there was evidence for a §4.130 rating higher than the §4.129 minimum mandated 50% at time of TDRL placement (per DoD direction).  The 50% rating is for “reduced reliability and productivity” and the 70% rating is for impairment in nearly all areas.  The panel agreed that the §4.130 criteria for a rating higher than 50% were not met near the time of separation, and therefore the minimum 50% initial TDRL rating is applicable.

At TRDL removal, the PEB adjudicated the PTSD condition at 10%, coded 9411 (PTSD), citing full time student status and work history.  At TRDL removal, the VA adjudicated the PTSD condition at 50%, coded 9411 (PTSD), citing full time student status and work history.  The most proximate source of comprehensive evidence on which to base the permanent rating is the TDRL Psychiatric Evaluation conducted 4 months prior to removal.  The Clinical Summary 9 months post-TDRL removal confirmed and elaborated the contents of the TDRL Psychiatric evaluation.  The §4.130 criteria for a 10% rating is characterized by the language “symptoms controlled by continuous medication,” for a 30% rating, the language is “occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks,” while criteria for a 50% rating requires “occupational and social impairment with reduced reliability and productivity.” 

The psychiatric evaluation noted the CI had ongoing symptoms of PTSD and depression that left her isolated and estranged from family and others with persisting multiple weekly nightmares related to the assault.   She had remained in psychiatric care until she could no longer afford it but had resumed care.  She had worked for 8 months but the intensity of the stress and anxiety resulted in her abrupt termination of work (further explained in the Clinical Summary.)  She was able to attend school, study and make good grades but the TDRL examiner recommended continued TDRL placement.  The evidence indicates the CI remained in an intensely stressed and anxious state, as reflected by persisting isolation, avoidance and nightmares.  Her response to the male examiner, as noted in the MSE confirmed her continued difficulty interacting with males.  Panel members therefore concluded that the 50% 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 panel unanimously recommends a disability rating of 50% for 6 months of constructive TDRL and by majority, a 50% permanent rating thereafter for the PTSD condition.  

BOARD FINDINGS:  In the matter of the PTSD condition, the panel unanimously recommends a disability rating of 50%, coded 9411 IAW VASRD §4.129 for the time of placement on the TDRL; and then by majority vote, recommends a permanent separation rating of 50% IAW VASRD §4.130 at time of removal from the TDRL.  The minority voter did not submit a minority opinion. There were no other conditions within the panel’s scope of review for consideration.  

The panel 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	
Post-Traumatic Stress Disorder	9411	50%	50%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150609, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20170007524, XXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXXXX:

	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 rather than 30% for the period October 2, 2004 to December 29, 2005 and then following this period re-characterize your separation as a disability retirement with the combined disability rating of 50%.  Enclosed is a copy of the Board’s recommendation and record of proceedings for your information.

	The correction will result in an adjustment to your pay providing you 50% retired pay from the original effective date of your placement on the TDRL and then 50% disability retired pay effective the date following the 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 XXXXXXXXXXXXXXXXXXXXX.

	A copy of this decision has also been provided to the Department of Veterans Affairs.

Sincerely,

	
Enclosure