RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-01627
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20070705

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Metal Worker, medically separated for “anxiety and panic attacks” with a disability rating of 10%.

CI CONTENTION:  “Review all conditions.”  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 - 20070614	VARD - 20080211	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Anxiety and Panic Attacks	9413	10%	Post-Traumatic Stress Disorder	9411	30%	20070926	
Left Shoulder Pain
[Not Adjudicated]	MEB Condition
Not Unfitting	Left Shoulder Rotator Cuff Tendonitis and Glen Humeral Ligament Tear	5099-5201	20%	20070926	
Low Back Pain
[Not Adjudicated]	MEB Condition
Not Unfitting	Lumbar Spine Strain	5237	0%	20070926	
Gastroesophageal Reflux Disease
[Not Adjudicated]	MEB Condition
Not Unfitting	Gastroesophageal Reflux Disease	7346	0%	20070926	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:

Anxiety and Panic Attacks.  According to service treatment records (STR) and the mental health Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s mental health condition began during his first deployment to Iraq from October 2004-2005.  The CI related anxiety and recurrent thoughts to an incident where three soldiers were badly burned after a mortar attack and he helped load these soldiers for medical evacuation.  The CI received initial mental health treatment in October 2006 when he was hospitalized during his mid-tour leave from a second deployment to Iraq.  He was seen by behavioral health in February 2007 following hospital discharge after an alcohol intoxication incident.  The CI was diagnosed with alcohol abuse, anxiety disorder not otherwise specified (NOS), and insomnia, with profile restrictions due to symptoms of anxiety, nightmares, shaking, and panic attacks.  During follow-on treatment his diagnosis progressed to posttraumatic stress disorder (PTSD).  Despite treatment with medications and individual and group psychological treatment, the CI’s PTSD condition did not improve sufficiently to meet the requirements of the CI’s military specialty and he was referred for MEB.  The MEB forwarded “post-traumatic stress disorder” for PEB adjudication.

The 24 April 2007 commander’s statement (in-theater) addressed the CI’s Iraq deployment history which indicated the CI was never exposed to direct fire or casualties but his behavior changed with an increase in indirect fire (mortars, rockets, stray bullets) at the forward operating base.  The CI “began to hang out at the living area more, which I (commander) found out was due to a profile he had received for his back and not fear of leaving the Building.  When I found out that he [the CI] was not returning after leave, I was shocked because he had not demonstrated the type of behavior prior to this.”

An additional 24 April 2007 rear detachment commander’s statement noted the CI was diagnosed with PTSD, while in rest and recuperation (mid-deployment leave), and was unable to return to Iraq.  The CI was not working in his primary military occupational specialty, had no permanent duties and complied with all mediations and therapy.  The CI was performing minimal duties.

The 28 March 2007 MEB NARSUM examination, 3 months prior to separation, noted complaints of PTSD and referred to the MEB psychiatric consultation for history and mental health examination.  The examiner documented the CI’s continued individual and group therapy, the CI complained that he got angry easily, was unable to tolerate crowds, had hyper-startle and anxiety, had occasional flashbacks and was not able to participate in any range or field training exercises secondary to anxiety.  The examiner opined, “This Soldier's condition is unlikely to improve with continued military service.  He will likely need continued medication and psychotherapy treatment for the foreseeable future.”

During the 11 May 2007 MEB psychiatric consultation examination, 2 months before separation, the CI reported anxiety and recurrent thoughts of his first deployment where he assisted badly burned soldiers after a mortar attack.  The CI indicated that during his second deployment, his forward operating base was mortared frequently, and that before his mid-deployment leave, he rarely left his room.  The mental status examination noted the CI was distressed when discussing traumatic events.  His mood was depressed and very anxious and expression appeared tense.  There was no suicidal ideation, delusions, hallucinations or other symptoms suggestive of psychosis, speech disturbance, objective cognitive impairment, or other abnormality.  The CI reported decreased sleep due to anxiety and worry and some problems with concentration and short-term memory.  The psychologist examiner, with psychiatrist review and approval, diagnosed PTSD, chronic.  The examiner indicated there was definite impairment for social and industrial adaptability with a global assessment of functioning of 55 (moderate range) from the PTSD condition.

At the 4 September 2007 VA mental health intake and assessment, performed 2 months after separation, the CI related his mental health history including MEB and separation.  The mental status examination was unremarkable.  The licensed professional counselor’s (LPC) diagnosis was panic disorder with a Global Assessment of Functioning (GAF) of 70 (mild symptoms).  The LPC’s impression was that the CI “presented guarded and may be minimizing his symptoms,” was not interested in treatment at the time and reported his symptoms to be in remission and the CI wished to have his medications followed by his primary care manager.
At the 26 September 2007 VA Compensation and Pension (C&P) psychiatric evaluation, performed 3 months after separation by a psychiatrist, the CI reported a similar history and stressor as documented in the MEB Psychiatric consultation, with continuing PTSD symptoms of hyperarousal, re-experiencing of traumatic events, avoidance behaviors, prolonged sleep latency and frequent awakenings with increased startle response and panic symptoms of shortness of breath and anxiety and daytime intrusive memories of being in combat.  The CI described his mood as fair with fair energy and that he was forgetful with memory and concentration levels not at his baseline.  The CI worked nights as a welder.  The mental status examination showed his affect was sometimes unpredictably effusive, and seemed to be related to anxiety for the interview process.  His memory and concentration levels were low.  His overall performance on the objective SLUMS (Saint Louis University Mental Status Examination) examination was 22 out of 30 (normal range is 27-30 - for cognitive testing).  The psychiatrist stated the CI’s “thought processes and communication are significantly impaired by his difficulty with short term memory and concentration.  He is competent for VA purposes.  He is employable from a psychiatric standpoint, ideally in settings in which he will have little or no contact with the public and very loose supervision, secondary to his high level of anxiety and post-traumatic stress disorder symptoms.”  The psychiatrist diagnosed PTSD, chronic and moderate to severe as well as depressive disorder NOS (secondary to PTSD) in partial remission.  The GAF was 56 (moderate range) from the mental health conditions.  The psychiatrist indicated the CI had “occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to symptoms of depressed mood, anxiety with infrequent panic attacks, chronic insomnia and mild to moderate memory loss.”  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the anxiety and panic attacks condition 10%, coded 9413 (anxiety disorder, NOS), stating “does not meet the requirement for documentation of stressors for a diagnosis of Posttraumatic Stress Disorder (PTSD) but does meet the criteria for acute anxiety disorder not otherwise specified,” and rating was for mild social and industrial impairment.  The VA rated the PTSD condition 30%, coded 9411 (post-traumatic stress disorder), based on the C&P examination 3 months after separation, citing occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.

The panel agreed that the stipulations of §4.129 (mental disorders due to traumatic stress) were met in this case, regardless of the mental health diagnosis, and therefore recommended a minimum 50% rating for a retroactive 6‐month period on the Temporary Disability Retired List (TDRL).  The panel turned to its rating recommendation at the time of placement on the TDRL.  All panel members agreed that the §4.130 criteria for a rating higher than 50% at the time of placement on TDRL were not met; and, therefore the minimum 50% TDRL rating prescribed by §4.129 is applicable.

The panel then turned to its permanent rating recommendation at the time of removal from the TDRL.  The panel majority agreed that the C&P psychiatric examination, performed 3 months after separation (TDRL placement), rendered the highest probative value on which to base the permanent rating (6-month period) recommendation.  The panel agreed that the MEB psychiatric consultation evaluation provides a useful pre-TDRL placement baseline and is assigned relevant probative value in the panel’s efforts to arrive at a fair permanent rating recommendation.  The panel also considered the post-separation VA mental health intake performed by a LPC (noting that a LPC is not a psychiatrist or psychologist).  The panel consensus was that the probative value of the C&P psychiatric examination was strengthened on the principle that it reflects the stress of transition to civilian life which is intrinsic to the panel’s permanent rating recommendation, and was accomplished by a psychiatrist.

In regards to the rating recommendation at the time of removal from the TDRL and permanent disability disposition, all members agreed that the §4.130 threshold for a 50% rating was not approached and that the criteria for a 0% rating were well‐exceeded.  The deliberation therefore settled on consideration of a 30% versus a 10% permanent rating recommendation.  The panel majority agreed, all comprehensive psychiatrist examinations (MEB Psychiatric consultation most proximate to TDRL placement and C&P psychiatric evaluation most proximate to TDRL removal) documented mental health symptoms at the moderate range.  These symptoms were not transient or only during periods of significant stress (10% rating), but approximated occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (30% rating).  The panel majority placed the greatest probative value on the C&P psychiatric evaluation for the permanent (TDRL removal) rating recommendation.  Although the C&P psychiatric examination documented the CI as fully employed, enjoyed hobbies, friends and relatives, these occasional and social activities were reasonably included in the VA psychiatrist’s assessment of moderate symptoms.  The VA psychiatrist clearly indicated the CI had significantly impaired thought processes (verified with objective examination) and communication and met the 30% VASRD §4.130 disability criteria “due to symptoms of depressed mood, anxiety with infrequent panic attacks, chronic insomnia and mild to moderate memory loss.”

After due deliberation, considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel unanimously recommends a retroactive 6-month period of TDRL with a rating of 50% (in accordance with §4.129), and the panel majority recommends a permanent rating of 30% for anxiety and panic attacks (acute anxiety disorder not otherwise specified) coded (9413) IAW §4.130.  

Contended PEB Conditions:  Left Shoulder Pain, Low Back Pain, and Gastroesophageal Reflux Disease.  The panel’s main charge is to assess the fairness of the PEB’s presumptive determination that the contended MEB-listed conditions were not unfitting.  None of the conditions were profiled or implicated in the commander’s statement or judged to fail retention standards.  There was no performance-based evidence from the record that any of the conditions significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel concluded that there was insufficient cause to recommend a change in the PEB fitness determination for any of the contended conditions and so no additional disability ratings are recommended.

BOARD FINDINGS:  In the matter of the mental health condition, the panel unanimously recommends an initial TDRL rating of 50% in retroactive compliance with VASRD §4.129, and the panel majority recommends a 30% permanent rating IAW VASRD §4.130.  The single voter for dissent submitted the appended minority opinion.  In the matter of the contended left shoulder pain, low back pain, and gastroesophageal reflux disease conditions, the panel unanimously recommends no change from the PEB determinations as not unfitting.  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	
Anxiety and Panic Attacks (Acute Anxiety Disorder Not Otherwise Specified)	9413	50%	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150607, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MINORITY OPINION:  The minority member agrees that the stipulations of §4.129 (mental disorders due to traumatic stress) were met in this case, and recommends a minimum 50% rating for a retroactive 6‐month period on the Temporary Disability Retired List (TDRL).

In determining a recommendation for a permanent rating of the CI’s mental health condition at the time of removal from the TDRL, the minority member placed high probative value on the VA Compensation and Pension (C&P) evaluation, VA mental health intake and assessment, and commander’s statement for indicators of occupational and social impairment.  The commander, 3 months pre-separation said the CI was performing minimal duties limited to minor details and Charge of Quarters.  He was working 40 hours a week and was cordial to superiors and subordinates but kept to himself.

At the VA mental health intake and assessment, performed 2 months after separation, the mental status examination was unremarkable.  The CI was not interested in treatment and he reported his symptoms to be in remission.  There were no indicators of social and/or occupational impairment, and examiner assigned a GAF of 70 for mild to slight symptoms (70-61 some mild symptoms).

At the VA C&P evaluation, performed 3 months after separation, the CI reported continuing PTSD symptoms.  Occupationally, he worked as a welder from noon until 1 a.m., 5 days per week working many overtime hours since his separation from the Army, and work had been going well.  Socially, he enjoyed spending time with his wife and neighbors and relatives.  He enjoyed hobbies (making beer on the weekends), was able to maintain activities of daily living and there had been no worsening of his condition.  The evidence suggested sleep and/or concentration issues did not interfere with functioning since he worked many hours, and there was no report of the CI making serious errors on the job, falling asleep on the job, or being sent home from work because of inability to function adequately on the job.  The examiner assigned a GAF of 56 (in the moderate symptom range), but the GAF score seemed inconsistent with the CI’s social and occupational functioning at the time, and might have been better described as mild symptoms.

In weighing the evidence for social and occupational impairment IAW VASRD §4.130, the minority member felt that the CI’s symptomatology during the period between separation and about 3 months post-separation, was between 10% and 30%, but that the preponderance of the evidence was consistent with mild social and occupational impairment and closer to 10% (for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress).

Consistent with the DoDI 6040.44 standard that Physical Disability Board of Review recommendations are fair and equitable to both the Service and the CI, the Secretary is respectfully requested to consider the minority recommendation of an initial TDRL rating of 50% in retroactive compliance with VASRD §4.129 as DOD directed, and a 10% permanent rating at   6 months IAW VASRD §4.130.

CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
Anxiety and Panic Attacks (Acute Anxiety Disorder Not Otherwise Specified)	9413	50%	10%	

AR20170008722, XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and recommended to constructively place you on the Temporary Disability Retired List (TDRL) at 50% disability for six months and then following this six month period re-characterize your separation as a disability retirement with the combined disability rating of 30%.  I have reviewed the Board’s record of proceedings, majority recommendation, and minority opinion (copy enclosed).  I regret to inform you that I reject the Board’s majority recommendation and accept the Board’s minority opinion to place you on the TDRL at 50% and then following this six month period no re-characterization of your separation or modification of the permanent disability rating of 10%.  Enclosed is a copy of the Board’s recommendation and record of proceedings for your information.  There is insufficient justification to support the Board’s recommendation in accordance with Army and Department of Defense regulations.

	The constructive TDRL period 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 no re-characterization of your separation or modification of the permanent disability rating of 10% following the constructive six month TDRL period. 

This decision is final.  Recourse within the Department of Defense or the Department of the Army is exhausted; however, you have the option to seek relief by filing suit in a court of appropriate jurisdiction. 

	The accepted DoD PDBR minority 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.  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), XXXXXXXXXXXXXXXXXXX.

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

Sincerely,

Enclosure