RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-02086
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20050303

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Early Warning System Operator, medically separated for “specific phobia concerning wearing of gas mask” with a disability rating of 0%.

CI CONTENTION:  “The Army did not recognize PTSD at that time.”   The CI’s 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 - 20041215	VARD - 20050728	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Specific Phobia...Gas Mask	9403	0%	Panic Disorder	9412	30%	20050603	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Specific Phobia (Gas Mask).  According to service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s specific phobia (gas mask) condition began in September 2003 after a live round discharged in his face.  The CI was seen in the Emergency Room on 8 September 2003 after he was on the firing range for night fire training.  He believed that his M-16 chamber overheated and exploded in his face.  As a result the CI had multiple small lacerations to the face and bilateral eye irritation.  On 9 September 2003 an eye doctor noted the CI’s face was profusely peppered with gunpowder.  He was treated for a corneal abrasion and foreign bodies were removed from his left eye. Treatment consisted of erythromycin (an antibiotic) ointment and Cyclogyl (cyclopentolate, a cycloplegic (ciliary muscle paralysis) and mydriatic (pupil dilation) medication).  Photophobia (light sensitivity) was treated with sunglasses.  On 2 August 2004 the CI was treated for reactive airway disease with a bronchodilator, an oral steroid, and a combination inhalational steroid/bronchodilator.  The CI listed his medications as paroxetine (for anxiety), hydroxyzine (an antihistamine for sleep), both of which were recommended to be discontinued. On 4 August 2004 the CI reported difficulty breathing and anxiety for the prior 4 months.  On examination the CI’s lungs were clear and peak oxygen flow increased after albuterol.  The CI was seen on 9 August 2004 in the Emergency Room for anxiety.  The CI had negative pulmonary function tests and the CI was told by a pulmonary medicine physician to stop the previously prescribed medications.  The CI’s medication profile indicated clonazepam (a benzodiazepine medication for anxiety) and sertraline (an antidepressant) were initially filled on 9 August 2003.  An S3 profile was issued on 29 September 2004 for panic disorder, with agoraphobia, specific phobia with restrictions that the CI could not wear a protective mask, and because of benzodiazepine medication, he could not operate heavy machinery or have access to weapons or ammunition.  The commander’s statement dated 23 November 2004 indicated the CI experienced an incident with a live round discharging in his face resulting in loss of vision and panic/anxiety attacks.  

During the 14 September 2004 MEB examination (recorded on DD Forms 2807-1 and 2808), 6 months prior to separation, the CI reported anxiety and panic attacks.  The examiner checked normal for psychiatric for the clinical evaluation; however, GAD (general anxiety disorder) and panic attacks were listed in the summary of defects and diagnoses with an annotation “continue clonazepam and sertraline.”

The 8 November 2004 MEB NARSUM examination, 4 months prior to separation, noted complaints of panic attacks and specific phobia regarding wearing a protective mask.  The first panic attack was in January 2004; however, the CI did not seek treatment until May 2004.  Initially the working diagnosis was asthma to explain shortness of breath associated with anxiety.  On the eve of a field training exercise, the CI’s panic symptoms heightened.  He was treated by the mental health service and sertraline and clonazepam did not resolve the symptoms completely.  Although the panic attacks resolved, he was still unable to wear a protective mask.  The mental status examination revealed a pleasant male in uniform with panic attack symptoms, autonomic dysregulation, and increased work of breathing.  Speech and psychomotor activity indicated anxiety.  He had no suicidal or homicidal ideation or auditory or visual hallucinations.  Thought process was linear, logical and goal directed.  Insight and judgment were intact and attention and concentration were adequate.  The examiner’s diagnosis was panic disorder, with agoraphobia; specific phobia, all part of an anxiety spectrum syndrome.   Impairment for military service was marked and impairment for industrial adaptability was moderate.  His GAF (Global Assessment of Functioning) score was 65 (some mild symptoms or some difficulty in social, occupation, or school functioning).

At the 3 June 2005 VA Compensation and Pension (C&P) evaluation, performed 3 months after separation, the CI reported panic attacks since October 2003.  He tried to cope for a year and finally sought treatment for symptoms of anxiety.  He took sertraline and clonazepam without significant improvement.  The frequency of panic attacks were related to the level of stress he was experiencing and had the attacks from three times a week to daily.  During the episodes, he found that he could not breathe, became nauseated and lightheaded, became short-tempered, and felt like he was going crazy.  Symptoms caused him to begin avoiding public situations and he tried to stay at home as much as possible.  He did report some meaningful social relationships, but was not socializing quite as much as he used to due to his discomfort in leaving home.  He worked part-time with his father, took time off getting ready for a baby he and his wife were expecting, and had plans to begin school.  During the mental status examination he was casually, but neatly and cleanly dressed.  He was pleasant, polite and cooperative.  His mood was anxious and his affect was somewhat restricted.  Thought content and processes were within normal limits.  There was no evidence of delusions or hallucinations.  He maintained eye contact throughout the session and no inappropriate behavior was noted.  He denied suicidal or homicidal ideation.  He was alert and oriented times four and there was no evidence of memory loss or impairment.  Speech was linear and coherent, somewhat soft, but of normal rate.  He did not demonstrate any significant impairment in judgment.  The examiner’s diagnosis was panic disorder with agoraphobia and the GAF score was 52 (moderate symptoms or moderate difficulty in social, occupational, or school functioning).

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the specific phobia (gas mask) condition 0%, coded 9403 (specific (simple) phobia), citing protective mask phobia limits the CI’s effectiveness as a soldier but no significant industrial impairment.  The VA rated the panic attacks condition 30% coded 9412 (panic disorder and/or agoraphobia), based on the VA 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 first considered whether the provisions of VASRD §4.129 (mental disorders due to traumatic stress) were applicable.  The CI did develop panic attacks subsequent to a round that “cooked off” and caused powder burns and shrapnel to the eye.  However, both the NARSUM and VA mental health evaluation diagnosed the CI condition as a panic disorder with agoraphobia, while the NARSUM noted a specific phobia related to inability to wear a protective mask and as a result the CI could not participate in field exercises or be deployed.  Furthermore, he initially had respiratory symptoms.  However, neither the STR nor did the VA examination addressed the full spectrum of symptoms related to a post-traumatic stress disorder.  Nevertheless, the CI did have a traumatic event that invoked his mental health condition and impaired his work performance as noted by the commander’s statement and the by the restrictions of the S3 profile.  Therefore, IAW VASRD §4.129, when a mental disorder that develops in service as a result of a highly stressful event is severe enough to bring about the CI’s release from active military service, the rating agency should assign an evaluation of not less than 50% and schedule an examination within the six month period following the veteran’s discharge to determine whether a change in evaluation is warranted.  Panel members next considered the §4.130 rating at the time of separation.  A 50% rating requires “occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.”  Based on the VASRD for constructive placement on TDRL a 50% rating is warranted, but no higher, since evidence supported marked military impairment and moderate industrial adaptability and the CI had not infrequent panic attacks not responsive to medication.  However, at TDRL removal, based on the VA examination the CI was planning for both school and family and still had panic attacks based on his level of stress, although it was not clear what the exact stressors were since he no longer was required to use a protective mask once released from service.  Therefore, a 30% rating, which requires “occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events)” was considered.  However, panel members discussed whether a 10% rating at TDRL was more applicable than a 30% rating.  While the CI did sustain a traumatic injury where gunpowder residue covered his face and shrapnel to the eye required removal, he did not fear for his life; and the injury was accidental and the gunpowder and shrapnel were removed in the Emergency Room.  A 10% rating requires “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, or symptoms controlled by continuous medication.”  Therefore, the CI warrants at least a 10% rating since he was taking continuous medication and post-separation, he no longer had to wear a protective mask.  Nevertheless, while he still had panic attacks, the main stressor was removed and he was planning to pursue education and to have a family as well as working part-time.  Therefore, the finding of both the NARSUM and VA examiners indicating moderate industrial adaptability was discussed by panel members, who felt that the CI’s forward looking outlook and removal of the military stressors does not warrant a rating greater than 10% for TDRL removal.  

After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 50% for the specific phobia condition, coded 9403-9412 for TDRL placement and a rating of 10% for the specific phobia condition, coded 9403-9412 for TDRL removal.  

BOARD FINDINGS:  In the matter of the specific phobia concerning wearing of gas mask condition, the panel unanimously recommends a disability rating of 50%, coded 9403-9412 IAW VASRD §4.130 for TDRL placement and a disability rating of 10%, coded 9403-9412 IAW VASRD §4.130 for TDRL removal.  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	
Specific Phobia	9403-9412	50%	10% 	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150730, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170012857, XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

	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 your disability rating should be modified to 10% but not to the degree that would justify changing your separation for disability with severance pay to a permanent retirement with disability.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed) and I accept its recommendation.  

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 recharacterization of your separation but modification of the permanent disability rating to 10% following the TDRL period.  This will not result in any change to the amount of severance pay.  I regret that the facts of the case did not provide you with the outcome you may have desired.
  
	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 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