RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW
 
NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-02312
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20051227

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E6, Infantryman, medically separated for “post-traumatic stress disorder,” with a disability rating of 10%.

CI CONTENTION:  The CI was given a higher rating for his conditions by the VA.  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 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 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 - 20051031	VARD - 20060911	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Post-traumatic Stress Disorder	9411	10%	Post-traumatic Stress Disorder with Depression	9411	50%	20060712	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

Post-traumatic Stress Disorder (PTSD).  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s PTSD condition began in June 2005 after deployment to Afghanistan November 2001 to June 2002 and to Kuwait February 2003 to February 2004.  His primary care provider referred him to mental health (MH) in June 2005 after noting symptoms of irritability, consequent marital problems, insomnia and nightmares of combat experiences.  PTSD was diagnosed and CI agreed to regular individual counseling sessions but refused medication.  After his psychiatrist would not clear him for drill instructor school, symptoms did not abate, physical fights were occurring with strangers and drinking increased, he agreed to medication trials with several psychotropic medications.  The MEB forwarded “post-traumatic stress disorder” for PEB adjudication.  

The MEB NARSUM examination on 15 September 2005, 3 months prior to separation, noted complaints of chronic irritability, loss of interest, insomnia, nightmares, and depressed mood.  He was separated from his spouse.  He was performing duties in his MOS.  Mental status examination (MSE) noted he was chronically irritable and frustrated and affect was depressed.  A diagnosis of PTSD was rendered.  

At the 12 July 2006 VA Compensation and Pension (C&P) evaluation, performed 7 months after separation, the CI reported he had some improvement but symptoms remained.  His mood was variable with crying spells 3-4 times per week, anger, irritable, sleep difficulty, nightly nightmares, and isolative after two fights.  He had flashbacks, intrusive thoughts and avoidance.  The CI remained in treatment and was taking an anti-depression and a mood stabilizing/anti-psychosis medication.  His primary stressors were thoughts of Iraq and financial problems.  He was living with his wife and children.  Marriage was not good but stable.  He spent most of his time in the basement watching television where he was more comfortable and less anxious.  The CI had occasional panic attacks with hyperventilation and some dissociation.  He had not worked since separation but was thinking of going to vocational rehab.  He had no friends but one in another state with whom he talked regularly.  He denied recent drinking of alcohol but occasionally used marijuana.  MSE showed an increase in anxiety and tearing when he talked about Iraq related incidents and mild hypervigilance.  Diagnoses of PTSD and alcohol abuse in remission were rendered with a Global Assessment of Functioning (GAF) score of 45 (severe symptoms, impairment.)

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the post-traumatic stress disorder condition 10%, coded 9411 (post-traumatic stress disorder), citing mild social and industrial impairment.  The VA rated the post-traumatic stress disorder with depression condition 50%, coded 9411 citing overall impairment consistent with assignment of 50%.  The Board first considered if there was evidence for a §4.130 rating higher than the §4.129 minimum mandated 50% at time of TDRL placement.  The Board 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.

The most proximate source of comprehensive evidence on which to base the permanent rating is the VA C&P examination 7 months after separation.  The §4.130 criteria for a 10% rating is “symptoms controlled by continuous medication,” for a 30% rating 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 VA C&P examination noted the CI was still symptomatic, had not worked since separation, was isolating after engaging in fights, was angry and inactive at home and in the community despite daily psychotropic medications.  The Board 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 TDRL placement rating of 50% and permanent disability rating after removal from TDRL of 30% for the PTSD disorder.

BOARD FINDINGS:  In the matter of the PTSD condition, the Board unanimously recommends an initial TDRL rating of 50% in retroactive compliance with VASRD §4.129 and §4.130; and a 30% permanent rating at 6 months IAW VASRD §4.130.  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; 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%	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150713, w/attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170004240, 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 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), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557.

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

Sincerely,

	
Enclosure