RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-02379
BRANCH OF SERVICE:  Air Force 	SEPARATION DATE:  20050801

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E3, Mental Health Service Apprentice, medically separated for “anxiety disorder, not otherwise specified” with a disability rating of 10%.  

CI CONTENTION:  The CI has made a lengthy contention.  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 at the time of separation.  The panel has neither the role nor the authority to compensate for progression or complications of service-connected conditions after separation.  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 - 20050610	VARD - NA	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Anxiety Disorder, Not Otherwise Specified	9413	10%	No VA Examination in Evidence	
History of Unspecified Shoulder Injury	Cat II		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  NA	

ANALYSIS SUMMARY:  

Anxiety Disorder, Not Otherwise Specified (NOS).  According to the service treatment record (STR) and the mental health Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s difficulties with depression and anxiety symptoms were noted in treatment records beginning at the end of 2003 with treatment of psychotherapy and medications.  Mental health hospitalization in July 2004 was in the context of an abusive relationship and complaints about her workplace.  Further mental health evaluations in August and September 2004 indicated periods of intense anxiety and excessive alcohol intake.  The CI had a 2 day hospitalization in September 2004 and a she reported suicide attempt (car crash) in November 2004.  Treatment was continued for a diagnosis of anxiety disorder, NOS with a reported history of post-traumatic stress disorder (PTSD).  Treatment records through 2005 showed a consistent diagnosis of anxiety disorder with decreased symptoms on psychotherapy and medication.  

The 29 April 2005 MEB mental health NARSUM examination, 3 months prior to separation, the CI reported “I want to stay in.”  The examiner related that “because of a positive general experience at Dermatology with strong performance, no problems with attendance or conduct, she now prefers to stay in the military, preferably to cross-train in medical admin or paralegal.”  In-service history is provided above, and there had been significant workplace issues prior to moving duty section.  There was also a history of childhood abuse by the CI’s stepbrother and stepfather leading to her removal from the home and 6 months of foster care; being in abusive relationships including being beaten and raped, and a history of suicide gestures and/or suicide attempts.  The mental status examination was unremarkable with a neutral mood and with an appropriate and full range affect.  There was no active suicidal ideation, delusional or hallucinatory symptoms, or other symptoms suggestive of psychosis, speech disturbance, objective cognitive impairment, or other abnormality.  The diagnoses were anxiety disorder, not otherwise specified and alcohol abuse, remitted.  The psychiatrist indicated that the criteria for PTSD were not met and that the degree of impairment for civilian, social and industrial adaptability was mild.  The global assessment of functioning (GAF) was 55 (in the moderate symptom range).  The psychiatrist’s recommendations included “although she has a significant anxiety disorder and has been highly impaired for much of the past year, she has for the last 4 months displayed no obvious impairment and has functioned well in her current duties.”  Continued treatment with pharmacotherapy, individual and group psychotherapy was recommended.  

The 23 May 2005 commander’s statement recommended considering retaining the CI without Assignment Limitation Code to allow non-combat deployments.  

There was no VA Compensation and Pension examination in evidence proximate to separation, the CI has not submitted a VA claim.  Additionally, there was no evidence of treatment after separation. 

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated anxiety disorder, NOS at 10%, coded 9413 (anxiety disorder, not otherwise specified), citing mild social and industrial adaptability impairment, and no deduction for EPTS (existed prior to service).  

The panel considered whether the provisions of VASRD §4.129 (mental disorders due to traumatic stress) were applicable.  The specific language of VASRD section 4.129 states:  "When a mental disorder that develops in service as a result of a highly stressful event is severe enough to bring about the veteran's release from active military service, the rating agency shall assign an evaluation of not less than 50 percent and schedule an examination within the six month period following the veteran's discharge to determine whether a change in evaluation is warranted."  The issue at stake in this case therefore is when did the CI's mental disorder developed?  

The panel carefully considered the CI's mental health history prior to entering service as well as her condition at the time of entry into service.  Although there was no specific mental disorder diagnosed prior to service and the CI presented as a relatively high functioning individual at the time of service entry, there are multiple entries in the service record documenting mental health complications experienced by the CI prior to service.  One entry shows the CI having a suicide attempt and suicidal ideation 10 years prior to service.  Another documents the CI's own statements of being "depressed all my life."  There is clear evidence which shows the CI's abusive relationship (the potential argument for a highly stressful event causing a mental disorder to develop in service) was intact and negatively impacting her life prior to service.  

In addition, the CI entered service wanting to pursue the career field of explosive ordinance disposal, a highly demanding military occupation, filled with extreme risk and reward.  Unfortunately, her path to this goal was short circuited due to her shoulder injury during training.  The record shows she began having mental health complications after her transfer into an alternative AFSC (Mental Health Service Apprentice) and in fact sought mental health treatment in conjunction with workplace difficulties.  The panel recognized this evidence as part of the CI's overall disability picture and a contributing event, combined with her past, which culminated in her decompensation.  Therefore, given the PEB EPTS determination and the CI’s history as stated, the panel majority agreed that the evidence of the record did not support a finding that the CI's mental disorder developed in service as a result of a highly stressful event severe enough to bring about her release from active military service and accordingly application of VASRD §4.129 is not supported in this case.  

The higher rating of 30% requires evidence of “occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks 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.”  

At the time of the mental health NARSUM examination, 3 months before separation, the psychiatrist examiner indicated civilian, social and industrial adaptability was mild which best supported a 10% rating, while the GAF of 55 supported a possible 30% rating.  The psychiatrist also indicated that the CI had been stable and without impairment for 4 months and otherwise had had “a significant anxiety disorder and has been highly impaired for much of the past year.”  The commander’s statement indicated the CI’s condition may stabilize and recommended retaining the CI to serve without an Assignment Limitation Code, could perhaps deploy to non-combat roles.  

The panel noted that the CI had experienced two hospitalization in the 13 months prior to separation with at least one suicide attempt, related to specific stressors of relationship and abuse issues.  However, after changing duty sections she did not experience any functional impairment and had a strong performance.  There was no evidence of significant impairment in the 6 months prior to separation and the applicant continued treatment with medications and therapy.  Therefore, the panel majority concluded a 10% rating was appropriate.  

After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel majority concluded that there was insufficient cause to recommend a change in the PEB adjudication for the anxiety disorder condition.  

History of Unspecified Shoulder Injury.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  The contended condition was not profiled, implicated in the commander’s statement nor judged to fail retention standards.  There was no performance-based evidence from the record that the condition 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 the contended condition and so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the anxiety disorder condition and IAW VASRD §4.130, the panel majority recommends no change in the PEB adjudication.  The single voter for dissent submitted the appended minority opinion.  In the matter of the contended shoulder injury condition, the panel unanimously agrees that it cannot recommend it for additional disability rating.    There are no other conditions within the panel’s scope of review for consideration.  The panel, therefore, recommends that there be no modification or re-characterization of the CI’s disability and separation determination.  

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150916, w/attachments
Exhibit B.  Service Treatment Record

	

MINORITY OPINION:  The minority voter strongly recommends application of VASRD §4.129 (Mental disorders due to traumatic stress) and that the CI be placed a retroactive 6‐month period on the Temporary Disability Retired List (TDRL), and then permanently rated at 10%.  

There was no formal mental health diagnosis or treatment records prior to service entry, and no mental health symptoms or conditions noted on the CI’s entry physical.  Although the CI’s history prior to entry indicated many stressors, it is clear that there was no diagnosed mental health condition on service entry.  Some mental health diagnoses were made in-service prior to the CI’s increased abuse/rape and hospitalizations; however, there were no source “Life Skills” notes for details of the cause of those two visits.  

Although the CI may have been more psychiatrically fragile upon service entry and continued in an abusive relationship, there was evidence of high functioning without mental health diagnoses or symptoms on service entry.  There was a significant change in the CI’s functioning and a changed mental health diagnosis following in-service sexual abuse/rape and hospitalizations.  There was therefore clear evidence of acute worsening and a new mental health diagnosis following highly stressful events, and application of VASRD §4.129 was clearly supported.  

There was no evidence to support a rating higher than 50% at the time of placement on the TDRL.  As the minority voter agrees with the majority’s 10% disability level determination at the time of separation, and there was no post-separation evidence to support any higher rating at the end of TDRL, a 10% permanent rating is recommended.  

In the matter of the anxiety disorder condition, the minority voter recommends an initial TDRL rating of 50% in retroactive compliance with VASRD §4.129, and a 10% permanent rating at 6 months IAW VASRD §4.130.  The minority recommends that the CI’s prior determination be modified as follows, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
Anxiety Disorder NOS	9413	50%	10%	

SAF/MRB
1500 West Perimeter Road, Suite 3700
Joint Base Andrews, MD  20762

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

Reference your application submitted under the provisions of DoDI 6040.44 (Section 1554, 10 USC), PDBR Case Number PD-2015-02379.

After careful consideration of your application and treatment records, the Physical Disability Board of Review determined that the rating assigned at the time of final disposition of your disability evaluation system processing was appropriate.  The Board recommended no re-characterization or modification of your separation.

I carefully reviewed the evidence of record and the recommendation of the Board.  I concur with that finding and their conclusion that re-characterization of your separation is not warranted.  I accept their recommendation that your application be denied.

Sincerely,

XXXXXXXXXXXXXXXXXXX
Director
Air Force Review Boards Agency

Attachment:
Record of Proceedings