RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00159
BRANCH OF SERVICE:  ARMY 	SEPARATION DATE:  20090804

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an Army active duty E4, Military Policeman, medically separated from the Temporary Disability Retired List (TDRL) for “posttraumatic stress disorder” with a disability rating of 10%.  

CI CONTENTION:  The VA rated him 100% for PTSD and he should have been permanently retired by the Army.  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 - 20090624	VARD - 20091120	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Posttraumatic Stress Disorder	9411	10%	Post-Traumatic Stress Disorder with Alcohol Abuse and Panic Disorder	9411	100%	20091001	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  100%	

Posttraumatic Stress Disorder (PTSD).  According to the service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s PTSD condition began in early 2005 after return from a combat deployment to Iraq.  He deployed from February 2004-February 2005.  He was seen in Germany due to episodes of anxiety attacks; his heart racing, sweating, lightheadedness and feeling nauseous.  He was diagnosed with panic disorder and anti-anxiety medication was prescribed.  He visited mental health (MH) in July 2005, feeling anxious and agitated since redeployment.  His wife reported he was emotionally detached, isolating, hypervigilant, had increased irritability and “fits of rage.”  He was frightened to handle a firearm, especially since he was Military Police.  He had no previous psychiatric history.  Upon his return from deployment, he drank almost daily and had gone on a two month binge of drinking two times per week until passing out.  He was evaluated at the Army Substance Abuse Program (ASAP) and was not fully cooperative.  He was placed on quarters due to panic attacks on at least 3 separate occasions (once in July and twice in September 2005) and had a visit to the emergency room in September for a panic attack.  He reported multiple combat exposures and was considered an outstanding soldier.  He received a combat action badge (CAB.)  Prior to deployment, there was no reported psychiatric or substance abuse history.  

At the 26 July 2005 NARSUM examination, 8 months prior to separation, the CI stated he had not been drinking alcohol since starting psychotropic medications.  He had also quit all tobacco products due to problems with sleep.  He had attended PTSD group, Behavioral Health Service Stress and Anger Management Course.  He was taking an anti-depression and an anti-anxiety medication.  He had frequent MH contacts due to his panic attacks and problems with his unit.  He was referred to a VA inpatient treatment program for PTSD.  Mental status exam (MSE) (251) showed him to be anxious and depressed, with congruent mood.  Axis I diagnoses included panic disorder with agoraphobia and PTSD and Axis II diagnosis of cluster B traits with a Global Assessment of Functioning (GAF) score of 50 (moderate bordering on serious symptoms, impairment.)  Degree of industrial impairment was marked.  

The 10 November 2005 Commander’s statement noted the CI had not been observed for the last 2 months, stating; “His supervisors and previous chain of command noted his performance was non-existent,…any assignment left incomplete…psychosocial difficulties preventing him from performing any task as a soldier and as a Military Police…currently on convalescent leave/placed on quarters and has not performed any military duties for the past 6 weeks at the guidance of the medical staff..”  The PEB, at separation (TDRL), adjudicated Panic disorder with agoraphobia and PTSD at 30%.  

The 20 April 2006 C&P examination, 2 months post-separation (118), noted the examiner was unable to address all of the questions outlined in the evaluation because the CI was so upset, angry and sullen from his PTSD symptoms due to concern the CI would explode in rage.  He stated that since his redeployment, “he was not a normal person anymore.”  He had not left his house for the past 3 weeks.  He had nightly nightmares.  His marriage was going badly and he had thoughts of suicide but had made no attempts.  He refused hospitalization.  He could not be around people, had no energy and concentration was down.  He was not close to anyone.  He drank almost every day.  He had seen a psychiatrist 3 times in the past 5 months.  MSE showed the CI was sitting hunched over, rubbing his head.  Replies were very brief, affect constricted, with an angry, mad mood.  Eye contact was brief.  He was irritable and impatient.  He abused alcohol and made reference to panic attacks.  A diagnosis of PTSD with alcohol abuse was rendered with a GAF score of 41 (serious symptoms, bordering on impairment in many areas.)

At the 7 March 2007 first TDRL examination, the CI reported continued substance abuse, poor sleep and anxiety symptoms and cardiovascular symptoms consistent with continued PTSD symptoms.  Diagnoses of alcohol disorders, anxiety disorder NOS and PTSD were rendered.  The PEB TDRL interim adjudication simplified the coding to 9411, citing continued instability with arrest for family violence, a marital breakup, and failure in VA sponsored Work Therapy, financial difficulties, bouts of anxiety and depression and continued abuse of alcohol.  

The 4 November 2008 (second) TDRL examination. 9 months prior to removal from the TDRL, noted complaints of two to three panic attacks a month lasting five to ten minutes each, episodic startle, hypervigilance, some depressed mood, and marked irritability.  Many things would upset him easily and he would have “anger explosions.”  He was driving recklessly and aggressively at times, hitting walls, and throwing things when angry or irritable.  This usually occurred in the context of him being intoxicated.  He continued to binge drink heavily up to two to three times per week.  He got into bar fights and fought with a friend while both were intoxicated in September 2008, resulting in him breaking his leg.  He drove intoxicated but had not been caught since March 2007.  He slept poorly and had infrequent violent nightmares.  He had no nightmares in the last 4-6 weeks.  But overall he felt things had improved since his first TDRL.  While the divorce was difficult he had moved on to some degree and was dating for the first time again.  He was unemployed although he had worked briefly in a work study job but quit one month early, which was less stressful for him.  He had attended school full time since January 2008 and was studying criminal justice with a 3.8 grade point average.  He was no longer living with his family but had returned to the home where he had lived with his wife.  He was living alone.  

He had not attended Alcoholics Anonymous (AA) for a year and had no plans to do so.  He was seen monthly by a psychiatrist but had been unable to attend twice weekly groups due to his college schedule.  He had stopped his anxiety medication and reported his psychiatrist agreed with this plan.  He denied significant legal incidents since September 2006.  He had been charged with domestic violence and served a six-month probation.  He reported his alcohol use was a significant obstacle to relationships in school and to holding a job.  MSE showed he was slightly depressed and anxious with blunted affect and mild irritability at times.  He denied suicidal/homicidal ideation.  Diagnoses of PTSD, alcohol dependence, panic disorder with agoraphobia, and depressive disorder NOS were rendered with a Global Assessment of Functioning (GAF) score of 60 (moderate bordering on mild symptoms, impairment.)  A 16 June 2009 memo confirmed the CI had received medical treatment since placement on TDRL and did not have a medication profile.  

At the 1 October 2009 VA Compensation and Pension (C&P) evaluation, 2 months after removal from the TDRL, the CI reported he was depressed and anxious most of the time and experienced panic attacks at least twice a week.  He went to treatment all the time and did not feel like a man and did not know if he would work again.  He reported the only way he could get to sleep was to drink a couple of beers and take his medications.  He had recurrent intrusive memories of events in Iraq.  He arose daily around midnight or 1 am and sat in front of his television and “zones out.”  He tried to stay home because when he went out he got into fights because he was drunk.  He drank a significant amount of alcohol plus beer daily since his return from Iraq.  He drank until he blacked out and used to smoke a lot of weed upon separation.  He reported suicidal ideation daily and that he had rid himself of all of his guns.  He reported homicidal ideation but not about a specific person.  He claimed psychiatric hospitalization three or four times.  He took sleep medication and was in mental health treatment at least twice a week.  He did not want to terminate treatment and reported it was becoming more difficult for him to leave his house.  The frequency, severity and duration of his symptoms had worsened since his last examination.  Symptoms were in the severe range and he was not able to work at even a part time position.  

The physical examination showed he was depressed, agitated and angry.  His speech was somewhat halting.  He reported he drank to numb symptoms of PTSD, although he knew the excessive drinking was making his problems worse.  Diagnoses of PTSD with panic attacks and alcohol dependence were rendered with a GAF of 40 (major impairment in several areas.).  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the PTSD condition 30%, coded 9412-9411 (Panic disorder and/or agoraphobia with PTSD) (64, 247), citing close relationship between these disorders which are to be considered as a collective unit, citing 10a/c.  The VA rated the PTSD condition 70%, coded 9411 (PTSD), based on the C&P examination 2 months after separation, citing suicidal ideation, sleep impairment, panic attacks, occupational impairment and social impairment.  

The panel first agreed that disability associated with any psychiatric condition, regardless of the diagnosis or multiple diagnoses (PTSD and panic disorder with agoraphobia in this case), is subsumed under a single rating using the same criteria IAW VASRD §4.130 general rating formula for mental health conditions.  The panel next determined IAW DoD guidance, VASRD section §4.129 (mental disorders due to traumatic stress) will be applied when PTSD is an unfitting condition.  Therefore, as a matter of policy, the PDBR must recommend placement of the CI on a period of constructive TDRL with a minimum rating of 50% IAW §4.129 with reassessment after six months.  

The panel next considered the §4.130 rating at TDLR placement.  The §4.130 criteria for a 70% rating is “Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood,” for a 50% rating, “Occupational and social impairment with reduced reliability and productivity.”  The Commander noted the CI had been placed on convalescent leave or quarters for 6 weeks-2 months and his performance was non-existent.  The C&P exam, 2 months post-separation, noted a MSE that showed him so angry, sullen and upset, the examiner could not conduct a full exam due to concern the CI would explode in rage.  He revealed suicidal ideation, a marriage going badly, and social isolation.  Evidence prior to separation, consisting of the MEB NARSUM and Commander’s statement, does support a rating greater than 50%, therefore a rating of 70% is assigned for entry into the TDRL period IAW with VASRD §4.129.  

At TRDL removal, the PEB adjudicated the PTSD condition at 10%, coded 9411 (PTSD), citing occasional decrease in work efficiency.  At TRDL removal, the VA adjudicated the PTSD condition at 100%, coded 9411 (PTSD), citing total occupational and social impairment.  The most proximate source of comprehensive evidence on which to base the permanent rating is the VA C&P examination conducted 2 months post-removal.  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.”  

The second TDRL examination, 9 months prior to separation noted severe continued symptoms of PTSD despite the CI report of overall improvement that included dating, attending school and making good grades.  At the C&P examination 11 months later, the CI reported worsening severe symptoms of PTSD as well as well as substance abuse, daily suicidal ideation with homicidal ideation as well.  He reported hospitalizations, not documented and continued medical treatment (unspecified) since placement on TDRL, confirmed by the TDRL clerk.  He was unable to work and was reluctant to leave home.  He drank to numb symptoms of PTSD, including his inability to sleep, although he was aware of the impact of the substance abuse.  Panel members agreed the persistent drinking was an outcome of the persisting severe symptoms of PTSD, incurred during his deployment.  

When a veteran's alcohol or drug abuse disability is secondary to or is caused or aggravated by a primary service-connected disorder, the veteran may be entitled to compensation. (Allen v. Principi, 1368, 1381 (Fed. Cir. 2001).  He had previously been a model soldier with no prior history of substance abuse or mental illness.  Members concluded that the 70% 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 disability rating of 50% for 6 months of constructive TDRL and a 50%/70% permanent rating thereafter for the PTSD condition.  

BOARD FINDINGS:  In the matter of the PTSD condition, the Board unanimously recommends a disability rating of 50%, coded 9411 IAW VASRD §4.129 for 6 months from the time of discharge consistent with a constructive period of TDRL and then a permanent separation rating of 70% IAW VASRD §4.130.  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	
Posttraumatic Stress Disorder	9412-9411	50%		
Posttraumatic Stress Disorder	9411		70%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 2006-02-01, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170014085, 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 re-characterize your separation as a disability retirement with the combined disability rating of 70%.  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 70% 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), XXXXXXXXXXXXXXXXXXX.

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

Sincerely,

	
Enclosure