RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-00985
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20080223

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E6, Fire Support Specialist, medically separated for “anxiety disorder, not otherwise specified [NOS]” with a disability rating of 10%.   

CI CONTENTION:  “Rated for anxiety disorder.  During my Physical Evaluation Board, it was required that someone from the service member's chain of command had to personally verify their story.  During my deployment in 2003, my team and I were attached to multiple units that needed our support for the ongoing fighting.  My chain of command never left Bagdad making it impossible for them to verify anything.  Also while I was still on active duty I was sent twice to Palo Alto to the national center for Post-Traumatic Stress Disorder.”  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 Medical Evaluation Board (MEB), but determined by the PEB 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.  The panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections when appropriate.  The panel’s assessment of the PEB rating determination is based on review of medical records and all available evidence relevant to application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards for 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, which operates 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 disability at the time of separation.  

RATING COMPARISON:  

SERVICE PEB - 20090223	VARD - 20080227	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Anxiety Disorder NOS	9413	10%	Post-Traumatic Stress Disorder	9411	50%	20071009	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  70% 	

ANALYSIS SUMMARY:  

Anxiety Disorder NOS.  According to the service treatment record and MEB narrative summary (NARSUM), the CI was deployed to Kosovo from December 2000 to July 2001 and Iraq from April 2003 to July 2004.  The onset of symptoms occurred around March 2004, with reports that he had been exposed to several frightening events, had witnessed severely injured soldiers after an explosion, and felt his life was threatened.  He experienced recurrent and intrusive memories of specific events with nightmares and flashbacks, and had problems with sleep, concentration, irritability, and discomfort in crowds.  The CI was treated with psychotropic medication and also participated in a residential post-traumatic stress disorder (PTSD) focus rehabilitation program, but s never hospitalized or treated in the emergency room (ER) for a mental health condition.

At the 18 September 2007 MEB NARSUM examination, 5 months prior to separation, the CI complained of irritability, increased appetite, weight gain, insomnia, loss of motivation, emptiness, and other symptoms suggestive of trauma exposure.  He took antidepressant/anti-anxiety medication and was considered stable, but continued to have symptoms. The mental status examination (MSE) was unremarkable with the exception of flat affect.  His judgment and cognitive functioning were recorded as “good.”  The examiner diagnosed anxiety disorder NOS and assigned a Global Assessment of Functioning (GAF) score of 60 (cusp of mild-moderate).

At the 9 October 2007 VA Compensation and Pension (C&P) evaluation, 4 months before separation, the examiner noted the CI was preparing to leave the service and working 60 hours a week.  He was still married after 8 years with no relationship problems, but reported anger issues, nightmares/distressing thoughts of the war in Iraq, and averaged only 3 hours of sleep at night.  He also occasionally experienced a “panic-like feeling.”  He was still taking his antidepressant prescription as well as a sleep medication.  The MSE was unremarkable.  

The 19 October 2007 commander’s duty performance memorandum, 4 months prior to separation, stated the CI was “working his MOS” as an advanced individual training instructor for fire support.  “He has been working 5 days per week and 8 hours per day…performing his work duties in proper military uniform and appearance.”  While indicating he had difficulty remembering instructions and maintaining an acceptable level of attention/concentration, the commander stated the CI needed “little to no supervision,” and would be fine remaining in his instructor position.  It was also noted that he had a temper problem.  

There were four treatment entries in the months after separation.  A June 2008 note documented the CI had lost his job, apparently due to behavior towards subordinates, and was exploring new employment opportunities.  The MSE was unremarkable with a GAF score in the borderline, mild-moderate range.  The following month, the CI reported an incident involving the police, but that he was not arrested; the examiner noted a normal MSE.  In August 2003, the CI was planning to enroll in a computer program, and was provided an electronic device to help with organization after complaining of some short-term memory problems. An unremarkable MSE was also documented later in the month at the last clinical encounter before the CI moved out of state.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the anxiety disorder 10% coded 9413 (anxiety disorder, NOS), citing mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress with symptoms controlled by continuous medication.  The PEB noted that reported combat stressors were not corroborated and that the disability did not result from a combat related injury.  The VA rated PTSD 50%, coded 9411 (post-traumatic stress disorder), based on the C&P evaluation.  Members first considered the provisions of VASRD§ 4.129 for a “mental disorder that develops in service as a result of a highly stressful event” were applicable,” and whether a minimum 50% rating for a retroactive 6-month period on the Temporary Disability Retired List (TDRL) was appropriate.  The panel closely reviewed the memos and emails regarding the alleged traumatic events.  One officer was unequivocal and therefore unable to corroborate or deny that events had occurred in the manner in which the CI reported.  Another service member stated the events did occur, but memory of the CI being present was not clear.  Without definitive evidence to refute the CI’s claim, members agreed the provisions of VASRD§ 4.129 were met.

The panel next proceeded with its rating recommendation based on the evidence at constructive TDRL placement, and noted that regardless of the diagnosis, VASRD§4.130 requires consideration of all mental health symptoms independent of diagnosis.  The October 2007 commander’s statement noted that the CI was working regular hours in his specialty as an instructor without need of additional supervision, and members agreed that a minimum 50%, but no higher, was warranted.  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 anxiety disorder condition at TDRL placement.

The panel next considered whether the evidence at the time of TDRL removal and permanent disability disposition supported a rating higher than the 10% rating adjudicated by the PEB.  In the clinical encounters starting 4 months after separation, there was no mention of problems with sleep, panic attacks, or marital/social relationships.  Although the CI reported some memory issues, there was no evidence that this interfered with occupational or social functioning.  Members considered the entire record and noted that the CI had no history of hospitalization, ER visits, panic attacks, suicidal or homicidal ideation, or impairment in judgment at any time before or after separation.  The only documented symptoms post-TDRL were transient irritability, anger, and mild memory complaints, and the panel adjudged that the CI’s condition was stable at the time of separation, with his disability was most reflective of the 10% level for “occupational or 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.” After due deliberation, the panel recommends a permanent disability rating of 10% for the anxiety disorder condition, coded 9413.

BOARD FINDINGS:  In the matter of the PTSD condition, the panel 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.  There are no other conditions within the panel’s scope of review for consideration.  

The panel recommends 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, Not Otherwise Specified	9413	50%	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170218, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20180006629, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

	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 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.

	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. 

	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), XXXXXXXXXXXXXXXXXX.

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

Sincerely,					      
Enclosure