RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-02392
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20070830

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was a National Guard E6, Military Policeman, medically separated for “anxiety disorder” with a disability rating of 10%.

CI CONTENTION:  “Review all conditions.”  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 - 20070611	VARD - 20080618 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Anxiety Disorder	9413	10%	Post-Traumatic Stress Disorder (PTSD)	9411	10%	20080606	
Obstructive Sleep Apnea	Not Unfitting	Obstructive Sleep Apnea	6847	50%	20080607	
Degenerative Disc Disease	Not Unfitting	Lumbar Back Strain	5237	0%	20080607	
Migraine Headaches	Not Unfitting	Migraines	8100	0%	20080607	
Bilateral Knee Pain	Not Unfitting	Degenerative Joint Disease, Bilateral Knees	5003	10%	20080607	
Peroneal Tendonitis	Not Unfitting	Right Ankle Strain	5271	0%	20080607	
		Left Ankle Strain	5271	0%	20080607	
 GERD	Not Unfitting	GERD	7399-7346	0%	20080607	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Anxiety Disorder.  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s mental health (MH) disorder began on 16 August 2005 during combat operations in Iraq, but the combat action badge was not awarded per DD Form 214.  He was exposed to IEDs and mortar attacks.  There was one IED blast in particular where he felt the explosion and helped five soldiers whose vehicle was hit by an IED.  He experienced ringing of the ears and a headache.  He was medically evacuated and treated for heat exposure and tinnitus.  After redeployment in October 2005 he was seen by MH for emotional issues arising from his tour of duty.  He reported “road rage” and extreme irritability with his family and co-workers.  In February 2006, he reported PTSD symptoms and was referred to a psychiatrist for treatment. 

The 17 May 2006 MEB NARSUM examination, 16 months before separation, noted the CI was taking an anti-depressant medication and had gone to MH three times in 3 months.  The examiner noted the CI did not appear depressed, show signs of hyperarousal, or describe a traumatic event.  The examiner documented the CI was able to concentrate, took care of his soldiers, was performing well on a daily basis, but only did administrative paperwork while assisting others.  The CI endorsed 80% of the items on the MH intake form.  The examiner opined that the CI had an adjustment disorder.  The mental status examination (MSE) showed the CI was well groomed and very relaxed.  

The 5 January 2007 MEB NARSUM examination, 8 months prior to separation, documented that the CI was seen by a psychiatrist on a monthly basis for medication management and by a psychologist for supportive psychotherapy.  The CI reported being in dangerous situations while in Iraq, very close to many things that could have happened, and he could not get over that.  He was jumpy, did not like crowds, was irritable, and became agitated when driving.  He reported nightmares of being shot by a sniper 2 to 3 times per week.  He reported sleep disturbance and mood swings as “one minute he is up and one minute he is down.”  Medication improved his sleep and helped control his temper and mood swings.  He had trouble reintegrating and staying busy.  He lived with his wife and daughter and their relationship was good.  The examiner noted that the CI’s IED blast did not meet the criteria for a traumatic event.  The MSE was unchanged from the previous evaluation.  A diagnosis of anxiety disorder not otherwise specified (NOS) was rendered with a Global Assessment of Functioning (GAF) score of 80 (mild, transient symptoms, impairment).  

During the 3 May 2007 MEB psychiatric consultation, 4 months prior to separation, the CI reported mood swings, weekly nightmares and problems with reintegration.  The CI was improving while utilizing daily anti-depression medication.  No MSE was documented.  The CI was diagnosed with anxiety disorder without a GAF score.  His condition manifested as irritability, depression, relationship and sleep problems, anger, depression, and difficulty adjusting to reintegration.  The CI’s impairment for further military duty was marked.  His impairment to social/industrial adaptability was mild.

The 25 June 2007 psychiatry outpatient consult, 2 months before separation, noted CI complaints of nightmares, difficulty breathing, memory problems, flashbacks, and depression.  He reported seeing dead bodies and people blown apart during Operation Desert Storm during his first tour in the Army.  He reported he went to work daily for the Army National Guard.  His depression lasted a couple of days.  He reported nightmares, at times having trouble remembering what they were, but said he dreamt of incidents during Desert Storm.  His deployment to Iraq triggered memories of his previous Desert Storm experiences.  He was taking anti-depression, mood-stabilizing and sleep medications.  The MSE was unremarkable.  A diagnosis of anxiety disorder NOS was rendered with a GAF score of 61 (mild symptoms, impairment.)  The 19 July 2007 neuropsychological testing, one month prior to separation, resulted in a diagnosis of PTSD and depressive disorder NOS, which noted variable behavior with inconsistent effort.

At the 6 June 2008 VA Compensation and Pension (C&P) PTSD examination, 8 months after separation, the CI reported sleep impairment with weekly nightmares.  He slept 8-10 hours per night.  He reported panic attacks at least twice weekly.  He was employed as a full-time crane operator.  He was not receiving treatment.  He had three close friends and 10-15 friends socially.  He was building a model railroad that he worked on 2-3 hours per day and he watched 4-5 hours of television per day.  The MSE was normal.  A diagnosis of PTSD was rendered with a GAF score of 61 (mild symptoms, impairment.)

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the MH disorder 10%, coded 9413 (anxiety disorder), citing mild social/industrial impairment.  The VA rated the MH disorder 10%, coded 9411 (PTSD), based on the C&P PTSD examination, citing mild occupational and social impairment.

The panel considered whether the provisions of VASRD §4.129 (mental disorders due to traumatic stress) were applicable.  Panel members agreed that the stipulations of §4.129 were met in this case based on the CI’s combat deployment, as described by the CI and his commander, and which resulted in MH diagnoses and subsequent medical discharge.  The panel therefore recommends a minimum 50% rating for a retroactive 6‐month period on the Temporary Disability Retired List (TDRL).
	
The panel then turned to its rating recommendation at the time of placement on the TDRL. Members noted that disability associated with any psychiatric condition, regardless of the diagnosis or multiple diagnoses, is subsumed under a single rating using the same criteria IAW VASRD §4.130 general rating formula for MH conditions.  The panel considered if there was evidence for a §4.130 rating higher than the §4.129 minimum mandated 50% at time of TDRL placement.  All panel members agreed that the §4.130 criteria for a rating higher than 50% at the time of placement on TDRL were not met; and, therefore the minimum 50% TDRL rating prescribed by §4.129 is applicable. 

The panel then turned to its permanent rating recommendation at the time of removal from the TDRL.  The §4.130 criteria for a 10% rating is “symptoms controlled by continuous medication;” for a 30% rating it 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 panel determined that the most proximate source of comprehensive evidence on which to base the permanent rating recommendation in this case is the C&P PTSD examination performed 8 months after separation from active duty and placement on the TDRL.  During this examination, the CI reported weekly nightmares and panic attacks, but he was not receiving MH treatment.  He lived with his wife and stepdaughter, worked full-time, had close friends and social friends, enjoyed building a model train for a few hours per day and watched TV daily.  The MSE was unremarkable.  The examiner opined that the CI’s symptoms were mild and transient.  Panel members agreed that the CI’s symptoms were consistent with a 10% disability.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a retroactive 6-month period of TDRL with a rating of 50% (IAW §4.129), and a permanent rating of 10% for anxiety disorder (9413).

Contended PEB Condition:  Obstructive Sleep Apnea (OSA).  The panel’s main charge is to assess the fairness of the PEB determination that the contended condition was not unfitting.  The contended condition was judged to fail retention standards, but was not profiled or implicated in the commander’s statement.  During the 4 May 2007 pulmonary visit, 4 months prior to separation, the CI denied excessive daytime sleepiness and continued to use the continuous positive airway pressure therapy.  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 there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition, so no additional disability rating is recommended.  

Contended PEB Conditions:  Degenerative Disc Disease, Migraine Headaches, Bilateral Knee Pain, Peroneal Tendonitis and GERD.  The panel’s main charge is to assess the fairness of the PEB determination that the contended conditions were not unfitting.  None of the conditions were profiledI or implicated in the commander’s statement and they did not fail retention standards.  There was no performance-based evidence from the record that any of the conditions significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB fitness determination for any of the contended conditions, so no additional disability ratings are recommended.

BOARD FINDINGS:  In the matter of the anxiety disorder, the panel recommends an initial TDRL rating of 50% in retroactive compliance with VASRD §4.129 as DOD directed, and a 10% permanent rating at 6 months IAW VASRD §4.130.  In the matter of the contended obstructive sleep apnea, degenerative disc disease, migraine headaches, bilateral knee pain, peroneal tendonitis, and GERD, the panel recommends no change from the PEB determinations as not unfitting.  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 the date of medical separation:

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

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170303, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record

AR20180015173, 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 recharacterization 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 recharacterization 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 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.

Sincerely,

Enclosure