RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-04107
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20070711

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E3, Unit Supply Specialist, medically separated for “anxiety disorder” with a disability rating of 10%.   

CI CONTENTION:  No specific contention was made.  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 - 20070521	VARD - 20080313	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Anxiety Disorder	9413	10%	Severe PTSD	9411	50%	20070820	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

Anxiety Disorder.  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s mental health (MH) disorder first manifested during her deployment to Iraq.  Her commander noted she felt effects of the stress related to being in a combat environment.  The CI reported regular harassment by other soldiers while in Iraq, but felt no one wanted to help her and no one cared.  Supervisors caused her a great deal of stress; she reported mistreatment by her commanding officer.  During her deployment, she reported exposure to mortar attacks (“which was hard to cope with”) and also experienced the loss of fellow soldiers who she knew.  She reported requesting to speak with a MH professional to help deal with her issues, but was reportedly denied treatment because she was needed “in the shop.”  She also reported slamming her rifle against the wall at one point as a suicide attempt.  

The CI reported she was sexually assaulted (date raped) on “R&R” from Iraq by an Army Recruiter on 9 February 2007.  Since then she reported nausea, “my whole body has been sick” and loss of bladder control.  Shortly after the reported rape, she was hospitalized in a civilian MH facility and after a few days, transferred to a second civilian MH facility for about 3 weeks.  She was escorted from New York to Colorado where she was hospitalized and followed as an outpatient.  During this last hospitalization, she reported anxiety so extreme she urinated on herself.  After the hospitalization and as an outpatient she was treated with an anti-depression medication and a sleep aide.  She was discharged with a diagnosis of PTSD.  She threatened to kill herself if she had to return to Iraq.  She reported receiving counseling for disrespectful behavior while in Iraq.  She reported self-mutilation with cigarettes in childhood.

The 21 March 2007 MEB NARSUM examination, 4 months prior to separation, noted complaints of exaggerated startle and fear of being in public.  She reported depression since age 16 but did not report MH diagnoses or treatment.  She had incomplete memory of the sexual assault and intrusive memories and nightmares.  She felt helpless and intensely fearful, and was intensely anxious around military men because they reminded her of her assailant.  The examiner noted the CI agreed to restricted reporting of the incident to Army authorities.  She had difficulty with concentration and admitted to being very irritable.  At the mental status examination (MSE), the CI appeared very anxious with tremulous hands and voice, sitting on the edge of the chair.  Her mood was described as very down and sleep was poor but better with the sleep aide.  Judgment was poor and insight limited.  Axis I diagnoses of anxiety disorder and major depressive disorder (MDD) were rendered, both of which existed prior to service (EPTS).  She was also diagnosed with an Axis II personality disorder, with a Global Assessment of functioning (GAF) of 50 (moderate symptoms, impairment).  

On 10 April 2007, the commander stated that based on his review of the CI’s record, interviews of other soldiers and his personal knowledge of the CI’s performance:  “There was no psychiatric history displayed or documented in her medical records prior to her deployment.  Others reported she was an outgoing individual who performed her military duties above and beyond all set standards.  Her direct line supervisor during Bayonet Strike characterized her as well above average…she displayed no negative behaviors and no negative counseling.  After the attack, she was placed in a civilian MH facility for a week and then transferred to a second facility for 3 weeks, then escorted to another state where she received outpatient care.  She suffered an anxiety attack 9 April 2007 and was seen in [the ER].  On two different occasions, the CI attempted to seek counseling from other sources outside [the] MH Department but was not successful.  She was currently performing normal soldier details…was presently more reclusive despite an outgoing personality prior to deployment.  Over the past month, a positive change was noted in her interaction with others…did not believe her condition was exaggerated in any way, was capable of duties within limits outlined and had been promoted within standard time for E-1 through E-4 promotions.”  

The 26 April 2007 MEB NARSUM addendum, 3 months prior to separation, the CI reported no indication of PTSD related to her deployment.  Her MEPS physical examination in September 2005 noted no ongoing health problems or abnormalities, other than poor eyesight.  She was tasked with various details including clerical work, clean up and moving of materials.  She reported anxiety around military men with a general distrust of her command as a result of several incidents.  

She presented to the ER on 1 August 2007 with complaints of anxiety and trouble with sleep.  She requested medication and therapy due to previous combat trauma, sexual harassment during deployment and rape.  A suicide risk assessment was negative.  She was admitted to inpatient psychiatry with documentation of treatment with anti-depression and sleep medication.  She reported she had recently been rejected by a job interviewer due to medical discharge from the Army.  She felt discriminated against for being a veteran.  The MSE indicated the CI looked frightened and depressed.  

At the 20 August 2007 VA Compensation and Pension (C&P) examination, 1 month after separation, the CI reported anxiety, depression and symptoms of PTSD.  She was single and lived with her mother.  Review of the medical record revealed no evidence of a personality disorder.  The CI reported not wanting to talk to anyone, including previously close female cousins.  She denied childhood physical or sexual abuse and had no trouble at her previous jobs.  She reported the rape to one of her close friends and cut her wrists to kill herself immediately after the rape attempt.  The examiner noted scars on her arms.  She eventually lost control of her bladder for about one month after the assault and had night and day incontinence.  She reported difficulty with energy, motivation, attention and concentration.  She was losing her hair but wanted to work and go back to school.  She had gained 20 pounds in the past month and was eating more as her depression worsened.  The MSE showed the CI was anxious and fearful.  Affect varied from flat to tearful.  She denied suicidal ideation.  She reported some difficulty with short-term memory and moderately impaired attention and concentration.  Diagnoses of PTSD, MDD and Panic disorder without agoraphobia were rendered with a GAF score of 48 (serious 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 and industrial impairment.  The PEB indicated the anxiety disorder and depression existed prior to enlistment and were permanently service aggravated, but noted the EPTS factor was undetermined and therefore made no deduction.  The VA rated the MH disorder 50%, coded 9411 (PTSD), based on the C&P examination, citing occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory, impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.

The panel first considered the EPTS determination.  The September 2005 entry examinations did not record or render a MH diagnosis.  A review of the records showed no evidence or documentation of a MH disorder prior to deployment to Iraq.  The CI revealed a history of a difficult childhood, an abusive boyfriend and a feeling of depression since adolescence; yet there was no history of a MH diagnosis or treatment prior to entry into the Service.  The panel agreed the EPTS determination was not sustainable.  

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 disorders.  The panel considered if application of VASRD §4.129 with a constructional 6 month (50% minimum) period on the Temporary Disability Retirement List (TDRL) was indicated in this case.  Application of VASRD §4.129 is considered by the panel for all cases of service-connected psychiatric conditions resulting in separation.  The PEB did not apply 4.129, although noting the condition was “aggravated by reported assault and harassment occurring during the past year.”  The commander referenced, “effects of stress related to being in a combat environment and during leave, “she was a victim of sexual assault.”  The panel noted the report of at least one suicide attempt and possibly two, the requirement for two hospitalizations shortly after the assault, MH diagnoses with extended treatment, development of panic attacks and diurnal urinary incontinence.  Review of the records demonstrated the CI was exposed to stressful events during deployment and requested MH consultation, which was denied on two occasions.  
Panel members agreed that the provisions of VASRD §4.129 were applicable in this case, noting the association with sexual assault impacting her current symptoms.  The panel then considered if there was evidence for a §4.130 rating, higher than the 4.129 minimum mandated 50%, at time of TDRL placement.  The panel 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 recommendation in this case is the August 2007 C&P examination performed one month 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 the criteria for a 50% rating requires “occupational and social impairment with reduced reliability and productivity.”  

The C&P examination noted she continued to take medication to treat her depression, anxiety and sleep issues.  She reported she had begun to lose her hair as part of her anxiety.  She was isolated and spent most of her time alone.  The MSE noted anxiety and depression.  She denied suicidal ideation.  Panel members agreed the CI’s symptoms most closely approximated the criteria for a 30% rating.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 50% for 6 months of constructive TDRL and a 30% permanent rating thereafter.

BOARD FINDINGS:  In the matter of the anxiety disorder, the panel 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 30% 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; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective the date of medical separation:  

CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
Anxiety Disorder	9413	50%	30%	

The following documentary evidence was considered:

AR20190004434, 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 recharacterize 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 recharacterization 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), 
A copy of this decision has also been provided to the Department of Veterans Affairs.