RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXX		CASE: PD-2017-04245 BRANCH OF SERVICE: ARMY	SEPARATION DATE: 20080602

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty W2, UH-60 Pilot, medically separated for “depression” with a disability rating of 10%.

CI CONTENTION: “I should have been medically retired from active service…the VA determined that my case of PTSD was incurred during combat and are service connected.” 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 - 20080215	VARD - 20090122	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Depression	9434	10%	PTSD (Also Claimed As Major Depression)	
9411	
10%*	
20090112	
Posttraumatic Stress Disorder [PTSD]	Not Unfitting					
COMBINED RATING: 10%	COMBINED RATING OF ALL VA CONDITIONS: 60%	
*Rating increased to 50% effective DOS on VARD dated 20090122 based on C&P examination dated 20090112

ANALYSIS SUMMARY:

Depression. According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s depression started in October 2006, several months after his return from Iraq. The 28 February 2007 post deployment health re-assessment showed denial of symptoms suggestive of depression, and he also did not endorse any symptoms suggestive of PTSD. In November 2007, the Warrior Transition Unit intake summary noted that PTSD and anxiety were

diagnosed in June 2007. The STR showed no evidence of treatment in the emergency room (ER) or psychiatric hospitalization.

The 7 January 2008 MEB NARSUM examination, 5 months prior to separation, noted CI complaints of emotional detachment from other people, trouble in interpersonal relations, irritable/angry mood, poor sleep, weird dreams which were sometimes related to his experiences in Iraq, and multiple other complaints consistent with depression. The CI denied a history of abuse or of trauma prior to his deployments, but remembered a “very scary episode” during deployment when one of his passengers had a hard time exiting the aircraft after a landing. He waited in terror on the ground as he watched the other helicopters in his formation take off and found himself cut off from any communications at the time. The CI also described an incident in a letter to VA Claims dated 22 January 2008 that caused him “extreme fear.” He stated that the “the worst call an aviator can hear is a distress call from another aircraft that had been hit by a RPG in a fire fight close to his formation of Blackhawks.” When his team came upon the hit aircraft, it was on fire but still flying. Those events and the sound of the pilot’s voiced continued to haunt him. He thought he would be “okay” for the first several weeks upon returning to the US, but he started drinking heavily within a few weeks and realized he would “never be a normal ‘civilian’ again.” The CI was taking medication to treat his symptoms, and also participated in individual and group therapy. He saw a psychiatrist once by remote video, and the mental status examination (MSE) was unremarkable with the exception of self-described depressed and irritable mood. Affect was normal to irritable. There were no additional STR entries documenting MH treatment before separation, but at a primary care visit on 17 October 2008, 4 months after separation, the provider noted the absence of medications and a normal MSE.

At the 12 January 2009 VA Compensation and Pension (C&P) examination, 7 months after separation, he endorsed some sleep difficulties, low energy level and some agitation, but denied any current MH treatment. He was not employed, but was a full-time student and had not lost time from classes or experienced diminished academic performance due to MH symptoms. He had a few friendships and enjoyed flying remote controlled helicopters as a hobby. The CI denied a history of psychiatric hospitalization, suicide attempts, violence, or panic attacks. The MSE was unremarkable with the exception of constricted affect. There were no suicidal or homicidal thoughts, psychosis and no impairment in memory or judgment. Mood symptoms were not reported, but sleep disturbance and occasional agitation was documented.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated depression 10%, coded 9434 (major depressive disorder), citing symptoms controlled with continuous medication. The VA initially rated PTSD 10%, coded 9411 (PTSD), based on the STR. However, the rating was increased to 50%, based on the C&P examination. Regardless of the diagnosis, VASRD§4.130 rating is based on symptoms independent of diagnosis, therefore, all MH symptoms (depression and PTSD) are considered in the rating, and reflected in the panel’s recommendation.

Panel members first considered the provisions of VASRD §4.129 (mental disorders due to traumatic stress), and whether the MH condition was due to a “highly stressful event.” Panel members noted that although the PTSD was found to be not unfitting, the diagnosis supported exposure to traumatic events and perhaps led to the unfitting diagnosis of depression. It would be highly speculative to make a determination that the depression was not the result of a highly stressful event since both conditions were diagnosed at the same time. Therefore, the panel concluded the preponderance of the evidence supports that the major depressive disorder occurred as a result of a highly stressful event, and that application of §4.129 was appropriate in this case. Therefore, a minimum 50% rating for a retroactive 6-month period on the Temporary Disability Retired List (TDRL) is recommended.

The panel turned to its rating recommendation at TDRL placement, and agreed there was no evidence to support a rating higher than 50% at that time. 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. There were no treatment records during the constructive TDRL period, however, during the 13 November 2008 MH evaluation, 4 months after separation, the provider noted the CI was a full-time student with no academic or social problems. He was not in treatment and had no legal issues, but was still having problems with anger, sleep, nightmares and interpersonal conflict. The MSE was unremarkable with the exception of anxious mood and affect. The C&P examination documented complaints of sleep and agitation, but mood symptoms were not prominent. The CI had no problem with concentration, memory, appetite, crying spells, significant irritability, or lack of pleasure. He had no history of panic or anxiety attacks, and there was no report of any ER visits related to MH symptoms. No cognitive impairment was found during the evaluation and there was no evidence of impaired judgment. The CI was still a full-time student and had not lost any time from school due to MH issues. The panel considered the record in totality, and concluded the evidence demonstrated the CI’s condition was most reflective of a 10% level of 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 minimum rating of 50% (in accordance with §4.129), and a permanent rating of 10%. Panel members agreed that any impairment related to the PTSD was considered in the rating of the unfitting depression. Regardless of the diagnosis, VASRD §4.130 rating is based on symptoms independent of diagnosis, therefore, all MH symptoms are considered in the rating, and reflected in the panel’s recommendation above.

BOARD FINDINGS: In the matter of the depression, the panel recommends an initial TDRL rating of 50%, coded 9434, in retroactive compliance with VASRD §4.129; and a 10% permanent rating at 6 months IAW VASRD §4.130. In the matter of the contended PTSD, the panel agrees it cannot recommend it for additional disability rating. 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	
Depression	9434	50%	10%	

The following documentary evidence was considered:

AR20190011773, 

Dear XXXXXXXXXXXXXXX:

	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), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557.

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