RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  xxxxxxxxxxxxxxxxxxxxxxxx	CASE:  PD-2020-00125
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20070117

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Infantryman, medically separated for “post-traumatic stress disorder [PTSD]” with a disability rating of 10%.

CI CONTENTION:  The CI submitted a detailed attorney contention that the panel took into consideration.  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 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 - 20061122	VARD - 20070726	
Condition	Code	Rating	Condition	Code	Rating	Exam	
PTSD	9411	10%	PTSD	9411	70%	20070524	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  70%	

ANALYSIS SUMMARY:  

PTSD.  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s PTSD condition was first noted by outpatient mental health after he was hospitalized due to psychiatric symptoms from 29 March to 1 April 2006.  There were no additional hospitalizations or emergency room evaluations.

The 24 August 2006 MEB NARSUM examination, 3 months prior to separation, noted complaints of PTSD symptoms.  The CI was prescribed psychotropic medication resulting in some improvement in anxiety and insomnia but he chose to stop taking the medications with worsening of his mood instability, anxiety, avoidance behaviors, and brief flashbacks of combat experiences.  Mental status examination (MSE) showed an anxious and irritable mood, but not elevated or euphoric.  His affect was anxious and mildly depressed.  There was no evidence of psychosis, cognitive disturbance, impaired judgment, panic attacks, or impaired memory.  The examiner opined that the CI’s impairment for military duty was “marked.”  Impairment for social and industrial adaptability was described as not requiring hospitalization.  He displayed slight signs of mental illness on examination.  He required medication and was noted to possibly require psychotherapy.  Occupational adjustment was poor and social adjustment was adequate.  He wore his uniform but had diminished duty performance.  Future civilian job performance was considered unknown.  A Global Assessment of Functioning score was not provided.

At the 24 May 2007 VA Compensation and Pension (C&P) examination, 4 months after separation, the CI reported fluctuating moods, anxiety and depression.  He had nightmares that interrupted his sleep and only got an hour of sleep a night.  He still had friends and activities, but there were marital problems.  The CI stated he was angry and had a short fuse.  He had not been able to find work without a reason provided.  MSE noted the CI was oriented and anxious but not depressed.  He was only able to sleep one to two hours per night.  He reported having panic attacks (frequency not documented), was hyper vigilant, and had an increased startle reaction and irritability.  His memory and judgment were intact, and he showed no evidence of psychosis or dementia.  Psychotropic medication and psychotherapy were not addressed.

During a VA PTSD intake consultation on 25 June 2007, 5 months after separation, the CI reported living with his wife, step son, and a long-time friend. His wife planned to move Alabama and the CI thought they may get a divorce.  The CI was not working and was collecting unemployment.  There was no evidence provided detailing whether the CI was able or unable to work due to PTSD.  The CI continued to have problems with sleep, and at times felt depressed, guilty and worthless.  The examiner referenced the C&P MSE.  Psychotropic medication and psychotherapy were not addressed.  A VA psychiatric note dated 26 July 2007 revealed the CI was evaluated and diagnosed with PTSD symptoms and persistent depression.  The CI was prescribed 20 mg/day of Citalopram, an antidepressant, and 15 mg of temazepam as needed, to treat insomnia.  Employment and psychotherapy were not addressed.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated PTSD 10%, coded 9411 (PTSD), citing social and industrial impairment as mild.  The VA rated the PTSD 70%, based on the C&P examination, citing the mental health criterion.  Panel members agreed, the provisions of VASRD§ 4.129 were applicable in this case, and recommends placement on the Temporary Disability Retirement List (TDRL) for a 6-month constructive period.  

The panel next proceeded with its rating recommendation under VARSD §4.130 based on the evidence at constructive TDRL placement.  There was no evidence of impaired judgment, and although the CI was briefly hospitalized, there was no report of suicidal or homicidal ideation, no further report of psychosis, and no additional psychiatric hospitalizations.  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 PTSD 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.  Although the CI reported getting only one to two hours of sleep a night, he continued to drive his car without reported impairment or accident.  The CI was unemployed since leaving the service without evidence noting whether the CI was able or unable to work due to PTSD.  There was no evidence of impairment to judgment, memory, cognition, or disturbance in thinking.  The CI had friends and did activities and was able to maintain social relationships. He did not report any disorientation or psychosis and the frequency of his panic attacks were not documented.  There was no suicidal or homicidal ideation noted, and no additional psychiatric hospitalization or emergency room evaluations were recorded to justify the 50 or 70% rating.  However, the VA examinations proximate to TDRL removal documented the requirement for continued psychotropic medication, the presence of chronic depression and significant sleep impairment; the frequency of panic attacks is unknown.  Consequently, panel members concluded, based on the evidence, the CI’s condition was between the 10% and 30% level of impairment.  Panel members agreed that IAW VASRD 4.7 (the higher of two evaluations), the 30% rating and no higher is warranted.  After due deliberation, considering the totality of 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% (in accordance with §4.129), and a permanent rating of 30% for the PTSD condition, coded 9411.

BOARD FINDINGS:  In the matter of the post-traumatic stress disorder, the panel recommends an initial TDRL rating of 50%, coded 9411 in retroactive compliance with VASRD §4.129; and a 30% 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; 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	
Post-Traumatic Stress Disorder	9411	50%	30%	

The following documentary evidence was considered:

AR20200009911 

Dear XXXXXXXXXXXXXXXXXXXXXX:

	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 permanent 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

	A copy of this decision has also been provided to the Department of Veterans Affairs and to the counsel you listed on your application.