RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY CASE NUMBER: PD1201564 SEPARATION DATE: 20040823 BOARD DATE: 20130322 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty Soldier, SPC/E-4(31B, Military Policeman), medically separated for panic disorder without agoraphobia. The CI initially noted symptoms while stationed in Germany; however, he did not seek medical attention. He transferred to Ft. Carson where his symptoms worsened and he was started on Xanax, given intramuscular Valium, and also started on Paxil. Despite medical disagreement, the CI was deployed; however, he was immediately air evacuated from theater. The CI did not improve adequately with treatment to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was issued a permanent S4 profile and referred for a Medical Evaluation Board (MEB). The MEB forwarded panic disorder without agoraphobia; and major depressive order, single episode; as medically unacceptable IAW AR 40-501. Eight other conditions, identified in the rating chart below, were also identified and forwarded by the MEB as meeting retention standards. The PEB bundled the panic disorder without agoraphobia and major depressive disorder, single episode into panic disorder without agoraphobia and adjudicated the condition as unfitting, rated 10%, with application of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD). The eight other conditions, identified on the rating chart below, submitted by the MEB were adjudicated by the PEB as not unfitting. The CI made no appeals, and was medically separated with a 10% disability rating. CI CONTENTION: The CI states: “Service connection for PTSD was denied. Service connection for upper and lower back pain was denied. I was in accident while on duty July 7 2003 and it effected [sic] by back still. Service connection for irritable bowel syndrome was granted with an evaluation of 0 percent. Service connection for vasomotor rhinitis is granted with an evaluation of 0 percent.” SCOPE OF REVIEW: The Board wishes to clarify that the scope of its review as defined in DoDI 6040.44 (Enclosure 3, paragraph 5.e. (2)) is limited to those conditions which were determined by the PEB to be specifically unfitting for continued military service; or, when requested by the CI, those condition(s) “identified but not determined to be unfitting by the PEB”. The Service ratings for unfitting conditions will be reviewed in all cases. The conditions of PTSD; functional bowel disorder; recurrent upper and lower back pain; and allergic rhinitis as requested for consideration meet the criteria prescribed in DoDI 6040.44 for Board purview; and, are addressed below, in addition to a review of the Service ratings for the unfitting conditions. The conditions of personality disorder, NOS; chronic knee pain; residual left ankle sprain s/p recent ankle sprain; and gastro-esophageal reflux are not within the Board’s purview. Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Army Board for the Correction of Military Records (BCMR). RATING COMPARISON: Service PEB – Dated 20040715 VA (7 & 9 Mos. Post-Separation) – All Effective Date 20040824 Condition Code Rating Condition Code Rating Exam Panic Disorder w/o Agoraphobia 9412 10% Panic Disorder w/o Agoraphobia, MDD 9412 30% 20050328 PTSD Not Unfitting PTSD 9411 NSC 20050328 Personality Disorder, NOS Not Unfitting Personality Disorder 9410 NSC 20050328 Functional Bowel Disorder Not Unfitting Irritable Bowel Syndrome 7319 0% 20050328 Recurrent Upper and Lower Back Pain Not Unfitting Upper & Lower Back Pain 5237 NSC 20050506 Allergic Rhinitis Not Unfitting Vasomotor Rhinitis 6522 0% 20050328 Chronic Knee Pain Not Unfitting Right Knee Pain 5257 NSC 20050506 Residual L Ankle Sprain s/p Recent Ankle Sprain Not Unfitting No VA Entry Gastro-esophageal Reflux Not Unfitting Esophageal Reflux, Hiatal Hernia 7346 10% 20050328 .No Additional MEB/PEB Entries. 0% X 2 / Not Service-Connected x 2 20050328 Combined: 10% Combined: 40% ANALYSIS SUMMARY: The Board acknowledges the CI’s contention that suggests service ratings should have been conferred for other conditions documented at the time of separation. The Board wishes to clarify that it is subject to the same laws for service disability entitlements as those under which the Disability Evaluation System (DES) operates. While the DES considers all of the service member's medical conditions, compensation can only be offered for those medical conditions that cut short a service member’s career, and then only to the degree of severity present at the time of final disposition. However the Department of Veteran Affairs (DVA), operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service connected conditions and to periodically reevaluate conditions for the purpose of adjusting the disability ratings should his degree of impairment vary over time. Panic Disorder without Agoraphobia. The narrative summary (NARSUM) 30 June 2004, approximately two months prior to separation, notes the history of panic attacks which the CI reported began while in Germany. He did not seek medical attention at that time, but was assisted at least once by a supervisor during an attack, which resolved with approximately a half hour of “rest”. He was returned to the US and his attacks intensified. He was initially having attacks one to three times per week. The CI received treatment with medications and was placed on a profile. He was deployed to Iraq, contrary to a psychiatric opinion, because the “unit took patient based on favorable performance.” In Kuwait, after one week, he was seen in the clinic because he had run out of medication and was experiencing anxiety and rage. The CI was treated with a tranquilizer injection, but the next day he had a repeat attack, and received another injection. He was relieved of his arms and sent back to the US for further treatment. Additional diagnoses of major depressive disorder, PTSD, and personality disorder with borderline traits were noted. Medications were added and changed frequently, adding stronger medications for the anxiety. The MEB/NARSUM stated that the CI’s current status was symptoms of panic once or twice a week. The MEB/NARSUM exam referenced the DD2808 3 June 2004 and noted the physical evaluation to be unremarkable. At the MEB psychiatry exam 23 June 2004 the CI was noted to have the following symptoms: “he feels “empty” and can’t think, he breaths harder and faster, he has “hot flushes”, then chills, dizziness. He has a fear of going “crazy” or dying. The CI was having impaired sleep and nightmares, and reported having visual illusions and auditory hallucinations of hearing his name called. The psychiatric NARSUM states the CI’s duty performance was unsatisfactory due to his irritability and paranoia and it was necessary to remove the CI from his unit on two occasions. The MEB psychiatry exam noted a flat affect but “otherwise appropriate to the situation”; no delusions; oriented to place, but not date and time. The examiner stated the CI appeared “lost”. The CI reported a significant childhood history of a chaotic family life and physical and sexual abuse. He had trouble in elementary school with fighting, but did better in high school. He had joined the National Guard but had difficulty finding and holding civilian jobs, so joined the Army. The diagnoses were major depression, single episode; panic disorder; PTSD secondary to childhood traumas, existed prior to service (EPTS). The panic disorder and major depression were noted to be in the line of the duty, but not the PTSD. GAF estimate was 45 and noted “severe panic symptoms”. The recommendations stated that the CI “has been declining in his ability to perform as a soldier” and were unable to perform his MOS or carry a weapon due to anger and poor judgment. At the VA Compensation and Pension (C&P) exam psychiatric evaluation 28 March 2005, approximately seven months after separation, the CI reported that he continued with episodes of rage and panic, but that they were less frequent on medication, about three times per month. He did report trouble concentrating. The CI reported that symptoms of hearing things; seeing flashes of light, feelings of being watched; and thinking he knew what others were thinking or that someone on television was talking to him were better since on medication. He reported the same family history. The CI was enrolled in college, but reported doing very poorly and did not think he would pass. He had a hard time concentrating and had to leave class due to panic attacks. The CI had not been employed since separation. He was married without children; the relationship had deteriorated due to his irritability. There was no history of violence, suicidal or homicidal ideation, or inpatient psychiatric care. At the exam the CI made good eye contact, related well to the examiner, but appeared mildly depressed. There was no evidence of impaired thought, judgment, delusions, hallucinations; no obsessive behavior, no impaired impulse control. Panic attacks were noted to be once per week; anxiety state was noted to be mild. He was oriented to person, place and time, but exhibited poor concentration. There was no evidence of a personality disorder. The examiner diagnosed panic disorder without agoraphobia and major depressive disorder (by history). GAF was estimated to be 48-50. The examiner opined that a complete diagnosis of PTSD was not present and felt the CI had few symptoms of PTSD: “His major problems are those of panic disorder, and there appears to be a history of major depressive disorder while in the service” ; and, “The veteran did have some features of psychotic thinking while he was in Iraq, and it is unclear whether this was possible initial presentation of a psychotic disorder which was warded off by treatment or whether this represented psychotic features of a major depression”. The examiner stated “Psychiatric symptoms are currently frequent, severity is serious, and duration has been since military service” and that the CI had not had any period of complete remission. The Board directs attention to its rating recommendation based on the above evidence. The Board unanimously agreed that § 4.129 did not apply. The PEB found the CI’s panic disorder to be unfitting and rated as 9412 (Panic Disorder) at 10%. The VA also rated as 9412 at 30%. The Board agreed that the CI’s panic disorder with panic attacks occurring one to two times per week at the time of separation exceeded the §4.130 threshold for a 10% rating. The deliberation settled therefore on evidence for a 30% (occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks) versus a 50% (occupational and social impairment with reduced reliability and productivity) permanent rating recommendation. The Board opined that the evidence in the MEB/Psychiatric NARSUM of severe anxiety with panic attacks; flat affect; paranoia; disorientation to time; poor judgment; and impaired sleep most nearly met the 30% rating. The 30% rating rationale is further supported by the observation that the CI had been declining in performance and required more and stronger medication for treatment of his anxiety. However, the Board adjudged that the CI’s symptoms did not meet the criteria for a 50% rating at the time of separation due to the CI’s improvement on appropriate medications, which continued post separation as indicated by the VA C&P psychiatric assessment seven months post separation. The CI’s condition at the VA, while still serious, had improved and panic attacks were less frequent (approximately one per week), with mild anxiety and mild depression noted. He did not display impairment of thought, speech, or judgment. He was fully oriented; reported no further hallucinations; and was sleeping better. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 30% for the panic disorder condition. Contended PEB Conditions. The contended conditions adjudicated as not unfitting by the PEB were PTSD; functional bowel disorder; recurrent upper and lower back pain; and allergic rhinitis. The Board’s first charge with respect to these conditions is an assessment of the appropriateness of the PEB’s fitness adjudications. The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard. 1) PTSD; The MEB psychiatric NARSUM diagnosed chronic PTSD secondary to childhood physical and sexual abuse and sexual assault which existed prior to service.. There were no records of a service incurred traumatic stressor. The VA C&P psychiatric examiner did not feel a complete diagnosis of PTSD was present; the only symptom specific for PTSD was sleeping difficulty. 2) Functional Bowel Disorder; The CI had a history of bilateral intermittent abdominal pain that was evaluated with upper endoscopy, colonoscopy, upper GI with small bowel follow through and exploratory surgery including appendix removal. The diagnosis was functional abdominal pain. There are no STRs addressing the abdominal pain condition after September of 2002. 3) Recurrent Upper and Lower Back Pain; The CI was seen for upper and lower back pain intermittently beginning in 2000 and the last visit for back pain in the record was August of 2003, one year prior to separation. The MEB/NARSUM noted a past history of low back pain treated with physical therapy and diagnosed as muscle strain. The VA C&P exam showed a normal gait with no weakness, spasm or tenderness of the lumbar spine. ROM of the lumber spine was mildly decreased without radiculopathy. 4) Allergic rhinitis; STRs show four visits for allergic symptoms, all in the April to June seasonal time frame, which did respond to antihistamines, topical eye drops, and nasal inhalers. None of these conditions were permanently profiled; none were implicated in the commander’s statement; and, none were judged to fail retention standards. All were reviewed by the action officer and considered by the Board. There was no indication from the record that any of these conditions significantly interfered with satisfactory duty performance. After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the any of the contended conditions; and, therefore, no additional disability ratings can be recommended. BOARD FINDINGS: IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication. The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised. In the matter of the panic condition, the Board unanimously recommends a disability rating of 30%, coded 9412 IAW VASRD §4.130. In the matter of the contended PTSD, functional bowel disorder, recurrent upper and lower back pain and allergic rhinitis the Board unanimously recommends no change from the PEB determinations as not unfitting. There were no other conditions within the Board’s scope of review for consideration. RECOMMENDATION: The Board recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of his/her prior medical separation: UNFITTING CONDITION VASRD CODE RATING Panic Disorder without Agoraphobia 9412 30% COMBINED 30% The following documentary evidence was considered: Exhibit A. DD Form 294, dated 20120817, w/atchs Exhibit B. Service Treatment Record Exhibit C. Department of Veterans’ Affairs Treatment Record XXXXXXXXXXXXXXXXXX, DAF Acting Director Physical Disability Board of Review SFMR-RB MEMORANDUM FOR Commander, US Army Physical Disability Agency (TAPD-ZB / XXXXXXXXXX), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation For XXXXXXXXXXXXXXXX, AR20130006096 (PD201201564) 1. Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 30% effective the date of the individual’s original medical separation for disability with severance pay. 2. I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum: a. Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay. b. Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay. c. Adjusting pay and allowances accordingly. Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 30% effective the date of the original medical separation for disability with severance pay. d. Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options. 3. I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures. BY ORDER OF THE SECRETARY OF THE ARMY: Encl XXXXXXXXXXXXXXXXXXXX Deputy Assistant Secretary (Army Review Boards)