Author: JOHN J. D'ORAZIO
Last saved by: WEATHERS, JANICE R SrA USAF AFRBA AFRBA/AFBCMR
Company: Pre-installed Company

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	BRANCH OF SERVICE:  Army
CASE NUMBER:  PD1200424	SEPARATION DATE:  20080627
BOARD DATE:  20130911

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PVT/E-1 (19D10/Cavalry Scout), medically separated for muscle Group XII shrapnel and fasciotomy injury with residual muscle fatigue/lack of endurance.  The CI sustained an improvised explosive device (IED) blast in 7 February 2007 receiving multiple wounds and several surgeries to treat these wounds.  The chronic right leg fatigue condition did not improve with treatment and could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  Cognitive disorder; personality change due to concussive head injury; depressive disorder and anxiety disorder conditions, identified in the rating chart below, were also identified and forwarded by the MEB.  The Physical Evaluation Board (PEB) adjudicated the muscle Group XII shrapnel and fasciotomy injury with residual muscle fatigue/lack of endurance condition as unfitting, rated 20%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  The CI, through counsel, requests a separately unfitting rating for PTSD in addition to all service connected conditions for a combined rating of at least 60%.

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 conditions “identified but not determined to be unfitting by the PEB.”  The ratings for unfitting condition, muscle Group XII shrapnel and fasciotomy injury with residual muscle fatigue/lack of endurance, will be reviewed.  In addition, the contended not unfitting conditions cognitive disorder, personality change due to concussive head injury, depressive disorder, and anxiety disorder conditions meet the criteria prescribed in DoDI 6040.44 for Board purview.  The Board notes that although the contended posttraumatic stress disorder (PTSD) condition was not separately identified by the PEB it was a diagnosis listed in treatment records for signs and symptoms also diagnosed as depressive disorder and anxiety disorder, and is therefore considered by the Board along with the mental health diagnoses listed by the PEB.  The remaining conditions (tinnitus; residuals, shrapnel wound, right abdomen; scar, residuals, fracture, right ring finger, status post open reduction with pinning; scar, lower lip; pilonidal cyst and dental treatment for teeth due to combat wounds) rated by the VA at separation and listed on the DD Form 294 are not within the Board’s purview.  Any condition or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Board for the Correction of Military Records.

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.  The DES has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation.  That role and authority is granted by Congress to the Department of Veterans Affairs (DVA), operating under a different set of laws (Title 38, United States Code).  The Board evaluates DVA evidence proximal to separation in arriving at its recommendations, but its authority resides in evaluating the fairness of DES fitness decisions and rating determinations for disability at the time of separation.  While the DES considers all of the member's medical conditions, compensation can only be offered for those medical conditions that cut short a member’s career, and then only to the degree of severity present at the time of final disposition.  The DVA, however, is empowered to compensate service-connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time.

RATING COMPARISON:

Service IPEB – Dated 20080506 | VA (~1 Mos. Pre-Separation) – All Effective Date 20080629
Condition | Code | Rating | Condition | Code | Rating | Exam
Muscle Group XII Shrapnel & Fasciotomy Injury with Residual Muscle Fatigue/ Lack of Endurance | 5399-5312 | 20% | S/p Fasciotomy, Residuals IED, Muscle Group XII with Compartment Syndrome | 5311 | 20%* | 20080604
| | | Residuals, Shrapnel Wound, RLE | 7804 | 10%* | 20080604
| | | Residual, Scar, Skin Graph Donor Site, Right Thigh | 7805 | 0%* | 20080604
Cognitive Disorder | Not Unfitting | Posttraumatic Headaches | 8100 | 10% | 20080604
Personality Change due to Concussive Head Injury | Not Unfitting | | | |
Depressive Disorder | Not Unfitting | PTSD | 9411 | 30% | 20080527
Anxiety Disorder | Not Unfitting | | | |
No Additional MEB/PEB Entries | Tinnitus | 6260 | 10% | 20080604
| Residuals, Shrapnel Wound, Right Abdomen | 7804 | 10% | 20080604
| Other x 7 | 20080604
Combined:  20% | Combined:  50%*

*Per VARD 20090918; original VARD 20080716 rated right lower extremity residual muscle injury (5311) at 0% and associated scars at 0%.

ANALYSIS SUMMARY:

Muscle Group XII Shrapnel & Fasciotomy Injury with Residual Muscle Fatigue/Lack of Endurance.  The CI sustained wounds to his right leg, right flank, and right ring finger from an IED while deployed in February 2007.  The right leg injury was a blunt force contusion that resulted in marked soft tissue swelling requiring fasciotomies (incisions through the fascia layer) to prevent compartment syndrome (compression of blood vessels and nerves due to swelling).  The surgical incisions subsequently required skin grafting for healing.  His flank wounds and right finger fractures healed with no residual symptoms.  At the MEB addendum on 10 July 2007 (12 months prior to separation), the CI's only complaint from the injuries was related to his leg with lack of endurance when he attempted to run.  On exam, he had multiple well healed surgical scars (without hypertrophy or pain) and skin grafting on the medial and lateral aspect of the leg.  The examiner concluded that the CI's continuing complaints of significant fatigue precluded ability to perform his military duties.  At the VA Compensation and Pension (C&P) evaluation, the CI stated the pain in his leg was 3 out of 10 with weakness and stiffness in the feet and ankle.  On exam, his posture and gait were normal.  Range-of-motion of the knee and ankle was normal, and there was no pain, weakness, or tenderness noted.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB rated the condition at 20%, coded 5399-5312 (analogously for muscle Group XII function), moderately severe.  The VA also rated the condition 20%, coded 5311 muscle Group XI function, moderately severe (but cited muscle Group XII).  The Board agreed that use of either code was reasonable and neither provided for a higher rating.  The Board noted the absence of significant weakness on examination, with normal gait and concluded that that the impairment did not exceed the 20% rating adjudicated by the PEB.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the muscle Group XII shrapnel and fasciotomy injury with residual muscle fatigue/lack of endurance condition.

Contended PEB Conditions.  The contended conditions adjudicated as not unfitting by the PEB were cognitive disorder, personality change due to concussive head injury, depressive disorder and anxiety disorder (the related diagnosis of PTSD is also considered).  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.

Depressive Disorder/Anxiety Disorder.  The Board first considered the depressive disorder and anxiety disorder conditions.  Service treatment records are silent with regard to psychological problems in the weeks following return from deployment (13 February 2007).  A clinic entry 30 March 2007 records no depression and no anhedonia.  The 3 April 2007 clinic entry noted sleep disturbance due to mind racing.  On the Case Manager Initial Intake Questionnaire administered 8 May 2007, the CI answered “no” to screening questions for depression (questions 19 and 20) and reported drinking beer and wine occasionally.  On 18 May 2007, the CI was counseled by his supervisor for a positive drug urine test (cocaine) from 8 May 2007.  At the time of an examination, the CI reported he used cocaine and was enrolling in a drug treatment program.  He reported feeling depressed about things that happened and was receiving counseling for PTSD.  The CI was evaluated in the mental health clinic and medical documentation from June 2007 reflected diagnoses of cocaine abuse, cannabis abuse, PTSD, acute PTSD, depression, alcohol abuse and personality disorder.  Anti-depressant medication and medication for insomnia were initiated on 9 July 2007.  A 12 July 2007 case manager note records feelings of hopelessness observed by the CI’s mother and concerns about proposed outpatient treatment.  The CI completed a 30-day residential substance abuse treatment program in August 2007.  Case manager notes from September 2007 following completion of substance abuse treatment indicated the CI and his parents wanted the MEB process to be completed quickly and were unhappy about the predicted 6-month process.  A memorandum from the CI’s treating psychiatrist noted diagnoses of PTSD and substance abuse in remission and recommended reassignment to the Warrior Transition Unit.  At the time of a neurology evaluation, the CI reported symptoms of depression, anxiety, forgetfulness, guilt, fatigue and avoidance of crowds.  He denied nightmares, insomnia or flashbacks.  A 20 November 2007 clinic entry notes no depression or anhedonia in past 2 weeks.  A memorandum from the CI’s treating psychiatrist, noted the CI experienced PTSD type symptoms (not meeting full diagnostic criteria for PTSD) for which medication treatment was prescribed with improvement in symptoms.  The psychiatrist concluded at that time the CI’s symptoms were not independently impairing for military service and met retention criteria with regards to mental health diagnoses.  In January 2008, MEB/PEB processing was suspended pending administrative discharge proceedings for drug abuse.  At the time of neuropsychological testing in February 2008, the CI reported increased emotional arousal and hypervigilance and being bothered occasionally by intrusive memories.  He did not report disturbing dreams or flashbacks, excessive anxiety or depression, emotional numbing, a sense of foreshortened future or attempts to avoid stimuli (psychological cues).  The CI reported being quite unhappy with the Army and had been feeling depressed but his mood had improved (mood on average 7 out of 10 where 10 is the best mood).  The score on the military version of the PTSD checklist was below the cut off for diagnosis of PTSD.  On examination the neuropsychologist noted that the CI was unhappy with his current circumstances, but exhibited no major mood disturbance.  The CI was cheerful, outgoing and borderline giddy at times.  There was no suicidal or homicidal ideation.  The CI denied serious PTSD symptoms and showed no apparent distress when he discussed combat operations.  The neuropsychologist commented that overall the CI’s adjustment to his past military experiences appeared to be relatively good.  Medication treatment since July 2007 included a selective serotonin reuptake inhibitor (SSRI), a first line medication for PTSD Tazodone; a medication frequently used to address sleep difficulties; and Straterra (Atomoxetine) a non-stimulant medication useful for concentration.  The latter medication occasionally requires dosage adjustments due to common metabolism with SSRIs, however the CI showed no side effects requiring any dosage adjustments.  On 2 April 2008, administrative discharge proceedings were cancelled and PEB processing was reinitiated.  An updated commander’s letter noted no problems with performance of work tasks (not detailed) or ability communicate and relate with supervisors and co-workers.

At the C&P mental evaluation, a month prior to separation, the CI endorsed re-experiencing the traumatic event, numbing, avoidance and hyperarousal symptoms.  The CI reported his family noted a change in his attitude and personality in that he was more irritable, negative and had decreased impulse control.  Upon returning from deployment, he did not pay his bills; but he had become more financially responsible while on medications.  The CI reported some problems with concentration prior to Iraq that became worse, but had gotten better over time.  He reported excessive checking of locks on doors and windows but stated it was not a new habit for him.  When driving, he felt someone was following him.  The CI was able to sleep 8 hours with medications (only 2-3 hours per night without medications).  He reported anxiety (rated 4 on a 10 scale, 10 being the most) without panic attacks and depression (also 4 on a 10 scale).  The CI reported use of substances prior to military (alcohol and marijuana).  He had good family relationship except for being more irritable, negative and decreased impulse control.  When angry he yelled more with anger outbursts disproportionate to the situation.  He had problems keeping friends and remembering dates and times of events.  He reported medications had been effective.  During the examination, the CI was observed to play air guitar throughout interview particularly when discussing stressful topics, however the CI stated he did this all the time.  Speech was normal in rate and flow.  Thought processes were logical clear, goal directed, without hallucinations, delusions, suicidal or homicidal thoughts.  The examiner rendered diagnoses of PTSD, alcohol abuse in remission, cocaine abuse in remission, cannabis abuse in remission and rule out cognitive disorder.  The examiner noted the CI had episodes of anxiety with minimal to moderate impact on functioning.  A Global Assessment of Functioning of 62 was listed connoting mild symptoms.  Although the C&P examiner rendered a diagnosis of PTSD, the preponderance of evidence including the neuropsychological evaluation in February 2008 did not support a diagnosis of PTSD.  The Board noted the CI endorsed symptoms at the time of the C&P examination that had been previously denied.  Depressive and anxiety symptoms reported at approximately the same level.  Board members agreed that the posttraumatic anxiety and depression conditions improved by the time of the time of the PEB.  Review of the records reflected anxiety and depressive symptoms were not predominant and when considered alone were not severe enough to interfere with performance of duties.

Cognitive Disorder.  The Board next considered the cognitive disorder condition separately from the personality change due to concussive head injury.  At the time of the IED injury on 7 February 2007, the CI felt dazed, but did not lose consciousness or experience memory loss (amnesia).  Evaluation for traumatic brain injury (TBI) at Landstuhl Army Medical Center in Germany on 10 February 2007 using the Military Acute Concussion Evaluation tool resulted in a score of 24 (maximum score 30).  A score below 25 is consistent with cognitive impairment (subjects without head injury have an average score of 28).  The CI’s contention suggests he incurred loss of teeth from the IED, but dental records indicate this occurred during a fight in July 2007 after return from Iraq.  At the time of a physical therapy evaluation, the CI reported that he didn’t have a good short term memory, but also noted that was how he had always been.  Neurology evaluation recorded the CI was dazed without loss of consciousness or amnesia at the time of the IED injury in February 2007.  The CI reported symptoms of twice weekly headaches triggered by stress that lasted for days.  He also reported forgetfulness along with depression, anxiety and fatigue.  The CI reported his high school grades were C’s and D’s, but that he did not like high school.  The CI also reported he had difficulty with math throughout his lifetime.  On examination immediate recall was normal, calculations were “excellent,” and the mini mental status examination (screens for cognitive loss) was normal (the CI scored the maximum score of 30 points; a score below 20 indicates impairment).  Computed axial imaging of the brain was normal and an electroencephalogram was normal.  The neurologist concluded the CI had post concussive syndrome from a mild TBI that was medically acceptable for continued military service.  At the time of an internal medicine follow up evaluation on 6 November 2007 for head injury, the CI reported persistent short term memory problems, but that overall symptoms were improving.  The commander’s letter reported forgetfulness and difficulty maintaining focus.  The CI underwent neuropsychological testing (conducted by an Air Force PhD neuropsychologist) on 13 and 14 February 2008.  The CI reported cognitive changes after his return from Iraq, but noted he felt his cognitive function was generally intact except for episodes of forgetfulness.  The CI was also noted to state that he did not think he was experiencing significant changes or problems.  The CI reported he had experienced no recent headaches.  The CI’s father reported the CI was diagnosed with a math disorder in high school.  On neuropsychological testing there were deficits in information processing speed falling into the borderline range of function.  There was mild impairment on a rapid visual scanning test.  However, information processing speed was normal on another test.  Memory tests varied from moderately impaired to superior.  The neuropsychologist noted that the CI’s attention, concentration and motivation fluctuated through testing.  The IQ was normal.  On the Halstead test panel, neuropsychological functioning was normal with normal sustained attention and concentration, auditory discrimination, visual abstract reasoning, psychomotor problem solving and finger tapping speed.  The neuropsychologist concluded the testing indicated a cognitive disorder (not otherwise specified) with focal impairments.  The neuropsychologist noted that it was not certain that the cognitive deficits observed represented a significant change from pre-morbid (pre-injury) functioning particularly with the history of mathematics problems in high school (coding/sequencing).  The CI and his parents also noted that his cognitive functioning was gradually improving over time.  The neuropsychologist stated the test data also suggested that he was making a good recovery and that the CI did not require cognitive rehabilitation.  The commander’s statement noted ability to remember work locations, procedures and instructions, and maintain adequate attention and complete tasks in timely manner.  At the time of the C&P examination, the CI noted some problems with concentration prior to his deployment to Iraq that had worsened after return from Iraq.  However the problems had since improved over time.  Speech and thought processes were normal on examination.  Recall was intact and important dates and recent days events were recalled without difficulty.

At the C&P examination, the CI reported post-concussive headaches occurring once per week lasting a day.  He noted he was able to function during the time period the headaches were present and that medications helped.  The neurologic examination noted normal memory.  All Board members agreed that the preponderance of evidence indicated that the cognitive disorder condition, when considered alone, was not severe enough to interfere with performance of military duties.  The Board also concluded the post-concussive headache was not unfitting.

Personality Change due to Concussive Head Injury.  The Board then considered the personality change due to concussive head injury.  In addition to the cognitive symptoms outlined above, the CI and his parents reported other symptoms possibly related to the head injury including personality changes, irritability, and poor judgment.  As noted, the CI sustained a mild head injury in February 2007.  In May 2007, the CI was disciplined for a drug testing urinalysis positive for cocaine, his second career positive drug test (the first occurred in January 2006 prior to deployment and was positive for marijuana).  Records indicate his command was initiating an administrative discharge for misconduct.  The CI was evaluated in the mental health clinic and medical documentation from June 2007 reflects diagnoses of cocaine abuse, cannabis abuse, PTSD, acute PTSD, depression, alcohol abuse and personality disorder.  The CI also was subsequently disciplined for a third positive urine drug test, failure to report back for extra duty and missing substance abuse evaluation appointments.  The CI completed a 30 day residential substance abuse treatment program in August 2007.  The commander’s letter, reported the CI was able to communicate well with coworkers, relate civilly with supervisors and coworkers.  The commander noted the CI experienced frustration and difficulty transitioning into the unit following deployment and exhibited poor judgment in using cocaine.  The commander noted that the CI reported some difficulty maintaining appropriate language, some instances of coarse language, short temper and inappropriate outbursts of emotions.  At the time of neuropsychological testing in February 2008, the CI’s parents reported observing increased impulsivity, compulsivity, irritability, rebelliousness, dishonesty, lack of normal motivation and questionable judgment following his return from Iraq.  His parents were staying with CI due to concerns about his judgment.  His parents noted his adaptive functioning was gradually improving over time.  The CI reported that he was quite short tempered and argumentative and explosive after he returned from Iraq, but that he was definitely improved.  The evaluation recorded a history of rebellious behavior as a teen, regular use of marijuana and experimentation with cocaine while in high school.  Personality testing suggested he may respond to stress by acting out and engaging in aggressive antisocial or self-destructive behaviors; the CI was quite angry/resentful and prone to challenge or defy rules and authority; tended to be egocentric, and felt he was treated unfairly or disrespected.  Validity scores suggested an attempt to portray himself in a negative or pathological way and self-reported traits may have been somewhat exaggerated during testing.  The neuropsychologist concluded there was personality change believed to be due to in part to concussive head injury that was improving.  The presence of pre-existing antisocial personality tendencies were noted and no formal personality diagnosis was rendered.  The neuropsychologist noted the behaviors reported suggested a possible frontal lobe injury, but that it would not be expected given the apparent mild head injury.  Both the CI’s parents and the CI believed his adaptive functioning was gradually improving over time, and the neuropsychologist stated his test data suggested that the CI was making a good recovery.  The commander’s statement noted the CI was able to communicate effectively with others, relate civilly with supervisors and coworkers, sustain an ordinary routine without extra supervision, and respond appropriately to changes in routine.

The C&P examination recorded CI report that upon return from Iraq he did not pay bills or take care of personal responsibilities, but since on medication he has been responsible.  The CI reported being more irritable, negative, and decreased impulse control (when angry he yells more–anger outbursts disproportionate to situation).  The Board considered the neuropsychologist’s opinion that the CI’s psychological and neuropsychological problems were likely to interfere with his ability to successfully serve in the armed forces.  The Board also considered the subsequent 2 May 2008 memorandum from the CI’s treatment psychiatrist concluding the CI met retention standards with regard to cognitive disorder and personality change.  The Board considered the Air Force neuropsychologist evaluated the CI once at one point in time, while the Army psychiatrist had been treating the CI over an extended period of time and was also likely to be more familiar with Army specific retention criteria as well as the condition of the CI over 2 months later.  The Board also reviewed the statements submitted by the CI from supervisors while the CI was deployed reporting good duty performance and behaviors prior to the February 2007 IED injury.  The Board discussed the fact that the behaviors associated with personality change including irritability, poor judgment and impulse control interfered with satisfactory duty performance (and formed the basis for proposed administrative separation).  However, the evidence of the record documented improvement by the time of the February 2008 evaluation and the April 2008 commander’s statement.  All Board members agreed that the preponderance of evidence indicated that the personality change condition, when considered alone, was not severe enough to interfere with performance of military duties by the time of the MEB and PEB.

The Board noted the overlapping and intertwined nature of the cognitive disorder, personality change due to concussive head injury, depressive disorder and anxiety disorder and considered the overall effect on ability to perform military duties.  The Board noted the history of drug use and maladaptive personality traits prior to entry into military service that pre-disposed the CI to the problems he experienced after return from his deployment.  Evidence of the record shows the CI’s maladaptive behaviors including drug use, significantly worsened during the months following his return from Iraq.  The CI manifested improvement in symptoms and behavior over several months and by the time of the neuropsychological testing in February 2008 symptoms were mild and drug use was in remission.  The commander’s statement in April 2008 indicated no unacceptable behaviors at that time.  Although each condition when considered alone was mild and not sufficient to prevent performance of military duties, the Board members agreed that the overall effect was sufficient to render the CI unfit for continued military service.  The Board, IAW DoDI 6040.44 and DoD guidance (which applies current VASRD §4.129 to all Board cases as appropriate), must consider if the definition of §4.129 is met for any psychiatric condition resulting in medical separation; i.e., “a mental disorder that develops in service as a result of a highly stressful event.”  If the Board judges that application of §4.129 is appropriate, it will recommend a minimum 50% rating for a retroactive 6-month period on the Temporary Disability Retired List (TDRL).  The Board must then determine the most appropriate fit with VASRD 4.130 criteria at 6 months for its permanent rating recommendation, based on the facts in evidence which is most probative for that interval.  Although the C&P examiner rendered a diagnosis of PTSD, the preponderance of evidence including the neuropsychological evaluation in February 2008 did not support a diagnosis of PTSD.  However, all members agreed the evidence of the record clearly linked the CI’s mental health problems to combat experiences and IED injury while deployed to Iraq and concluded application of §4.129 was appropriate.  Although the CI’s cognitive symptoms and personality change were attributed to head injury, the Board noted that the symptoms were intertwined with those of the posttraumatic anxiety and depressive disorders also labeled as PTSD by VA examiners.  Symptoms of cognitive impairment, personality changes, and mental disorders often overlap and a single evaluation taking into account the overall mental impairment is the most appropriate way to evaluate them.  In accordance with VASRD §4.14, more than one rating cannot be assigned for the same symptoms.  Therefore, due to the marked overlapping and intertwined symptoms, and IAW VA guidance the Board concluded that the disability associated with the conditions, regardless of the diagnosis or multiple diagnoses, is most appropriately subsumed under a single rating using VASRD §4.130.  All members agreed that the VASRD §4.130 criteria for a rating higher that 50% at the time of separation were not met; and, therefore the minimum 50% constructive TDRL PTSD rating prescribed by VASRD §4.129 is applicable.  The most proximate sources of evidence on which to base the permanent rating recommendation in this case is the C&P examination performed just before separation and VA mental health treatment records from February and March 2009, 7 to 8 months after separation.  In February 2009, the CI sought help for recurring drug abuse at which time a history of marijuana abuse for 10 years, cocaine abuse for 6 years, amphetamine abuse for 6 years, and more recent abuse of Heroin and Oxycontin was recorded.  Alcohol use began at age 11.  Mental health evaluation on 9 March 2009 recorded CI report of feeling depressed “with things happening and attached to using drugs.”  He reported persistent exaggerated startle and hypervigilance.  The CI endorsed nightmares once every 2 weeks that were not war related.  He slept on average 6 hours per night and was able fall right back to sleep with awakenings.  He stated he was usually calm but became irritated easily.  He reported being occasionally on edge, but no panic attacks.  He reported good interest in activity, good energy.  He denied feelings of hopelessness, worthlessness, suicidal thoughts, or rituals.  His concentration occasionally wandered but memory and concentration had not been a problem or cause dysfunction although previously it had.  On examination, the mood was normal with normal affect.  Speech, thought processes were normal, and memory was intact.  The examiner noted the CI had some symptoms left with PTSD and TBI.  Diagnoses were chronic PTSD and substance abuse.  With regard to the permanent rating at the end of the constructive period of TDRL, all Board members agreed that the preponderance of evidence of the VA C&P examination and the post-separation examinations did not approach the 50% rating, therefore, the Board deliberations centered on a 10% versus a 30% rating.  Social and occupational impairment consistent with a 30% evaluation (“Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks…”), could be surmised from some of the documented symptoms at the time of the March 2009 examination including problems with hypervigilance, exaggerated startle response, irritability and drug abuse.  However symptoms of anxiety and depression were mild (occasionally on edge good interest and energy, absence of hopelessness, worthlessness, suicidal thoughts), and memory and concentration had not been a problem or caused any dysfunction.  Drug abuse appeared to be the predominant problem impairing social and occupational functioning.  The Board discussed the significant history of drug abuse that pre-dated entry into service, and noted the positive urinalysis for marijuana prior to deployment.  Substance abuse itself is not a compensable disability within the military disability evaluation system, however the Board also noted its association with PTSD and considered the extent to which the CI’s posttraumatic anxiety/depression and post concussive syndrome aggravated the CI’s substance problem.  At the time of entry into the drug rehabilitation program, the predominant impairment was substance abuse and symptoms were otherwise mild and the CI successfully completed drug rehabilitation program.  After due deliberation, considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a permanent disability rating of 10% for the cognitive disorder, personality change due to concussive head injury, depressive disorder and anxiety disorder conditions.

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 muscle Group XII shrapnel and fasciotomy injury with residual muscle fatigue/lack of endurance condition and IAW VASRD §4.73, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended were cognitive disorder, personality change due to concussive head injury, depressive disorder and anxiety disorder (PTSD) the Board unanimously recommends that the combined conditions were unfitting and the CI’s prior determination be modified as follows: TDRL at 50% for 6-months following CI’s prior medical separation (minimum of 50% IAW §4.129 and DoD direction) and then a permanent 10% rating.  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 prior medical separation:

UNFITTING CONDITION | VASRD CODE | RATING
| | TDRL | PERMANENT
Muscle Group XII Shrapnel & Fasciotomy Injury with Residual Muscle Fatigue/ Lack of Endurance | 5399-5312 | 20% | 20%
Anxiety (PTSD) and Depressive Disorder with Cognitive Disorder and Personality Changes Due to Concussive Head Injury | 9499-9411 | 50% | 10%
COMBINED | 60% | 30%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120505, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

XXXXXXXXXXXXXXXXXXXX, DAF
President	
Physical Disability Board of Review

SFMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXXXXXXXXXXX, AR20130022024 (PD201200424)

1.  I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual.  Under the authority of Title 10, United States Code, section 1554a, 
I reject the Board’s recommendation and hereby deny the individual’s application.  There is insufficient justification to support the Board’s recommendation in accordance with Army and Department of Defense regulations.  

2.  The DoD PDBR’s recommendation that Post-Traumatic Stress Disorder (PTSD) should be deemed unfitting and rated at 10% is outside their purview to review fitness decisions rendered by the Physical Evaluation Board (PEB).  The PEB did not identify PTSD as a condition to be considered and did not make a fitness decision regarding PTSD.  Additionally, Mental Health Providers were quite explicit in stating that the individual had no mental health condition that failed retention standards or otherwise prevented him from performing the duties of his Military Occupational Specialty (MOS).   The individual’s DA Form 3349 (Physical Profile) did not impose any physical or duty limitations because of PTSD or any other mental health condition. 

3.  This decision is final.  The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

BY ORDER OF THE SECRETARY OF THE ARMY:

Encl						     XXXXXXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary
						         (Army Review Boards)

PD1200424