PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2013-02766
BRANCH OF SERVICE:  Army	BOARD DATE:  20150522
SEPARATION DATE:  20060609			

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Motor Transport Operator) medically separated for posttraumatic stress disorder (PTSD).  The PTSD condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty.  She was issued a permanent S3 profile and referred for a Medical Evaluation Board (MEB).  PTSD was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB (IPEB) adjudicated PTSD as unfitting, rated 10%, without application of §4.129.  The CI submitted a rebuttal requesting to be found fit.  Upon review, the IPEB upheld their original unfit finding.  The US Army Physical Disability Agency reviewed and affirmed the IPEB findings and recommendations.  The CI was then medically separated.

CI CONTENTION:  The CI elaborated no specific contention in her application.

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e. (2).  It is limited to those conditions determined by the PEB to be unfitting for continued military service and when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’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/Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation.  The Board 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, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.

RATING COMPARISON:

Service IPEB – Dated 20060330	VA - (8 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
PTSD	9411	10%	PTSD	9411	10%	20070222	
Other MEB/PEB Conditions x 0 (Not in Scope)	Other x 4	
Rating:  10%	Combined:  20%	
Derived from VA Rating Decision (VARD) dated 20070327 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:  

PTSD.  The CI had two deployments (February 2004 - May 2004 and November 2004 - April 2005.  Although she reported no difficulty with the first deployment, she endorsed running over a child during the second deployment.  When she became aware of a third deployment in October 2005, she experienced anxiety and a fear of dying should she redeploy.  Symptoms of fear became to manifest and psychological testing indicated findings consistent with PTSD.  Treatment with Intensive Outpatient Psychiatric Service Program and medication appeared to improve her symptoms, but improvement was questionable.  The CI did not appear for the MEB scheduled for 3 January 2006, but was present for the MEB on 31 January 2006 at which time she indicated she suddenly improved 3 weeks earlier.  However, in spite of her reported sudden improvement, the MEB referred the CI to the PEB with the notation that she does desire to continue on active duty.  The narrative summary noted that the CI “experienced symptoms of fear of dying upon return to Iraq, significant anxiety symptoms (with episodic symptoms of heart racing, sweating, chills, nauseated, shaking)” that began in June of 2005.  “She also endorsed irritability and intense fear of roadside bombs… had nightmares related to her attacked convoy… experienced guilt regard being away from her family” and was “very avoidant of others who speak of war.”  She received a 30-day temporary profile to preclude deployment.  In the months prior to the MEB, she “appeared to avoid behavioral health appointments.”  Because of continued symptoms, which she denied at the MEB, there was concern that if she were to deploy again the same symptoms would reappear.  

At the MEB exam, the CI was “somewhat avoidant with answers” and presented with “hand wringing” and an anxious affect.  She had a Global Assessment of Functioning (GAF) of 55 (moderate).  The MEB confirmed PTSD with residual symptoms of anxiety, nightmares, insomnia, hypervigilance, increased startle response and strong fear of death and indicated the degree of military/psychiatric impairment was “marked” and the impairment for social and industrial adaptability was “mild.”  The IPEB convened on 30 March 2006 and found the CI unfit to perform the duties required of a Soldier, her rank and primary specialty; and, rated the PTSD at 10%, “rated as mild.”  

At the VA Compensation and Pension (C&P) exam performed on 22 February 2007, 8 months after separation, the CI had not had any psychiatric treatment since discharge and discontinued medications shortly after she left the service.  The diagnosis was PTSD, chronic.  She had recurrent distressing dreams and nightmares, avoided Iraq war conversations, fireworks, combat movies, crowds, had difficulty falling asleep, irritability, hypervigilance and exaggerated response.  Additionally, she had a depressed mood for 2-3 days and denied suicidal ideation.  History indicated the CI “has worked a full job at a collection agency since December 2006…  [got] along well with coworkers and her supervisor… [spent] her free time… being with her children… [and] [socialized] with her friends about once a month.”  Additionally, she was married for 15 years and had strong family support.  GAF was assessed at 65 (mild; improved compared to the MEB GAF of 55).  She experienced “a moderate number and frequency of mild symptoms of PTSD” that the examiner indicated “would likely cause significantly reduced reliability and productivity, and significant interference in her ability to interact effectively and work efficiently.”  The VA rated this exam at 10%.  There were no subsequent VA exams or ratings.  

The Board directed attention to its rating recommendation based on the above evidence.  The Board, IAW DoDI 6040.44 and DoD guidance (which applies current VASRD 4.129 to all Board cases as appropriate), agrees that the stipulations of §4.129 are met in this case.  There was insufficient evidence to warrant any §4.130 rating above 50% at the time of separation; and, thus the Board recommends a 50% PTSD rating for a retroactive 6-month period on the Temporary Disability Retired List (TDRL).  The Board must then determine the most appropriate rating with VASRD §4.130 criteria at 6 months for a permanent rating recommendation.  The most proximate source of comprehensive evidence on which to base the permanent rating recommendation in this case is the VA C&P examination performed 8 months after separation.  There was no relevant VA outpatient or civilian provider evidence providing psychiatric details during the 6-month interval.  Since the C&P examination, 8 months after separation, also reflected the stress of transition to civilian life, which is a core intent of §4.129, it carried the highest probative value in the Board’s assessment of a fair permanent rating recommendation at the 6 month rating timeframe.  The MEB evaluation nevertheless served as a useful reference point and retains relevant probative value.  The C&P examination indicated “a moderate number and frequency of mild symptoms of PTSD” with a caveat that the “PTSD symptoms would likely cause significantly reduced reliability and productivity, and significant interference in her ability to interact effectively and work efficiently.”  The Board discussed the apparent disparity of the CI’s good occupational and social functioning, GAF in the mild symptom range and the VA psychiatrist’s assessment of “likely” occupational and social impairment with the symptoms from that exam.  Although the CI’s disability picture appeared higher than the 10% rating criteria, even with consideration of VASRD §4.7 (higher of two evaluations), the Board adjudged that the disability picture more nearly approximates the criteria required for the 10% rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a 50% rating for 6-months of constructive TDRL and a 10% permanent rating thereafter for the PTSD condition.  

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.  As discussed above, PEB reliance on DoDI 1332.39 for rating PTSD was likely operant in this case and the condition was adjudicated independently of that instruction by the Board.  In the matter of the PTSD condition, the Board unanimously 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 10% IAW VASRD §4.130.  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 to reflect a 6 month period on TDRL with a disability rating of 50% (PTSD at 50% IAW §4.129 and DoD direction), and then medically separated with a disability rating of 10%:  

UNFITTING CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
PTSD	9411	50%	10%	
RATING	50%	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131218, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXXXXX
President
Physical Disability Board of Review

SAMR-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 XXXXXXXXXXXXXXXXXXXXX, AR20150012836 (PD201302766)

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  constructively place the individual on the Temporary Disability Retired List (TDRL) at 
50% disability for six months effective the date of the individual’s original medical separation for disability with severance pay and then following this six month period no recharacterization of the individual’s separation or modification of the permanent disability rating of 10%.

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 as follows:

	a.  Providing a correction to the individual’s separation document showing that the individual was separated by reason of temporary disability effective the date of the original medical separation for disability with severance pay.

	b.  Providing orders showing that the individual was separated with a permanent combined rating of 10% effective the day following the six month TDRL period with no recharacterization of the individual’s separation.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will provide 50% retired pay for the constructive temporary disability retired six month period effective the date of the individual’s original medical separation and adjusting severance pay as necessary to account for the additional TDRL time in service.

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						    XXXXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						         (Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA