RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  xxxxxxxxxxxxxxxxxxxx	CASE:  PD1300133
BRANCH OF SERVICE:  AIR FORCE	BOARD DATE:  20130904
SEPARATION DATE:  20030502

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SRA/E-4 (3P03/Security Forces) medically separated for multiple mental health disorders.  The CI initially sought treatment for depression, suicidal ideation, anxiety, and job related stressors in early 2002.  Ultimately, two command directed evaluations were performed to determine his capability to carry a firearm.  Treatment and counseling was initiated, but the conditions could not be adequately rehabilitated to meet the physical requirements of his Air Force Specialty or satisfy physical fitness standards.  He was issued an S4 profile and referred for a Medical Evaluation Board (MEB).  The mental health condition, characterized as “dysthymic disorder, generalized anxiety disorder and posttraumatic stress disorder,” was forwarded to the Physical Evaluation Board (PEB) IAW AFI 48-123.  No other conditions were submitted by the MEB.  The PEB adjudicated “generalized anxiety disorder associated with dysthymic disorder, existed prior to service [EPTS], and posttraumatic stress disorder (PTSD), EPTS, definite social and industrial adaptability impairment” as unfitting, rated 30%, less EPTS factor of 10%, citing criteria of the Department of Defense Instruction (DoDI) 1332.39 and Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  “I request retirement from the Air Force.  My rating should be changed because the Air Force only evaluated my condition based on if l could do my Air Force job.  Basically, could I go to war.  My rating from the VA shows that because of my PTSD that I can not do any job.  The same government found me 100 percent disabled.  I feel that based on the rating from the VA, I should have been rating higher from the Air Force  There was a problem with the VA at the start of my rating.  The VA failed to give me a Comp and Pen exam.  When the first rating was done it was only 0 percent.  Because of my mental health condition, I did not go back to the VA to work on my claim.  But, for the ten years that I did nothing with my claim I was seeing a doctor for my PTSD.  I was admitted to the hospital twice for one week stay each time.  Also, over the last ten years, I would have to go to the ER for panic attacks monthly.  While I did not work on my claim, I did seek mental health care.  I refiled my VA claim on November 2, 2012.  The VA sent me to a Comp and Pen Exam, and based on all of my treatment records for ten years and the results of that C&P the VA granted me a 100 percent rating for PTSD.  I content that my condition was as bad in 2003 as it was in 2012.  I the VA would have examined me, I would have been granted 100 percent in 2003.”  The CI also attached statement to his application and submitted a supplemental statement, requesting a case review by the PDBR, which was reviewed by the Board and considered in its recommendations.

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 those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The rating for the unfitting dysthymic disorder, generalized anxiety disorder (GAD) and PTSD conditions is addressed below; no additional conditions are within the DoDI 6040.44 defined purview of the Board.  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 Board for Correction of Military Records.
RATING COMPARISON:

Service IPEB – Dated 20030320	VA - Based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Generalized Anxiety Disorder Associated with Dysthymic Disorder, EPTS and Posttraumatic Stress Disorder (PTSD), EPTS, Definite Social and Industrial Adaptability Impairment	9433	30%
-10%
20%	Generalized Anxiety Disorder (GAD) with Dysthymic Disorder, and Posttraumatic Stress Disorder (PTSD	9411	0%*	STR	
No Additional MEB/PEB Entries	Other x 3		
Combined:  20%	Combined:  0%	
Derived from VA Rating Decision (VARD) dated 20050406 (most proximate to date of separation [DOS]).   *VARD 20130319 rated CI 100% for PTSD effective 20121102.

ANALYSIS SUMMARY:  The Disability Evaluation System (DES) is responsible for maintaining a fit and vital fighting force.  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 DES has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation nor for conditions determined to be service connected by the Department of Veterans Affairs (DVA) but not determined to be unfitting by the PEB.  However; the 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 said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time.  The Board’s role is confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VASRD standards, based on severity at the time of separation.  The Board utilizes DVA evidence proximal to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence.  The Board’s authority as defined in DoDI 6044.40, however, resides in evaluating the fairness of DES fitness determinations and rating decisions for disability at the time of separation.  Post separation evidence therefore is probative only to the extent that it reasonably reflects the disability and fitness implications at the time of separation.  The Board has neither the jurisdiction nor authority to scrutinize or render opinions in reference to the CI’s statements in the application regarding suspected DES improprieties in the processing of his case or his statements regarding his chain of command.

Generalized Anxiety Disorder (GAD) with Dysthymic Disorder, and Posttraumatic Stress Disorder (PTSD).  There are no separate mental health records available for review outside the narrative summary (NARSUM) and addendum until the VA records well after separation.  The NARSUM was dictated on 30 January 2003, 3 months prior to separation, and noted that the CI was first seen in Life Skills in January 2002 and reported a depressed and irritable mood pending divorce from his wife and separation from his children.  This was 7 months after accession into the USAF.  It was also noted that he had symptoms related to severe physical and sexual abuse as a child.  This was by his biological father who was jailed for the abuse.  He had symptoms of PTSD, but did not meet the full criteria.  The CI stopped treatment due to work conflicts, but later reinitiated treatment for an additional 4 months until he again had work schedule conflicts.  He also had two command-directed evaluations on 19 September 2002 and 27 November 2002 and was given a S2 profile with restrictions from carrying weapons due to suicidal ideation (SI).  During this time, he became a single custodial parent due to neglect by his ex-wife.  The CI was in therapy with the NARSUM examiner at the time of the dictation and was noted to have worsening symptoms of PTSD with increased vigilance and nightmares.  The CI stated that his performance had declined at work due to stressors at work and home as well as efforts to deal with the history of abuse.  The CI was given a full battery of psychological testing.  He was noted to over-report his symptoms and endorse severe pathology; however, the results were thought to be consistent with severe depression, anxiety, PTSD, paranoia, and distorted thinking.  He was given the diagnoses of dysthymic disorder (which had its onset as a teenager), GAD, and PTSD.  He was given a Global Assessment of Function (GAF) of 50, consistent with serious symptoms or any serious impairment in social, occupational, or school functioning.  It was noted that he had not responded well to several partial trials of psychotherapy and that he declined medications.  His social and industrial impairment was thought to be severe.  He was not thought to be eligible for continued military service and likely to require ongoing counseling and probable future hospitalizations.  The examiner noted that the CI had a history of overdose of OTC (over the counter) medications at age 13 in response to longstanding abuse by his father.  He also endorsed a history of fighting in high school.  He then received 2 years of psychotherapy as an outpatient from ages 13-15.  The Board noted that on the prescreen for his first enlistment, in the USA, he stated that the counseling was for his parents’ divorce (elsewhere the record notes that they divorced when he was two) and that he denied any mental health counseling on his USAF enlistment history dated 5 October 2000.  An addendum to the NARSUM was dictated 2 weeks later on 14 February 2003, by the same examiners, in response to questions from the MEB noted the following: while the PTSD trauma was clearly EPTS and there were likely sub-clinical symptoms of PTSD in adolescence, the disorder was not fully manifested until 2002 while on active duty; the symptoms of anxiety such as irritability, poor sleep and poor concentration could fall under PTSD, GAD, or dysthymic disorder, but his worry pattern is consistent with GAD which manifested solely during his USAF enlistment; and, he did not meet the criteria for either PTSD or GAD prior to service although the foundation for all three was present in adolescence.  The examiners attributed the progression of symptoms to both personal stressors (family circumstances) as well as difficulty at work.  The commander’s statement was dated 24 February 2003, just over 2 months prior to separation.  He stated that the CI “has done everything he can to keep from having to return to full duties and remain in his present status…he had a confrontation with his flight chief…It is my opinion that SrA B--- is a malingerer and has no intention to return to full duties.”  He went on to note that attempts to accommodate his schedule had not satisfied the CI and that there were 17 other single parents in the squadron show were able to meet both duty and family requirements.  There was no VA Compensation and Pension (C&P) examination proximate to separation as the CI failed to show for the examination scheduled on 12 January 2005.  There were several undated letters of support in the record.  One of these, and another dated 8 October 2012, supported the CI’s assertion of unfair and inappropriate treatment by his chain of command.  There are two psychiatric visits in 2012, on 21 May and 15 August.  In the first, the CI stated that he had not received any mental health treatment prior to his time in the USAF.  He noted that the stressor for his PTSD was his chain of command.  The Board noted that this is not consistent with the contemporaneous history.  He endorsed anxiety about his upcoming reality television show as professional tattooist and reported earning around $100,000/year.  At the second appointment, he reported a suicide attempt 3 weeks earlier.  On 14 February 2013, the CI underwent a C&P examination for PTSD.  He reported a positive relationship with his family of origin and that he had no psychiatric history prior to the military.  The Board noted that this is contradicted by the records proximate to separation and the initial enlistment in the USA.  He reported that his chain of command in the USAF was abusive to him and that he was threatened by his commanding officer with a pistol.  He had been successful in the tattoo industry, but had not worked for 6 months due to a hand tremor (etiology not addressed.)  He endorsed numerous symptoms of PTSD and was determined to be 100% disabled from the PTSD.  As noted, the history upon which the VA based this decision is not consistent with the historical record.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB determined that the GAD associated with the EPTS conditions of dysthymic disorder and PTSD met the criteria for a 30% rating, minus 10% for an EPTS contribution, and coded the condition 9433, dysthymic disorder.  The VA, using the service records, determined that there was no prior to service deduction; however, a total disability rating of 0% was adjudicated as no evidence was submitted indicating treatment or the current status of the condition.  The Board first considered if VASRD §4.129 was applicable.  The Office of the Under Secretary of Defense memorandum dated 17 July 2009 states:  "Therefore, as a matter of policy, the PDBR and all three BCMRs will apply VASRD Section §4.129 to PTSD unfitting conditions for applicants discharged after 11 September 2001, and in such cases, where a grant of relief is appropriate, assign a disability rating of not less than 50% for PTSD unfitting conditions for an initial period of 6 months following separation, with subsequent fitness and PTSD ratings based on the applicable evidence.”  The Board noted that the stressful event this case was from childhood and preceded his service by years.  Accordingly, the Board concludes that there was not sufficient evidence to support a conclusion that a highly stressful event severe enough to bring about the Veteran’s release from active military service occurred (in service) and that the application of §4.129 is not appropriate in this case.  The Board noted that while the CI denied any mental health symptoms on the 5 October 2000 USAF accession history, he also denied attempting suicide and mental health treatment reducing the value of this history in determining the EPTS status.  The Board considered that the CI suffered sexual and physical abuse at the hands of his father when a child, that he underwent mental health treatment from 13-15 which was not disclosed at accession to the USAF, that there was a suicide attempt (overdose) also not disclosed, and a history of fighting in high school.  The Board also noted that the CI presented for counseling within 7 months of accession to the USAF due to difficulties with an imminent divorce.  The treating mental health staff clearly noted the onset of the dysthymic condition prior to accession and in his teenage years.  The PTSD and GAD were noted to have made themselves manifest while on active duty; however, the Board notes that for prior to existing conditions, the determination of disability is dependent upon the degree of progression beyond the natural progression of the underlying disease process.  The Board then considered the EPTS component.  The NARSUM stated that the CI was seen in January 2002 for symptoms related both to the pending divorce as well as the childhood abuse.  The Board determined that this, at a minimum, met the description of a 10% disability “occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication.”  The Board also considered the description for a 30% rating “occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal),” but determined that this was not met for an EPTS deduction.  The Board then considered the disability rating prior to the deduction.  It noted that the CI continued to work, albeit with conflict with the chain of command, and was a single parent, apparently successfully.  The examiner noted that he had anger, decreased sleep, and appetite, a 20 pound weight loss, tearfulness and a decline in energy.  There was low self-esteem, but no SI.  He was active in his church and was in a relationship with a woman he met there.  As noted, his GAF was 50.  The Board considered the criteria for both a 30% and 50% rating and determined that the CI better fit the description of a 30% disability rating.  Accordingly, the 20% rating adjudicated by the PEB is supported.  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 mental health 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.
RECOMMENDATION:  The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows:

UNFITTING CONDITION	VASRD CODE	RATING	
Generalized Anxiety Disorder Associated with Dysthymic Disorder, EPTS, and Post Traumatic Stress Disorder (PTSD), EPTS	9433	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120327, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

xxxxxxxxxxxxxxxxxxxx DAF
President
Physical Disability Board of Review

SAF/MRB
1500 West Perimeter Road, Suite 3700
Joint Base Andrews, MD 20762

Dear xxxxxxxxxxxxxxxxxxxx:

	Reference your application submitted under the provisions of DoDI 6040.44 (Title 10 U.S.C. §  1554a), PDBR Case Number PD-2013-00133

	After careful consideration of your application and treatment records, the Physical Disability Board of Review determined that the rating assigned at the time of final disposition of your disability evaluation system processing was appropriate.  Accordingly, the Board recommended no re-characterization or modification of your separation.

	I have carefully reviewed the evidence of record and the recommendation of the Board.    I concur with that finding and their conclusion that re-characterization of your separation is not warranted.  Accordingly, I accept their recommendation that your application be denied.

							Sincerely,

xxxxxxxxxxxxxxxxxxxx
Director
Air Force Review Boards Agency

Attachment:
Record of Proceedings