0RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD1300785
BRANCH OF SERVICE:  Army	BOARD DATE:  20140213
SEPARATION DATE:  20080127

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (68W/Health Care Specialist) medically separated for anxiety disorder with significant posttraumatic stress disorder (PTSD) components.  The CI first sought help from behavioral health while in Iraq and received counseling after returning to CONUS (continental United States).  While deployed, he treated wounded individuals with significant injuries.  He was also involved in several improvised explosive device (IED) incidents.  Despite counseling and medications, his mental health (MH) condition could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty.  He was issued a permanent S3 profile and referred for a Medical Evaluation Board (MEB).  Anxiety disorder, not otherwise specified (NOS) was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded two other conditions for PEB adjudication.  Neither fell below retention standards.  The PEB adjudicated “anxiety disorder with significant PTSD components” as unfitting, rated 10%, citing criteria of the VA Schedule for Rating Disabilities (VASRD), but without consideration or application of 4.129.  The remaining conditions were determined to be not unfitting and therefore not ratable.  The CI made no appeals and was medically separated.

CI CONTENTION:  “There were a number of issues with the 10% rating I was given upon my separation from the Army.”  The CI attached a two page statement to his application 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 MH condition is addressed below as are the requested traumatic brain injury (TBI) and bilateral knee conditions, which were determined to be not unfitting by the PEB.  The requested ankle and hearing loss conditions were not identified by the MEB, and thus are not 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 (BCMR)

RATING COMPARISON:

Service IPEB – Dated 20071207 | VA - Service Treatment Records (STR)
Condition | Code | Rating | Condition | Code | Rating | Exam
Anxiety D/O with … PTSD | 9413 | 10% | Anxiety D/O with PTSD … | 9413 | 50% | STR
Post-concussive Syndrome | Not Unfitting | * | | |
Bilateral PFPS | Not Unfitting | Patellofemoral Syndrome (PFS) | 5260-5014 | NSC | STR
No Additional MEB/PEB Entries | Other x 4 | STR
Rating:  10% | Rating:  50%*
Derived from VA Rating Decision (VARD) dated 20080626 (most proximate to date of separation [DOS]).  *VARD 20091015 added TBI rated at 40% effective 20090807 (20 months after separation), combined 70%.
ANALYSIS SUMMARY:

Anxiety Disorder with PTSD component.  The psychiatric note for the MEB dated 4 October 2007, documented that the CI had been seen in theater for counseling which was continued by the same and additional counselors once back at home station.  The CI reported treating at least 150 dead and wounded at a front line battle aid station and also that he was dazed after a series of three IED explosions under his vehicle when he was the driver.  He had been placed on medications, but did not tolerate the side effects.  He reported a heightened startle, irritability, panic attacks and anxiety.  His appetite was suppressed, but his weight stable.  He also endorsed recurrent memories of the events as well as dreams.  Extreme avoidance was reported.  He attended one PTSD group session, but found it extremely uncomfortable.  He reported a sense of a shortened future.  His symptoms became overwhelming during a field exercise several months earlier and his commander placed him in a rear detachment.  At the time of the examination, he was working in the clinic and doing fairly well.  He wanted to separate from the Army and continue to work in the medical field, but did not want to be exposed to trauma.  He enjoyed playing the guitar and drums.  On the mental status examination (MSE), he was noted to get “derailed” when he was discussing the trauma he had witnessed.  He was diagnosed with anxiety disorder, NOS and found to no longer be deployable and, therefore, not meet retention standards.  A Global Assessment of Functioning (GAF) of 65 was assigned, indicative of mild symptoms or impairment.  The CI was admitted to the Warrior Transition Unit on 11 October 2007.  The nurse case manager (CM) listed the diagnosis as PTSD.  However, the S3 profile, written by a psychiatrist that same day, listed anxiety disorder.  The MEB physical examination dated 19 October 2007 did list PTSD as the diagnosis.  It is not clear what the basis for the diagnosis was.  The MEB narrative summary was dated 2 November 2007, just over 2 months prior to separation.  The CI reported that he was not as irritable, but continued to endorse anger and panic attacks and increased introversion.  He was “relieved” at being out of his former unit.  He was primarily doing administrative duties in the Troop Medical Clinic.  The diagnosis remained anxiety disorder, NOS.  On 5 November 2007, the CM noted that the CI had discussed his future plans to be a drummer in a band and was “excited about fulfilling my dream.”  The commander’s assessment dated 11 November 2007, noted that the CI had been a good Soldier and continued to be a hard-working, reliable Soldier.  However, his inability to be around trauma affected his ability to perform his mission.  The MEB forwarded the diagnosis of anxiety disorder, NOS to the PEB as not meeting retention standards.  The PEB adjudicated anxiety disorder, with a significant PTSD component resulting from combat as unfitting, rated at 10% and coded 9413, anxiety disorder, NOS.  He was then separated on 27 January 2008.  The CI was seen at the VA several times in June 2008.  On 13 June, a social work initial assessment noted continued symptoms of PTSD at a moderate level.  A primary care note the same day noted that he had recently been admitted.  These records were not in evidence.  It was also noted that he had a TBI with loss of consciousness (LOC).  The Board observed that the report given in theater on 17 November 2006 documented that there had not been LOC.  The CI reported that he was living with his mother and soon a friend, also separating from the Army, would be moving in as well.  The CI endorsed a “large support group of friends.”  It was also recorded that he had been a victim of sexual abuse by his step-mother as a child. He also stated that he was admitted for dementia and bipolar disorder.  A report from 24 June 2008 also noted the hospitalization and rule-out bipolar disorder, but added that the manic state could have been secondary to cocaine abuse.  He denied both abnormal behavior and substance abuse.  He also denied the prior history of sexual abuse recorded by a social worker, but stated that his step-mother had stolen money from his father and that her son had shot his father.  That note documented continued problems with anxiety, increased alertness, exaggerated startle, intrusive thoughts and nightmares.  However, he was in a rock band and in a modeling business.  He was noted to be distracted and hyper-alert.  He was diagnosed with PTSD and a GAF of 60 was assigned, which is the upper limit for moderate symptoms.  The VARD dated 26 June 2008, 5 months after separation, was based on the STRs and VA treatment records.  The VA adjudicated a 50% rating citing the criteria for VASRD §4.129 and implying that he met the criteria for a 50% rating under VASRD §4.130.  It also used the 9413 code for an anxiety disorder.  At the initial VA psychiatric Compensation and Pension (C&P) examination performed on 7 August 2009, 19 months after separation, the CI reported that the hospitalization was for a PTSD flashback event.  He stated that the flashbacks had resolved, but that he still had nightmares.  He was working as a medical assistant and attending a community college.  He was staying with his mother and paying her rent.  He was trying to re-establish his friendships, but did become anxious at the idea of going out socially.  His sleep was good other than the nightmares and his hypervigilance improved as well.  He expressed some mild cognitive difficulties.  On MSE, he was pacing and had rapid speech.  A GAF of 65 was assigned.  The VARD dated 15 October 2009 continued the 50% rating and 9413 coding option.  The Board considered the appropriateness of the MH diagnoses and a disability rating recommendation in accordance with VASRD §4.130.  The MEB forwarded the MH diagnoses of anxiety disorder, NOS to the PEB for adjudication.  The PEB adjudicated the CI for the diagnosis of anxiety disorder, NOS with significant PTSD component.  

While PTSD was noted as the diagnosis on the MEB physical and by the CM, there is no evidence that this diagnosis was made by either a psychologist or psychiatrist in the military prior to separation.  The Board determined that no MH diagnoses were changed to the applicant's possible disadvantage in the disability evaluation process.  This applicant therefore did not meet the inclusion criteria in the Terms of Reference of the MH Review Project.  The PEB noted that the MH condition was secondary to trauma.  The PEB preceded the 2008 National Defense Authorization Act which mandated application of VASRD §4.129 when applicable.  Regardless of final PEB diagnosis, §4.129 does not specify a diagnosis of PTSD, rather it states “mental disorder due to a highly stressful event,” and its application is not restricted to PTSD.  The Office of the Under Secretary of Defense memorandum July 17, 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 September 11, 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 concluded that sufficient evidence supports that a highly stressful event severe enough to bring about the Veteran’s release from active military service did occur and that the application of §4.129 is appropriate in this case.  The Board then considered the rating at entry and exit from the 6-month TDRL constructive period with application of both VASRD §4.129 and 4.130.  The CI was working at the time of separation in his career field, but was limited from field duties and from exposure to trauma.  His performance within these limitations was lauded by his commander.  The CI was looking forward to working as a drummer in a band after separation.  The Board determined that the evidence did not support a rating higher than the minimum 50% rating IAW VASRD §4.129.  The Board then considered the permanent rating IAW VASRD §4.130.  It noted that the CI had reported a hospitalization, but it is not clear for what reason as contradictory accounts were given and the records are not in evidence.  The VA records 4 months after separation indicate continued symptoms, but that the CI was working in a rock band (a dream of his) and was involved in the modeling business.  The VA C&P a year later noted that he was supporting his mother by paying her rent, working, and attending community college.  The Board considered the descriptions for the 10%, 30% and 50% ratings and determined that the 10% rating best described the level of disability in evidence at separation.  He was working and appeared to be supporting his mother.  He was enrolled in college as well.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a temporary disability rating of 50% at entry into a 6-month constructive TDRL period and a permanent rating of 10% for the anxiety disorder condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the post-concussive syndrome and bilateral patella-femoral pain syndrome (PFPS) conditions were not unfitting.  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.  Neither condition was profiled.  The commander’s statement mentioned the history of concussion, but noted that the CI could not meet duty standards secondary to an inability see or be around trauma.  His performance was praised implying no cognitive impairment and the knee condition was not mentioned.  The MEB determined that both conditions met retention standards.  Both conditions were reviewed and considered by the Board.  There was no performance based evidence from the record that either 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 either contended condition and so no additional disability ratings are 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 anxiety disorder condition, the Board unanimously recommends a disability rating of 50% for a 6-month constructive TDRL period, coded 9413 IAW VASRD §4.129.  It also recommends a permanent disability rating of 10% IAW VASRD §4.130 at the end of the TDRL period.  In the matter of the contended post-concussive syndrome and bilateral PFPS conditions, the Board unanimously recommends no change from the PEB determinations of 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, effective as of the date of his prior medical separation:

UNFITTING CONDITION | VASRD CODE | RATING
| | TDRL | PERMANENT
Anxiety Disorder with Significant Post-Traumatic Stress Disorder Component Resulting from Combat | 9413 | 50% | 10%
RATING | 50% | 10%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130604, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		
XXXXXXXXXXXXXXXXXX, 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 XXXXXXXXXXXXXXXXXX, AR20140008583 (PD201300785)

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						     XXXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary
						         (Army Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA

PD1300785