RECORD OF PROCEEDINGS

PHYSICAL DISABILITY BOARD OF REVIEW

NAME: BRANCH OF SERVICE: Army

CASE NUMBER: PD1000958 DATE OF PLACEMENT ON TDRL: 20041212

BOARD DATE: 20111214 Date of Separation: 20060724

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty Sergeant First Class / E7 (96U, UAV Flight Line Supervisor) medically separated from the Army in 2004. The medical basis for the separation was posttraumatic stress disorder (PTSD) with major depression. The CI was diagnosed with PTSD after a deployment to Iraq January 2003 – January 2004. The CI underwent a one-week in-patient hospitalization, a trial of medications and outpatient therapy, but failed to improve adequately to meet the operational requirements of his rank and military occupational specialty (MOS). He was consequently placed on a permanent S3 profile and referred for a Medical Evaluation Board (MEB). The MEB forwarded PTSD on DA Form 3947 to the Physical Evaluation Board (PEB) as medically unacceptable IAW AR 40-501. The Informal PEB (IPEB) adjudicated the PTSD condition as unfitting, rated 30% with application of Department of Defense Instruction (DoDI) 1332.39 and the CI was placed on Temporary Disability Retired List (TDRL). No other conditions were forwarded to the Physical Evaluation Board (PEB) as medically unacceptable conditions IAW AR 40-501. The CI was separated from TDRL on 24 July 2006 with a final disability rating of 10% and made no appeals.

CI CONTENTION: The CI states: “I was assigned less than 50% disability rating by the military for my unfitting PTSD upon discharge from active duty. In accordance with the class action notice, assign the highest final disability rating applicable consistent with 38 CFR 4.129 and DOD policy, to the extent such increase will not adversely affect my total compensation, including but not limited to compensation pursuant to CRSC.”

TDRL RATING COMPARISON:

*PTSD 9411 increased to 100% effective 20100706 based on exam dated 20100706

ANALYSIS SUMMARY:

PTSD: The CI had a one week hospitalization in late March and early April 2004 for suicidal ideation and depression. The CI had symptoms of depression, self isolation, hopelessness, irritability and suicidal ideation without plan or intent. The CI was seen by aerospace medicine in April 2004 for symptoms of anhedonia, depression, difficulty concentrating (characterized as drifting and tangential thought processes), guilt at his “not caring about work,” decreased interest in activities and sex, passive suicidal ideation without a plan. The examiner further noted that the CI stated he did not have the support of his command and asked to be relieved of his duties as a platoon sergeant. The examiner observed a depressed mood; affect mostly congruent to mood, slightly flat. Based on the physician’s observations, the CI was referred to Psychiatry on that same day. The MEB psychiatric examination in July 2004 five months prior to entry into TDRL, indicated psychomotor agitation, depressed mood, anxious, tearful, self isolation, diminished interest and pleasure in significant activities, increased arousal, difficulty concentrating, irritability and outbursts of anger, and significant impairment in interpersonal relationships with his wife, children, and occupationally. The CI reported that his symptoms had slightly improved after his medication was changed from Wellbutrin to Effexor XR. The examiner further noted a marked degree of impairment for further military duty; considerable impairment for industrial adaptability and significant occupational and social impairment. The Global Assessment of Function (GAF) was 45-serious impairment in social, occupational, or school functioning.

The commander’s statement in August 2004 noted that the CI had been removed from his position as Platoon Sergeant because he could not lead in his current condition. He no longer possessed the necessary drive to lead soldiers, there was self isolation and withdrawal, inability to function socially or physically in a group setting, inability to concentrate at times, and the inability to perform daily duties and simple tasks in a timely manner. The commander did note however that prior to the mental health condition, the CI had been “an outstanding soldier….promoted ahead of his peers.” The CI was placed on an S3 profile which restricted him from accessing weapons and performing multiple military functional activities.

The VA compensation & pension (C&P) examination two years prior to exit from TDRL documented that the CI had recurrent disturbing dreams about Iraq, irritability, anger, self isolation, and sleep impairment. The examiner noted that the CI’s symptoms were moderate to severe and it was likely that “for the foreseeable future, he will not be able to work at a job which involves large groups of people or has even moderate levels of stress.” The CI had recently been started on Trazodone and had counseling sessions twice a week. He also continued to take Effexor XL. The GAF was 45-48-serious impairment in social, occupational, or school functioning. This examination appears to document the same level of impairment as the MEB examination of July 2004, two months prior. The VA applied a 50% rating based on the CI’s documented level of impairment. The VA did note that this evaluation was not considered permanent and was subject to a future review examination. An IPEB rated 9411, PTSD at 30% and placed the CI on TDRL because his condition was considered unstable and the PEB was not able to make a permanent disability evaluation.

The TDRL evaluation two months prior to final separation documented the CI was still experiencing some mild depressive symptoms and marital problems as well as nightmares. He continued to anger easily and had difficulty being around crowds and other people. He continued to face the door whenever he sits and have decreased interest in activities he had previously enjoyed like bicycling. He now stated he found it helpful to talk with others especially if they had been over in combat whereas previously he had had difficulty being around the Soldiers with whom he had deployed. He had left multiple jobs due to problems with supervisors and working with others although he did hold one job for over one year. At the time of the evaluation he was working as an air conditioner technician in training. He was able to work 40 hours per week and attend school twelve hours per week and getting A’s. He had not been in counseling but had been very compliant with his medication. His mental status examination did not reveal the psychomotor agitation, anxiety, depression or limited affect that was documented on the initial MEB examination. His mood was euthymic, his affect was full, and he did not respond to a loud noise that occurred outside the window during the examination. The examiner noted marked impairment for further military duty; and mild impairment for social/industrial adaptability and a GAF of 75- no more than slight impairment in social, occupational, or school functioning. The examiner also recommended continuing medication and engaging in both individual and group therapy.

The only other VA C&P evaluation available for review was performed on 6 July 2010, approximately four years after final separation and nearly six years after the initial VA evaluation. Based on this examination, the disability rating for PTSD was increased to 100%, effective the date of the exam. Both the C&P examination and VA Rating Decision are missing from the record. However, the record does contain a copy of a memo from the VA to the CI dated 12 October 2010 informing the CI that a permanent 100% rating had been applied for PTSD and no further examinations would be scheduled. Although this examination was well beyond the 12 months for consideration at the time of separation, the exam results do show the worsening of the CI’s condition over time. It is not possible for the Board to determine when the CI’s symptoms worsened or if this worsening occurred prior to final separation.

The PEB rating at final separation, as described above, was derived from DoDI 1332.39 and preceded the promulgation of the National Defense Authorization Act (NDAA) 2008 mandate for DoD adherence to the Veterans Administration Schedule for Rating Disabilities (VASRD) §4.129. IAW DoDI 6040.44 and DoD guidance (which applies current VASRD 4.129 to all Board cases), the Board is obligated to recommend a minimum 50% PTSD rating for a retroactive six-month period on the Temporary Disability Retired List (TDRL). Since the Service was in compliance with the §4.129 TDRL requirement, the Board need not apply a constructive TDRL rating interval in this case; although, the 50% minimum TDRL rating remains applicable. This matter however, has been resolved in Federal court as part of the Sabo vs. United States claim settlement. The Board must then determine the most appropriate fit with VASRD 4.130 criteria at the end of the TDRL interval for its permanent rating recommendation. The most proximate source of comprehensive evidence on which to base the permanent rating recommendation in this case is the TDRL narrative summary (NARSUM), performed 17 months after being placed on TDRL and 2 months prior to permanent separation.

The Board directs it attention to its rating recommendations based on the evidence just described. As regards for the permanent rating recommendation, all members agreed that the §4.130 threshold for a 50% rating was not approached. The deliberations settled on arguments for a 30% versus a 10% permanent rating recommendation. The Board noted that at the examination most proximate to the end of TDRL that the CI was still experiencing some mild depression, having anger management issues, difficulty with crowds of people and working with others, marital problems and although he was working full time his job allowed him not to have to interact with people. After due deliberation and considering all of the evidence, the Board, by simple majority, recommends a permanent separation rating of 10% for the PTSD condition.

Remaining Conditions: Other conditions identified in the DES file were hearing loss, back problem, knee problems, indigestion, stomach trouble, kidney stone, sleep impairment, and hand fracture. Several additional non-acute conditions or medical complaints were also documented. None of these conditions were significantly clinically or occupationally active during the MEB period; none carried attached profiles; and, none were implicated in the commander’s statement. These conditions were reviewed by the action officer and considered by the Board. It was determined that none could be argued as unfitting and subject to separation rating. Additionally lower back strain, left knee strain, right knee strain and tinnitus and several other non-acute conditions were noted by the VA proximal to separation, but were not documented in the DES file. The Board does not have the authority under DoDI 6040.44 to render fitness or rating recommendations for any conditions not considered by the DES. The Board, therefore, has no reasonable basis for recommending any additional unfitting conditions for separation rating.

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. In the matter of the PTSD condition, the Board unanimously recommends by a vote of 2:1 a 10% permanent rating IAW VASRD §4.130. The single voter for dissent who recommended a 30% permanent rating IAW VASRD §4.130 submitted the addended minority opinion. In the matter of the hearing loss, back problem, knee problems, indigestion, stomach trouble, kidney stone, sleep impairment, and hand fracture conditions or any other medical conditions eligible for Board consideration; the Board unanimously agrees that it cannot recommend any findings of unfit for additional rating at separation.

RECOMMENDATION: The Board recommends that the CI’s prior determination be modified as follows: permanent separation with severance pay by reason of physical disability, with a final 10% rating as indicated below.

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The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20100808, w/atchs

Exhibit B. Service Treatment Record

Exhibit C. Department of Veterans' Affairs Treatment Record

Minority Opinion

After consideration of all available evidence and mindful of VASRD §4.3 (reasonable doubt), this Board member recommends a permanent separation rating of 30% disability and retirement for the Posttraumatic Stress Disorder (PTSD) condition.

Although the PEB initially rated the CI at 30% when he entered TDRL, the level of functional impairment described in both the initial MEB and VA C&P evaluations are equivalent and each warrants a 50% rating under VASRD §4.130, without regard to VASRD §4.129. Both examinations noted serious occupational and social impairments. The CI was continuously unable to perform the simplest tasks required of his MOS and was simply unable to function in any capacity in a group setting. His impairment was such that he had to be removed from both his MOS and his supervisory position due to his mental health condition.

The CI’s level of impairment did improve by the time of the TDRL evaluation on 11 May 2006. By this time he was able to talk about what had happened and actually enjoyed talking to other veterans. He was generally functioning normally and was able to interact with individuals. However, he continued to experience social difficulties and had significant relationship issues with his wife. This evaluation noted the CI had experienced difficulty obtaining and maintaining employment as well as difficulty working with others. This was due to a continuation of a multitude of symptoms that also negatively impacted his ability to form and maintain social relationships. He continued to have difficulty working with and for other people. He was employed at one job for more than one year but during this employment he was repeated placed in new positions in an attempt find one where he could be successful. However, his employer was unable to find such a position and was simply not able to deal with groups of people. He was encouraged to quit and he did.

At the time of this evaluation, the CI had all of the symptoms described under the 30% rating except for anxiety as well as multiple symptoms described at the 50% rating (including disturbance in mood and motivation and difficulty in establishing and maintaining effective work and social relationships) and even one symptom at the 70% rating: impaired impulse control.

Although the examining psychiatrist noted a GAF of 75, this GAF does not correlate with the evaluation as it was written by her or as summarized above. The CI was still experiencing continuous symptoms of mild depression, anger management issues, difficulty with crowds of people and working with others, significant marital problems and although he was working full time-his job allowed him not to have to interact with people. There is nothing in the record to suggest that all of his symptoms were mild or transient or that his occupational difficulties only occurred during periods of significant stress or were controlled by continuous medication. Thus the 30% description (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)) aligns with the evidence in this case.

This Board member recommends that the CI’s prior determination be modified as follows: a permanent 30% disability and retirement as below.