RECORD OF PROCEEDINGS

PHYSICAL DISABILITY BOARD OF REVIEW

NAME: BRANCH OF SERVICE: army

CASE NUMBER: PD101164 Entry to TDRl: 20030609

BOARD DATE: 20120126 exit from TDRL: 20061106

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve member, E-6/SSgt (91L, Medical Supply), medically separated for posttraumatic stress disorder (PTSD). She was diagnosed with PTSD consequent to an Afghanistan deployment from January 2002 to June 2002. Criterion A combat stressors were documented and the Diagnostic and Statistical Manual of Mental Disorders (DSM IV) criteria for an Axis I diagnosis of PTSD were met. She did not respond adequately to treatment and was unable to drill with her unit or perform within her military occupational specialty (MOS). The CI subsequently underwent a Medical Evaluation Board (MEB). PTSD was addressed in the narrative summary (NARSUM) and forwarded to the Physical Evaluation Board (PEB) on the DA Form 3947 as medically unacceptable IAW AR 40-501. Major depressive disorder (MDD) single episode was also forwarded as medically acceptable. No other conditions appeared on the MEB’s DA Form 3947 submission. Other conditions included in the NARSUM and DES packet will be discussed below. The Informal PEB adjudicated the PTSD condition as unfitting. The CI was placed on Temporary Disability Retired List (TDRL) at 30% as reflected in the chart below. The first TDRL re-evaluation in 2005 added MDD to the disability description. On the second re-evaluation in November 2006, the CI was considered to be sufficiently stable for final adjudication. The PTSD and MDD condition rating was finalized at 10% with likely application of DoDI 1332.39. The CI made no appeals and was finalized from TDRL with a 10% disability rating.

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 CFR4.I29 and DOD policy to the extent such increase will not adversely affect my total compensation, including but not limited to compensation pursuant to CRSC. Please see attached list of contentions regarding why the PDBR should make the changes request in Item 3.”

RATING COMPARISON:

*Increased 9434 from 10% to 50% on DRO VARD of 20040301, effective 20030610 (combined 50%)

Posttraumatic Stress Disorder. The PEB rating, as described above, was likely derived from DoDI 1332.39 and preceded the promulgation of the National Defense Authorization Act (NDAA) 2008 mandate for DoD adherence to Veterans’ Administration Schedule for Rating Disabilities (VASRD) §4.129. The Board must determine the most appropriate final rating IAW VASRD §4.130 criteria. Since the Service was in compliance with the §4.129 TDRL requirement, the Board need not apply a constructive TDRL interval in this case, the 50% minimum TDRL rating remains applicable IAW DoD direction and the Sabo vs United States lawsuit settlement agreement. The CI was discharged from active duty in November 2002 after 10 years of service soon after leave from her deployment to Afghanistan. She reenlisted into the Army Reserves and drilled November and December of 2002. She received orders in January of 2003 to return to Afghanistan and reported to FT Dix mobilized unit in-processing center. While in-processing, she verbalized symptoms of PTSD. During her clinical evaluation, she overdosed on Benadryl and was admitted to inpatient psychiatry in a civilian hospital and transferred to Walter Reed Army Medical Center (WRAMC). She was treated for 30 days inpatient and was subsequently treated as an outpatient. There were no further hospital admissions in evidence. The initial MEB exam was completed at the time of her discharge from the WRAMC inpatient psychiatry unit in March of 2003. The MEB assessment was that the CI had continued PTSD symptoms, including intrusive thoughts, mild insomnia, hypervigilance, and exaggerated startle response. These symptoms will require long-term, intensive outpatient treatment, to include therapy and medication management, in an attempt to return to her premorbid level of functioning. Her prognosis as a civilian would be fair, provided she maintains close outpatient follow-up and treatment. The hospital discharge, diagnoses were PTSD chronic, treated and improved; and MDD, moderate, single episode with a global assessment of functioning (GAF) of 70 in the mild symptom range, and a GAF of 45, in the serious symptom range, within the last year.

The VA exam completed one month after being placed on TDRL demonstrated the CI was casually and appropriately dressed; hygiene and grooming were good. Her mood was somewhat dysphoric; exhibiting a broad range of affect. There was no impairment to thought process or communication. She denied auditory and visual hallucinations. She maintained appropriate eye contact across the interview. She did not exhibit any inappropriate behavior and did not endorse history of inappropriate or impulsive behavior. She denied current suicidal or homicidal ideations; however, on the Beck depression inventory, she endorsed having passive suicidal ideation, but would not carry it out. She was able to maintain all aspects of personal hygiene and other basic activities of daily living. She reported that she is responsible for cooking, cleaning, grocery shopping, and laundry chores, as well as bill paying and finances. Subjectively she had difficulty with memory and both short-term long term yet both were intact. She did not endorse symptoms consistent with panic disorder. Rate and flow of speech was normal with no irrelevant, illogical or obscure patterns noted. She reported that she had mood difficulties at night. When prompted for additional detail regarding her mood, she rated her level of depression a 5-6. She endorsed sleep disturbance as manifested by initial insomnia and terminal insomnia. She reported that she gets approximately three to four hours of steady sleep per night. She experienced nightmares and reported that the content of her nightmares is "seeing remains of people, having to count dead bodies." She denied experiencing anxiety or nervousness. She reported however, that she worries about friends and colleagues who are still in the military. When queried about triggers to her anxiety, the Veteran reported that listening to news results in her (getting) angry." The GAF at this point in time was 60 (moderate range). The VA examiner assessed the CI MSE, Beck depression inventory scale and a PTSD symptom scale and stated the CI reflects on-going level of depression moderate in intensity and that her PTSD scale reflects a level of over reporting. The VA concluded the Veteran suffered with major depressive disorder single episode, moderate and did not meet the PTSD Criterion A as in the DSM-IV. The VA rated this exam at 10%. However, the VA then considered additional treatment notes from 9 September 2003 and 22 December 2003 (GAF = 50, serious symptom range) and increased the CI’s rating to 50% from the date of separation.

The first TDRL evaluation in February 2005, indicated continued PTSD and depression symptoms. She had had two episodes of suicidal ideation since being placed on TDRL, with treatment by the VA. The CI was employed part-time and had crying spells at work, and difficulty forming relationships with her co-workers. She was married and attending school. MSE demonstrated a restricted affect and increased psychomotor activity. There was no evidence of psychotic content or current suicidal ideations. The findings were “these psychiatric conditions she continues to experience prevent her from being employed full time, forming new relationships, new activities,” and the examiner indicated the CI was employed “below the level of her training or education.” Diagnoses were PTSD, medically unacceptable, with impairment for social and industrial adaptability definite, and major depressive disorder; medically acceptable. Overall GAF was 40-50 (serious to moderate symptom range).

The MEB TDRL re-evaluation exam took place in Alaska two months prior to TDRL exit. This exam indicated that the CI was employed full-time as a data entry clerk, an occupation below her level of training, had not required hospitalization, and had difficulty with her marriage, but was working through this. The CI was taking one psychotherapeutic medication and had decreased her use of alcohol to help her sleep in the last few months. She complained of recurring nightmares and insomnia and was seeking additional medication through the VA. She endorsed continued symptoms of intrusive thoughts, hypervigilance, irritability and exaggerated startle. She had “some episodes of passive suicidal ideation, though these were mild and fairly transient compared with her symptoms in the past.” She continued with depressive symptoms including low energy, poor concentration, and hopelessness (somewhat improved on medication). The mental status exam indicated a fairly flat affect with normal speech and though content and denied suicidal or homicidal ideation. The examiner stated the CI “continues to be significantly impaired by her chronic PTSD and depression. Overall, her condition is stable to perhaps slightly improved since her last TDRL assessment in 2005” [The 2005 exam GAF was 40-50, with “Impairment for social and industrial adaptability Definite.”] The examiner did not provide a GAF or DoDI-worded level of industrial impairment at the TDRL-exit exam. The PEB rated this exam at 10%, “Rating as mild industrial impairment based on functional ability.” A VA outpatient mental health initial evaluation completed in Alaska documented the CI was still having difficulty with nightmares, trouble sleeping, intrusive thoughts, fear, shame and guilt, but feeling better on medications. Her MSE demonstrated depressed mood noting visual hallucinations, otherwise a normal exam. The GAF assigned was 70 with notable difficulties with her family relationships. Outpatient VA AK records demonstrated worsening of symptoms continued treatment and additional medications being initiated to help with her anxiety and sleep symptoms. VA diagnoses at the time of TDRL exit were PTSD, major depression and seasonal affective disorder with a GAF of 60, in the range of moderate symptom.

The most proximate source of comprehensive evidence on which to base the permanent rating recommendation in this case is the TDRL re-evaluation exam, two months prior to TDRL exit and VA outpatient clinical records through seven months post TDRL exit. Members acknowledged that the VA conferred a 50% rating on the basis of the C&P examination and VA treatment records early in the TDRL period, but the evidence was remote from the TDRL-exit rating timeframe. The Board noted the different Axis I diagnoses and coding used by the PEB and VA; however, either coding relies on the criteria of VASRD §4.130. The PEB’s PTSD associated with a major depressive disorder diagnosis was considered administratively final, and the Board focused on appropriate rating IAW the VASRD.

The Board directs its attention to its rating recommendations based on the evidence just described. All members agreed that the §4.130 criteria for a rating higher than 50% were not met at the time of entry into TDRL, and therefore the minimum 50% TDRL rating (as explained above) is applicable. As regards the permanent rating recommendation at exit from TDRL, all members agreed that the §4.130 threshold for a 70% rating was not approached. The deliberation settled on arguments for a 10%, 30%, versus a 50% permanent rating recommendation. The Board weighed the CI’s full-time employment as a data entry clerk, a position well below her level of training, difficulty with relationships and sleep and mood disturbance symptoms not controlled by medications, examiner’s assessment of “significantly impaired by her chronic PTSD and depression” and comparison of only slight improvement from the 2005 TDRL interval exam. The 30% description (“occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks”) was a better fit with the occupational functioning in evidence since decreased efficiency can be assumed even though reliability and productivity were not demonstrably affected. After due deliberation, considering the totality of the evidence and with deference to VASRD §4.3 (reasonable doubt), the Board recommends 30% as the fair and equitable permanent rating for PTSD in this case.

Remaining Conditions. Mechanical low back pain was identified in the DES file. Several additional non-acute conditions or medical complaints were also documented. None of these conditions were clinically 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. No other conditions were service connected with a compensable rating by the VA within twelve months of separation or contended by the CI. 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. As discussed above, PEB on DoDI 1332.39 for rating PTSD was operant in this case and the condition was adjudicated independently of that policy and regulation by the Board. In the matter of the PTSD and major depressive disorder condition, the Board unanimously recommends a 30% permanent rating at exit from TDRL IAW VASRD §4.130. The Board unanimously agrees that there were no other conditions eligible for Board consideration which could be recommended as additionally unfitting for rating at separation.

RECOMMENDATION: The Board recommends that the CI’s prior determination be modified to reflect a permanent 30% disability retirement as indicated below.

______________________________________________________________________________

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20100929, w/atchs

Exhibit B. Service Treatment Record

Exhibit C. Department of Veterans' Affairs Treatment Record

President,

Physical Disability Board of Review

SFMR-RB

MEMORANDUM FOR Commander, US Army Physical Disability Agency

2900 Crystal Drive, Suite 300, Arlington, VA 22202

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation

for

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 recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 30% effective the date of the individual’s original medical separation for disability with severance pay.

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:

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

b. Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay.

c. Adjusting pay and allowances accordingly. Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 30% effective the date of the original medical separation for disability with severance pay.

d. Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.

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

Deputy Assistant Secretary

(Army Review Boards)

CF:

( ) DoD PDBR

( ) DVA