RECORD OF PROCEEDINGS
                     PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXX                                    BRANCH  OF  SERVICE:
Army
CASE NUMBER:   PD1001305                                   SEPARATION  DATE:
20070116
BOARD DATE:  20111115


SUMMARY OF CASE:  Data extracted  from  the  available  evidence  of  record
reflects that this covered individual (CI)  was  a  Sergeant  /  E5  (11B20,
Infantrymen) medically separated for posttraumatic stress  disorder  (PTSD).
The CI had one deployment to Kuwait and  two  deployments  to  Iraq.   After
returning from his second Iraq deployment, he  presented  with  symptoms  of
increasing anxiety and anger.  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.  Despite  treatment  with
counseling and medication, the CI did not respond  adequately  to  treatment
and was unable to perform within his military occupational specialty  (MOS).
 He was issued a permanent S3 profile and  underwent  a  Medical  Evaluation
Board (MEB).  PTSD was forwarded to the Physical Evaluation Board  (PEB)  on
the DA Form 3947 as medically unacceptable IAW AR  40-501.   Two  additional
conditions listed on Axis II and III were also  forwarded  on  the  DA  Form
3947 as medically acceptable:   antisocial  traits  and  plantar  fasciitis.
Antisocial traits is not  a  ratable  condition  IAW  DoDI  1332.38  and  VA
regulations and that condition will not be  discussed  further.   Additional
conditions supported in the Disability  Evaluation  System  (DES)  file  are
discussed below, but were not  forwarded  for  PEB  adjudication.   The  PEB
adjudicated the PTSD condition as unfitting, rated 10%, with application  of
DoDI 1332.39.  The CI made no appeals, and was medically  separated  with  a
10% combined disability rating.


CI CONTENTION:  “VA assigned 50% rating for condition.”


RATING COMPARISON:

|Service IPEB – Dated 20060612    |VA (24 Mo. After Separation) Effective|
|                                 |20070117                              |
|Condition          |Code         |Rating                                |
|Plantar Fasciitis  |Not Unfitting|No VA Entry                           |
|↓No Additional MEB/PEB Entries↓  |0% x 0 / Not Service Connected x 0    |
|Combined:  10%                   |Combined:  50%*                       |


*Initial VARD for PTSD assigned 50%, from 20070117, with a reduction to 10%
from 20080305, based on failure to show for exams and increased to 30%
following exam of 20090130 effective 20080305 (combined 30%)


ANALYSIS SUMMARY:

Posttraumatic Stress Disorder.  The PEB  rating,  as  described  above,  was
derived from DoDI 1332.39 and preceded  the  promulgation  of  the  National
Defense Authorization Act  2008  mandate  for  DoD  adherence  to  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).  The Board must then determine the most appropriate fit  with  VASRD
4.130 criteria at six months for its permanent rating  recommendation.   The
VA compensation and pension (C&P) exam did not take place  until  24  months
after separation.  There was no post-separation VA  outpatient  or  civilian
provider  evidence  providing  psychiatric  details  during  the   six-month
interval.  The most proximate source of comprehensive evidence on  which  to
base  the  permanent  rating  recommendation  in  this  case  is   the   MEB
psychiatric examination performed  seven  months  prior  to  separation  and
historical information  from  the  remote  VA  C&P  exam.   The  Board  must
therefore weigh the evidence contained in the psychiatric narrative  summary
(NARSUM), balanced by the VA evidence  fairly  remote  from  separation,  in
order to extrapolate an estimation of the ratable impairment at  six  months
after separation.  DoDI 6040.44 specifies a 12-month  interval  for  special
consideration to VA findings,  rendering  the  probative  value  of  the  VA
evidence in this case somewhat diminished.  The Board  recognizes,  however,
that the delayed  VA  examination  reflects  the  stress  of  transition  to
civilian life, which is intrinsic to the  permanent  rating  recommendation.
The Board therefore agreed to assign relatively equal  probative  values  to
the evidence  from  the  MEB  evaluation  and  that  from  the  24-month  VA
evaluation as regards to its permanent PTSD rating recommendation.

At the MEB exam, seven months pre-separation, the  CI  endorsed  significant
symptoms despite  medications  (anti-depressants  and  sleeping  pills)  and
therapy.  He complained of nightmares, intrusive  thoughts,  anxiety,  sleep
disturbance, social isolation and avoidance.  Problems with anger  outbursts
and irritability had led the CI to threaten his spouse, leading  to  marital
discord  and  separation.   On  mental  status  exam  (MSE),  his  mood  was
described as angry and his affect irritable.   He  denied  any  suicidal  or
homicidal ideation; his judgment and insight were adequate; and his  thought
processes  were  logical.   The  examiner  noted,  “despite  medication  and
therapy, this condition  has  continued  and  has  resulted  in  significant
social and occupational impairment.”  The Axis I diagnosis was PTSD and  the
Axis  II  diagnosis  was  antisocial  traits.   The  global  assessment   of
functioning (GAF) was assigned at 60 – 65, in the range of mild to  moderate
symptoms.  The examiner stated:  “Social and  Industrial  impairment:   Mild
to definite” (DoDI 1332.39 10% to 30% language).  The commander’s  statement
indicated that the CI could work  in  the  rear  detachment  “in  a  limited
capacity,”  and  a  statement  from  the  Medical  Hold  Co  First  Sergeant
indicated the CI was able to work eight hour administrative duty days,  with
supervising  six  and  “capable  of  being  trained,  and  is  always   very
professional and respectful.”  The PEB noted that the “Soldier is unable  to
perform the duties of his MOS or the duties of a soldier.”   They  concluded
that “his psychological difficulties have a mild impact on  his  social  and
industrial capabilities” – and rated at 10% with likely application of  DoDI
1332.39.   The  VA  assigned  an  initial  rating  of  50%   with   apparent
application of §4.130 criteria (rather than application of  §4.129)  on  the
basis of this service exam and treatment records.

By the time of the VA C&P exam (24 months post-separation), the CI had  been
out  of  treatment  and  off  medication  since  leaving  the  service.   He
continued to endorse similar and worsened symptoms, to  include  flashbacks,
marked hypervigilance, severe emotional  detachment,  severe  problems  with
anger and impulse control.  The CI had ongoing severe marital  problems  and
he was unemployed after losing his job due to an argument at work.   He  was
taking  some  online  college  course  work;  however,  he   complained   of
occasional disruptions in focus and concentration.  On  MSE,  his  mood  was
pleasant and anxious, with  full  range  affect.   He  had  no  evidence  of
delusion or hallucinations.  The examiner noted that  severe  problems  with
emotional detachment, isolation, anger, and impulse control  had  led  to  a
“moderately  to  …  severely  impaired”  level  of  social  adjustment   and
“moderate, if not severe,  impairments  in  his  occupational  functioning.”
The examiner stated:

      I believe given the current severity of his PTSD  symptoms,  he  could
      not maintain any semblance of behavioral or emotional stability  in  a
      work situation.  He would be  at  a  high  risk  for  impulse  control
      problems in work settings.  He would have some difficulty carrying out
      even simple work-related tasks in a reliable and consistent manner.
The Axis I diagnosis was PTSD, chronic, moderate-to-severe and the  GAF  was
assessed at 50 (MEB GAF=60-65), in the range  of  serious  symptoms.   There
was no prominent evidence of an Axis II personality disorder.  The VA  rated
at 30% on the basis of this exam.

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  separation,  and
therefore the minimum 50% TDRL rating (as explained  above)  is  applicable.
The VA assigned a  50%  rating  for  the  PTSD  condition  based  on  §4.130
criteria, without relying on the provisions of §4.129.  As  regards  to  the
permanent  rating  recommendation,  all  members  agreed  that  the   §4.130
threshold for a 70% rating was not approached and that the  criteria  for  a
10% rating were well-exceeded.  The deliberation settled  on  arguments  for
30% versus 50% permanent rating  recommendation.   The  pre-separation  exam
documented symptoms of anger, irritability and isolation which  resulted  in
marital discord and  threatening  behavior.   The  “significant  social  and
occupational impairment” noted at this exam would have  independently  rated
30%.  The Board acknowledged that the VA rated this exam  at  50%;  however,
the Board  adjudged  that  the  30%  description  (occupational  and  social
impairment with occasional decrease  in  work  efficiency  and  intermittent
periods of inability to perform occupational tasks) is  a  better  fit  with
the occupational functioning in evidence near time of separation.

At 24 months post-separation, the CI’s documented moderate to severe  social
and occupational impairment would also meet the criteria for  rating  30%  -
50%.  Although the Board considered that the  CI’s  disability  picture  was
between 30%-50% at the 24-month post-separation timeframe given  “difficulty
carrying out even simple work-related tasks in  a  reliable  and  consistent
manner,” the Board must extrapolate the CI’s condition  for  rating  at  the
six months post-separation timeframe.  The Board noted  that  there  was  no
evidence of remission or acute exacerbation of  symptoms  during  the  post-
separation timeframe, but that the CI did appear to have increased  symptoms
and  disability  by  the  24-month  C&P  exam.   After   due   deliberation,
considering  the  totality  of  the  evidence  and  mindful  of  VASRD  §4.3
(reasonable doubt), the Board recommends  30%  as  the  fair  and  equitable
permanent rating for PTSD in this case.

Other PEB Conditions.  The condition of plantar  fasciitis  was  adjudicated
as not unfitting by the PEB.  This condition was  not  profiled,  implicated
in the commander’s statement or noted as failing retention  standards.   The
condition was reviewed by the action officer and considered  by  the  Board.
There  was  no  indication  from   the   record   that   plantar   fasciitis
significantly  interfered  with  satisfactory  performance   of   MOS   duty
requirements.  All evidence considered there is not reasonable doubt in  the
CI’s favor supporting recharacterization of  the  PEB  fitness  adjudication
for the plantar fasciitis condition.

Remaining Conditions.  Several additional non-acute  conditions  or  medical
complaints were documented on the MEB history and physical.  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.  No  other  conditions
were service connected with a compensable rating by the VA within 12  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  reliance  on  DoDI
1332.39  for  rating  was  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  an  initial  TDRL
rating of 50% in retroactive compliance with VASRD §4.129  as  DOD  directed
and a 30% permanent rating at six months IAW VASRD §4.130.   In  the  matter
of the plantar fasciitis condition,  the  Board  unanimously  recommends  no
recharacterization of the PEB adjudication as not unfitting.  In the  matter
of  any  other  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:  TDRL at  50%  for  six  months  following  CI’s  prior
medical separation (PTSD at minimum of 50% IAW  §4.129  and  DoD  direction)
and then a permanent combined 30% disability retirement as below.

|UNFITTING CONDITION                   |VASRD CODE  |TDRL    |PERMANENT  |
|                                      |            |RATING  |RATING     |
|Posttraumatic Stress Disorder         |9411        |50%     |30%        |
|COMBINED    |50%     |30%        |

____________________________________________________________________________
__

The following documentary evidence was considered:

Exhibit A.  DD Form 294 dated 20101221 w/atchs.
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans' Affairs Treatment Record




                                        XXXXXXXXXXXXXXXX
                                                                   President
                             Physical Disability Board of Review

SFMR-RB


MEMORANDUM FOR Commander, US Army Physical Disability Agency
(TAPD-ZB /  ), 2900 Crystal Drive, Suite 300, Arlington, VA  22202

SUBJECT:  Department of Defense Physical Disability Board of Review
Recommendation
for XXXXXXXXXXXXXXXXXXXXX, AR20110023315 (PD201001305)


1.  This memorandum revokes my earlier decision 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 individuals original
medical separation for disability with severance pay and then following
this period recharacterize the individual’s separation as a permanent
disability retirement with the combined disability rating of 30%.  My
previous decision was forwarded to the United States Army Physical
Disability Agency (USAPDA) for implementation on December 5, 2011.

2.  I have been notified that the USAPDA has taken action as specified in
the court settlement agreement of the SABO Class action lawsuit, of which
the individual concerned was a class member.  Based on the settlement
agreement, the USAPDA placed him on the TDRL at 50% disability for six
months and following this period recharacterized his separation as a
disability retirement with the combined disability rating of 50%.
Implementing the DoD PDBR recommendation at this time would have a negative
impact on the individual.  As a result, I revoke my earlier decision and
direct the USAPDA not take any further action in the individual’s case.

BY ORDER OF THE SECRETARY OF THE ARMY:



Encl                                   XXXXXXXXXXXXXXXXXXXXXX
                                       Deputy Assistant Secretary
                                           (Army Review Boards)
CF:
(  ) DoD PDBR
(  ) DVA