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AF | PDBR | CY2012 | PD2012 00841
Original file (PD2012 00841.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:    CASE: PD1200841
BRANCH OF SERVICE: Army  BOARD DATE: 20130716
SEPARATION DATE: 20020419


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SFC/E-7 (74H/Personnel Administrator) medically separated for a panic disorder with agoraphobia, and associated depression conditions. The CI presented to behavioral medicine in June 2001 in an emotional, distraught, and vegetative state of depression and he was hospitalized. He was diagnosed with major depressive disorder and adjustment disorder with depressed mood. The conditions could not be adequately treated to meet the requirements of his Military Occupational Specialty. He was issued a permanent L2/S4 profile and referred for a Medical Evaluation Board (MEB). The mental health conditions, characterized as “major depressive disorder (d/o), panic d/o with agoraphobia and posttraumatic stress d/o” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded degenerative disk disease of the lumbosacral spine and hypothyroidism. The PEB adjudicated “major depressive, panic, and posttraumatic stress disorders requiring hospitalization, psychotropic medications and psychotherapy” as unfitting, rated 30%, and placed the CI on the Temporary Disability Retired List (TDRL). Subsequently, the US Army Physical Disability Agency (USAPDA) reviewed the case and revised the PEB to reflect “panic d/o with agoraphobia, and associated depression” as unfitting, rated 10% (after reduction to the next lower rating due to an unrateable personality d/o), citing AR 635-40. The remaining conditions were determined to be not unfitting. The CI made no appeals and was medically separated.


CI CONTENTION: “My emotional stability continues to weaken. I suffer to the point of not being able to go outside. I can’t keep work due to social issues. I have moments of greatness and then great falls. I am not able to provide a suitable life. It was unfair for the military to separate me after serving honorably for such a long period of time. The damage to my emotions and psyche was brought on by recruiting and the maltreatment recruiters experience. I still done a good job while serving on recruiting duty, but I cannot deny that I was gravely effected by that experience. Unfortunately I never really recovered. I kept my affects managed for a long time but they eventually re-surfaced. Punishment seemed to be the only recourse the army considered. Ending my career was the ultimate punishment. The ultimate unfairness in my view was deciding not to take responsibility for the damage caused.


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 panic disorder with agoraphobia, and associated depression condition is addressed below; and, 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 Revised IPEB – Dated 20020419
 VA - based on Service Treatment Records (STR)
Condition
 Code Rating Condition Code Rating Exam
Panic d/o with Agoraphobia and Depression 9412 10% Major Depressive d/o with Psychotic Traits; History of Anxiety with Personality d/o 9434 30%* STR/MEB/PDE*
PTSD Not Unfitting
DDD Lumbosacral Spine Not Unfitting DDD Lumbosacral Spine 5295 10%* STR/MEB/PDE
Hypothyroidism Not Unfitting Hypothyroidism 7903 10% STR/MEB/PDE
No Additional MEB/PEB Entries
 Other x6 10%
Combined: 10%
 Combined: 50%
Derived from VA Rating Decision (VA RD ) dated 20020517 (most proximate to date of separation [ DOS ] )
* 9434 increased to 50% and 5295 increased to 20% effective 20100609; PDE is pre-discharge exam


ANALYSIS SUMMARY: The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues to burden him; but, must emphasize that the Disability Evaluation System has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation. That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws. IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations. The Board’s role is thus confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to Veterans Affairs Schedule for Rating Disabilities (VASRD) standards, based on ratable severity at the time of separation.

Panic Disorder with Agoraphobia, and Associated Depression. In June 2001, the CI presented to the behavioral health clinic complaining of more than 5 years of depression and significant stress after serving for 6 years as a recruiter from 1990 to 1996. He also reported things at work had gone downhill recently as he was repeatedly late for work due to his fear of driving and need to depend on others to get to work and that his job became unbearable due to personality conflicts and his inability to cope with the dynamics of his co-workers. He explained he could not talk (stuttered) or think and that he got lost and forgot his way on a route he traveled every day. He endorsed overwhelming thoughts of "wanting to shoot my co-workers" and was hospitalized from 15 to 27 June 2001. He was discharged on two anti-depressant medications and was being followed at weekly behavioral health appointments. He was also transferred to a new work environment at the post gym working as an “attendant” but his symptoms worsened. His appointments were increased to twice weekly, additional anti-depressant medications were prescribed along with anti-anxiety medications. In October 2001, the CI experienced an exacerbation of his symptoms when he attempted to talk about a 1996 motor vehicle accident he was involved in where his right ear was severed off but surgically reattached. These symptoms were described as posttraumatic stress disorder (PTSD) by the CI but he sought no treatment for these symptoms after the accident. The narrative summary (NARSUM) prepared 3 months prior to separation noted that the CI felt he was unable to control his mood and emotions, reported that he felt angry, irritable, miserable and depressed with problems at work and that although he had only 2 more years to retire, he felt he could not continue to perform his duties and was unable to cope with the stressors at work. He experienced panic attacks with acute onset of shortness of breath with air hunger, diaphoresis, tachycardia, palpitations, formication ("it feels like something crawling under my skin"), and a sense of impending death once or twice a week. He could be awakened from sleep by panic attacks. He experienced severe sleep disturbances (difficulty initiating and maintaining sleep), marked anhedonia and decreased sex drive, guilt and feelings of helplessness and hopelessness, a 10-pound weight loss in less than 2 weeks, fatigue, poor memory and difficulty concentrating, marked subjective sense of depression with frequent episodes of crying, and psychomotor retardation alternating with racing thoughts. Psychological testing revealed moderately severe depression and avoidant and schizoid traits with underlying paranoid features. He was married for 17 years (first marriage for both) with three sons and he described his marriage as good. He reported having a good relationship with his family of origin. The mental status examination revealed a dysphoric mood with a “congruent to subject and reactive” affect. Thought processes, memory, concentration and abstraction were intact. Insight and judgment were poor to fair. He adamantly denied suicidal ideations, but continued to report daily homicidal ideations related to his perceptions of improper or inappropriate treatment by military coworkers. His Global Assessment of Functioning was 40-45 which was consistent with serious symptoms. The psychiatrist stated that the CI’s prognosis was guarded, as his mental health had not stabilized, had in fact exacerbated somewhat, and he was poorly engaged in the therapeutic process. Moreover, it was difficult to predict his ability to perform his military duties due to acute exacerbations of his depression, panic disorder and unpredictable homicidal impulses. The CI was diagnosed with multiple severe chronic Axis I mental illnesses which had not responded well to treatment, in part due to his personality disorder.

The Board directs attention to its rating recommendation based on the above evidence. The PEB applied VASRD codes 9412 (panic disorder and/or agoraphobia) and 9434 (major depressive disorder), rated them 30% and placed the CI on TDRL. The USAPDA modified the PEB recommendation to a 10% rating stating “the soldier's main unfitting impairment is his personality disorder. This is not ratable but markedly contributes to his psychiatric impairments. Thus, the case is reduced to the next lower rating.” Members agreed with the action officer that it is impossible to clinically dissect the psychiatric impairment into ratable and unrateable origins. Both DoDI 1332.38 (E2.1.1) and the VASRD (§4.22) require a degree of certainty for justifying such deductions that is not achievable in this case without undue speculation. Members thus agreed that its recommendation should concede the total §4.130 impairment in evidence as subject to rating. PTSD was identified by the MEB and determined to be “insufficiently documented within the NARSUM and is not independently unfitting” by the USAPDA; after deliberation, members agreed that, although some contribution of service stressors to the psychiatric condition(s) was clearly present; the requisite §4.129 link that the conditions occurred “as a result of” the stressors was not adequately satisfied. The Board therefore will consider only the VASRD §4.130 impairment present at separation for a single rating recommendation. The VA utilized service treatment records, the NARSUM and a pre-discharge exam to arrive at its 30% rating under VASRD code 9434. The §4.130 general rating formula for mental disorders referenced in the 70% rating are deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The CI had significant work impairment but no significant deficiencies in family, thinking or judgment. He also did not manifest many of the signs identified in 70% rating criteria; thus, there was Board consensus that the significant threshold indicators for the 70% rating were not evidenced in this case and deliberations settled on a 50% vs. 30% rating recommendation. The CI did not meet the 50% VASRD rating standards for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech. His memory was intact on his mental status exam and he reported good marriage and family relationships. The 30% rating standards for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks are easily supported by the evidence. The CI had depressed mood, anxiety, panic attacks (weekly or less often), chronic sleep impairment and mild memory loss as he sometime forgot directions; although he generally functioned satisfactorily, with routine behavior, self-care, and conversation normal. Additionally, the 30% rating level was granted by the VA proximate to separation and is consistent with the USAPDA rating level without the personality disorder deduction. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 30% for the panic disorder with agoraphobia and associated depression condition.
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 AR 635-40 for rating panic disorder with agoraphobia and associated depression was operant in this case and the condition was adjudicated independently of that regulation by the Board. In the matter of the panic disorder with agoraphobia, and associated depression condition, the Board unanimously recommends a disability rating of 30%, coded 9412-9434 IAW VASRD §4.130. 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; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

UNFITTING CONDITION
 VASRD CODE RATING
Panic d/o with Agoraphobia and Associated Depression 9412-9434 30%
COMBINED
 30%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120610, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record




Physical Disability Board of Review


 SFMR-RB                                                                         


MEMORANDUM FOR Commander, US Army Physical Disability Agency
(TAPD-ZB),


 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for AR20130018099 (PD201200841)


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                                                 
                                                      (Army Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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