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AF | PDBR | CY2012 | PD2012 01496
Original file (PD2012 01496.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXX BRANCH OF SERVICE: air force
CASE NUMBER: PD1201496 SEPARATION DATE: 20020125
BOARD DATE: 20130411


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SrA/E-4, holding Air Force Specialty Code (AFSC) 2A431 (Aircraft Guidance and Control), medically separated for a psychiatric condition. She experienced a sexual assault in 2000, and was subsequently diagnosed with major depressive disorder (MDD) associated with post-traumatic stress disorder (PTSD). After two psychiatric admissions, she failed to respond adequately to continued outpatient psychotherapy and medications to meet the requirements of her AFSC. She was issued an S4 profile and referred for a Medical Evaluation Board (MEB). The MEB forwarded MDD and PTSD to the Physical Evaluation Board (PEB) IAW AFI 48-123 and AFI 44-113. No other conditions were submitted on the MEB’s AF Form 618, although the narrative summary (NARSUM) included an Axis II diagnosis of personality disorder. The informal PEB adjudicated “(MDD) associated with (PTSD)” as unfitting (Category I), and added “personality disorder, not otherwise specified, with borderline traits” as Category III (conditions that are not separately unfitting and not compensable or ratable). The MDD/PTSD condition was rated 30%, citing criteria of Department of Defense Instruction (DoDI) 1332.39; but, applied a formal 20% deduction for the Category III contribution, stating “were it not for the personality disorder, her rating would be mild”. There was a dissenting vote and minority opinion in disagreement with the deduction. The CI made no appeals and was medically separated with a 10% Service disability rating.


CI CONTENTION: The application states simply, “The VA rated my PTSD with depression at 50% originally and increased it to 70% effective 8-5-2004.”


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 Service rating for the unfitting psychiatric 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 respective Service Board for Correction of Military Records.


 RATING COMPARISON :

Service IPEB – Dated 20011127
 VA - Based on Service Treatment Records (STR)
Condition
 Code Rating Condition Code Rating Exam
MDD a/w PTSD 9434 10% PTSD 9411 30%* STR
No Additional MEB/PEB Entries
 Other x3
Combined: 10%
 Combined: 70%
Derived from VA Rating Decision (VARD) dated 20020816 ( most proximate to date of separation [DOS])
* Raised to 50% based on first VA psychiatric rating evaluation dated 20030819 (19 mo. post-separation)


ANALYSIS SUMMARY: The PEB rating, 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 Veterans Administration Schedule for Rating Disabilities (VASRD) §4.129. The Board must determine whether the CI’s psychiatric condition meets the §4.129 definition of “a mental disorder that develops in service as a result of a highly stressful event.” The record confirms that the CI was highly functioning with no significant psychiatric symptoms prior to the sexual assault while on active duty; that this event was documented as the Criterion A stressor for the Service diagnosis of PTSD; and, that the acute psychiatric symptoms resulting in separation were precipitated by the event. All members agreed therefore that the provisions of §4.129 attach to this case. IAW DoDI 6040.44 and DoD guidance (which applies current VASRD §4.129 to all Board cases), the Board is therefore 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. In this case the most probative sources of evidence on which to base the permanent rating recommendation are VA outpatient psychiatric notes and other treatment records encompassing the relevant six-month interval. The CI’s initial VA rating, as noted above, was derived from the Service treatment record (STR); and, the most proximate VA psychiatric rating evaluation was conducted 18 August 2003 (19 months post-separation). The latter evidence was useful in assessing the trajectory of the post-separation clinical course, but obviously did not directly reflect the impairment on which the Board must base its permanent recommendation.

MDD/PTSD Condition. There are STR entries for treatment of adjustment disorder with depression in 1999, but this was considered “resolved” in a Mental Health note of September 2000. The CI’s sexual assault occurred in February 2001, was of a date rape nature, and was officially confirmed. Soon after the incident she was transferred to a new base, where she self-referred to Mental Health and was treated for depression. A May 2001 entry notes a diagnosis of “rule out” PTSD, and 6 weeks later a diagnosis of PTSD appeared on Axis I. She was admitted to the hospital 3 times for suicidal ideation over the course of treatment in the context of stressors from legal proceedings and situations connected to the sexual assault. The psychiatric addendum to the NARSUM characterized the clinical features as per the following excerpt.
The patient described a history of nightmares, depressed mood, some difficulty sleeping and documentation from the records indicate that the patient has complained in the past of flashbacks, difficulty falling asleep, low energy, mood lability, poor concentration, decreased psychomotor skills, crying spells, feelings of guilt about the incident, and mood instability.
At that time (4 months pre-separation), she was compliant with treatment and having “some benefit” from an anti-depressant (Paxil®). There was no element of substance or alcohol abuse. Social functioning was not elaborated. The mental status examination (MSE) documented a “moderately depressed” mood with a “full and appropriate” affect. There was no suicidal ideation, delusional or hallucinatory symptoms, speech disturbance, cognitive impairment or other abnormalities. The Global Assessment of Functioning (GAF) was assigned as “55/60” which is at the moderate level of impairment on that scale. Axis I diagnoses of MDD and PTSD were listed. In regards to the Axis II diagnosis of personality disorder, an addendum from the clinical psychologist stated, “Recent behaviors are more consistent with her Axis II diagnosis rather than her Axis I diagnoses. It is probable that the February date rape exacerbated latent personality features that are now more overt and operational.” The opinion of the psychiatrist from a separate psychiatric addendum is excerpted below.
The patient's difficulty with impulse control and frequent suicidal ideation is consistent with Personality Disorder, however, this diagnosis is a tentative diagnosis based on the fact that she does not appear to have any problems prior to the rape incident and it is possible that her symptoms of impulse discontrol, suicidal ideation and need for frequent hospitalizations may be attributable to [PTSD].

The degree of impairment was characterized as “Severe; patient is unable to focus and to be a productive member of her unit.”

There are additional probative VA documents present for review dated in the interval of 2–9 months after separation. An intake form (2 months post-separation) documented that the CI had “stress secondary to looking for work.” There were no new or worsening symptoms, but she endorsed complaints of low energy, sleep disturbance and weight gain. Her status was characterized as “stable last 4-5 months”, and the GAF assignment was 60. A telephone consult (6 months post-separation) documented that the CI need to reschedule a radiology scan due to her work schedule, and that she had a boxing match later that month. A VA form (8 months post-separation) documented that the CI had been employed full-time on two occasions since separation: once for 2 weeks and another for 5 months as a customer service representative. She missed 11 days due to her disability during her second job, and quit both jobs for unknown reasons. There is a comprehensive VA intake evaluation dated 21 October 2002 (9 months post-separation). This documented restless sleep, nightmares, low energy, poor diet, apprehension, and problems with anger control (throwing objects). She was living alone, but establishing male relationships; and, had started an exercise program. She was unemployed and drawing VA disability. The MSE documented an “anxious” mood and “frightened and disorganized” affect. It was otherwise normal. Beginning in early 2003, however, VA treatment notes document marked improvement in the clinical course. A note 17 months post-separation indicates that she was asymptomatic (normal MSE), excelling in educational pursuits, and enjoying a full social life. Her symptoms rebounded with some personal stressors, but were beginning to improve again prior to her first full psychiatric VA Compensation and Pension (C&P) evaluation (19 months post-separation). This examiner documented an array of typical PTSD symptoms, although the context seemed to indicate that they were in the history rather than concurrent. The summary included the statement, “She appears able to overcome almost any obstacle put before her but obviously had severe PTSD symptoms and continues to suffer from these on an ongoing basis.” Occupational and social functioning were not elaborated, but concurrent records as above document continued academic success with a budding relationship and active personal life. The MSE noted “dysthymic” mood and “depressed” affect (some hypervigilant behavior was described); but was otherwise normal. The GAF assignment was 50 (moderate range). The VA psychiatrist retained the Axis II diagnosis of personality disorder, but no diagnostic criteria were elaborated in the history. There is no post-separation VA evidence which implies any significant contribution of personality disorder to the overall psychiatric impairment.

The Board directs attention to its rating recommendation based on the above evidence. The PEB applied VASRD code 9434, Major Depressive Disorder, and rated it 30% based on it being “definite” IAW DoD and VASRD guidelines. They deducted 20% for “contributing/aggravating factors”, presumably the CI’s tentatively diagnosed personality d/o, resulting in a permanent rating of 10%. The Board’s deliberation concluded that there was no defensible basis for applying, or means of measuring, any deduction; which was the same conclusion reached by the PEB member who authored the minority opinion attached to the IPEB adjudication. The VA applied VASRD code 9411, PTSD, and rated it 30% based on service treatment records. The psychiatric addendum prepared three months prior to separation is the most probative document for arriving at an appropriate rating at entry into the constructive TDRL period. That exam documented that the CI experienced occupational and social disability but did not experience deficiencies in the additional areas required for the 70% rating level. Additionally, the VA arrived at its initial rating of 30% for the CI’s PTSD based on service treatment records further bolstering the conclusion that the CI’s disability did not exceed the 50% threshold. Because the CI’s disability did not raise to the 70% level, Board consensus was 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. With regard to the permanent rating at the end of the constructive period of TDRL, the VA psychiatric outpatient notes and documents encompassing the targeted six-month interval are the most probative documents upon which to base the permanent rating recommendation. There is a remote VA C&P exam accomplished 19 months after separation, with diminished probative value, which the Board will consider along with the VA documents in order to extrapolate an estimation of the ratable impairment at six months after separation. The additional VA documents indicate that the CI experienced occupational and social disability but did not experience deficiencies in the additional areas required for the 70% disability level. The deliberation settled therefore on arguments for a 30% versus a 50% permanent rating recommendation. The general description in §4.130 for a 50% rating is “occupational and social impairment with reduced reliability and productivity”. The VA documentation supports that the CI was employed as a customer service representative during the six months after separation and she missed 11 days due to her disability and quit for undocumented reasons. She was also participating in her chosen sporting activity of boxing. Although she continued to endorse symptoms of PTSD, her GAF was 60 which correlated with moderate symptoms or moderate difficulty in social, occupational, or school functioning. The documents did not cite evidence which would confirm that either reliability or productivity on the job was suffering because of psychiatric symptoms, and both speculation and liberal reliance on reasonable doubt would be required to draw that conclusion. Her level of disability at that time was most consistent with the 30% disability rating. Nine months after permanent, the CI applied for individual unemployability and vocational rehabilitation in order to secure funding for her matriculation to college. The initial C&P performed exam 19 months after separation had a GAF of 50 consistent with some post separation worsening and resulted in an increased disability rating to 50%. Review of additional VA documentation contained in the file could call into question the appropriateness of that 50% rating increase as the CI was performing very well at the university level and had an active social life with only occasional episodes of crisis. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a permanent disability rating of 30% for the PTSD 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 DoDI 1332.39 for rating psychiatric impairment was operant in this case and it was adjudicated independently of that instruction by the Board. In the matter of the post-traumatic stress disorder (associated with major depression), the Board unanimously recommends a Service disability rating of 50% for a prescribed six month period of temporary retirement IAW VASRD §4.129; followed by a 30% permanent rating, coded 9411, 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 to reflect a six month period on TDRL (IAW §4.129 and DoD direction), and then permanently retired with a Service disability rating of 30%:

UNFITTING CONDITION VASRD CODE RATING
TDRL PERMANENT
Post-Traumatic Stress Disorder with Major Depression 9411 50% 30%
COMBINED 50% 30%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120810 w/atchs.
Exhibit B. Service Treatment Record.
Exhibit C. Department of Veterans Affairs Treatment Record.




         XXXXXXXXXXXXXXXXXXXX, DAF
         Acting Director
         Physical Disability Board of Review


 SAF/MRB
1500 West Perimeter Road, Suite 3700
Joint Base Andrews MD 20762
Dear XXXXXXXXXXXXXXXXXXXX :
         Reference your application submitted under the provisions of DoDI 6040.44 (Title 10 U.S.C. § 1554a), PDBR Case Number PD-2012-01496.
         After careful consideration of your application and treatment records, the Physical Disability Board of Review determined that the rating assigned at the time of final disposition of your disability evaluation system processing was not appropriate under the guidelines of the Veterans Administration Schedule for Rating Disabilities. Accordingly, the Board recommended your separation be re-characterized to reflect disability retirement, rather than separation with severance pay.
         I have carefully reviewed the evidence of record and the recommendation of the Board. I concur with that finding, accept their recommendation and determined that your records should be corrected accordingly. The office responsible for making the correction will inform you when your records have been changed.
         As a result of the aforementioned correction, you are entitled by law to elect coverage under the Survivor Benefit Plan (SBP). Upon receipt of this letter, you must contact the Air Force Personnel Center at (210) 565-2273 to make arrangements to obtain an SBP briefing prior to rendering an election. If a valid election is not received within 30 days from the date of this letter, you will not be enrolled in the SBP program unless at the time of your separation, you were married or had an eligible dependent child, in such a case, failure to render an election will result in automatic enrollment.

                                                               Sincerely,


XXXXXXXXXXXXXXXXXXXX
Director
Air Force Review Boards Agency
Attachment:
Record of Proceedings

cc:
SAF/MRBR
DFAS-IN

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