BRANCH OF SERVICE:  ARMY 
SEPARATION DATE:  20040914 

 
NAME:    
CASE NUMBER:  PD1200325 
BOARD DATE:  20121121     
 
 
SUMMARY  OF  CASE:    Data  extracted  from  the  available  evidence  of  record  reflects  that  this 
covered individual (CI) was an active duty SPC/E-4 (11B/Infantryman), medically separated for 
posttraumatic stress disorder (PTSD).  The CI developed symptoms of anxiety and depression 
after a deployment to Iraq in 2003.  A diagnosis of PTSD was made in 2004.  The PTSD condition 
could not be adequately rehabilitated with treatment to meet the physical requirements of his 
Military Occupational Specialty (MOS).  He was issued a permanent S3 profile and referred for a 
Medical  Evaluation  Board  (MEB).    The  MEB  forwarded  no  other  conditions  for  Physical 
Evaluation Board (PEB) adjudication.  The PEB adjudicated the PTSD condition as unfitting, rated 
10%.  The CI made no appeals, and was medically separated with a 10% disability rating.   
 
 
CI CONTENTION:  “This application is based on the Michael Sabo, ET AL, VS United States class 
action  law  suit  and  settlement  which  mandates  that  the  services  and  PEBs  must  grant  a 
disability rating of at least 50% for service members separated for PTSD between Sept 11, 2001 
and Dec 31, 2009.  I clearly was diagnosed with Post Traumatic Stress Disorder with Anxiety, 
issued a rating of only 10% by the PEB, and subsequently discharged.  The board should change 
my disability rating to at least 50%.” 
 
 
SCOPE OF REVIEW:  The Board wishes to clarify that the scope of its review as defined in DoDI 
6040.44, Enclosure 3, paragraph 5.e.(2) is limited to those conditions which were determined 
by the PEB to be specifically unfitting for continued military service; or, when requested by the 
CI, those condition(s) “identified but not determined to be unfitting by the PEB.”  The ratings 
for  unfitting  conditions  will  be  reviewed  in  all  cases.    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 Army Board for Correction of Military Records. 
 
 
RATING COMPARISON:   
 

Service IPEB – Dated 20040610 
Condition 

Code 

Rating 

VA (11 Mos. Post-Separation) – All Effective Date 20040925 
Exam 

Condition 

Code 

Posttraumatic Stress Disorder 

9411 

10% 

Posttraumatic Stress Disorder* 

9411 

Rating 
100% 
50% 
100% 

20050706  

20050706 

RECORD OF PROCEEDINGS 

PHYSICAL DISABILITY BOARD OF REVIEW 

↓No Additional MEB/PEB Entries↓ 

Combined:  10% 

Not Service-Connected x 2 

Combined:  100% 

*Per VARD dated 20050613 rating was 100% effective 20040925 and 50% from 20050301. Per VARD dated 20050801 rating 100% effective 
20040925 and 100% effective 20050301. 
 
ANALYSIS SUMMARY:  The Disability Evaluation System (DES) is responsible for maintaining a fit 
and  vital  fighting  force.    While  the  DES  considers  all  of  the  member's  medical  conditions, 
compensation  can  only  be  offered  for  those  medical  conditions  that  cut  short  a  member’s 
career, and then only to the degree of severity present at the time of final disposition.  The DES 
has neither the role nor the authority to compensate members for anticipated future severity 
or  potential  complications  of  conditions  resulting  in  medical  separation  nor  for  conditions 

determined  to  be  service  connected  by  the  Department  of  Veterans  Affairs  (DVA)  but  not 
determined to be unfitting by the PEB.  However the DVA, operating under a different set of 
laws  (Title  38,  United  States  Code),  is  empowered  to  compensate  all  service-connected 
conditions  and  to  periodically  re-evaluate  said  conditions  for  the  purpose  of  adjusting  the 
Veteran’s disability rating should the degree of impairment vary over time.  The Board’s role is 
confined to the review of medical records and all evidence at hand to assess the fairness of PEB 
rating  determinations,  compared  to  VASRD  standards,  based  on  severity  at  the  time  of 
separation.    The  Board  utilizes  DVA  evidence  proximal  to  separation  in  arriving  at  its 
recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to 
post-separation evidence.  The Board’s authority as defined in DoDI 6044.40, however, resides 
in evaluating the fairness of DES fitness determinations and rating decisions for disability at the 
time of separation.  Post-separation evidence therefore is probative only to the extent that it 
reasonably reflects the disability and fitness implications at the time of separation. 
 
Posttraumatic  Stress  Disorder  Condition.    The  CI  was  assigned  to  a  combat  unit  deployed  to 
Kuwait, Qatar and Iraq, January to July 2003.  He reported involvement in traumatic combat in 
Iraq during the period 20 March to 13 April 2003.  On 12 November 2003, 4 months after return 
from  deployment,  the  CI  presented  to  a  walk  in  clinic  with  anxiety,  decreased  appetite, 
irritability and difficulty sleeping.  He expressed dependence on his wife and feeling depressed 
when not with her or those connected to him.  At that time, the CI noted no serious problems 
while in Iraq.  A diagnosis of anxiety state was made.  On a later exam, 26 March 2004, the CI 
described a many year problem with mild/moderate anxiety especially in social situations, but 
noted the condition to be worse since deployment.  In March 2004, during combat training the 
CI was referred by his commander for increasing irritation, anger, decreasing social interaction 
and inability to relax without alcohol of one month’s duration.  The CI was seen by psychiatry 
on 26 March 2004 for increasing agitation, irritability, depression and insomnia and was begun 
on  psychotropic  medication.    On  31  March  2004  a  diagnosis  of  PTSD  was  made  without 
reference to specific stressors.  The CI improved with medication adjustment, but symptoms of 
depression, anger and anxiety continued.  At the MEB psychiatry narrative summary (NARSUM) 
evaluation on 29 April 2004, 5 months before separation, the CI was cooperative, but seemed 
nervous  and  withdrawn.    His  affect  was  anxious  and  depressive,  but  suicidal  ideation  was 
absent.    Thought  processes  were  logical;  cognition  and  judgment  was  adequate  and  insight, 
partial as the CI agreed that he had a mental illness requiring ongoing treatment.  The CI was 
noted to be improved with medical treatment; impairment for social and industrial adaptability 
(S&I) was judged mild.  On psychiatry evaluation on 7 May 2004, 6 months prior to separation, 
the first reference to experiences in Iraq appear, as CI reported anxiety about transition, MEB 
processing, and excessive cleaning to ‘keep his mind off memories of Iraq.’  On 21 May 2004, a 
second MEB psychiatry NARSUM changed the civilian S&I to ‘definite.’  In June the CI suffered 
issues with his spouse and child abuse resulting in hospital admission, 30 June 2004 to 12 July 
2004, for severe agitation with attempts at self injury.  The CI reported that his current situation 
and  experiences  made  him  lose  control.    He  offered  for  the  first  time,  that  he  killed  many 
enemy soldiers and witnessed many mutilated bodies, the cause of his symptoms.  At discharge 
the  CI,  on  medication,  was  reported  cooperative,  friendly,  with  clear,  cogent  goal  oriented 
thought with fair impulse control.  The CI improved until late August when stress increased with 
return of bad dreams, from the situation with kids, concerns over future, being forced to return 
to work and people making fun of him.  On mental health evaluation, 14 September 2004, the 
day of separation, the CI reported increased irritability and insomnia related to out processing, 
not having custody of kids, and negative feelings about specific combat related incidents (not 
defined) in  Iraq.    In  October and  November, the  CI  was  continually  stressed by  minor things 
such  as  bills,  phone  calls  and  chores,  but  noted  slow  improvement  in  symptoms  with 
medication and stabilization of his marital relationship.  At the time of a VA mental health clinic 
evaluation on 7 February 2005, 5 months after separation, the CI reported having relocated to 
Michigan, his home town.  He remained married with two children in Georgia who will join him 
in  the  near  future.   He was  living  with  his  grandmother,  spending time  with his parents and 

   2                                                           PD12-00325 

 

siblings in the area and was employed at a bank.  He noted liking to walk and exercise and had 
membership at the YWCA where he played racquetball with his father 3 to 5 times a week.  The 
CI reported night sweats 3 times a week with no mention of flashback or nightmares.  He noted 
mild depression, ‘ok’ appetite and occasional palpitation in crowds with loud noises, but denied 
‘hitting  the  ground’  with  loud  noises.    On  PTSD  screen,  the  CI  reported  nightmares, 
hyperviligence, and detachment in the last month.  On examination the CI was awake, alert, 
oriented and appropriate with logical thought processes.  At the VA Compensation and Pension 
(C&P) psychiatry exam performed on 6 July 2005, 10 months after separation, the CI reported 
receiving therapy every 2 weeks.  He was hopeful about his situation and noted that emotional 
symptoms  intersected  with  present  legal  problems.    At  this  time  CI  was  free  on  bond  for 
assaulting  his  mother  in  law.    He  had  obtained  a  criminal  attorney  working  to  achieve  VA 
hospitalization for treatment of PTSD as an alternative to jail.  The CI reported hearing voices of 
buddies  calling  to  him,  and  experiencing  combat  related  nightmares  that  were  of  different 
scenarios than the ones he actually experienced in combat.  On the statement in support of his 
VA claim, the CI reported shooting children and women, putting bodies in bags by hand, and 
viewing bodies being burned to death and their flesh peeling off.   The CI noted a decrease of 
panic attacks to approximately one a week and a decrease in severity of depression from 8-
9/10  to  6/10.    He  had  separated  from  his  wife  in  March  and  was  living  with  a  maternal 
grandmother.  He was able to maintain minimal personal hygiene, and other activities of basic 
living.    On  examination  the  CI  appeared  depressed,  but  was  oriented,  without  delusion  or 
hallucination or impairment of thought process or communication.  The examiner assigned a 
Global  Assessment  of  Functioning  (GAF)  of  50,  determined  him  unable  to  be  employed  or 
involved  in  an  educational  program  and  noted:  “The  veteran’s  symptom  intersect  with  his 
present legal problem in that he is currently free on bond after having assaulted his mother in 
law in March 2005”.  
 
The Board directs attention to its rating recommendation based on the above evidence.  The 
PEB and VA both rated the condition 9411, PTSD, but at different ratings.  PEB rated at 10% and 
VA  on  VARD  13  June  2005  initially  at  100%,  effective  25  September  2004,  the  day  after 
separation, based on the STR, reduced to 50%, effective 1 March 2005, and increased to 100%, 
effective 1 March 2005, on VARD 1 August 2005, based on new C&P exam of 6 July 2005.  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.   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 6-month period on the 
Temporary Disability Retired List (TDRL).  The Board must then determine the most appropriate 
fit with VASRD 4.130 criteria at 6 months for its permanent rating recommendation.  For §4.129 
to  be  applicable,  the  CI  must  have  been  exposed  to  a  traumatic  event  in  which  both  of  the 
following  were  present:  (1)  the  person  experienced,  witnessed,  or  was  confronted  with  an 
event or events that involved actual or threatened death or serious injury, or a threat to the 
physical integrity of self or others; and (2) the person's response to the trauma involved intense 
fear, helplessness, or horror.  The Board then undertook to determine if §4.129 was applicable 
in this case.  The Board debated if there was reasonable evidence that the history, symptoms, 
and  clinical  findings  described  in  the  above  psychiatric  examinations  were  connected  to  the 
stresses he experienced in combat during his deployment.  Despite the delay in articulation of 
specific stressing experiences, confusing record reports and myriad of contributing social and 
domestic stressors, all producing anxiety, the Board concluded that the application of §4.129 
was  appropriate  to  this  case  IAW  §4.30  (reasonable  doubt),  and  would  premise  its  rating 
recommendation on the psychiatric acuity at conclusion of TDRL period.  On review of record in 
evidence,  the  Board  unanimously  recommended  a  50%  PTSD  rating  on  the  TDRL  with 
subsequent evaluation IAW VASRD §4.130 criteria at 6 months for its permanent rating.  The 
most  proximate  source  of  comprehensive  evidence  on  which  to  base  the  permanent  rating 
recommendation  is  VA  mental  health  evaluation  on  7  February  2005,  five  months  after 

   3                                                           PD12-00325 

 

separation.  The Board then undertook final rating IAW §4.130.  All Board members agreed that 
the  preponderance  of  evidence  at  the  time  of  this  exam  did  not  support  the  10%  rating; 
therefore,  the  Board  deliberations  centered  on  a  30%  versus  a  50%  rating.    Social  and 
occupational 
impairment  consistent  with  a  30%  evaluation  (“Occupational  and  social 
impairment with occasional decrease in work efficiency and intermittent periods of inability to 
perform  occupational  tasks”),  could  be  surmised  from  some  of  the  documented  symptoms 
reported  by  the  including  nightmares,  hypervigilance  and  detachment.    At  the  time  of 
separation the CI was working, socially involved with friends and family and community activity, 
living  with  a  maternal  grandmother  and  awaiting  the  arrival  of  his  wife  and  family  with 
symptoms adequately controlled on medication.  The Board concluded that while he continued 
to manifest symptoms requiring medication, the impairment from the psychiatric disorder at 
the time of TDRL conclusion would decrease work efficiency and ability to perform occupational 
tasks during periods of stress.  After due deliberation, the Board by divided vote agreed the 
preponderance  of  the  evidence  to  support  a  rating  of  30%.    The  Board  noted  the  marked 
deterioration  in  the  CI’s  status  on  the  C&P  evaluation  of  6  July  2005,  10  months  after 
separation.    This  examination  was  undertaken  during  a  period  of  extreme  psychosocial, 
domestic  and  environmental  stress  including,  disruption  of  marriage  by  separation  with 
pending divorce, legal restraint from visiting children, allegations of child abuse, assault charges 
toward  mother-in-law  with  ongoing  legal  action  and  possible  jail  time  and  related  loss  of 
employment.  The Board assigned lower probative value to this exam as it is vulnerable to the 
compelling psychological influence of secondary gain.  The Board agreed that psychiatry exam 
performed on 7 February 2005 best reflected the functional ability of the CI in the average daily 
civilian  social  life  and  occupational  environment  which  is  a  core  intent  of  §4.129.    After 
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.    
 
 
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  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.    There  were  no  other  conditions  within  the  Board’s  scope  of  review  for 
consideration.   
 
 

 

   4                                                           PD12-00325 

 

 
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 

TDRL  PERMANENT 
50% 
50% 

30% 
30% 

9411 

COMBINED 

PTSD 

 
 
 
The following documentary evidence was considered: 
 
Exhibit A.  DD Form 294, dated 20120329, w/atchs 
Exhibit B.  Service Treatment Record 
Exhibit C.  Department of Veterans’ Affairs Treatment Record 
 
 
 
 
 
 
 
 

 

             
           President 
           Physical Disability Board of Review 

   5                                                           PD12-00325 

 

SFMR-RB 
 
MEMORANDUM FOR Commander, US Army Physical Disability Agency  
(TAPD-ZB), Arlington, VA  22202-3557 
 
SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation  
 
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  
constructively place the individual on the Temporary Disability Retired List (TDRL) at  
50% disability for six months effective the date of the individual’s original medical 
separation for disability with severance pay and then following this six month period 
recharacterize the individual’s separation as a permanent disability retirement with the 
combined disability rating of 30%. 
 
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 temporary disability effective the date of the 
original medical separation for disability with severance pay. 
 
 
disability effective the day following the six month TDRL period. 
 
 
c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will 
account for recoupment of severance pay, provide 50% retired pay for the constructive 
temporary disability retired six month period effective the date of the individual’s original 
medical separation and then payment of permanent disability retired pay at 30% 
effective the day following the constructive six month TDRL period.   
 
 
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)  

d.  Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) 

b.  Providing orders showing that the individual was retired with permanent 

 
 
 

   6                                                           PD12-00325