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AF | PDBR | CY2013 | PD-2013-02357
Original file (PD-2013-02357.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXX  CASE: PD-2013-02357
BRANCH OF SERVICE: Army  BOARD DATE: 20140604
SEPARATION DATE: 20050920


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (92F2O/Petroleum Supply Specialist) medically separated for a mental health (MH) condition. He was issued a permanent S3 profile and referred for a Medical Evaluation Board (MEB). The MH condition, characterized as “post-traumatic stress disorder (PTSD),” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. No other conditions were submitted by the MEB. The Informal PEB (IPEB) adjudicated the PTSD condition as unfitting, rated 10%, with cited application of AR 635-40, Appendix B-107, and paragraph e. The CI made no appeals and was medically separated.


CI CONTENTION: “I have continued treatment for PTSD and I have to deal with this condition the rest of my life. It makes day to day a constant struggle.”


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 PTSD condition is addressed below. Any other condition or contention not requested in this application, remain eligible for future consideration by the Board for Correction of Military Records. The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected conditions continue to burden him. 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 the VA Schedule for Rating Disabilities (VASRD) standards, based on ratable severity at the time of separation; and, to review those fitness determinations within its scope (as elaborated above) consistent with performance-based criteria in evidence at separation.


 RATING COMPARISON :
Service IPEB – Dated 20050809
 VA* - (3.1 Mos. Pre-Separation)—Dated 20050620
Condition
 Code Rating Condition Code Rating Exam
PTSD 9411 10% PTSD 9411 50%** 20051006
Other x 0 (Not in Scope)
 Other x 1 20051006
Combined: 10%
 Combined: 50%
*Derived from VA Rating Decision (VARD) dated 200 51006 (most proxima te to date of separation (DOS))
**No change to ratings derived from subsequent C&P exams




ANALYSIS SUMMARY:

PTSD. A review of the CI’s service treatment record indicated he had multiple horrifying experiences in Iraq including being part of a convoy team and noticing two soldiers who were dead for 2 days and a woman who came to his compound gate and did not stop “was lit up like a candle.” As a result of those experiences, he had recurrent frequent intrusive memories, his sleep was impaired and his behavior was marked with panic attacks with symptoms of sweating and rapid breathing. Additionally, he manifested intense anger and frequent startle responses. At the MEB medical examination on 13 May 2005, approximately 4 months prior to separation, the CI reported anxiety or panic attacks, frequent trouble sleeping and receiving counseling. He felt depressed, had excessive worry and had been evaluated to receive treatment for a mental condition. The diagnosis of PTSD-anxiety, chronic was noted on the DD Form 2808. At the MEB narrative summary (NARSUM) examination dated 5 July 2005, approximately 2.5 months prior to separation, the CI reported “constant anxiety, hostility, and hyper-alertness got out of hand...it might end up endangering myself or others.” He had “recurrent frequent intrusive memories” marked by “terrifying nightmares,” limited “sleep of 3 to 5 hours a night,” “panic attacks,” “no enjoyment,” “temper outbursts,” “inappropriate anger,” inability to “focus on reading,” “extreme vigilance,” “difficulty to relax in crowds” along with avoiding them, and “marked and frequent startle responses.” The commander’s statement noted “he was totally incapable of performing his 92F MOS in combat,” although “[t]here has been no decline in his duty performance and [he] worked at a high level in garrison.” The MEB proceedings of 22 July 2005 recorded that the CI had recurrent and intrusive distressing recollections of events; acted and felt as if the traumatic events were recurring; had intense psychological distress and physiological reactivity; avoided activities and people that reminded him of Iraq; and had diminished interest, restricted range of affect, difficulty falling and staying asleep, extreme outbursts of rage, difficulty concentrating, severe and frequent startle reactions, and hypervigilance. His Global Assessment of Functioning (GAF) was 55 (moderate symptoms) and Impairment for Social and Industrial Adaptability was “Definite.” The IPEB convened on 9 August 2005 and found the CI unfit for PTSD related to armed conflict in Iraq, requiring psychotropic medication and outpatient treatment. The disability description noted “Commander reports no decline in Soldier’s duty performance in garrison.” “IAW AR 635-40, Appendix B-107, paragraph e, Soldier’s impairment for social and industrial adaptability [was] more accurately described as mild, not definite” and he was rated 10%.

At the VA Compensation and Pension (C&P) exam on 20 June 2005, 3 months prior to separation (and prior to the MEB NARSUM), the CI reported that he was “angry at everything” with periods of “checking out...going to la-la land.” He had MH treatment since 2005 along with anti-anxiety medication with minimal response and psychotherapy 3 times a week. He had not been admitted to the hospital or required any emergency room visits. He met the diagnostic criteria for PTSD and his GAF score was 60, which was at the boundary of moderate and mild symptomatology. Mentally, he occasionally had some interference in performing activities of daily living because he had occasional problems with attention, concentration and motivation. He had difficulty establishing and maintaining effective work and social relationships because he had problems with irritability and social avoidance, but did not appear to be a danger to himself or to others. The VA rated this exam at 50% with a required future exam. The VA C&P examination performed on 9 July 2010, almost 5 years after separation indicated a diagnosis of PTSD. History indicated the CI had continued PTSD symptoms, was on daily medication without ongoing psychotherapy and had been working full-time since mid-2007. His GAF was assessed as 51 (moderate range) and the prognosis was considered guarded. The VARD for this exam indicated slight improvement of symptoms and continued a 50% rating with no future exam required.

The Board directs attention to its rating recommendation based on the above evidence. The PEB rating, derived from DoDI 1332.39, preceded the promulgation of the National Defense Authorization Act 2008 mandate for DoD adherence to the VASRD §4.129. The Board, IAW DoDI 6040.44 and DoD guidance (which applies current VASRD 4.129 to all Board cases as appropriate), agrees that the stipulations of §4.129 are met in this case since there was no variance between the PEB and VA in that each independently determined the CI’s Axis I diagnosis to be PTSD; and, will thus recommend a minimum 50% PTSD rating for a retroactive 6-month period on the Temporary Disability Retired List (TDRL). A 70% rating is not warranted since the CI did not have deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood. The Board must then determine the most appropriate fit with VASRD 4.130 criteria at 6 months for its permanent rating recommendation. There was no relevant VA outpatient or civilian provider evidence providing psychiatric details during the 6-month interval of constructional TDRL or within 12 months of the end of the TDRL period. The remote VA exam over 4 years after the permanent rating window was considered for history that related to the rating timeframe and otherwise had decreased probative value. This deprives the Board of strong evidence for judging the stress of transition to civilian life which is the key intent of §4.129 and a significant element underlying the Board’s permanent rating recommendation. In cases such as this, the Board of necessity must base its permanent rating recommendation on the evidence at separation, mitigated (to the extent possible) by the anticipated condition at 6 months. The latter imposes a degree of speculation and the Board must remain compliant with VASRD §4.3 (reasonable doubt). The MEB NARSUM, noted symptoms and “Definite” impairment while the VA examination noted some interference in performing activities of daily living with a myriad of symptoms. Both exams comport with a rating of 30%, although his VA rating was 50% based on occupational and social impairment with reduced reliability and productivity due to a myriad of symptoms. Although there was a lack of documentation in the year following discharge, the MEB finding of definite impairment warranting rating of 30% , rather than the PEB rating of 10% , is a consideration of the post - TDRL rating. However, the VA rating of 50%, while listing a series of symptoms used wording to describe his status as “some interference in performing activities of daily living.” Furthermore, the VA noted the CI “had difficulty establishing and maintaining effective work and social relationships.” However, that level of disability level was inconsistent with his commander’s statement, which the PEB restated as “Command reports no decline in soldier’s duty performance in garrison.” The commander’s statement was prior to separation and considered potentially a protected environment. The remote VA exam noting employment only from over 1.5 years after separation did not specify unemployment prior to his stated work history. The lack of documentation in regard to MH interaction, aside from medication, for almost 5 years implies that the CI was more likely than not functioning satisfactorily especially in the absence of any submitted evidence to the contrary. Therefore, after due deliberation, considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a permanent PTSD disability rating of 30% 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. As discussed above, PEB reliance on AR 635-40 for rating PTSD 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 a disability rating of 50%, coded 9411 IAW VASRD §4.129 for 6 months of constructive TDRL and a permanent rating of 30% IAW VASRD §4.130 thereafter. 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 6-month period on the TDRL with a disability rating of 50% (PTSD at 50% IAW §4.129 and DoD direction), and then permanently retired with a combined disability rating of 30%:

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


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131108, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record








                          
XXXXXXXXXXXXXXXXX
President
Physical Disability Board of Review

SAMR-RB                                                                         


MEMORANDUM FOR Commander, US Army Physical Disability Agency
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557


 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for XXXXXXXXXXXXXXXXX, AR20140020596 (PD201302357)


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.

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

         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                                                  XXXXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary of the Army
                                                      (Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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