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AF | PDBR | CY2013 | PD-2013-02724
Original file (PD-2013-02724.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXX  CASE: PD-2013-02724
BRANCH OF SERVICE: Army  BOARD DATE: 20150304
SEPARATION DATE: 20070731


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-6 (Cavalry Scout) separated for posttraumatic stress disorder (PTSD). The PTSD condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty. He was issued a permanent S3 profile and referred for a Medical Evaluation Board (MEB). The mental health (MH) condition, characterized as “post-traumatic stress disorder, chronic, treated in partial remission” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. No other conditions were submitted by the MEB. The Informal PEB adjudicated “PTSD”, rated 10% citing criteria from Department of Defense Instruction (DoDI) 1332.39 . The CI made no appeals and was medically separated.


CI CONTENTION: “PTSD Has not Improved since separation [sic].”


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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting. Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records. Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate. The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation. The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions. That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws. The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.


RATING COMPARISON :

Service IPEB – Dated 20070606
 VA - (1 Mo. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
PTSD 9411 10% PTSD 9440 70% 20070822
Other x 0 (Not in Scope)
 Other x 1
Combined: 10%
 Combined: 70%
Derived from VA Rating Decision (VA RD ) dated 200 70914 ( most proximate to date of separation [ DOS ] ).



ANALYSIS SUMMARY:

Post-Traumatic Stress Disorder. The psychiatric narrative summary (NARSUM) noted the CI was deployed twice to Iraq for 1-year tours, in 2003 and 2005. The Post-Deployment Health Assessment Screen in 2006 indicated that the CI endorsed witnessing wounded, killed or dead coalition members during his tour and that he had engaged in direct combat and had felt that his life had been in great danger. The NARSUM noted that the CI had suffered a blast injury during his 2003 tour that resulted in a brief loss of consciousness. He received a Purple Heart; however, description of event that led to the award is absent from the records in evidence. Although the NARSUM documented that the CI had completed the outpatient Army treatment program for PTSD, there were no MH treatment records for review. The NARSUM dated 17 May 2007, 2 months prior to separation, documented evidence to support a diagnosis of PTSD. The CI recounted several traumatic incidents, and symptoms of avoidance, nightmares, irritability, and flashbacks. He noted that he had a history of panic attacks a few times a week, a general bad mood, and had lost pleasure in previously pleasurable activities. However, the CI noted that he was doing better with regards to his PTSD. He had continued to have problems with irritability, sleep, concentration and memory, and had remained fearful of having panic attacks but noted they had decreased greatly with medication and therapy. The mental status examination (MSE) documented absence of psychotic symptoms, absence of thought disorder, absence of suicidal or homicidal thoughts, and he had good insight. The examiner stated, “He seems to struggle with his memories and at times is in visible anguish when talking about Iraq and his men and the dead bodies he saw”; however, cognition was recorded as intact. The diagnosis of PTSD was recorded with a Global Assessment of Functioning (GAF) score of 55 (moderate).

The VA Compensation and Pension (C&P) mental examination, a month after separation, noted the CI’s PTSD symptoms had continued. He had nightmares three-to-four times a week, poor sleep, anxiety attacks triggered by memories of Iraq, irritability and daytime intrusive thoughts. He was scheduled to begin his employment the day following the examination. He indicated he had destroyed property at home when angered but denied violence towards others. The CI noted he had maintained contact with some of his friends and enjoyed hunting, fishing, and riding 4-wheelers. He and wife had a good relationship. The MSE was unremarkable except for an anxious mood and blunted affect. Other than the subjective report of memory issues, the MSE did not document any cognitive difficulty. The examiner recorded a diagnosis of PTSD and assigned a GAF of 55 (moderate).

The Board directed attention to its rating recommendation based on the above evidence. The PEB rated the condition of PTSD coded 9411 and assigned a 10% disability rating. The VA assigned a rating of 70% for the condition of PTSD; however, coded 9440 (adjustment disorder). Additionally, the PEB noted that 10A/C was applicable and commented that the CI had received the Combat Action Badge and the Purple Heart. However, his separation orders dated 12 June 2007, and the second page of the PEB adjudication, documented that the CI’s disability was not a direct result of armed conflicted or caused by an instrumentality of war. After considerable discussion, all Board members agreed that the preponderance of evidence supported that the provisions of §4.129 were applicable. Therefore, the Board in compliance with the provisions of VASRD §4.129 (mental disorders due to traumatic stress) must recommend placement of the CI on a period of constructive Temporary Disability Retired List (TDRL) with a minimum rating of 50% IAW §4.129 with reassessment after 6 months. The higher 70% rating criteria requires evidence of “occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.” Available treatment records in the 12 months prior to constructive TDRL period recorded no psychiatric hospitalizations, no recorded visit to the emergency room for MH issues, and no evidence of impairment in judgment or thinking. His MSE at the NARSUM and VA were essentially normal without documentation of impairment in thinking or judgment.
The Board acknowledged the VA examination that suggested worsening of symptoms; however, noted the examiner documented good relationship with his wife; he went hunting with his brother-in-law, maintained contact with friends from the service, and was able to gain employment. There was no indication of impairment in thinking or judgment, and no recorded visits to the emergency room or psychiatric hospitalization. The Board considered the record in evidence did not support a higher than 50% rating for TDRL entry. The Board concluded there was insufficient reasonable doubt (IAW VASRD §4.3) for recommending a 70% TDRL entry rating. The Board next determined the most appropriate fit with VASRD §4.130 criteria at the end of TDRL for its permanent rating recommendation. The Board deliberated the evidence for the 50% versus 30% disability rating. The 50% disability rating requires evidence of occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. The Board considered the VA MH examination, 14.5 months after separation; however, placed high probative value on the NARSUM and the VA C&P evaluation, a month after separation since both were most proximal to separation. The NARSUM recorded no evidence of psychosis, intact cognition, no suicidal or homicidal thoughts and no impairment in judgment or thinking. The examiner noted that the CI’s condition had improved but he continued to have problems with mood, sleep, concentration and memory. He continued to have fears of panic attacks, and had issues on the highways (shaking). A GAF of 55 was recorded. There was no evidence in the record of recurrent suicidal behaviors, and no impairment in thinking, or judgment in the 6 months prior to separation. The MSE from the C&P was normal except for anxious mood and blunted affect. The CI was starting work the next day, had demonstrated mild-moderate impairment in social functioning, and he had continued his medication.

The Board noted although he reported poor concentration and difficulty with memory, objective findings were absent. The examination documented anxiety attacks; however, frequency was not recorded. There was no evidence by which to determine occupational functioning. The examiner recorded a GAF of 55. The VA mental examination more than a year after separation documented the CI was working as a security guard at a restaurant, and had to leave the building, go outside, when the restaurant was crowded due to PTSD symptoms of anxiety with panic attacks. His MSE was normal with intact insight and judgment, and a GAF of 65 (mild). The Board agreed that this examination had limited probative value since it was beyond 12 months of separation; however, did suggest the CI’s condition had improved, and if considered, the disability level would be consistent with the 30% rating. The Board also considered the absence of hospitalizations, emergency room visits, or other psychiatric care notes in the 6-month period of constructive post-TDRL. Board members agreed there was insufficient evidence to support the 50% rating criteria. The 30% disability rating for “occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks” was supported, and therefore, all Board members agreed that the preponderance of evidence best reflected the 30% level of disability. After due deliberation, and in consideration of all the evidence and VASRD §4.3 (reasonable doubt), the Board recommends a 30% permanent disability 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. However, as stated above the PEB reliance on (DoDI) 1332.39 for rating occupational and social impairment at separation was operant in this case and the condition was adjudicated independently of that policy by this 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 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 that the applicant was placed on the TDRL at 50% for a 6-month period IAW §4.129, and then permanently separated with severance pay by reason of physical disability with a final 30% rating as indicated below:

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


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131216, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans Affairs Treatment Record


XXXXXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXXXXXXX , AR20150012735 (PD201302724)


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 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                                                  XXXXXXXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary of the Army
                                                      (Review Boards)

CF:
( ) DoD PDBR
( ) DVA







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