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AF | PDBR | CY2013 | PD2013 00547
Original file (PD2013 00547.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXX        CASE: PD1300547
BRANCH OF SERVICE: Army  BOARD DATE: 20131030
SEPARATION DATE: 20070607


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (11B/Infantryman) medically separated for posttraumatic stress disorder (PTSD). The CI self-referred to mental health in March 2006, a month after returning home from Iraq early to assist his spouse. His PTSD condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards. He was issued a permanent S4 profile and referred for a Medical Evaluation Board (MEB). The PTSD condition, characterized as medically unacceptable, was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded six other conditions (see rating chart below) for PEB adjudication. The PEB adjudicated PTSD as unfitting rated 10% with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The remaining conditions were determined to be not unfitting. The CI made no appeals and was medically separated.


CI CONTENTION: “I feel conditions are worse than reported.”


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 and the not unfitting conditions are addressed below. 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 IPEB – Dated 20070405 VA - (1 Mos. Post-Separation)
Condition Code Rating Condition Code Rating Exam
Posttraumatic Stress Disorder 9411 10% Posttraumatic Stress Disorder 9411 50% 20070724
TB Exposure Not Unfitting NSC 20070806
Degenerative Thoracic Spondyloarthropathy Not Unfitting NSC 20070806
Mushroom Allergy Not Unfitting Not Addressed
Right Wrist Fracture Not Unfitting NSC 20070806
Hyperlipidemia Not Unfitting Not Addressed
No Additional MEB/PEB Entries Other x 13 20070806
Combined: 10% Combined: 60%
Derived from VA Rating Decision (VA RD ) dated 200 70919 ( most proximate to date of separation [ DOS ] ).


ANALYSIS SUMMARY: The Board acknowledges the sentiment expressed in the CI’s application regarding the significant impairment with which his service-incurred condition continues to burden him. The Board wishes to clarify that it is subject to the same laws for disability entitlements as those under which the Disability Evaluation System (DES) operates. 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. That role and authority is granted by Congress to the Department of Veterans Affairs (DVA), operating under a different set of laws (Title 38, United States Code). The Board evaluates DVA evidence proximal to separation in arriving at its recommendations, but its authority resides in evaluating the fairness of DES fitness decisions and rating determinations for disability at the time of separation. 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 DVA, however, is empowered to compensate service-connected conditions and to periodically reevaluate said conditions for the purpose of adjusting the disability rating should the degree of impairment vary over time. 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.

PTSD Condition. The PEB rating, as noted above, was derived from DoDI 1332.39 and preceded the promulgation of the National Defense Authorization Act 2008 mandate for DoD adherence to 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 at least a 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 the end of the TDRL interval for its permanent rating recommendation, based on the facts in evidence which are most probative for that interval. In this case, the CI’s VA psychiatric rating examination was performed at the 6-week separation interval and is subject to probative value concerns which will be discussed. The Board will remain adherent to §4.130 standards as the measure of disability for its permanent rating recommendation, but exercises its prerogative to judiciously scrutinize the probative value and applicability of the evidence to which the §4.130 criteria are applied. Since the VA psychiatric Compensation & Pension examination was 6 weeks proximate to separation and therefore premature for the 6-month rating benchmark, the MEB evaluation itself provides a useful baseline and is assigned relevant probative value in the Board’s efforts to arrive at a fair permanent rating recommendation. The probative value of the VA examination, however, is strengthened on the principle that it reflects the stress of transition to civilian life which is intrinsic to the Board’s permanent rating recommendation.

The first service treatment record (STR) psychiatric documentation was an outpatient encounter at the CI’s home-base in Alaska, dated 6 weeks after his early return from Iraq (Feb 2006). At that time, the CI’s chief complaint was, “I was having problems in Iraq,” and provided a history of seeking combat stress control services while deployed at the end of January 2006. Historically, the CI reported problems with “hypersomnia, increased anger, irritability, low motivation, nightmares, low energy, hypervigilance, hyperarousal, psychomotor slowing, decreased appetite, weight loss and intermittent suicidal ideation without plan or intent.” Absent specific details, the examiner noted, “These symptoms rose in the context of exposure to combat and dead bodies.” While still in theater, the CI reported taking two medications (Zoloft {antidepressant} and Resperdal {antipsychotic}) which greatly improved his symptoms. Currently out of medication, the CI reports a return of prior symptoms with “intermittent suicidal ideation without plan or intent.” The diagnosis of acute PTSD was identified and treatment focused on stabilization of his medications. A week later, the STR reflected that the CI denied further suicidal ideation. His symptoms significantly improved and a third medication was added to treat ongoing nightmares. On 29 March 2006, a psychology session noted, “talked [CI] about traumatic experience that occurred while he was in Iraq” and subsequently, the CI agreed to begin PTSD group therapy. The STR reflected intermittent periods of symptom exacerbations to include that a “red cake” reminded him of blood he saw on deployment and “continues to wake during the night and sit up in bed unresponsive” to his wife for a few minutes. Additive and worsening health concerns (to include cancer) in his wife contributed to his depressed symptomatology. The CI’s mood was describes as, as "feeling more anxious and worried since finding out about my wife's cancer" and "feeling a little bit more depressed and tired all the time." The examiner noted, “Overall, the patient's posttraumatic stress disorder symptoms seem to be improving with current medications, but have revealed an underlying depression.” The CI was hospitalized (4 days) to an inpatient psychiatric unit in April 2006 after a medication overdose post argument and physical encounter with his spouse. His discharge condition was noted as “improved, not suicidal.” Six months after his hospitalization, the CI reported that his symptoms have worsened in the context of continued occupational stressors and his wife's continued health problems, to include a complicated pregnancy. Five months prior to separation, the STR reflected continued improvement in his depressive and PTSD symptoms as well as decreased occupational stressors as his job duties were changed to conducting military driver training and assisting with administrative drug screening. The commander’s performance letter was void of any functional ability assessment and or duty description, but rather a statement regarding the presence of pending actions. The narrative summary performed 3 months prior to separation, consisted of a detailed chronology of the CI’s psychological history and noted ‘current symptoms continue to be exacerbated by ongoing exposure to military triggers, occupational stressors and social stressors.’ The examiner specifically stated work-related functional difficulties with the following.

“maintaining an acceptable level of attention and concentration to carry out instructions and completing tasks commonly found in work settings in a timely manner, communicating with others on work-related matters, relating civilly to other workers, working with or near others without being unduly distracted by them, and responding appropriately to changes in the work setting.”

Mental status examination revealed mild psychomotor slowing and verbal minimization of symptoms. His mood was “depressed and anxious” and he reported intermittent suicidal ideation without plan or intent. Judgment and impulse control were intact. The physical examination (DD Form 2808) noted “depressed” affect. He continued to work within his unit and has been able to fulfill positions of leadership in the garrison setting. Although his condition was described as stable, the examiner opined that the CI “… is expected to have definite job instability and social maladjustment. He is expected to require ongoing outpatient treatment and use of medications for this condition. Intermittent hospitalization may be required.”

At the VA PTSD examination performed 6 weeks after separation, the CI reported easy to anger/irritate, poor energy and concentration, global insomnia and auditory hallucinations. Additionally, he reported the presence of panic attacks and agoraphobia (non-safe feeling in public places). He remained unemployed. The examiner described the CI’s psychomotor activity as restless, fatigued and intense; his mood as anxious, depressed, dysphoric (state of dissatisfaction, anxiety, fidgeting) and labile. His speech was hesitant and thought content was described as “paranoid ideation.” Difficulties with activities of daily living were “slight” for household chores and grooming; “moderate” for shopping and bathing and is “prevented” from performing sports/exercise, traveling, and driving (“because he feels uncomfortable with cars, people and colors of cars [orange and white]).” The examiner noted specific PTSD stressors as “combat experience” (absent event elaboration), “intense fear,” “hopelessness,” “feelings of horror and frustration.” Symptom frequency was “constant” and severity was “severe.” Additional comments included, “Three friends injured the day of arrival from Iraq. Feels that the whole experience being there was very disturbing.” [sic]. The CI was diagnosed with PTSD, depressive disorder (not otherwise specified) and panic disorder with agoraphobia. His Global Assessment of Functioning was 51; which is in the serious range of impairment on that scale. The examiner opined that “Depressive symptoms and Panic Symptoms are all stemming from his primary diagnosis of PTSD” and that “PTSD is caused by or a result of Combat Experience.”. The VA general medical examination, performed 8 weeks after separation (2 weeks post-VA PTSD exam), noted normal memory and speech. There was no documented evidence of the CI’s clinical course and acuity for an extended period after separation.

The Board directs its attention to its rating recommendations based on the evidence just described. All members agreed 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 is applicable. The VA initially assigned a 10% rating for the PTSD condition based on §4.130 criteria without application of §4.129. Regarding the permanent rating recommendation, all members agreed that the §4.130 threshold for a 50% rating was not solidly approached and that the criteria for a 0% rating were well exceeded. The MEB examination was most consistent with the description of the 30% rating occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily) in light of the CI’s reassignment from his primary occupational duties. However, the 10% rating (occupational and social impairment due to mild or transient symptoms which decrease work efficiency … only during periods of significant stress, or; symptoms controlled by continuous medication,) is also applicable, especially considering his ability to fulfill leadership positions. In addition, the Board did consider both the 50% and 70% levels due to (difficulty in establishing and maintaining effective work and social relationships) and the presence of (suicide ideation) respectively. Although meeting single or few criteria, the preponderance of evidence weighed heavily against the 70% and less against the 50% criteria. Member consensus was that the 10% level was clearly exceeded based upon the MEB’s providers’ prognostic comment of “definite” future job instability and social maladjustment; and, therefore the deliberation settled on arguments for a 30% vs. 50% permanent rating recommendation. Although the CI’s condition at 6 months after separation is speculative at best, the 30% description may be considered applicable using the rationale that the CI’s untested and unproven employment capacity at 6 weeks post-separation could be evidence of occupational impairment as well as experiencing infrequent panic attacks. The Board considered arguments favoring a permanent 30% recommendation. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a TDRL rating of 50% and a permanent rating of 30% for the PTSD condition.

Remaining Conditions. Other conditions identified in the DES file were tuberculosis exposure, degenerative thoracic spondyloarthropathy, mushroom allergy, right wrist fracture and hyperlipidemia. None of these conditions were clinically active during the MEB period, none carried attached profiles and none were implicated in the commander’s statement. These conditions were reviewed by the action officer and considered by the Board. It was determined that none could be argued as unfitting and subject to separation rating. The Board does not have the authority under DoDI 6040.44 to render fitness or rating recommendations for any conditions not considered by the DES. The Board, therefore, has no reasonable basis for recommending any additional unfitting conditions for separation 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. The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised. In the matter of the PTSD condition, the Board unanimously recommends a disability rating of 50% for a prescribed 6-month period of temporary retirement IAW VASRD §4.129; followed by a 30% permanent rating, coded 9411, IAW VASRD §4.130. In the matter of the remaining conditions (tuberculosis exposure, spine arthropathy, mushroom allergy, wrist fracture, and hyperlipidemia), the Board unanimously recommends no change from the PEB determinations as not unfitting. 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 TDRL RATING PERMANENT
RATING
Posttraumatic Stress Disorder (PTSD) 9411 50% 30%
COMBINED 50% 30%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20130519, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record





XXXXXXXXXXXXXXXXX, DAF
President
Physical Disability Board of Review


SFMR-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 XXXXXXXXXXXXXXXXXXXXX, AR20140003466 (PD201300547)


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                                                  XXXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary
                                                      (Army Review Boards)

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