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AF | PDBR | CY2013 | PD2013 00646
Original file (PD2013 00646.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX         CASE: PD1300646
BRANCH OF SERVICE: Army  BOARD DATE: 20140211
SEPARATION DATE: 20080828


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSGT/E-6 (68W/Combat Medic) medically separated for posttraumatic stress disorder (PTSD) and ulcerative colitis. The PTSD symptoms began after deployment to Iraq from January 2005 to December 2005. Symptoms associated ulcerative colitis began in March 2007. The conditions 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 P3/S3 profile and referred for a Medical Evaluation Board (MEB). The PTSD and ulcerative colitis conditions were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded three other conditions (see rating chart below) for PEB adjudication. The PEB adjudicated PTSD and ulcerative colitis as unfitting rated 10% and 10% respectively, citing criteria of the VA 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: “The VA rated me at 60% initially when I got out. I am at 90% now. PTSD rating 10%-too low. Ulcerative Colitis-10% too low. Arthritis not rated.”


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. In addition, the CI was notified by the Army that his case may be eligible for review of the military disability evaluation of his mental health (MH) condition in accordance with Secretary of Defense directive for a comprehensive review of Service members who were referred to a disability evaluation process between 11 September 2001 and 30 April 2012 and whose MH diagnoses were changed during that process. In accordance with Secretary of Defense directive for a comprehensive review of the MH diagnoses that were changed during the Disability Evaluation System (DES) process, the applicant’s case file was reviewed regarding diagnosis change, fitness determination, and rating of the unfitting MH diagnoses in accordance with the VA Schedule for Rating Disabilities (VASRD) §4.129 and §4.130. The CI is also eligible for PDBR review of other conditions evaluated by the PEB and has elected review by the PDBR. The rating for the CI’s unfitting PTSD and ulcerative colitis are addressed below. The contended not unfitting low back pain will also be addressed below. However, the contended arthritis was not identified by the PEB; and therefore, not within the Board’s purview. Lastly, the not unfitting mild hyperlipidemia condition was not contended; and therefore, is not within the Board’s purview. These and any condition 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 of Correction of Military Records.


RATING COMPARISON :

Service IPEB – Dated 20080604
 VA1 - (1 Mos. Pre-Separation)
Condition
 Code Rating Condition Code Rating Exam
PTSD 9411 10% PTSD 9411 50%2 20080721
Ulcerative Colitis 7323 10% Ulcerative Colitis 7323 10%3 20080721
Alcohol Abuse Not Ratable No VA Entry 20080721
Mild Hyperlipidemia Not Unfitting No VA Entry 20080721
Low Back Pain Not Unfitting Lumbar Strain 5237 10% 20080721
No Additional MEB/PEB Entries
 Other x 9 20080721
Combined: 20%
 Combined: 80%
1. Derived from VA Rating Decision (VARD) dated 20081114 (most proxima te to date of separation (DOS))
2. VARD 20100222 recognizes “clear and mistakable error for 30% PTSD rating on VARD 20081114
 3. Rating increased to 30% in VARD 20100222 effective 20080829 (day after DOS), then 70% in VARD 20120726 effective 20111108


ANALYSIS SUMMARY:

PTSD Condition. The CI reported his PTSD symptoms started in 2007 after associating with individuals from his Iraq deployment. On 18 January 2007, the CI reported disturbing memories, thoughts and dreams. He also reported flashbacks, depression, sleep disturbance and difficulty concentration. Multiple MH treatment notes in 2007 documented diagnoses of anxiety disorder, not otherwise specified (NOS), adjustment disorder with disturbance of emotions and conduct, marital problems and substance abuse. The CI had one hospitalization in 20 March 2007 for a suicide attempt (he tried to hang himself) related to his pending divorce. His admission mental status examination (MSE) noted depressed mood and affect. The examiner noted persistent suicidal ideations, anger and feelings of rejection, hopelessness and helplessness. Diagnoses of PTSD, major depressive disorder (MDD) and alcohol intoxication were rendered. His discharge MSE on 26 March 2007 was normal and there were no suicidal or homicidal ideations. His discharge summary documented diagnoses of PTSD, alcohol abuse, and MDD, NOS. The CI continued talk therapy, attended family advocacy anger management classes and antidepressant medications. In October 2007, the CI assaulted his ex-wife and legal action was initiated. The CI’s anxiety disorder, NOS and PTSD symptoms persisted and he was referred for a MEB.

The narrative summary (NARSUM) notes that the CI was diagnosed with PTSD in 2007 and was started on talk therapy. Shortly after being diagnosed his wife began divorce proceedings and the CI became increasingly depressed. His divorce was finalized in July 2007. In September 2007, the CI continued to report increasing PTSD symptoms of disturbing memories, increased irritability and anger. The psychiatric NARSUM MSE on 16 April 2008 was normal except for appearing somewhat dysphoric. The psychiatrist diagnosed PTSD with marked impairment of military duty and a Global Assessment of Functioning (GAF) score of 55 (mild). At the VA Compensation and Pension (C&P) examination performed a month prior to separation, the CI reported intrusive thoughts two times per week, irritability, anger outbursts and daily verbal altercations at work. He reported that he continued talk therapy every 3 weeks and was compliant with prescribed Paxil and Seroquel medications. The examiner noted that the CI was remarried and that he planned to move to Texas after his discharge to work with his sister’s sales company. The examiner noted that his MSE was normal with a GAF of 55 except for a mixed affect (blunted, dysphoric and irritable). The examiner rendered a diagnosis of major depression (secondary to PTSD) and opined that there was occasional decrease in work efficiency.

The Board directs attention to its mental health review and rating recommendations based on the above evidence. The Board reviewed the records for evidence of inappropriate changes in diagnosis of the mental health condition during processing through the military disability evaluation system. The evidence of the available records shows at the time of processing through the disability evaluation system, no mental health diagnoses were changed to the CI’s possible disadvantage. This case, therefore, did not appear to meet the inclusion criteria in the Terms of Reference (TOR) of the Mental Health Diagnosis Review Project. The PEB adjudicated the PTSD as unfitting with a disability rating of 10%. The Board in compliance with the provisions of VASRD §4.129 (mental disorders due to traumatic stress) noted the provision was applicable in this case and therefore, must assign a disability rating of not less than 50% for an initial period of 6 months following separation, with subsequent fitness and ratings based on the applicable evidence. The Board considered if there was evidence for a §4.130 rating higher than 50%. There was no evidence in the record of recurrent suicidal behaviors, no frequent visits to the emergency room for MH treatment, no recurrent psychiatric hospitalizations and no impairment in thinking or areas of occupational functioning outside of the military environment, at the time of separation. All MSEs were essentially normal. The SRP agreed the record in evidence did not support a higher than 50% rating at Temporary Disability Retirement List (TDRL) entry and there was insufficient reasonable doubt (IAW VASRD §4.3 or §4.7) for recommending a 70% rating.

The Board agreed at the time of permanent separation (TDRL exit) the record adequately demonstrated that the CI continued in outpatient treatment for PTSD, had a great relationship with his wife and was anticipating relocation to Texas to work with his sister. There were no suicidal or homicidal thoughts. There was no report of legal problems or domestic violence subsequent to 2007. The SRP noted that although no further hospitalizations and no recorded visits to the emergency room for MH issues, his PTSD symptoms were persistent and impacted his social and occupational functioning (he restricted his contact to his immediate family and had continued verbal altercations with his coworkers). His symptoms reflected the criteria for the 30% disability rating. After due deliberation in consideration of the preponderance of the evidence, the Board concluded that the application of VASRD §4.129 was applicable in this case. The Board further considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 30% for the PTSD condition at permanent separation.

Ulcerative Colitis Condition. On 19 April 2007, the CI presented to the gastrointestinal clinic with a one week history of occasional vomiting, abdominal pain, bloody stools and intermittent formed and liquid stools. The physical examination demonstrated tenderness to palpation at the right lower quadrant. The examiner noted that a flexible sigmoidoscopy was notable for colitis (inflammation of the inner lining of the colon) starting in the rectum and going to the rectosigmoid junction (the meeting place of the rectum and the sigmoid colon). The examiner opined that he suspected ulcerative colitis (UC). Biopsy results demonstrated acute colitis. The CI was treated with Mesalamine (an anti-inflammatory drug used to treat inflammatory bowel disease) suppositories with resolution of his symptoms except for a small amount of blood in his stool. The medical records were silent for treatment of UC until March 2008 when the CI presented with reports of 15-20 bowel movements per day with urgency. He was placed on Mesalamine enemas twice-a-day, Colocort enemas one-a-day and Azulfidine (Sulfasalazine) tablets 4 times per day. On 25 April 2008, he reported three formed bowel movements per day with some blood. The physical examination was normal. The NARSUM performed on 5 May 2008; the CI reported eight bowel movements per day with some blood, daily abdominal cramping and intermittent nausea. He denied weight loss and vomiting. He reported continued use of Mesalamine enemas twice-a-day, Colocort enemas one-a-day and Azulfidine tablets 4 times per day. The MEB physical exam noted a normal abdominal examination and external hemorrhoids. At the VA C&P exam performed prior to separation, the CI reported persistent abdominal cramping, intermittent incontinence and blood in his stool. He reported that he monitored his fluid intake and avoided food or drinks that aggravated his condition. The CI reported compliance with the prescribed enemas and oral medications which were controlling his UC symptoms “very well.” The abdominal examination was normal. The examiner noted that the condition was “somewhat in control,” but not stabilized.

The Board directs attention to its rating recommendation based on the above evidence. The PEB adjudicated the UC as unfitting with a disability rating of 10%. The Board considered if there was evidence for a §4.114 rating higher than 10%. The CI was initially diagnosed in April 2007 and responded to therapy. The medical records were silent for treatment of UC until March 2008. The VA C&P examination documented control, but not stabilization of the UC symptoms after 3 months of treatment for his first flare up. There was no evidence in the record of malnutrition, weight loss or other signs general debility. The abdominal examinations were essentially normal. The Board agreed that the record in evidence did not support a higher than 10% rating at TDRL entry. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the ulcerative colitis condition at TDRL entry.

The Board agreed at the time of permanent separation (TDRL exit) the record adequately demonstrated that the CI had only one flare-up in 11 months, continued in treatment for UC, and was responding to treatment. Although his UC symptoms were persistent, there was no evidence of malnutrition, weight loss or other signs general debility. His symptoms reflected the criteria for the 10% disability rating, moderate with infrequent exacerbations. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the ulcerative colitis condition at TDRL exit.

Contended PEB Conditions. The Board’s main charge is to assess the fairness of the PEB’s determination that lower back pain was not unfitting. The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard. The lower back pain condition was not profiled or implicated in the commander’s statement and was not judged to fail retention standards. All were reviewed by the action officer and considered by the Board. There was no performance based evidence from the record that the lower back pain significantly interfered with satisfactory duty performance. After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the lower back pain condition and so no additional disability ratings are recommended.


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% at TDRL entry and 30 % rating at permanent separation, coded 9411 IAW VASRD §4.129 and §4.130. In the matter of the ulcerative colitis condition and IAW VASRD §4.71a, the Board unanimously recommends a disability rating of 10% at TDRL entry and permanent separation, coded 7323 IAW VASRD §4.114. In the matter of the contended lower back pain condition, 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 placement of the TRDL with a combined rating of 60% for a period of 6 months IAW VASRD §4.129 followed by a permanent disability retirement as indicated below, effective as of the date of his prior medical separation:

UNFITTING CONDITION VASRD CODE RATING
TDRL PERMANENT
Post-Traumatic Stress Disorder 9411 50% 30%
Ulcerative Colitis 7323 10% 10%
COMBINED 60% 40%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20130522, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record








                          
XXXXXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXXXXX , AR20140009388 (PD201300646)
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
60% 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 40%.

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 60% 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 40% 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                                                  XXXXXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary
                                                      (Army Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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