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AF | PDBR | CY2013 | PD2013 01785
Original file (PD2013 01785.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX         CASE: PD1301785
BRANCH OF SERVICE: Army  BOARD DATE: 20140424
SEPARATION DATE: 20060828


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (89B/Ammunition Specialist) medically separated for posttraumatic stress disorder (PTSD) condition. He deployed to Afghanistan from 2003-2004 and was exposed to numerous traumatic experiences. He self-referred for treatment of anxiety and depression in 2005. His mental health (MH) conditions 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). PTSD was forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW AR 40-501. No other conditions were submitted by the MEB. The Informal PEB adjudicated the PTSD condition as unfitting, rated 10%, with presumed application of Department of Defense Instruction (DoDI) 1332.39. The CI made no appeals and was medically separated.


CI CONTENTION: “Because the DoD should have adhered to VASRD 4.129 and assigned me with a disability rating of at least 50%. See SABO vs US Lawsuit. Please correct these records and retroactively compensate me just like the SABO Case.”


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 contention that suggests a higher rating should have been granted on the unfitting medical condition documented at the time of separation. 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 20060717
 VA* - (3.1 Mos. Pre-Separation)
Condition
 Code Rating Condition Code Rating Exam
Post-Traumatic Stress Disorder 9411 10% Post-Traumatic Stress Disorder 9411 50% 20060525
Other x 0 (Not in Scope)
 Other x 2 20060612
Combined: 10%
 Combined: 50%
* Derived from VA Rating Decision (VA RD ) dated 20060914 (most proximate to date of separation ( DOS ) )


ANALYSIS SUMMARY:

Posttraumatic Stress Disorder. 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 is based on the facts in evidence which are most probative for that interval.

In this case, the CI’s MEB narrative summary (NARSUM) examination and VA psychiatric rating examination performed at 11 months prior to separation and 10 months after separation respectively are both 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. In comparison, the VA rating examination was 4 months overly extended for the §4.129 6-month rating benchmark versus the MEB examination being 17 months premature to the benchmark date and therefore, was assigned relevant probative value in the Board’s efforts to arrive at a fair permanent rating recommendation. Additionally, the probative value of the VA examination 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 CI was deployed to Afghanistan from March-August 2004. His post-deployment health assessment (PDHA) was dated 30 June 2004; noting, his health as the same or improved during deployment, witnessing wounded or dead bodies, having the fear of great danger of being killed, and constantly being on guard, watchful or easily startled. The case file was absent any MH record evidence prior to or after the PDHA until the MEB NARSUM on 5 April 2006.

The NARSUM performed 5 months prior to separation, consisted of detailed trauma exposures while deployed that included witnessing, handling and triage of wounded, mutilated, or dead bodies as well as coming under enemy fire while on convoys. He endorsed many PTSD-like symptoms such as trauma re-experience, recurrent intrusive thoughts, hyperarousal, readiness with increased startle, emotional numbing and avoidance. There were no suicidal or homicidal ideations or a reported history of psychiatric hospitalizations. Despite a treatment regimen of psychotropic medication and intense individual therapy, “…he continued to suffer from significant anxiety and re-experiencing symptoms, as well as, emotional numbing and avoidance.” His mental status examination (MSE) revealed an anxious mood and affect and a monotone pattern of speech. There were no delusions present. His thought process, judgment, insight and cognition were adequate or intact.

The physical examination (DD Form 2808) noted a positive response to recent feelings of being down, depressed or hopeless. His diagnosis was chronic PTSD with significant social and occupational impairment resulting from symptom exacerbation. Specifically, the examiner described the degree of military impairment as “marked” and social and industrial impairment as “definite.” His Global Assessment of Functioning (GAF) was 60, connoting moderate impairment.

At the 3-month pre-discharge VA MH examination, the CI reported a plethora of intense PTSD symptoms associated with deployment activities of being in “fire fights” as well as participating in body recovery missions. He endorsed vivid nightmares (1-2 per week) of being attacked whereby he would wake up in a profuse sweat and run to “take cover” in the bathroom. He admits to constant environmental reminders, (example; living on base) that triggered daily intrusive recollections of his deployment trauma exposure. He was avoidant of any war-related news for its compounding effect on his recollections and flashbacks. Additionally, he endorsed social isolation secondary to disruptive hypervigilant actions and a marked startle response when in a public setting. He reported, “…that he will be in the middle of a task and he will just [space out].)” His MSE revealed “mild” anxiety, but otherwise was unremarkable. The examiner noted the absence of a clinical depression, psychosis or mania. His diagnosis remained PTSD with recent onset and at a moderate level of intensity. His GAF was 54, connoting between “serious” and “moderate” impairment. The examiner opined that “His current level of personal social adjustment is moderately impaired” and “…the moderate severity of [his] PTSD symptoms might cause some mild difficulty in certain work-related situations, particularly if he finds himself in a public situation.” His prognosis was listed as fair to good.

At the 10 month post-separation VA examination dated 29 June 2007, the CI stated that his PTSD symptoms have “pretty much stayed the same.” This was most consistent with the examination findings noting a slight improvement with regards to less duration of intrusive thoughts with nightmares, a lessened startle response, and the ability to “work through” the infrequent sub-threshold panic attacks. A valid PTSD screening test indicated PTSD at a “moderate” degree of intensity. The history portion of the examination revealed the answer of “no” to either past or current treatment for a mental condition as well as having the presence of MH symptoms during the past 12 months. This was inconsistent with prior known service records. His diagnosis remained chronic PTSD, citing a GAF of 55, essentially unchanged from his pre-separation evaluation. Although he had “passive” suicidal thoughts when stressed, he was not actively suicidal or homicidal. There was no evidence of psychosis or mania. He did not present with evidence of an Axis II personality disorder. His insight and judgment regarding his PTSD symptoms were good. The examiner stated that there were no PTSD symptom-related deficiencies in the areas of judgment, thinking, family relations, work, mood or school. However, there was reduced reliability and productivity. The commander’s performance letter did not implicate any MH condition and noted the CI’s profiled restrictions as for the inability to perform basic Soldier skills. He was not recommended for retention.

The Board directs attention to its rating recommendation based on the above evidence. The Board first considered if application of VASRD §4.129 with a constructional 6-month (50% minimum) period on the TDRL was indicated in this case (per Board directive from DoD). Board members agreed that the provisions of VASRD §4.129 were applicable in this case, noting the association with combat experiences. The Board then considered if there was evidence for a §4.130 rating higher than the 4.129 minimum mandated 50% at time of TDRL entry. The Board unanimously 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% initial TDRL rating is applicable.

In regards to the permanent rating recommendation, all Board members agreed that the §4.130 threshold for a 70% rating was not met; and, the 10% rating criteria was exceeded. The deliberation settled on arguments for a 30% versus 50% permanent rating recommendation. The general description in §4.130 for a 50% rating includes examples of impaired judgment, impaired thinking, and disturbance in mood in relation to occupational and social impairment. The Board considered and acknowledged that the VA examiner’s report of “reduced reliability and productivity” is specific verbiage at the 50% rating level, but coupled with the evidence of no deficiencies in the areas of judgment, thinking, family relations, work, mood or school is more closely supported at the 30% level. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (Reasonable doubt), the Board recommends a permanent rating of 30% for the PTSD condition.
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 DoDI 1332.39 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 an initial TDRL rating of 50% for a period of 6 months in retroactive compliance with VASRD §4.129, followed by 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 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
Post-Traumatic Stress Disorder 9411 50% 30%
COMBINED 50% 30%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131022, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record








                                   
XXXXXXXXXXXXXXXXXX, 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 XXXXXXXXXXXXXXXXXX , AR20140008581 (PD201301785)
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                                                  XXXXXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary
                                                      (Army Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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