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AF | PDBR | CY2013 | PD2013 02168
Original file (PD2013 02168.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX         CASE: PD1302168        
BRANCH OF SERVICE: Army          BOARD DATE: 20140320
SEPARATION DATE: 20070730       


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (92Y, Automated Logistics Specialist) medically separated for posttraumatic stress disorder (PTSD). The CI self-referred for Behavioral Health in June 2006 for PTSD and obsessive compulsive disorder (OCD). The PTSD diminished with psychotherapy, but major depressive disorder moderate, recurrent was diagnosed in November 2006. The mental health conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS). He was issued a permanent S3 profile and referred for a Medical Evaluation Board (MEB). The PTSD condition, characterized as “posttraumatic stress disorder” and “major depressive episode, recurrent,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded four other conditions (see rating chart below) for PEB adjudication. The informal PEB combined the two mental health conditions forwarded by the MEB and adjudicated “posttraumatic stress disorder (PTSD) stating “symptoms of major depressive disorder are interrelated and included in this rating” as unfitting, rated 10% with likely application of DODI 1332.39 [rescinded] and/or AR 635-40 in effect at the time. The remaining four conditions were determined to be not unfitting. The CI made no appeals, and was medically separated.


CI CONTENTION: The CI states: “I believe the rating that was assigned to me by the Physical Evaluation Board (PEB) on June 12, 2007 was inaccurate and unfair because my PTSD was so severe that it rendered me unfit for service (as determined by the PEB), and l was discharged from the Army because of the PTSD. Please see the attached brief for further explanation”. The CI submitted a 15 page legal brief which was reviewed by the Board and considered in its recommendations.


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 any mental health 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 mental health diagnoses were changed or eliminated during that process. In accordance with Secretary of Defense directive for a comprehensive review of mental health 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 unfitting mental health diagnoses in accordance with Veteran’s Affairs 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. As previously stated, the rating for the unfitting PTSD condition is addressed below; and, no additional conditions are within the DoDI 6040.44 defined purview of the Board. 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 20070612
 VA - (3 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
PTSD w/Major Depressive Disorder 9411 10% PTSD w/Insomnia & Depression 9411 50% STR
Obsessive Compulsive Disorder Not Unfitting Obsessive Compulsive Disorder 9404 NSC
L Shoulder Pain Not Unfitting L Shoulder Labral Tear 5201 10% 20071015
Sebaceous Cyst on Neck Not Unfitting Sebaceous Cyst on Neck 7800 10% 20071015
Pre-Diabetes Not Unfitting Pre-Diabetes 7913 NSC
No Additional MEB/PEB Entries
 Other x 1 20071015
Combined: 10%
 Combined: 60%
Derived from VA Rating Decision (VA RD ) dated 200 71126 ( most proximate to d ate of separation [ DOS ] ).


ANALYSIS SUMMARY:

PTSD (with Major Depressive Disorder): Available service records indicated the CI was deployed to Iraq on two occasions for a year. The post-deployment health assessment performed on 3 April 2004 recorded no symptoms suggestive of PTSD. He was deployed again in 2005 and during the June 2006 health assessment he indicated he had not been in direct combat and was not fearful of his life; however, he endorsed nightmares and avoidance of combat-related thoughts. The mental health addendum to the MEB noted the applicant self-referred to Behavioral Health in June 2006. He reported numerous symptoms consistent with PTSD and OCD. The psychologist noted he engaged in talk therapy and in November 2006 was referred to a non-physician provider for medication evaluation. Prozac was prescribed; however, the applicant reported he discontinued the medication after a few doses because he wanted to “get better on his own.” A medication profile recorded one single Prozac prescription. The addendum noted the applicant was diagnosed with major depressive disorder (MDD) moderate, recurrent. At the mental health addendum evaluation on 27 April 2007, conducted by treating psychologist, the applicant reported he had seen the dead remains of two soldiers killed by IED blasts. He had repeated disturbing memories, thoughts of stressful events, nightmares, avoidance behaviors, felt distant from people, had difficulty with sleep, irritability, and hypervigilance and startle response. He also reported symptoms consistent with OCD, i.e., ritualistic behaviors, and excessive hand washing. His mental status examination (MSE) was completely normal. The psychologist diagnosed PTSD, MDD, and OCD, and opined impairment for military duty was marked and impairment for social and industrial adaptability was mild. A Global Assessment of Functioning (GAF) of 60 was assigned. The psychologist opined his conditions of MDD and PTSD were unfitting. The MEB forwarded the conditions of MDD and PTSD to the PEB as unfitting and OCD as not unfitting; the PEB adjudicated the condition of PTSD, “onset following 2nd combat tour in Iraq (10 A/C, CS)”; and cited “symptoms of MDD are interrelated and included in this rating.” A disability rating of 10% was granted with the notation that the CI was treated with medication and counseling, works 40 hours per week with acceptable duty performance and rated as mild industrial impairment. The CI made no appeals and was medically separated on 30 July 2007.

The CI was non-attendant for two VA Compensation and Pension (C&P) evaluations. The VA used service treatment records which recorded PTSD as the result of experiences in Iraq, including the loss of seven friends. The VA cited §4.129 and indicated it was appropriate to apply in this case. The VA assigned a disability rating of 50% in accordance with the provisions of §4.129 and noted a future examination would be scheduled within the 6-month period following military discharge.

At the initial VA C&P rating examination on 21 May 2009, approximately 22 months after separation (and beyond the 12 month special consideration timeframe of DODI 6040.44), the examiner recorded a total of four face-to-face mental health outpatient visits from February through October 2008 with no current treatment. There had been no psychiatric in-patient treatment, there was no indication he was being treated with psychotropic medication and the CI noted he was a college student and was “almost a junior.” The CI reported his relationship with his family has deteriorated since his discharge from the Army. He was argumentative with his father and had thoughts of harming himself but denied plan and intent. He reportedly described a good relationship with his girlfriend but noted they have “ups and downs” with arguments, which had involved physical fights. The police were called to his home in the fall of 2008 and arrested his girlfriend after they had been fighting. The CI noted he was working and was not socially engaged outside of work. He also stated he had been physically aggressive at work and with his girlfriend, never striking each other in the face; “more like body shots.” He also stated he had become easily irritated and annoyed by people. He felt like a completely different person since before deployment to Iraq. MSE noted suspicious attitude toward the examiner, pressured speech, flat affect with reported anxious and depressed mood. He was able to perform rapid calculations (no issues with concentration), demonstrated racing thoughts, and judgment and insight was not impaired. The CI described the presence of obsessive symptoms since childhood but denied any related compulsions. He reported panic attacks; however, frequency was not recorded, and he reported occasional thoughts of self-harm, but denied the presence of suicidal thoughts. He reported auditory and visual hallucinations considered by the examiner to be related to his traumatic experiences. The CI noted he has been employed fulltime for more than a year and has lost less than one week from work due to an appendectomy. The psychologist diagnosed PTSD, severe, chronic, assigned a GAF of 53, and opined his symptoms were moderate to severe. The VA rated this exam at 70% effective 21 May 2009.

The Board then directed its attention to the question of §4.129 applicability and the rating recommendations based on the evidence just described. The PEB rated the MH condition(s) at 10%, coded 9411 based on the requirement of treatment and mild impairment (likely IAW DODI 1332.39 [rescinded] and/or AR 635-40 in effect at the time). The VA coded the MH condition(s) 9411, and assigned a 50% rating based on §4.129. The NARSUM psychologist judged the CI’s social and industrial impairment as “mild” and recommended outpatient treatment. The PEB rating, as described above, was likely derived from AR 635-40 or DODI 1332.39 [rescinded] in effect at the time and preceded the promulgation of the National Defense Authorization Act (NDAA) 2008 mandate for Department of Defense (DoD) adherence to Veterans Administration Schedule for Rating Disabilities (VASRD) §4.129. The Board, IAW DoDI 6040.44 and DoD guidance (which applies current VASRD §4.129 to all Board cases as appropriate), accepts the §4.129 specification that it is applicable to any “mental disorder that develops in service as a result of a highly stressful event [that] is severe enough to bring about the veteran’s release from active military service”; and, the Board unanimously agreed that the operant definition was met by the psychiatric conditions evidenced in this case.

Regarding the rating at the beginning of a constructive TDRL period, the mental health addendum evaluation performed 3 months prior to separation recorded a completely normal MSE and a GAF of 60 (borderline moderate to mild). There were no recorded visits to the emergency room, no suicidal or homicidal ideations, no panic attacks, and no psychiatric hospitalizations. There was no evidence of impairment in thinking or judgment. The Board considered the commander’s statement that “the severity of the conditions has placed great difficulties and stresses on the soldier, severely limiting his ability to work” in his primary MOS, but when reassigned the CI’s duty performance had “been exemplary”; he worked a 40-hour work week and attended therapy appointments. As previously noted, the VA psychiatric C&P examination was approximately 2 years after separation and was assigned less probative value as related to the CI’s functional status at the start of the constructive TRDL period. The Board majority felt that the NARSUM examination and record of evidence was most consistent with the general description for a §4.130 rating of 30% for “occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks,” as demonstrated by such symptoms as depressed mood, suspiciousness, mild memory impairment and anxiety; however IAW §4.129 the minimum Temporary Disability Retired List (TDRL) rating applicable is 50%. 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 Temporary Disability Retired List (TDRL) rating is applicable and, will thus recommend a 50% PTSD rating for a retroactive six-month period on the TDRL.

Regarding the rating at the end of a constructive six month TDRL period (30 January 2008), the Board placed higher probative value to the NARSUM and less to the delayed VA C&P mental examination (completed approximately 16 months after the rating timeframe), in deliberating the permanent disability rating. The Board noted that at the time of the NARSUM and within 12 months of separation, the CI had no history of psychiatric hospitalizations, had minimally engaged in therapy, was not taking psychotropic medications, made no suicidal or homicidal attempts and had no visits to the emergency room for suicidal, homicidal ideations, or panic attacks. While noting the VA C&P examination indicated increasing violence (history indicated that police were called in the Fall of 2008 resulting in the arrest of his girlfriend) and deficiencies in family relations beginning in early 2008 (proximate to the end of TDRL rating timeframe), there was no evidence of legal charges or legal consequences to the CI, he was working full-time, and had been a student. The Board adjudged that the CI’s condition at the remote VA exam was post-separation worsening and not indicative of the CI’s level of impairment at the 6-month post-separation timeframe for permanent rating determination following constructive TDRL. After due deliberation, and in consideration of all the evidence and VASRD §4.3 (reasonable doubt), the Board majority 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. As discussed above, reliance on AR 635-40 and/or DODI 1332.39 [rescinded] for rating PTSD was operant in this case and the conditions were adjudicated independently of those regulations by the Board. In the matter of the PTSD (with Major Depressive Disorder) condition, the Board unanimously recommends a TDRL entry rating of 50% in retroactive compliance with VASRD §4.129 as DOD directed; and by a vote of 2:1 a 30% permanent retirement rating IAW VASRD §4.130. The single voter for dissent, who recommended a 10% permanent separation rating, submitted the appended minority opinion. 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 With Major Depressive Disorder
 9411 50% 30%
COMBINED
 50% 30%

The following documentary evidence was considered:
Exhibit A. DD Form 294, dated 20 1 31104 , w/atchs
Exhib it B. Service Treatment Record
Exhibit C. Department of Veterans ’ Affairs Treatment Record





                 
         XXXXXXXXXXXXXXXXXX
         President
         Physical Disability Board of Review



 MINORITY OPINION :

The crux of this case is the applicant’s rating at the end of the 6-month TDRL period as directed by §4.129. The Board correctly placed the applicant on the TDRL using §4.129 at 50%; however, there were no evaluations at or near the 6 month time period that could be effectively used to rate the applicant. The applicant failed to report for his initially scheduled VA C&P Mental Disorders Exam following separation; therefore, the VA invoked §4.129 at 50% citing service treatment records identifying a diagnosis of PTSD. The applicant also failed to report for a second Mental Disorders exam in late 2008, approximately 14 months after separation. Based on this second missed exam, the VA proposed reducing the PTSD award from 50% to 0%. The applicant responded to this proposed reduction and a C&P review for PTSD was conducted in May 2009, 22 months after separation.

Review of the PEB’s discussion for the applicant’s PTSD indicates that he was working a full 40 hour week with acceptable duty performance. That comment most likely came from the commander’s statement, written one month prior to the PEB in which he wrote, “SPC Cook’s duty performance has been exemplary. His work ethic and adherence to standards are in compliance with Army regulations. He has been known as a technically proficient soldier.” The commander further stated that he was working a 40-hour work week.

The mental health addendum to the narrative summary (NARSUM), written 2 months prior to the PEB was difficult to follow with respect to definitively categorizing the applicant at either the 10% or 30% rating category. The NARSUM, written a month later, states that the applicant was not taking any psychiatric medications, had not required any psychiatric hospitalizations, and denied any current suicidal or homicidal thoughts, plans or ideations.

The PEB adjudicated the PTSD as unfitting, rating the condition at 10% and having mild industrial impairment. Given the documentation available, the minority voter believes that 10% was a fair and equitable rating at the time of separation. However, there is no documentation can be used at the end of the 6-month TDRL period to adequately, effectively, and fairly rate the applicant as the first evidence we have of continued problems with PTSD are not documented until 22 months after separation.

Once a service member is medially separated or retired from the Military because of an unfitting condition(s), the current system is designed to support any deterioration of the unfitting condition(s) via the VA. The initial VA award was based on the Army’s unfitting diagnosis of PTSD and §4.129. However, we do not know what that award would have been if the applicant had reported for his initial C&P exam. To compound matters, the applicant missed a second C&P exam and did not get a “true” VA rating until he was examined 22 months after separation. The minority voter opines that there are no probative exams at 6, 12, or 18 months after separation time period upon which to rate the applicant at the end of the TDRL period. Therefore, minority voter believes that the PEB’s rating of 10% would be the fairest adjudication of the applicant’s condition at the end of the 6-month TDRL period.

RECOMMENDATION: The minority voter therefore, recommends the following recharacterization of the applicant’s disability and separation determination, as follows:

UNFITTING CONDITION
 VASRD CODE RATING
TDRL PERMANENT
PTSD W/Major Depressive Disorder
 9411 50% 10%
COMBINED
 50% 10%
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, AR20140005731 (PD201302168)

1. I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual. Under the authority of Title 10, United States Code, section 1554a,
I reject the Board’s recommendation and accept the Board’s minority opinion as accurate that the individual be constructively placed 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 no recharacterization of the individual’s separation or modification of the permanent disability rating of 10%. There is insufficient justification to support the Board’s recommendation in accordance with Army and Department of Defense regulations.

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 as follows:

         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 separated with a permanent combined rating of 10% effective the day following the six month TDRL period with no recharacterization of the individual’s separation.

         c. Adjusting pay and allowances accordingly. Pay and allowance adjustment will provide 50% retired pay for the constructive temporary disability retired six month period effective the date of the individual’s original medical separation and adjusting severance pay as necessary to account for the additional TDRL time in service.



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)

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