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AF | PDBR | CY2014 | PD2014 01020
Original file (PD2014 01020.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX         CASE: PD1401020
BRANCH OF SERVICE: Army  BOARD DATE: 20140807
separation Date: 20081007


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (13D/Fire Direction Specialist) medically separated for posttraumatic stress disorder (PTSD) with elements of depression. The onset of mental health issues began after three deployments to Iraq totaling 37 months. The mental health (MH) 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 MH conditions characterized by the MEB as “PTSD” and “Depression” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded two other conditions for PEB adjudication. The I nformal PEB adjudicated PTSD with elements of depression as unfitting rated 10 % and determined the remaining conditions were not unfitting . The CI concurred. T he US Army Physical Disability Agency (USAPDA) recommended a modification to increas e the rating to 50% IAW the VA Schedule for Rating Disabilities (VASRD) and application of §4.129 . Howe ver, the CI specifically declined placement on the Temporary Disability Retired List ( TDRL ) , requested the PEBs original findings of 10% stand and concurred with separation with severance pay. The USAPDA Deputy Commander approved the CI’s request and the CI was separated.


CI CONTENTION: “I have been going the VA for multiple stomach issues and they can’t really figure it out and they say its stress from PTSD.”


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 applicant. The ratings for conditions meeting the above criteria are addressed below. In addition, the Secretary of Defense directed a comprehensive review of Service members with certain mental health conditions referred to a disability evaluation process between 11 September 2001 and 30 April 2012 that were changed or eliminated during that process. The applicant was notified that he may meet the inclusion criteria of the Mental Health Review Terms of Reference. The mental health condition was reviewed regarding diagnosis change, fitness determination and rating in accordance with VASRD §4.129 and §4.130. Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, may be eligible for future consideration by the Board for Correction of Military Records.


RATING COMPARISON :

Service IPEB – Dated 20080820
 VA - (2 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
PTSD With Elements of Depression 9411 10% Anxiety Disorder (Previously Diagnosed as PTSD with Depressive Disorder) 9413 50%→30%* 20081223
Other x 2 (Not in Scope)
 Other x 6
Rating: 10%
 Combined: 60%→ 40%*
* Originally rated 50% effective 2008107 but reduced to 30% effective 20090501.

ANALYSIS SUMMARY: The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues to burden him; but, must emphasize that the Military Disability Evaluation System (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. The Board considers DVA evidence proximate to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence. Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.

PTSD with elements of Depression . The MEB psychiatric NARSUM notes that of approximately 5 years in the military the CI had spent more than 3 years deployed to Iraq during three tours. During the second tour, the CI reported some increasing anxiety and stress related to deployment experiences. During the third tour the CI reported multiple specific stressors and increasing anxiety regarding imminent threat of death to himself and other Soldiers in the unit. The CI returned from his third deployment in December 2007 and sought behavioral health treatment in 14 April 2008 because he “could not worry about dying anymore.” During treatment he reported feeling numb and detached, having difficulty getting out of bed in the morning, feeling angry and irritable and argumentative to the point that he feared he would lose control and hurt someone. He did not report sleep problems, but did report waking up at night sweating, but not remembering dreams and anxiety symptoms including decreased memory and anxiety attacks more than once per week. The CI denied any history of traumatic brain injury. At the MEB psych NARSUM examination, the CI reported some improvement in MH symptoms with treatment, but continued problems with sleep, hypervigilance, multiple anxiety attacks per week, anger, irritability, isolation and depression symptoms, without suicidal or homicidal ideation (SI/HI). The NARSUM noted the CI reported a good relationship with his father and had operated his own business prior to enlistment. The MEB psych examination, approximately 3 months prior to separation, noted the CI “tended to under report” deployment related incidents and appeared guarded, providing minimum details about incidents and symptoms. The mental status examination (MSE) noted a depressed and anxious mood but was otherwise normal without speech or thought abnormalities, cognitive deficits, or evidence of delusions, hallucinations, or SI. The Axis I diagnoses were PTSD, chronic severe and depression, not otherwise specified (NOS), chronic, moderate with a Global Assessment of Functioning (GAF) of 57(moderate impairment range). The examiner indicated the CI chose not to take his medications based upon his girlfriend “being against medications.” The 17 July 2008 General MEB NARSUM also noted the CI was reluctant to take drugs and preferred to work on a non-drug treatment regimen.

There was no history of substance abuse or legal problems in the available records. An S3 psychiatric profile was listed and the Axis I psychiatric conditions were submitted as failing retention standards. The 15 May 2008 commander’s statement noted the CI could not perform the duties of his MOS due to his S3 profile limitations, but was working an 8-hour-day and performing his assigned tasks successfully. A memorandum for record by the CI’s first line supervisor dated the same day, noted the CI dramatically changed post-deployment and described the CI as a leader, mentor and high goal setting individual within the unit pre-deployment; and post-deployment he seemed angry, depressed, isolated, hypervigilant, distrustful of others and refused to talk about his experiences despite the supervisor’s efforts.

At the VA Compensation and Pension (C&P) exam on 23 December 2008, 2.5 months after separation, the CI reported that he was taking psychotropic medications for sleep and anxiety (Prozac and Buspar). He was engaged and had restarted his own business immediately after separation from the military. The CI reported that he employed other people in his business, including some friends; and that he was working many hours a day, with lots of business. He lived “in the middle of nowhere” because he does not like contact with others. The CI reported anxiety attacks three or four times per week, without specific triggers, and denied nightmares or flashbacks. The MSE noted that the CI was “overtly irritated” by questions related to stressful events during deployment, but had a normal affect with no speech and thought abnormalities, cognitive deficits, evidence of SI, delusions or hallucinations. The Axis I diagnosis was anxiety disorder, NOS, with a GAF of 55. The VA examiner concluded that the CI likely did meet DSM IV Criterion A, but did not evidence symptoms of re-experiencing any of the traumatic events and did not fully meet PTSD diagnostic criteria. However, the anxiety symptoms were at least as likely as not related to combat experiences and characterized the CI’s impairment as occasional decrease in work efficiency and intermittent inability to perform occupational tasks.

The Board directs attention to its recommendations based on the above evidence, incorporating the MH Review Program stipulations as elaborated above in the Scope analysis. The PEB rated PTSD with depression 10%, coded 9411, and noted related to combat stressors. The USAPDA reviewed the case and revised the original PEB results to reflect placement on the TDRL with a temporary 50% rating IAW §4.129 with a TDRL re-evaluation in 6 months. The CI declined the USAPDA findings and requested that the PEB’s original findings stand. The USAPDA approved the request and the CI was separated with a 10% disability rating. The VA rendered a diagnosis of a nxiety disorder related to a highly stressful event , rated 50% for 6 months, citing §4.129, and then rated 30% at the end of the 6- month period based upon the noted C&P examination.

The Board reviewed the records for evidence of inappropriate changes or elimination of diagnosis of the MH condition during processing through the DES. The DD Form 2808, Report of Medical Examination, listed PTSD with anxiety disorder; the psych NARSUM listed PTSD and depression, NOS. The MEB forwarded PTSD and depression which was adjudicated by the PEB as PTSD with depression. Since the s ervice acknowledged and rated the PTSD condition and offered separation in compliance with §4.129, as noted abo ve, this case did not appear to meet the inclusion criteria in the Terms of Reference of the MH Review Project.

 The Board next address ed whether to recommend a change to the CI’s voluntary declination of TDRL. The Board agreed that the CI’s declination of TDRL in this case was no different than a concurrence at the time of separation with any other separation determination followed by a su bsequent appeal . Therefore, the Board unanimously recommends a period of TDRL for 6 months following separation, with a permanent disability rating based upon evidence proximate to the end of the 6- month TDRL period.

The Board accordingly considered whether there was evidence to support a higher rating than the 50% minimum rating IAW § 4.129 at TDRL entry , and agreed that there was no evidence in record of the typical features of a 70% rating. Therefore, after due deliberation considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 50% for the PTSD condition at TDRL entry.
The Board next deliberated the rating at permanent separation. The VA psychiatric C&P examination (approximately 3 months after separation) is assigned relevant probative value in the Board’s efforts to arrive at a fair permanent rating recommendation as it reflects the stress of transition to civilian life which is intrinsic to the Board’s permanent rating recommendation. The MEB evaluation, approximately 3 months prior to separation provides a useful baseline. All members agreed that the §4.130 threshold for a 50% rating was not approached based on the evidence above and the deliberation settled on arguments for a 10% (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) versus a 30% (occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks) permanent rating recommendation. The commander’s statement noted that although not working in his MOS, the CI was working full-time with successful performance of his assigned duties. The C&P examination noted that post-separation the CI was on psychotropic medications, reported persistent MH symptoms, but he was engaged, he was successfully running his own business, and employed others. The Board majority concluded that the CI’s impairment more closely met the 10% rating IAW VASRD §4.130 based on mild occupational and social impairment. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a permanent disability rating of 10% 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. 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 period of TDRL for 6 months with the minimum disability rating of 50% IAW VASRD §4.129 and, the Board majority recommends a disability rating of 10% at permanent separation, both coded 9411 and IAW VASRD §4.130. The minority voter, did not elect to submit a minority opinion.


RECOMMENDATION: The Board recommends no change in the applicant’s unfitting condition diagnosis, and that his prior determination be modified as follows: TDRL at 50% for 6 months following applicant’s prior medical separation (PTSD at minimum of 50% IAW §4.129 and DoD direction) and then a permanent combined 10% disability separation as below:

UNFITTING CONDITION
 VASRD CODE RATING
TDRL PERMANENT
PTSD 9411 50% 10%
RATING
 50% 10%



The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20140225, 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
(TAPD-ZB / XXXXXXXX ), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557


 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for XXXXXXXXXXXXXXXXXX , AR20140017525 (PD201401020)


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 no recharacterization of the individual’s separation or modification of the permanent disability rating of 10%.

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)

CF:
( ) DoD PDBR
( ) DVA

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