RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY CASE NUMBER: PD1201093 SEPARATION DATE: 20031105 BOARD DATE: 20130215 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PFC/E-3 (91X/Mental Health Technician), medically separated for major depression. The CI was referred to mental health in April 2000 but did not receive any specific mental health treatment at that time. He was again seen in mental health in July 2001 and was referred to the Army Substance Abuse Program. In June 2002, he again sought treatment with mental health. He had repeat hospitalizations after presenting to the emergency room with intoxication and suicidal ideation. The CI did not improve adequately with treatment 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). Alcohol dependence in partial remission, migraine headaches, right knee chondromalacia, bilateral retropatellar pain syndrome, right shoulder tendinitis and pseudofolliculities barbae, identified in the rating chart below, were also identified and forwarded by the MEB as conditions meeting retention standards. The Informal Physical Evaluation Board (IPEB) adjudicated the major depressive disorder (MDD) as unfitting, rated 10%, with application of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD). The remaining conditions were determined to be not unfitting. The CI did not concur with the IPEB, but waived a Formal PEB (FPEB) and was medically separated with a 10% disability rating. The US Army Physical Disability Agency (USAPDA) reviewed the CIs rebuttal, and affirmed the IPEB findings. CI CONTENTION: “My depression, back issues and knee pain have been debilitating.” SCOPE OF REVIEW: The Board wishes to clarify that the scope of its review as defined in DoDI 6040.44, Enclosure 3, paragraph 5.e. (2) is limited to those conditions which were determined by the PEB to be specifically unfitting for continued military service; or, when requested by the CI, those condition(s) “identified but not determined to be unfitting by the PEB.” The ratings for unfitting conditions will be reviewed in all cases. The depression and knee pain as requested for consideration meet the criteria prescribed in DoDI 6040.44 for Board purview and are addressed below. The other requested condition, “back issues”, is not within the Board’s purview. 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 Army Board for Correction of Military Records. RATING COMPARISON: Service IPEB – Dated 20030808 VA (13 Mos. Post-Separation) – All Effective Date 20031106 Condition Code Rating Condition Code Rating Exam Major Depression 9434 10% Major Depression 9434 30% 20041202 B Knees; retropatellar pain Not Unfitting L knee Retropatellar Pain Syn 5024 10% 20041202 R knee Retropatellar Pain Syn 5024 10% 20041202 R Knee Chondromalacia Not Unfitting Migraine Headaches Not Unfitting Migraine Headaches 8100 10% 20041202 R Shoulder Tendinitis Not Unfitting R Shoulder, Grade 2 Acromioclavicular joint Sep 5203 0% 20041202 Alcohol Dependence Not Unfitting NO VA ENTRY Pseudofolliculitis barbae Not Unfitting NO VA ENTRY .No Additional MEB/PEB Entries. Lumbosacral DDD 5243 10% 20041202 0% X 1 / Not Service-Connected x 0 Combined: 10% Combined: 60% Major Depression increased to 50% 14 January 2008 ANALYSIS SUMMARY: The Board acknowledges the CI’s contention that suggests ratings should have been conferred for other conditions documented at the time of separation. The Board wishes to clarify that it is subject to the same laws for Service disability entitlements as those under which the Disability Evaluation System (DES) operates. While the DES considers all of the member's medical conditions, compensation can only be offered for those medical conditions that cut short the member’s career; and then only to the degree of severity present at the time of final disposition. However the Department of Veterans Affairs (DVA), operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service- connected conditions and to periodically reevaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time. Major Depression Disorder (MDD). Although the treatment records indicated a mental health referral in April 2000 for attention and impulse issues, the CI was not diagnosed with a mental health disorder until May 2002. At that time he was diagnosed with adjustment disorder. He received talk therapy and was assigned a Global Assessment of Functioning (GAF-an objective description of how well a person is functioning at home, on the job, and in the community, family) score of 65 in June 2002 (mild impairment). Shortly thereafter his wife left and his symptoms of poor sleep, decreased energy and loss of interest were exacerbated, and he was placed on medication. On 26 August 2002, he was hospitalized for 6 days for suicidal thoughts and alcohol intoxication, and improved after treatment with medication for depression. A month later the CI was enrolled in a 29-day inpatient alcohol treatment program. His depression went into partial remission 31 January 2003 and he had been sober for about 2 months. His mood and affect were in normal range and he continued on medication. Three weeks after the psychiatry narrative summary (NARSUM) (24 June 2003) the CI presented to emergency room for suicidal thoughts but was not admitted. A month later, August 2003, he was admitted to psychiatric facility for suicidal ideation and discharged 2 days later. The last mental health encounter note was 12 September 2003, approximately 2 months prior to separation. He had mild transient suicidal ideation, no intent or plan and was noted to be in partial remission of both depression and alcohol dependence, and stable on medication. The CI had a S3 Profile dated 30 July 2003 with assignment limitations of no access to or handling of firearms and no assignment to units remote from definitive medical care. At the time of the MEB exam (24 June 2003), 5 months prior to separation and approximately a month prior to inpatient treatment for suicidal ideation, the CI endorsed symptoms of depressed mood, reduced interest in activities, reduced motivation and decreased energy. He denied crying spells, guilt feelings, difficulty with concentration, appetite, and sleep, although he indicated decreased in hours of sleep. He denied psychotic and anxiety symptoms. The CI reported that his symptoms had improved somewhat since seeking treatment, but indicated ongoing stressors of occupational demand, right knee injury and recovery from his divorce. The mental status exam (MSE) was remarkable for mildly constricted, depressed affect and passive suicidal thoughts of “sometimes not wishing he was around.” Thought content was without active suicidal ideation, and no evidence of psychosis or cognitive impairment. The MEB psychiatrist diagnosed MDD, single episode, in partial remission and assigned a GAF score of 65 connoting mild degree of impairment. The examiner opined that the CI’s “degree of impairment for civilian, social, and industrial adaptability is mild.” At the psychiatric NARSUM addendum (28 July 2003), post hospitalization, the CI disclosed he experienced increased stress and anxiety over leaving the military which led to suicidal thoughts and hospitalization. His MSE did not differ significantly from previous exam, thus, mild impairment was recorded with a GAF of 65. The VA Compensation and Pension (C&P) exam was completed 13 months after separation. The CI’s symptoms and level of impairment were not distinctly different from that found at the MEB. At the time of the C&P exam the CI indicated he felt better overall and had stopped taking medication about 3 months prior to the C&P exam. He acknowledged occasional depressed mood and sleep disturbance. He was noted to be socially and occupationally functional, had remarried and had been working as a salesperson “just below 40 hours per week” for about 10 months post separation. The MSE noted depressed mood and flat affect. He denied suicidal thoughts, problems with appetite, symptoms of anxiety and psychosis. There was no evidence of cognitive impairment and no evidence of psychosis. The VA psychiatrist diagnosed MDD and assigned a GAF of 70 connoting mild impairment. The Board directs its attention to the rating recommendation based on the evidence just described. The PEB’s rating of 10% coded 9434 citing mild social and civilian industrial impairment. The VA rated the CI’s condition using data acquired more than a year after separation at 30% coded 9434 based on §4.130 criteria. The Board first unanimously agreed that VASRD §4.129 was inapplicable in this in the absence of a highly stressful causative event. The MEB examination had numerous criteria from the general description for a §4.130 rating of 70% (“occupational and social impairment with deficiencies in most areas, stressors of divorce, SI, hospitalizations, Articles for missing work”), despite assessed “mild” GAF and “mild interference with social adaptability and civilian industrial adaptability,” especially considering the two hospitalizations for suicidal ideations. However, the CI had been in partial remission for months, continued to work in his MOS, and had demonstrated the ability to remain safe and to commit to safety. A year after separation he remarried, was working nearly 40 hours a week and discontinued his medication with no repeated hospitalizations. At the time of separation the Board agreed that the §4.130 threshold for a 50% rating (occupational and social impairment with reduced reliability and productivity) was not approached. The deliberation settled on arguments for a 10% versus a 30% permanent rating recommendation. The 30% description (“occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks”) is difficult to support given that the CI reported very few symptoms and presented no evidence of occupational or social impairment at the time of the VA exam. The 10% description, “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”, more accurately reflects the CI’s condition at separation. All evidence considered there is not reasonable doubt in the CI’s favor supporting a change from the PEB’s rating decision for the MDD condition. 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 major depression condition. Contended PEB Conditions. The other conditions forwarded by the MEB and adjudicated as not unfitting by the PEB were bilateral knee retro patellar pain and right knee chondromalacia. The Board’s first charge with respect to these conditions is an assessment of the appropriateness of the PEB’s fitness adjudications. 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. 1) Bilateral knee condition: Service treatment records (STRs) indicated CI complained of pain in both knees and upon evaluation he had full range of motion, no effusions, and no evidence of knee instability; 2) Right knee chondromalacia: MRI dated 20 June 2000 recorded a normal exam. On 25 April 2003 arthroscopy was performed revealing normal knee structures and a Grade 2 chondromalacia of the medial patella. A shaving of the area (chrondroplasty) was performed. Neither of these conditions was implicated in the commander’s performance statement, on the permanent profile, or noted as failing retention standards. All were reviewed and considered by the Board. There was no indication from the record that either of these conditions 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 either contended conditions involving the knees; and, therefore, no additional disability ratings can be 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. In the matter of the MDD, and IAW VASRD §4.130, the Board unanimously recommends no change in the PEB adjudication. In the matter of the contended bilateral knee retropatellar pain and right knee chondromalacia conditions, 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, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows: UNFITTING CONDITION VASRD CODE RATING Major Depression Disorder 9434 10% COMBINED 10% The following documentary evidence was considered: Exhibit A. DD Form 294, dated 20120612, w/atchs Exhibit B. Service Treatment Record Exhibit C. Department of Veterans’ Affairs Treatment Record xxxxxxxxxxxxxxxxxxxxxxxx, DAF Acting Director Physical Disability Board of Review SFMR-RB MEMORANDUM FOR Commander, US Army Physical Disability Agency (TAPD-ZB / xxxxxxxxxx), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for xxxxxxxxxxxxxxxxx, AR20130006169 (PD201201093) 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 accept the Board’s recommendation and hereby deny the individual’s application. This decision is final. The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail. BY ORDER OF THE SECRETARY OF THE ARMY: Encl xxxxxxxxxxxxxxxxxxxxx Deputy Assistant Secretary (Army Review Boards)