RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE NUMBER:  PD1200843
BRANCH OF SERVICE:  Army	BOARD DATE:  20131023
Separation Date:  20061101

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (98G2L/Cryptologic Linguist) medically separated for major depressive disorder (MDD), associated with posttraumatic stress disorder (PTSD).  Symptom onset was in 2005 and in-patient psychiatric care followed in 2006.  Despite medication and continued therapy, his condition could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty.  He was issued a permanent S3 profile and referred for a Medical Evaluation Board (MEB).  Two mental health conditions, major depression and PTSD, were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition (seasonal allergic rhinitis) for PEB adjudication.  The PEB adjudicated “major depressive disorder, associated with posttraumatic stress disorder” as unfitting and rated at 10%.  The remaining condition was determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “SM was diagnosed with both major depressive disorder and posttraumatic stress disorder (PTSD) by the Medical Evaluation Board at Ft. Carson.  The PEB did not factor the PTSD diagnosis into their decision and SM received a 10% disability rating decision for the major depressive disorder.  Following discharge, SM received an initial rating of 50% for both from the VA which was reduced to 30% after 6 months.”

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 MDD and PTSD is addressed below.  The not unfitting seasonal rhinitis was not contended; and, therefore is not within the DoDI 6040.44 defined purview of the Board.  This and any other 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 for Correction of Military Records.

RATING COMPARISON:

Service IPEB – Dated 20060929 | VA - (2 Mos. Post-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
MDD associated with PTSD | 9434 | 10% | MDD and PTSD in Partial Remission | 9434 | 30%* | 20070110
Seasonal Rhinitis | Not Unfitting | No VA Entry | 20070110
No Additional MEB/PEB Entries | Other x 0 | 20070104
Combined:  10% | Combined:  30%
*Initially rated 10% with VA Rating Decision (VARD) and C&P evidence unavailable, then VARD 20090507 with C&P 20070110 (most proximate to DOS) rated 50% effective 20061102 day after DOS, then decreased to 30% effective 20070601 upon expiration of 6-month §4.129 period

ANALYSIS SUMMARY:  IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations.  The Board reviews medical records and other available evidence to assess the fairness of PEB rating determinations, using the Veterans Affairs Schedule for Rating Disabilities (VASRD), based on ratable severity at the time of separation.

MDD Associated with PTSD:  Notes from the MEB psychiatric addendum indicated that in October 2004, the CI had experienced several traumatic events while deployed.  The traumatic events included soldiers being killed, constant shelling and observing via video from an unmanned aerial vehicle a bomb explosion which killed and injured several soldiers.  In another incident, a translator the CI worked with was captured and decapitated.  The CI felt that he could have prevented the translator’s death and saw pictures of the decapitation that were very disturbing to him.  The CI initially presented in October 2005 to outpatient psychology for symptoms of insomnia, irritability, depression and inability to concentrate.  The psychologist noted symptoms of irritability, agitation, tearfulness and hopelessness with a history of suicidal thoughts during his Iraq tour.  He was referred for intense psychotherapy and a medical evaluation.  The CI underwent a psychiatric evaluation in November 2005 and he was noted to have a dysthymic mood and complaints of insomnia.  He was started on a medication for sleep but declined an anti-depressant.  Seven days later the psychologist noted that the CI experienced increasingly intense passive suicidal ideation and was spending 5 to 8 hours per day obsessing about his frustrations.  The mental status exam (MSE) had findings of frustrated, anxious and dysphoric mood, anhedonia and flattened affect along with suicidal ideation.  The examiner diagnosed the CI with adjustment disorder with disturbance of emotion and conduct and was started on Zolpidem (a sleep aid medication).  The CI continued to be followed by psychology twice a month for depression and insomnia throughout the remainder of 2005 and 2006 with gradual worsening of his symptoms.  In August 2006, the CI was noted to have increased suicidal ideations and depressive symptoms.  He had experimented with cutting himself to see what it would be like to slit his wrists and was noted to have suicidal intent with preliminary para-suicidal behaviors.  On 25 August 2006, the CI was admitted to a civilian hospital for suicidal ideation, irritability and poor concentration.  The admitting diagnosis was severe depression disorder without psychotic features and dysthymia with a Global Assessment of Functioning (GAF) of 35 (major impairment in several areas).  On discharge he showed some improvement in affect and was started on a different anti-depressant (Wellbutrin).  The discharge diagnosis was recurrent major depression without psychotic features, dysthymia.  The discharge GAF was 60 (moderate difficulty in social, occupational or school functioning).  The MEB psychiatric addendum accomplished approximately 2 months prior to separation indicated that the CI had intrusive nightmares and memories of the traumatic events-approximately twice a month, when in public the CI would sit with his back against the wall, when driving he would determine the most direct route and he would swerve his car into other lanes if he saw objects on the side of the road, he would take the train to avoid traffic jams, if he saw a beautiful woman walking he would assess if she was a threat, he would back into parking spots to be able to leave quickly, if he was followed by other cars he would change his route quickly.  Additionally there was constant environment scanning, hyper-startle responses, helplessness and hopelessness, social isolation, apathy about his work, episodes of ruminating, getting tense and either punching a wall or throwing furniture and breaking objects with periods of irritability and crying episodes after his angry outbursts.  The CI completed the PTSD checklist-military version and Mississippi Scale for combat related PTSD.  Both scales showed a clinically significant moderate level of PTSD.  The MSE showed that the CI had anxiety and depression with a congruent mood and periodic suicidal thoughts.  The CI was diagnosed with moderate recurrent MDD with marked impairment for military duty and considerable impairment for social and industrial adaptability; and moderate chronic PTSD with marked impairment for military duty and definite impairment for social and industrial adaptability.  His GAF was 50 (serious impairment in social, occupational, or school functioning).  The CI was given a permanent S3 profile for MDD, recurrent and PTSD with additional restrictions of no access to firearms and no assignments remote from definitive psychiatric care.  The MEB narrative summary (NARSUM) exam accomplished a month prior to separation also documented continued major depressive and PTSD symptoms as discussed above.  The CI continued with intense Behavioral Health therapy and was compliant with all treatment.  The examiner opined that the CI’s condition was unlikely to improve with continued military service and he was advised to continue with psychiatric providers for treatment.  He was diagnosed with major depression and PTSD.
The PEB adjudication occurred prior to the promulgation of the National Defense Authorization Act 2008 mandate for DOD adherence to VASRD §4.129 and the Army did not apply the §4.129 requirement.  The Board, IAW DoDI 6040.44 and DoD guidance (which applies current VASRD §4.129 to all Board cases as appropriate), agrees that the stipulations of §4.129 are met in this case and will thus recommend a minimum 50% PTSD rating for a retroactive 6-month period on the Temporary Disability Retired List (TDRL).  Evidence from the time of initial separation, including the MEB NARSUM, does not support a rating greater than 50%.  Therefore a rating of 50% is assigned for the reconstructed TDRL period IAW with VASRD §4.129.

After the MEB was completed, the CI continued to be followed by Behavioral Health.  A clinical note, written by a psychiatrist, dated one and a half months prior to separation contained the following statements:

Pt. appeared much brighter in affect than previously.  MEB is moving along and Phase 3 should occur within next week.  Pt. meets with VA tomorrow.  Pt. has begun to make more concrete plans for getting out.  He plans to take some leave to have fun and relax here [locally] and go home to visit parents.  Pt. was much more optimistic.  Mental Status findings: mood was elevated, affect was full-ranging, appearance was normal, attitude was cooperative.  No hallucinations, suicidal or homicidal ideations.  Diagnosis was recurrent major depression in partial remission and chronic PTSD.

The VA Compensation and Pension (C&P) psychiatric evaluation exam accomplished approximately 2 months after separation noted that the CI continued to experience intrusive thoughts, angry outbursts, increased startle response and nightmares approximately twice monthly (previously they were daily).  The CI reported that he was beginning to sleep better.  He could be socially isolated; however, he had a warm and loving relationship with his girlfriend.  He experienced irritability towards his father “from time to time,” but he was coping and “feeling a lot better” since his discharge for the military, but was still taking Wellbutrin (anti-depressant).   The C&P examiner also made the following statements:

The veteran has had no major post-military stressors.  He is in an apartment in Boston.  He has reconnected with his girlfriend and appears to be coping.  The veteran has had no problems with alcohol or substance abuse, is a good athlete and has no legal issues.  He reports that he runs.  The veteran is planning on attending school full-time.  He could be employable at this time, but has chosen to go to school.  His post-traumatic stress disorder symptoms have not impaired him in moving forward towards his career goals.

The examiner assigned a GAF of 55 which was consistent with moderate difficulty in social, occupational, or school functioning.

The Board must determine the most appropriate disability rating IAW VASRD 4.130 criteria at 6-months after separation for its permanent rating recommendation.  The most proximate source of comprehensive evidence on which to base the permanent rating recommendation was the C&P psychiatric evaluation examination accomplished almost 2 months after separation.  That examination contained information related to the CI’s level of functioning after separation and there is no additional after separation information available for review.  The Board adjudged that the after separation evidence supports the conclusion that the CI’s mental health impairment had improved since his discharge from the military (improvement actually began in the immediate prior to separation period after completing the MEB and did not rise to the 50% level; therefore, Board deliberations settled on a 30% vs. 10% permanent rating recommendation.  Protracted discussion ensued with consideration given to the evidence supporting 30% permanent rating recommendation:  continued mental health symptomatology with a GAF of 55, sleeping better (but still impaired), some social isolation and no evidence of actual employment vs. evidence supporting 10% permanent rating recommendation: minimal or mild social impairment–relationship with girlfriend (warm/loving) and coping with father, per C&P examiner’s statement–no evidence of intermittent periods of inability to perform occupational tasks, feeling  “a lot better” and mild or transient mental health symptoms mild or transient.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a TDRL rating of 50% and a permanent rating of 10% for the MDD associated with 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 MDD associated with PTSD condition, the Board, by 2:1 vote, recommends a disability rating of 50% for a prescribed 6-month period of temporary retirement IAW VASRD §4.129; followed by a 10% permanent rating, coded 9434-9411, IAW VASRD §4.130.  The single voter of dissent, who recommended a 30% permanent 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, effective as of the date of his prior medical separation:

UNFITTING CONDITION | VASRD CODE | RATING
| | TDRL | PERMANENT
Major Depressive Disorder associated with PTSD | 9434-9411 | 50% | 10%
COMBINED | 50% | 10%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120611, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

XXXXXXXXXXXXXXXXXX
President
Physical Disability Board of Review

MINORITY OPINION  

Based on §4.3 (reasonable doubt) the minority Board member believes the CI had moderate occupational impairments in June 2007, which signifies the end to §4.129 6-months TDRL period.  In August 2006 (4 months prior to separation), the MEB psychological addendum documented the CI with a GAF of 50 or severe impairment.  Later that month the CI was hospitalized and medicated for increased suicide ideations.  Just 4 months later, in January 2007 (2 months after separation), the only C&P PTSD exam available for Board review, documented the CI’s “affective state is that of an individual who experiences anxiety, depression, irritability and fluctuating ego states.”  The examiner rendered a GAF of 55 or moderate impairment.

Consequently, both MEB and VA psychiatric examiners evaluated the CI with mental health impairments above the mild level.

The VA rated the CI for major depression and PTSD in partial remission:

-	50% effective November 2006 (at date of separation) utilizing the January 2007 C&P PTSD exam

-	30% effective June 2007 or end to §4.129 six months TDRL period utilizing VA treatment records (February 2007 through September 2008) that were requested, but not available for this SRP.

o	The respective VA Rating Decision (7 May 2009) stated a 30% evaluation based on findings which indicate occupational and social impairments due to chronic sleep impairment, depression, avoidance, difficulty concentrating and hyper startle response.

It is very important to note, the above mentioned occupational and social impairments are all consistent and can be found in the MEB psychological addendum (Augusts 2006), NARSUM (September 2006) and C&P PTSD (January 2007) examinations.  Lastly, the VA “continued” the CI’s diagnoses of MDD and PTSD in partial remission.  This indicates the PTSD was resolving, but the major depressive disorder was a constant and ongoing mental health condition above mild impairment.  Based on VASRD §4.3 (reasonable doubt) and limited after separation evidence, the minority Board member concludes that the trajectory of the CI’s mental health impairments went from a severe (hospitalization) to moderate (continued symptomology) level in June 2007 signifying the end of §4.129 6-months TDRL period.

The minority respectfully submits that the Secretary adopts the following minority recommendation:  a permanent combined 30% disability retirement effective 6 months after the CI’s prior medical separation:

UNFITTING CONDITION | VASRD CODE | RATING
| | TDRL | PERMANENT
Major Depressive Disorder associated with PTSD | 9434-9411 | 50% | 30%
COMBINED | 50% | 30%

SAMR-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, AR20140013128 (PD201200843)

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 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)

PD1200843