RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW
NAME: XXXXXXXXXXXXXXXXXXXX	CASE: PD-2013-00102
BRANCH OF SERVICE: NAVY	BOARD DATE: 20131031 SEPARATION DATE: 20020628

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty MN1/E-6 (Mineman First Class) medically separated for a major depression condition. She was initially seen by a psychiatrist in 1998 and was started on antidepressant medication. Her depression could not be adequately rehabilitated to meet the physical requirements of her rating. She was placed on limited duty and referred for a Medical Evaluation Board (MEB). Four diagnoses (major depressive disorder [MDD], noninsulin dependent diabetes mellitus (DM), hypercholesterolemia and allergic rhinitis) were forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E. No other conditions were submitted by the MEB. The PEB adjudicated the MDD condition as unfitting, rated 10%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The remaining conditions were determined to be not unfitting. The CI made no appeals and was medically separated.

CI CONTENTION: “The primary service connected conditions, particularly the mental health and diabetes have continued to deteriorate. A psychological evaluation was performed at the VA in winter 2011 which reflects this information, also the veteran's diabetes have been treated on and off again, but currently with insulin and oral medication. The mental health issues are directly related to service.”

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 ratings for the MDD and diabetes conditions, as per the contention, were identified by the PEB; and, thus are within the DoDI
6040.44 defined purview of the Board and addressed below. No other conditions are within the Board’s purview. Any other condition or contentions not requested in this application remain eligible for future consideration by the Board for Correction of Naval Records.

RATING COMPARISON:

Service IPEB – Dated 20020520 | | VA* - (1 Mos to 4 Days Pre-Separation)
Condition | Code | Rating | | Condition | Code | Rating | Exam
Major Depressive D/O | 9434 | 10% | | Major Depression | 9434 | 50%** | 20020624
Non-Insulin Dependent Diabetes Mellitus | Cat III | | DM Type II | 7913 | 20% | 20020524
Allergic Rhinitis | Cat III | | Allergic Rhinitis | 6522 | 0% | 20020524
Hypercholesterolemia | Cat IV | | Hypercholesterolemia | 7099-7705 | NSC | 20020524
No Additional MEB/PEB Entries | | Other x 8 | 20020524
Combined: 10% | | Combined: 80%
* Derived from VA Rating Decision (VARD) dated 20020925 (most proximate to date of separation (DOS))
** No change to rating derived from subsequent C&P exams

ANALYSIS SUMMARY: The Board acknowledges the CI’s contention regarding the significant impairment with which her service-connected conditions continue to burden her; but, it must emphasize that the Disability Evaluation System 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 operating under a different set of laws.

Major Depressive Disorder.  For her initial enlistment into the US Navy, in 1995, the CI received a waiver for a pre-existing episode of depressed mood which occurred subsequent to giving her newborn child up for adoption, for which she had undergone five grief counseling sessions prior to enlistment, and was subsequently released from care. Once on active duty, she first sought mental health care in 1998 for symptoms of depression in the context of a broken marital engagement. Symptoms persisted, although she noted some progressive improvement after being prescribed antidepressant medication in July 1999, in addition to psychotherapy. In 2001, worsening symptoms required increased supportive care. As noted in the mental health summary of care examination dated 13 July 2001, approximately 11 months prior to separation, the CI was noted to have “a decreasing ability to manage stressors in the duty environment.” Long periods of depression with several brief periods of remission were reported. Mental status exam (MSE) showed normal orientation and speech. Thinking was somewhat slowed, mood markedly dysphoric and affect somewhat blunted, intense and sometimes tearful. Although periods of poor impulse control and judgment were acknowledged, the MSE showed intact judgment. A Global Assessment of Functioning (GAF) of 50-60 was assigned (moderate symptoms or impairment). On 26 July 2001, the CI was admitted to a psychiatric inpatient unit for 72 hours due to depression with suicidal ideation, stating she was “overwhelmed in the Navy” and would “welcome a medical board.” In October 2001, 8 months prior to separation, she noted improvement with some optimism over a change in work environment. At the narrative summary exam dated 11 February 2002, 4 months prior to separation, the CI reported intermittent thoughts of suicide, but without a history of suicide attempts or gestures. She reported decreased appetite, decreased energy, decreased concentration and insomnia. The examiner reported no improvement in her condition over the previous 8 months despite medication and psychotherapy. MSE noted that she was well-groomed and oriented. Psychomotor retardation was noted and speech was slow and soft. Mood was depressed and affect dysphoric. The examiner assigned a GAF of 55 and concluded that she was unfit for continued military service. The PEB worksheet acknowledged a 10-year history of depression with “intermittent suicidal thoughts without gestures,” with remissions lasting 2 to 3 months, and absence of “substantial improvement.” The CI was hospitalized again with suicidal ideation on 26 February 2002, 4 months prior to separation. The non-medical assessment (NMA) noted the CI to be “a very capable and knowledgeable sailor as noted by her recent advancement to Mineman First Class.” It also stated “she is an exemplary sailor and a valuable asset to the Naval Service” when she “is not troubled with this condition.” It was  reported  that  she required “near constant care and feeding,” could not perform the expected duties of Command Duty Officer, and requested to go home or spend large amounts of time on the telephone seeking support when “having a bad day.” Her absences were noted to be “frequent” and missed an estimated 7-10 hours per week of duty due to her condition. However, she also “participated in, and even led, command functions with vigor.”

At the VA Compensation and Pension (C&P) psychiatric exam, a month prior to separation, the CI reported “sadness, decreased energy, decreased concentration, feeling hopeless and helpless,” despite some improvement secondary to medication and with an impaired ability to focus on activities of daily living. Sleeping difficulty was also noted. However, it was stated that the CI managed activities of daily living and that she “gets along well with family, friends and neighbors.” The MSE noted normal orientation with soft speech that was somewhat slowed; normal intellectual functioning, memory, judgment and reality testing; and depressed mood without current suicidal ideation.   A GAF score of 58 was assigned.   The VA examiner also

specifically noted that there was no evidence of “a post-traumatic stress disorder,” and no specific traumas or stressors were documented in the C&P examination. The examiner also concluded that the CI was “able to withstand the stress and pressures associated with an eight- hour workday and day-to-day activities.” The CI’s last military clinic visit, a week prior to separation, documented some “improvement of depression” and noted a good mood and a normal MSE. However, 3 months after separation, the CI was hospitalized again with depression and thoughts of suicide. The MSE documented depressed mood, blunted affect, and specific suicidal ideation and plans, for which she was assigned a GAF of 30 (behavior is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment or inability to function in almost all areas) upon admission and a GAF of 45 (serious symptoms or impairment) upon discharge after 5 days.

The Board directs attention to its rating recommendation based on the above evidence. First, application of VASRD §4.129 is considered by the Board for all cases of service-connected psychiatric conditions resulting in separation. After deliberation, the Board members agreed that although some contribution of stressors to the CI’s psychiatric condition was clearly present, the requisite §4.129 link that the conditions occurred “as a result of” the stressors was not adequately satisfied. The Board therefore considered only the VASRD §4.130 impairment present at separation for a single rating recommendation. The PEB rated the condition at 10% under VASRD code 9434 (major depressive disorder). The VA assigned a 50% rating under the same code, concluding that the “findings reflect more than mild symptoms required for a 30% evaluation.” A subsequent VA rating decision, 5 months after separation, assigned the CI unemployability status and continued the rating of 50%. In accordance with (IAW) the VASRD general rating formula for mental disorders, a rating of 10% is assigned when mild or transient symptoms decrease work efficiency and ability to perform occupational tasks or when symptoms are controlled by medication. The Board concluded that the CI’s condition exceeded the 10% rating criteria since symptoms were neither mild nor transient and were not controlled by medication. Likewise, it was agreed that support for a 70% rating was lacking. Debate therefore settled on a 30% versus 50% rating. The 30% rating is described by “occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal)” and 50% by “occupational and social impairment with reduced reliability and productivity.” Although the NMA stated that the CI was a valuable asset when she was not troubled by her condition, it also reported that she required “constant care and feeding” and that absences from work were frequent due to her condition. Soon after separation, the CI required another hospitalization (the third hospitalization in a little over a year), which the Board considered to reflect a more serious underlying condition. However, Board members noted that social functioning appeared to not be adversely affected, that management of activities of daily living was adequate and that she displayed an ability to lead some command functions. Furthermore, the VA examiner considered the CI able to withstand the stress and pressures associated with an 8-hour workday. Finally, although a very low GAF score was noted in the context of acute deterioration leading to the post-separation hospitalization, other examiners repeatedly reported GAF scores consistent with moderate impairment. On balance, the Board concluded that at the time of separation the condition more nearly approximated the criteria for the 30% rating. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 30% for the MDD condition.

Contended PEB Conditions. The Board’s main charge is to assess the fairness of the PEB’s determination that the non-insulin dependent DM condition was not unfitting. 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. The non-insulin dependent DM condition was well documented; diagnostics tests and treatment plans were evident.   However, there was no

evidence that this condition affected performance, duty or physical fitness testing. The condition was not mentioned in the limited duty profile and was not implicated in the NMA. It was reviewed by the action officer and considered by the Board. There was no performance based evidence from the record that the diabetes condition caused time lost from work or 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 the contended non-insulin dependent DM condition; therefore, no additional disability rating is 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. 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 condition, the Board unanimously recommends a disability rating of 30%, coded 9434 IAW VASRD §4.130. In the matter of the contended non- insulin dependent DM condition, 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 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 her prior medical separation:

UNFITTING CONDITION | VASRD CODE | RATING
Major Depressive Disorder | 9434 | 30%
| COMBINED | 30%

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20130225, w/atchs Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record

_XXXXXXXXXXXXXXXXXXXX
President
Physical Disability Board of Review

MEMORANDUM FOR COMMANDER, NAVY PERSONNEL COMMAND
DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS
	
Subj: PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS

Ref: 	(a) DoDI 6040.44
(b) PDBR ltr dtd 10 Feb 14  ICO XXXXXXXXXXXXXXXXXX
(c) PDBR ltr dtd 10 Mar 14 ICO XXXXXXXXXXXXXXXXXX
(d) PDBR ltr dtd 28 Feb 14 ICO XXXXXXXXXXXXXXXXXX

1. Pursuant to reference (a) I approve the recommendations of the Physical Disability Board of Review set forth in references (b) through (e).

2. The official records of the following individuals are to be corrected to reflect the stated disposition:

a.	XXXXXXXXXXXXXXXXXXXX, former USN: Retroactive placement on the Permanent Disability Retired List with a rating of 30% effective 28 June 2002.

b. 	XXXXXXXXXXXXXXXXXXXX, former USMC:  Placement on the Temporary Disability Retired List from 30 October 2008 through 30 April 2009 with a disability rating of 60% with transfer to the Permanent Disability Retired List effective 1 May 2009 with a final disability rating of 40%. 

c.	XXXXXXXXXXXXXXXXXXXX, former USN: Disability separation with a final disability rating of 20 % (increased from 0%)  effective 4 June 2008. 

3. Please ensure all necessary actions are taken to implement these decisions, including the recoupment of disability severance pay, if warranted, and notification to the subject members once those actions are complete.

XXXXXXXXXXXXXXXXXXXX
Assistant General Counsel
(Manpower & Reserve Affairs)

PD-2013-00102