RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2013-01942
BRANCH OF SERVICE:  Army	BOARD DATE:  20150107
DATE OF PLACEMENT ON TDRL:  20021016
Date of Permanent SEPARATION:  20050207

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PFC/E-3 (88M10/Motor Transport Operator) medically separated for diabetes and depressive disorder, not otherwise specified (NOS).  The conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent P3/S4 profile and referred for a Medical Evaluation Board (MEB).  The diabetes and mental health (MH) conditions, characterized as “insulin dependent diabetes mellitus” and “depressive disorder, not otherwise specified,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition (chronic foot pain) for PEB adjudication.  The Informal PEB (IPEB) adjudicated “diabetes, type I, requiring insulin” and “depressive disorder not otherwise specified requiring psychotherapy” as unfitting, rated 20% and 30% respectively.  The remaining condition was determined to be not unfitting, and not rated.  The CI was placed on the Temporary Disability Retired List (TDRL) effective on 16 October 2002.  Twenty-eight months later, his conditions remained unfitting, but were considered to be stable for final adjudication.  The diabetes was rated at 20% and the depressive disorder NOS was rated 0% specifically citing AR 635-40.  The CI did appeal and attached a written rebuttal letter that was reviewed by the US Army Physical Disability Agency who reaffirmed the IPEB’s findings.  The CI was removed from TDRL effective on 7 February 2005 and medically separated.

CI CONTENTION:  “Diabetes” and “Chronic Depression Recurrent” [sic]

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 unfitting diabetes and depressive d/o are 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:

Final Service PEB – 20041230 | VA (4 Mo. Prior to TDRL Entry) - Effective 20021016
On TDRL - 20021015 | Code | Rating | Condition | Code | Rating | Exam
Condition | | TDRL | Sep. | | | |
Diabetes | 7913 | 20% | 20% | Diabetes | 7913 | 20% | 20020612
Depressive d/o, NOS | 9434 | 30% | 0% | Depression | 9434* | Not Service Connected
Other x1 (Not in Scope) | Other x2
Combined:  50% → 20% | Rated:  20%
Reflects VA rating exam performed proximate to TDRL entry; there was no VA Rating Decsion (VARD) within 2.5 years of TDRL exit.
*Service connection granted and code 9434 was rated at 30% by VARD dated 20071106 effective 20070525
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 VA Schedule for Rating Disabilities (VASRD) standards, based on ratable severity at the time of separation.

Diabetes.  The CI was diagnosed with insulin dependent diabetes in December 2001 after he was hospitalized and started on insulin.  Upon discharge, he attended the required diabetes education classes but had difficulty controlling his diabetes.  He required daily doses of insulin and exercised regularly.  The narrative summary (NARSUM) prepared 6 months prior to TDRL placement noted continued increased thirst and frequency of urination.  His blood glucose remained elevated despite daily insulin.  There was no mention of any activity restrictions.  His physical exam was essentially normal.  At the VA Compensation and Pension (C&P) exam performed 4 months prior to TDRL placement, the CI reported he was working (cutting grass) on base at that time.  He was taking daily insulin to manage the diabetes.  There was no physical exam performed and he was diagnosed with diabetes.  The CI was entered into the Disability Evaluation System and placed on TDRL in October 2002.

The Board directed attention the CI’s TDRL placement rating recommendation based on the above evidence.  The PEB applied VASRD code 7913 (diabetes mellitus) and rated it 20%.  The VA also applied code 7913 and the same 20% rating was applied.  Rating diabetes IAW VASRD §4.119 takes into consideration dietary restriction, medication requirement, and regulation of activity for the 10%, 20%, and 40% rating levels respectively.  For ratings above 40%, consideration of frequency of physician visits and hospitalizations along with diabetic complications are taken into account.  The evidence supports that at TDRL entry he required daily insulin and no regulation of activity as required for the 20% rating as applied by the PEB and VA.  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 diabetes condition at TDRL placement.

A TDRL evaluation was accomplished 21 after TDRL placement and 7 months prior to TDRL removal documented that the CI’s blood sugars were under control and he did not have any diabetic eye complications.  He still required daily insulin and there was no mention of any activity regulation.  He was working with Homeland Security carrying a weapon and wearing a bullet proof vest.  His physical exam was essentially normal and the diagnosis of diabetes mellitus was continued.

The Board directed attention to its permanent rating recommendation at TDRL removal based on the above evidence.  The evidence supports that the CI’s diabetic condition was stable over the approximately 28 months he was on TDRL.  At TDRL removal, the PEB applied the same 7913 VASRD code and continued the 20% rating.  The evidence present for review supports that adjudication.  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’s permanent adjudication for the diabetes condition at TDRL removal.

Depressive Disorder NOS.  The CI had no MH history prior to January 2002 when he was hospitalized after a suicide attempt by “drinking himself to death.”  A month earlier he was diagnosed with insulin dependent diabetes, which coupled with a conflict involving his girlfriend culminated in the suicide attempt.  He had symptoms of depressed mood, anger outbursts, irritability, poor sleep, poor appetite, and intermittent suicidal ideations.  He was evaluated by MH professionals and initially treated with weekly psychotherapy sessions as he resisted anti-depressant medications for fear of side-effects.  The CI underwent a C&P exam 4 months prior to TDRL entry which documented that he was somewhat depressed, worrying about what he was going to do since he will be separated from the Army and was upset about adjusting to the diabetes.  He saw a counselor once every 2 weeks, was not taking any anti-depressant medications, and he generally worked from 0500 until 1700, 5 days a week.  The mental status exam (MSE) stated “…he feels depressed quite a lot lately, but his mood appears to be generally normal today during the interview.”  The CI did feel anxious at times but had no definitive panic attacks and he did experience angry feelings from time to time since learning of his diabetes.  His thought processes, speech, memory, concentration, and abstract thinking were normal.  He did had have sleep impairment due to rumination at night about his future.  The examiner did not diagnoses any MH condition and assigned a Global Assessment of Function (GAF) of 90, absent or minimal symptoms, good functioning in all areas, interested and involved in a wide range of activities, socially effective, generally satisfied with life, no more than everyday problems or concerns.  His final assessment was: 

“I do not feel that the veteran meets the criteria for any definitive depression type diagnosis at the present time.  His depressed feelings appear to be situational related to getting out of the Army and adjusting to his diabetic illness which he has only known about for the past six months.  Prior to December, he had no problems with depression feelings.  His depression feelings are not severe enough or present for a long enough period of time to warrant any definitive diagnosis.”

The psychiatric addendum to the NARSUM prepared 3 months prior to TDRL placement documented that the CI reported a good relationship with his mother and two siblings.  An additional stressor was that his grandfather had recently died and that worsened his overall symptoms of depression.  There was no evidence of anti-depressant medication use at that time.  The MSE revealed a sad mood with a “tearful” affect.  His thought process, insight, and judgment were normal and he denied suicidal or homicidal ideation.  Concentration and ability to think abstractly were intact.  He was diagnosed with depressive disorder NOS and assigned a GAF of 51, moderate symptoms or moderate difficulty in social, occupational, or school functioning in social, occupational, or school functioning.  The examiner’s conclusion was that the CI suffered from a depressive disorder for greater than 8 months.  Psychosocial stressors like his grandfather's death and dealing with diabetes were felt to be exacerbating factors.  Psychotherapy had lessened the intensity of his overall symptoms but his resistance to beginning medication was felt to be a reason for not achieving better control of his overall clinical status.

The Board directed attention to its rating recommendation at TDRL placement based on the above evidence.  At TDRL placement, the PEB applied code 9434 (major depressive disorder) and rated it 30% citing “rated as definite social and industrial impairment” which is consistent with verbiage contained in AR 635-40.  Based on the C&P exam summarized above, the VA did not grant service-connection for the depressive disorder.  The Board reviewed the evidence and members agreed that VASRD §4.129 was not applicable in this case.  The Board reviewed the evidence for any indication that the CI had occupational and social impairment with reduced reliability and productivity as required for the next higher 50% rating.  The commander’s statement mentions only the CI’s physical condition/profile as causing any duty limitation.  The CI was working full-time at TDRL placement with no indication of the MH symptoms usually associated with a 50% rating; specifically no panic attacks, no speech abnormalities, and no impaired thought, memory or judgment.  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’s TDRL placement adjudication for the depressive disorder NOS condition.

A psychiatric TDRL NARSUM was accomplished 21 months after TDRL placement and 7 months prior to TDRL removal, it documented that the CI initially stayed in his mother’s apartment, but then moved to his own apartment living by himself.  He had established MH care at the local VA clinic, had quarterly visits with his MH provider and was taking anti-depressant medications at that time.  He indicated that at times he continued to have difficulty with mood irritability, crying spells and fleeting thoughts of suicide.  He was working full-time as a security guard and had no close friends.  At his most recent MH visit a month earlier, his provider commented that the CI “…is doing so much better.”  The MSE revealed a “happy” mood with normal affect.  His MSE was normal.  He was diagnosed with depressive disorder NOS and assigned a GAF of 68, some mild symptoms or some difficulty in social, occupational, or school functioning, but generally functioning pretty well, has some meaningful interpersonal relationships.

The Board directed attention to its permanent rating recommendation at TDRL removal based on the above evidence.  At TDRL removal, the PEB continued code 9434 and rated it 0% citing “in remission” and “…AR 635-40….”  There was no subsequent VARD until 33 months after TDRL removal when the VA granted service-connection for the depressive disorder and rated it 30% effective 27 months after TDRL removal.  The Board assigned highest probative value to the TDRL psychiatric NARSUM prepared prior to TDRL removal.  That documented supports that the CI was taking anti-depressant medications, was gainfully employed full-time, and had a normal MSE.  He did “at times” experience symptoms of depression.  The VASRD criteria for the 10% rating is as follows:  Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication.  Board members agree that the CI met those criteria at TDRL removal.  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 depressive disorder NOS condition at TDRL exit.

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, PEB reliance on AR 635-40 for rating the depressive disorder NOS was operant in this case and the condition was adjudicated independently of that regulation by the Board.  In the matter of the diabetes condition and IAW VASRD §4.119, the Board unanimously recommends no change in the PEB adjudication at TDRL placement or the PEB’s permanent adjudication at TDRL removal.  In the matter of the depressive disorder NOS condition and IAW VASRD §4.130, the Board unanimously recommends no change in the PEB adjudication at TDRL placement and the Board unanimously recommends a permanent disability rating of 10%, coded 9434 IAW VASRD §4.130.at TDRL removal.  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 CONDITIONS | VASRD CODE | RATING
| | TDRL | PERMANENT
Diabetes | 7913 | 20% | 20%
Depressive Disorder NOS | 9434 | 30% | 10%
COMBINED | 50% | 30%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131028, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

				
XXXXXXXXXXXXXXXXX
President
DoD Physical Disability Board of Review

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 XXXXXXXXXXXXXXXXX, AR20150007049 (PD201301942)

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 recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 30% effective the date of the individual’s original medical separation for disability with severance pay.  

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 that the individual was separated by reason of permanent disability retirement 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 date of the original medical separation for disability with severance pay.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 30% effective the date of the original medical separation for disability with severance pay.

	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						     XXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						          (Review Boards)
						
CF: 
(  ) DoD PDBR
(  ) DVA

PD-2013-01942