RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-01477
BRANCH OF SERVICE:  Army 	BOARD DATE:  20140917
SEPARATION DATE:  20090803

SUMMARY OF CASE:  The available evidence of record reflects that this covered individual (CI) was an activated National Guard SGT/E-5 (92A, Automated Logistical Specialist) medically separated due to major depressive disorder (MDD) and a hip condition.  The conditions could not be adequately rehabilitated to meet the requirements of her Military Occupational Specialty (MOS) or physical fitness standards.  She was issued a permanent L3/S3 profile and referred for a Medical Evaluation Board (MEB).  The mental health and hip conditions, characterized as “major depression” and “chronic right hip pain with trochanteric bursitis and right sacroiliitis,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded three other conditions (urge incontinence, Type II Diabetes Mellitus [DM], and gastroesophageal reflux disease [GERD]) for PEB adjudication.  The Informal PEB (IPEB) adjudicated the MDD and chronic right hip pain with trochanteric bursitis and right sacroiliitis as unfitting, rated 10% each, with application of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be not unfitting.   The CI appealed to the Formal PEB (FPEB), but ultimately withdrew the request and agreed with the IPEB decision; and, was medically separated with a combined 20% disability rating.

CI CONTENTION:  “Please consider all conditions.”  

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 Service ratings for the unfitting mental health and hip conditions are addressed below. The Board acknowledges the CI’s implied contention for Service ratings of her urge incontinence, Type II DM, and GERD conditions which were determined to be not unfitting by the PEB; and, emphasizes that Service disability compensation may be offered only for those conditions that cut short the member’s service career.  Should the Board judge that any contested condition was most likely incompatible with the specific duty requirements; a Service disability rating IAW the VASRD, and based on the degree of disability evidenced at separation, will be recommended.  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 respective Board for Correction of Military Records. 

RATING COMPARISON:  

Service IPEB – Dated 20090410 | VA* (10 Mos. Post-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
Major Depressive Disorder | 9434 | 10% | Major Depressive Disorder | 9434 | 50% | 20100525
Chronic Right Hip Pain… | 5099-5003 | 10% | Right Trochanteric Bursitis | 5251 | 10% | 20100525
Urge Incontinence | Not unfitting | Urge Incontinence | 7599-7542 | 10% | 20100525
Type II DM, Diet Controlled | Not unfitting | Diabetes Mellitus | 7913 | 10% | 20100525
GERD | Not unfitting | GERD | 7399 7346 | 10% | 20100525
Other x 0 (Not in Scope) | Other x 12 (Not in Scope) | 20100525
Rating:  20% | Combined:  70%
*Derived from VA Rating Decision (VARD) dated 20101122

ANALYSIS SUMMARY: 

Major Depressive Disorder.  Although direct evidence from the earlier service treatment record (STR) is not available, the narrative summary (NARSUM) corroborated by available VA records confirm a long-standing mental health (MH) history prior to separation.  The CI reportedly had no preceding MH treatment or diagnosis until she was medically evacuated from the Desert Storm theater in 1992.  At that time, she experienced symptoms of depression and suicidal ideation, and was psychiatrically admitted on return to CONUS.  She subsequently reported a history of repeated sexual abuse since childhood, including an incident during the 1992 deployment.  She was discharged in 1992, but remained a VA psychiatric outpatient over the ensuing years.  This included several (~5) psychiatric admissions (for depression, suicidal ideation) and extended stays in transitional units.  MH diagnoses of MDD, substance abuse, posttraumatic stress disorder (PTSD [sexual abuse substrate]), bipolar disorder, and panic disorder are in evidence; but, MDD was the predominant diagnosis, remained the VA rated diagnosis (initial 50% → 10% in 2002), and service-connection for PTSD was denied.  The CI’s employment history was erratic and she remained on Social Security disability starting in 1997.  She divorced in 1992 (abusive husband), maintained relationships with children and grandchildren from that marriage, went through two subsequent brief marriages, and successfully overcame a period of addiction and alcohol abuse.  She affiliated with the Army Reserve in 2004, although the psychiatric addendum to the NARSUM states that she denied an MH history on that entry examination (source exam not in evidence).  She subsequently transferred to the Guard and deployed to Kuwait in 2007.  Although theater records are not in evidence, there is a medical evacuation form (5 May 2008) noting transport to Germany with diagnoses of abdominal pain and major depression.  There is STR evidence available starting with an outpatient intake note (Womack, Fort Bragg) 4 days later.  She was evaluated for the abdominal pain which subsequently resolved; but, she remained depressed and was followed by Behavioral Health.  In July 2008, she was briefly admitted (2 days) for suicidal ideation, but STR entries after that indicate that she had “improved significantly” (September 2008) and her MH course remained stable.  There is no subsequent indication of suicidal ideation, no alcohol/substance abuse, no further psychiatric admissions or crisis, and no legal or disciplinary issues identified.

The psychiatric addendum to the NARSUM is dated 31 July 2008 (10 days following above admission, preceding later STR evidence just cited, and ~12 months pre-separation).  The nature and acuity of concurrent symptoms was not elaborated, although the past psychiatric history (as above) was detailed.  Four psychoactive medications were documented (Effexor, Trazodone, Klonopin, and Ambien).  The mental status examination (MSE) noted “depressed” mood and the “affect ranged from being tearful to pleasant.”  It was otherwise normal; without suicidal ideation, psychotic or delusional features, or gross cognitive impairment.  The only Axis I diagnosis was “[MDD], recurrent, severe, without psychotic features”, and there were no Axis II entries.  The Global Assessment of Functioning (GAF) assignment was 60 (at the cusp of mild to moderate impairment).  The assessment of social and industrial impairment (IAW DoDI 1332.39 [rescinded]) was “marked”; and, the examiner noted that “her physical illness limits her job prospects ... limited job experience ... been on disability ... difficulty managing stressful situations ... and does not have a family support system.”  The NARSUM (26 January 2009, 6 months pre-separation) documents the improving psychiatric course noted above and lists the same medications as in the psychiatric addendum.  With regards to the MH condition it stated, “She has continued to have symptoms of depression which have been brought under improved control with medications.  Her condition has been stable for over one year, and she will likely continue to have problems with depression especially with military duties.  SM [service member] is able to perform the activities of daily living to include driving a vehicle.”  The commander’s performance statement (5 months pre-separation) states, “Making the decisions or choices to maximize time or accomplish goals appear to be very stressful and uncomprehendible [sic].  Social interaction with peers is nearly nonexistent.”  The commander’s choice of performance summary was “occasional decrease in work efficiency”, stating “behavior displays self-pity and depression about 90% of the time.”

There are numerous VA outpatient notes over a 13-month period following separation in evidence that document a continued improved and stable MH course, with no indication of further crisis or acute features.  A VA Compensation and Pension (C&P) psychiatric evaluation was conducted 10 months post-separation.  It noted “depressed mood varies in severity from severe to mild ... improved interest but little initiation of activity ... improved mood currently.”  The MSE noted “depressed” mood and “tearful” affect with poor performance on cognitive testing (serial 7’s), but was otherwise normal without suicidal ideation or acute features.  The only Axis I diagnosis was “[MDD], recurrent, moderate” and the GAF assignment was 55 (moderate range of impairment).  The examiner stated that the CI’s continued unemployment was due to “both depression and pain in her hip per the veteran.”  The functional assessment quoted VASRD §4.130 criteria for a 50% rating; and, the VA conferred a 50% rating for MDD referencing this examination.

The Board directs attention to its recommendations based on the above evidence.  Members first considered whether application of VASRD §4.129 was applicable to this case.  All members agreed that the long-standing MDD condition, notwithstanding the reported onset during the Gulf deployment, was not satisfactorily linked to “a highly stressful event”; and, therefore concluded that the provisions of §4.129 were not satisfactorily supported in this case.  The Board then turned to deliberation of the appropriate separation rating under §4.130 criteria.  The PEB’s assessment (per the DD Form 199) was “transient symptoms of impairment controlled by continuous medication” as the rationale for its 10% determination.  Given the performance evidence from the commander’s statement, the MEB and VA psychiatric opinions, and the long standing occupational limitation which was logically due in some part to psychiatric impairment; member’s agreed that the MDD could not be fairly characterized as either transient or satisfactorily controlled; and, thus the Board cannot support a 10% recommendation.  The members readily agreed that the §4.130 criteria for a 100% rating were not satisfied.  Although the CI was not successful in maintaining employment, there was not “total occupational and social impairment” on the sole basis of MH symptoms.  The criteria for a 70% rating, “occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood,” references typical symptoms of suicidal ideation, obsessional rituals, illogical speech, near continuous panic or depression, spatial disorientation, neglect of hygiene, and inability to establish relationships.  The evidence supports satisfactory functioning in some of the specified areas, and does not support the presence of many of the referenced symptoms.  Members thus agreed that a 70% rating was not supported; and, turned to deliberation of a 50% rating (occupational and social impairment with reduced reliability and productivity) versus a 30% rating (occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks).  Although there was ‘reduced reliability and productivity’ in evidence, it is quite speculative to conclude that this was predominantly on the basis of psychiatric impairment.  The objective evidence and MSE’s from the probative psychiatric examinations (as well as GAF assessments) would argue for a fairly functional status, and the clinical course at separation was quite favorable.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board’s consensus recommendation is a 30% rating for MDD under the applicable code 9434.

Right Hip Condition.  Although reference to earlier treatment and a normal right hip x-ray from May 2007 are in evidence, the earliest clinical reference to the right hip condition in the available STR is from January 2008; and, documented a 2-year history of “chronic bursitis” of the joint.  It also related an impression (referencing behavioral and situational details) that there was a significant psychiatric overlay to the presentation and stated, “Physical exam is not conclusive due to member pain responses during exam.”  Subsequent STR entries also document a confusing array of historical accounts and precipitating injury (or lack thereof) for the complaint.  The earliest orthopedic note is from June 2008 (14 months pre-separation) and documents modestly reduced (non-compensable) range of motion (ROM), as does a clinic note a month later.  Magnetic resonance imaging of November 2008 was suggestive of mild bilateral (right > left) trochanteric (lateral hip) bursitis, and a bone scan from the same period reported “no scintigraphic bony abnormality noted to explain the patient's symptoms."  The STR documents a course of persistent pain despite multiple treatment modalities (physical therapy, dispensing of cane, injections, transcutaneous nerve stimulator).  There are no entries suggestive of compensable ROM limitation.

The NARSUM reports an onset of right hip pain during a 2003 deployment to Kuwait which the record establishes did not occur, but further states that the condition was exacerbated during the confirmed 2007 deployment.  It documents a baseline pain rating of 6/10 “increasing to 9-10/10 with activity.”  The physical exam noted trochanteric tenderness and provided the ROM measurements charted below.

The post-separation (10 months) VA C&P evaluation documented “fell on hip yesterday is having extreme bilateral hip pain and is unable to walk.”  The significant pain and limitations reported at that time are thus of limited probative value.  The ROM evidence is charted below.

Right Hip ROM | MEB ~8+ Mo. Pre-Sep | VA C&P ~10 Mo. Post-Sep
Flexion (125⁰ Normal) | 50⁰ | 90⁰
Extension (20⁰) | 5⁰ | 10⁰
External Rotation (45⁰) | -- | 20⁰
Abduction (45⁰) | 15⁰ | 20⁰
Adduction (45⁰) | -- | 10⁰
§4.71a Rating | 10% (Extension) | 10% (Painful Motion)

The Board directs attention to its rating recommendation based on the above evidence.  Although the PEB cited non-ROM related VASRD criteria in its 10% determination, a 10% rating could also be achieved under code 5251 (limitation of extension).  The VA’s 10% determination cited painful motion (VASRD §4.59).  The only higher rating under VASRD §4.71a would have to rely on a tenuously analogous rating under code 5255 (femur, impairment of) for associated hip disability; but, the code specifies complications of fractures; and, members agreed that the objective disability in evidence does not justify the analogous stretch of its application in this case.  After due deliberation, considering the total evidence and mindful of reasonable doubt, the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication of the right hip condition (code change offering no advantage).

Contended PEB Conditions (Urge Incontinence, Type II DM, GERD).  Per the NARSUM, corroborated by STR evidence, the urge incontinence was controlled on medication; the DM was diet controlled; and, the GERD was controlled by diet and medication.  All three conditions were fully medically evaluated, and none were associated with complications.  None were profiled or implicated in the commander’s performance statement; none resulted in documented work loss; and, all were judged to meet retention standards.  These conditions were reviewed by the Board members; and, it was agreed that there was no performance based evidence suggesting that any of them significantly interfered with 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 any of these conditions; thus none can be recommended for additional disability rating.

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 major depressive disorder, the Board by a vote of 2:1 recommends a disability rating of 30%, coded 9434 IAW VASRD §4.130.  In the matter of the right hip condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended urinary, diabetes, and gastroesophageal reflux 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 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%
Chronic Pain Due to Trochanteric Bursitis, Right Hip | 5099-5003 | 10%
Urge Incontinence | Not Unfitting
Type II Diabetes Mellitus | Not Unfitting
Gastroesophageal Reflux Disorder | Not Unfitting
COMBINED | 40%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140519, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

XXXXXXXXXXXXXXX
President
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 XXXXXXXXXXXXXXX, AR20140019322 (PD201401477)

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 40% 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 40% 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						     XXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						          (Review Boards)
						
CF: 
(  ) DoD PDBR
(  ) DVA

PD-2014-01477