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AF | PDBR | CY2010 | PD 2010 00402

Original file (PD 2010 00402.rtf) Auto-classification: Denied

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME : XXXXXXXXXXXXXXXXXX BRANCH OF SERVICE: navy
CASE NUMBER: PD -20 10 - 00402 SEPARATION DATE: 20 090401

BOARD DATE: 2011 1130

SUMMARY OF CASE : Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty Petty Officer/E-5 (YN2/6073, Administrative Assistant) medically separated for “overall e ffect” of major depression and left foot symptomatic hallux rigidus . The CI received both in and outpatient treatment , including medications and psychotherapy for depression and posttraumatic stress disorder (PTSD) , without significant improvement. With regards to the left foot hallux condition, the CI received multiple steroid injections, three surgical procedures, physical therapy and orthotics. However, the CI’s condition failed to improve enough to perform her duties or meet physical fitness standards. The CI was placed on limited duty and underwent a Medical Evaluation Board (MEB). Hallux r igidus ( left big toe stiffness) , PTSD , depressive disorder ( not otherwise specified [ NOS ] ) , anxiety and major depression recurrent in partial remission were forwa rded to the Physical Evaluation Board (PEB) . The PEB found the CI fit to continue active duty, and the CI requested reconsideration. The Reconsideration PEB adjudicated the “ overall e ffect ” of the combined major depression recurrent in partial remission and symptomatic hallux rigidus left foot as unf itting, rated 0% with application of SECNAVINST 1850.4E . The CI did no t appeal and was medically separated with a 0% combined disability rating.

CI CONTENTION : “My medical separation and rating are both incomplete and inaccurately reflects my symptoms and diagnos e s addressed in the enclosed copy of my medical record and enclosures with the final findings and rating of 0% from the PEB on December 19, 2008. When I received my VA disability findings with seven additional conditions and a rating of 80 % , I had immediate questions and concerns about possible inaccuracies from the PEB findings which were extremely evident in the comparison of both results. Per the DoDI 1332.38, EJ.P6.Enclosure 3, Part 6, E3.P6.1.2., "members with unstable conditions rated at a minimum of 80 % and which are not expected to improve to less than an 80 % rating , shall be permanently retired". I believe this section, although referencing TDRL, applies to my situation status. Since the PEB is required by law to rate a disability using the Department of Veterans Affairs Schedule, the PDBR review of the PEB Findings and all associated material submitted will ensure fairness, accuracy and thoroughness when a final decision is made. My medical conditions have not subsided, nor do I expect them to. I see a psychiatrist and counselor at the DVA on a continuous and frequent schedule for PTSD (which the PEB did not list as an unfit finding) and all associated symptoms. I also attend biweekly meetings held through the Rhode Island Veteran's Center. It is evident that all of my conditions effect (sic) my quality of life and how I live day in and day out. The right and left foot conditions are undoubtedly (sic) permanent and I am, at a minimum, unable to walk pain free. My activity is very limited and has created more problems in my neck and back areas due to the awkward way I walk as a result of the multiple orthopedic surgeries. Other health concerns arose from the initial problems that I was medically separated from the military for. These conditions have affected (sic) every aspect of my life and are not minor in any way; this is why I believe the PDBR should approve my status change from medically separated with severance pay to retirement with severance pay on the permanent disability list.” She additionally lists all of his VA conditions and ratings as per the rating chart below. A contention for their inclusion in the separation rating is therefore implied.

RATING COMPARISON :

invalid font number 31506

Reconsideration PEB – Dated 20081215	VA (2 Mo. After Separation) – All Effective Date 20090402
Condition	Code	Rating	Condition	Code	Rating	Exam
Major Depression ; Left Foot Hallux Rigidus …	“Overall Effect”	0 %	PTSD	9411	70%	20090211
			Left Hallux Rigidus	5281	0%	20090610
↓No Additional MEB/PEB Entries↓	Right Hallux Rigidus	5281	10%	20090610
	Lumbar Strain	5237	10%	20090610
	Cervical Strain	5237	10%	20090610
	Right Carpal Tunnel Syndrome	8599-8515	10%	20090610
	Tinnitus	6260	10%	20090610
	0% x 2 Not Service Connected x 3	20090610
Combined: 0%	Combined: 80%

invalid font number 31506

ANALYSIS SUMMARY : The Board acknowledges the CI’s assertions that there were possible inaccuracies from the PEB findings. It is noted for the record that the Board has neither the jurisdiction nor authority to scrutinize or render opinions in reference to the CI’s statements in the application regarding suspected s ervice improprieties in the processing of his case. The Board’s role is confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to Veterans Administration Schedule for Rating Disabilities ( VASRD ) standards, based on severity at the time of separation. It must also judge the fairness of PEB fitness adjudications based on the fitness consequences of conditions as they existed at the time of separation . The PEB combined the major depression recurrent in partial remission and symptomatic hallux rigidus left foot as “ overall e ffect ” at 0% IAW SECNAVINST 1850.4E (ENC (3) Part 3, 3304, d and Part 8, 3804, k) ; without applying VA diagnostic code s or ratings . DoDI 1332.38 (E3.P3.4.4), which is still in effect for military specific considerations, allows for overall effect w ithout mentioning rating procedures. The Board’s initial charge in this case was therefore directed at determining if the PEB’s approach of combining conditions under overall effect without any VA code s or application of VA rating schedule was justified in lieu of any (or multiple) VA code and ratings . Not uncommonly , this approach by the PEB reflected its judgment that the constellation of conditions was unfitting, and there was no need for separate fitness adjudications or implied adjudication that each condition was separately unfitting.

Major Depression Recurrent in Partial Remission . The PEB adjudged the major depression condition as a n unfitting “ overall e ffect ” condition, without applying a VA diagnostic code. The Board first considered if major depression (or any combination of mental disorders), having been de-coupled from the combined PEB “overall effect” adjudication, would be independently unfitting as established above.

The CI’s symptoms of depression and anxiety started at the time of Uniform Code of Military Justice (UCMJ) charges i n April 2007. During this time, the CI also underwent the abrupt termination of her second marriage. The CI endorsed symptoms of anhedonia, anergy, depressed mood, loss of confidence, disrupted sleep and appetite and intense anxiety exacerbated by social exposure. A review of the service treatment records (STRs) indicated that the mental health disorders along with contracts for safety were well documented in the numerous Psychiatry clinic evaluations. Throughout the STRs , the use of medications for depression and anxiety was well documented as were adjustments to dosing of these medications. The CI’s initial p sychiatric evaluation in October 2007 indicated that the CI had impaired short term memory , sleep impairment , poor concentration , poor appetite , guilt, poor energy, no libido , poor energy , and feelings of hopelessness and helplessness. The CI was adjudged to have a global assessment of functionin g (GAF = 51) in the range of moderate symptoms. The CI continued with mental health evaluations and was hospitalized in January 2008 due to expressing suicidal ideations. During this inpatient hospitalization, the GAF was 20 (some danger of hurting self) and the CI cited a long history of major depressive episode dating back to her teenage years. The psychiatrist noted that the CI claimed that she suffered sexual harassment at sea. The CI was discharged and admitted to the Steven’s Hospital Partial Hospitalization program for follow-up care for the depression. On admission, the GAF was 40 (major impairment in several areas) and at discharge the GAF was 60 (moderate symptoms). The STR in March 2008 indicated that the CI endorsed feelings of dysthymic mood, depression, anxiety, impaired insight, and the GAF was 45 ( serious symptoms) . The CI had multiple psychiatric examinations in which the GAF fluctuated between 55 (moderate symptoms) and 65 (mild symptoms). The MEB examination , seven months prior to separation , indicated that the CI’s depression/anxiety symptoms started at the time of the Admiral’s Mast, reduction in rate and early return from theater in April 2007. The examiner noted that the CI had improved, but as her energy normalized “symptom geometry compatible with PTSD had emerged . ” At the VA compensation and pension examination , two months prior to separation, the examiner documented that the CI endorsed feelings of depressed mood and affect occurred near continuously and affected the ability to function; suicidal thoughts without a plan; impaired attention/focus; weekly panic attacks; suspiciousness; obsessive rituals; and a moderate degree of memory impairment. T his exam is the first instance that the CI mentioned that she saw “dead bodies while in Iraq” and that others were killed in service; however, it was also noted that the CI did not receive help or talk to anyone regarding those events . The examiner adjudged the GAF to be 41 (serious symptoms). The VA rated this exam at 70% citing suicidal thoughts in the rating decision.

The record indicated the CI had multiple Axis I mental health diagnoses including depression, adjustment disorder with anxiety and depressed mood, major depressive disorder recurrent, PTSD , and anxiety disorder NOS . The narrative summary ( NARSUM ) diagnosis was “ major depression recurrent i n partial remission rule out PTSD.” Adjustment disorder is not a physical disability and not ratable IAW DODI 1332.38, E5 . PTSD was not a confirmed diagnosis in the NARSUM, despite being an ME B diagnosis . The Board adjudged that there was not sufficient evidence for considering the VA diagnosis of PTSD as a separation diagnosis. There were over 20 mental health STR entries in the 7 months preceding the commander’s non-medical assessment (NMA) ; however, t here were no periods of limited duty for any mental health disorder or symptoms . T he NMA indicated the CI had missed 10 hours a week of duty and had “numerous medical and therapy requirements” with “numerous absences f or appointments and therapy , ” but did not attribute these absences to any specific condition or diagnosis . Further, the commander stated that the CI is currently working in her specialty to the best of her ability and “performs up to standards when at work . ” He, however , recommended her for separation.

The Board considered the PEB “overall effect” adjudication equivalent to a “not unfitting by itself” determination in contrast to a determination of bundling two unfitting condition into a single disability code. The Board’s threshold for countering Disability Evaluation System ( DES ) 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. After due deliberation, and in consideration of the totality of the evidence, the Board majority cannot find adequate justification for recommending the major depression condition as additionally unfitting for separation rating.

Symptomatic Hallux Rigidus Left Foot Condition . The PEB adjudged the left foot condition as a n unfitting “ overall e ffect ” condition. The Board first considered if the left foot condition, having been de-coupled from the combined PEB “overall effect” adjudication, would be independently unfitting as established above. There were two six-month limited duty periods for the left foot condition and the CI had not taken a fitness test in over two years. All members agreed that left foot condition, as an isolated condition, would have rendered the CI incapable of continued service within her rating; and, accordingly merits a separate service rating.

The CI has a long , well documented history of left foot problems noted in the STR , beginning with lef t foot hallux rigidus in 2007. The CI underwent a chevron bunionectomy for foot pain . Post - operatively , the CI had decreased range of motion (ROM) of the left big toe. A steroid injection into the big toe did not provide relief and required a first metatarsophalangeal joint ( MTPJ ) arthrodiastasis in February . T he CI had only partial relief of pain and underwent multiple steroid injections, physical therapy , two surgical procedures, two six month periods of limited duty , use of inserts/orthotics and limitations of physical activities. X -ray demonstrated left foot mild osteopenia and pes planus. The MEB examination , six months prior to separation , documented moderate left foot pain; limited dorsiflexion and plantar flexion; tenderness to palpation at the plantar base of the proximal phalanx left hallux; and mild flexible pes planus . T here was normal muscle strength. The exam indicate “no pain w/ROM R 1 st MTPJ.” Recommendations included “continued use of proper shoe inserts.” At the VA compensation and pension ( C&P ) examination, three months prior to separation , the CI complained of squeezing, burning , aching, sharp, sticking and cramping pain of the great toe with physical activity , and relieved by a strong narcotic medication (Vicodin) , rest, ice and heat. The CI also complained of left foot pain and swelling at rest and swelling, pain weakness stiffness and fatigue with activity. The abnormalities noted on examination were painful motion and tenderness of the plantar surface; pes planus and hallux rigi dus ; sensory and motor function s were normal. The examiner indicated the opposite (right) great toe had no motion, and the CI did “not require any type of support with her shoes.” T he MEB exam indicated chronic left foot pain, surgery on the great toe with residual effects that were not amenable to extensive treatment modalities , significant limitations, and implied use of orthotics . T he VA C&P exam indicated a moderate degree of left hallux rigidus (severe on right), few attributable limitations to the left foot , and no use of orthotics. The VA coded the left foot condition as 5281 h allux rigidus, unilateral moderate and rated a t 0%. It is obvious that there is a clear disparity between the MEB and VA examinations, with significant implications regarding the Board's rating recommendation. The Board thus carefully deliberated its probative value assignment to these conflicting evaluations, and carefully reviewed the s ervice file for corroborating evidence in the 12 - month period prior to separation. The key determinant between a 0% and a 10% rating is if the condition was “moderate” or “ severe.” After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a separation rating of 10% for the hallux rigidus left foot condition, coded as 5281, hallux rigidus , unilateral, severe.

Other Contended Conditions . The CI’s application asserts that compensable rating should be considered for PTSD , right hallux rigidus (VA 10%), lum bar strain (VA 10%), cervical strain (VA 10%) , right carpal tunnel syndrome (CTS) (VA 10%; CTS = wrist) and t innitus (VA 10%) . PTSD was discussed in the major depression analysis above . Th e right foot, lumbar and right wrist pain (not diagnosed as CTS) condition s w ere reviewed by the action officer and considered by the Board. Although th ese condition s w ere mentioned in the NARSUM or MEB history , it was clearly noted that the right foot condition was less severe tha n the left foot , the CI had a revision bunionectomy done in 2004 , and there was pain relief. The lumbar and right wrist conditions were not occupationally significant proximate to separation . There were no limited duty periods for any of these condition s . There was no evidence for concluding that the right foot, lumbar or right wrist conditions interfered with duty performance to a degree that could be argued as unfitting. All evidence considered, there is not reasonable doubt in the CI’s favor supporting addition of the right foot , lumbar or right wrist condition s as unfitting condition s for separation rating. Cervical strain and tinnitus were not noted in the DES file. The Board does not have the authority under DoDI 6040.44 to render fitness or rating recommendations for any conditions not considered by the DES. The Board therefore has no basis for consideration of any other conditions eligible for additional rating at separation.

Remaining Conditions . Other conditions identified in the DES file were lower mandible bone growth (palatal tori). Several additional non-acute conditions or medical complaints were also documented. None of these conditions were significantly clinically or occupationally active during the MEB period, none carried attached duty limitations, and none were implicated in the commander’s assessment. These conditions were reviewed by the action officer and considered by the Board. It was determined that none could be argued as unfitting and sub ject to separation rating. The four conditions ( lumbar strain, cervical strain, tinnitus, and right CTS ) as identified by the VA proximal to separation were not documented in the DES file. The Board does not have the authority under DoDI 6040.44 to render fitness or rating recommendations for any conditions not considered by the DES. The Board thus has no basis for recommending any additional unfitting conditions for separation 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. As discussed above, PEB reliance on SECNAVINST 1850.4E for rating the CI’s major depression and left foot conditions was operant in this case. In the matter of the symptomatic hallux rigidus left foot condition , the Board unanimously recommends a finding of unfit and a rating of 1 0% coded 5281 IAW VASRD §4.71a. In the matter of the major depression, by a vote of 2:1, the Board recommends a finding of not unfit. The single voter for dissent (who recommended a finding of unfit coded 9434 at 3 0% rating) submitted the addended minority opinion. In the matter of the r ight foot , lumbar spine and right wrist or any other medical conditions eligible for Board consideration , the Board unanimously agrees that it cannot recommend any findings of unfit for additional rating at separation.

RECOMMENDATION : The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of her prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING
Symptomatic Hallux Rigidus Left Foot	5281	1 0%
COMBINED	10 %

______________________________________________________________________________

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20 0100409 , w/atchs.
Exhibit B. Service Treatment Record.
Exhibit C. Department of Veterans' Affairs Treatment Record.

President

Physical Disability Board of Review

MINORITY OPINION :

As action officer for this case, I highly recommend finding the PEB “ major depression recurrent, in partial remissio n” condition additionally unfitting at separation with a rating of 30%. In the seven month s preceding the NMA, the CI was hospitalized eight days for depression with suicidal ideation, admitted to a partial hospitalization program for eight days, and seen as an outpatient over 20 times for a mental health diagnosis or issue. There was likely a large overlap with s ervice administrative considerations given the UCMJ actions that were concurrent with onset of the CI’s mental health symptoms. The thrust of the NMA was that lost time due to numerous medical and therapy requirements significantly interfered with duty. Of the documented STR entries , there were over 20 for mental health and 10 for the CI’s foot condition. The mental health visits clearly appeared to account for the preponderance of the CI’s lost duty time.

All exams indicated that the CI was not in full remission, and her relatively good assessment of global functioning (GA F ) of 60-65 at the MEB exam ( seven mo nths Pre-sep) was bracketed by markedly worse GAFs of 40-60 (14 mo nths Pre-sep), 45 (13 mo nths Pre-sep) and 41 ( two mo nths Pre-sep). Considering the hospitalization, noted symptoms, intensive treatment , and significant lost duty time due to the CI’s mental disorder , and in consideration of the totality of the evidence, the DoDI 6040.44 “fair and equitable” standard was adequately met to adjudge the major depression condition as additionally unfitting for separation rating.

Regarding rating the CI’s mental disorder condition, t he major depression PEB diagnosis should be considered administratively final, and there was insufficient evidence for application of VASRD §4.129 ( m ental disorders due to traumatic stress). PTSD was an MEB diagnosis on the NAVMED 6100/1, but was a rule-out diagnosis in the NARSUM. The VA diagnosis of PTSD was not based on military sexual trauma . The VA exam was closer to separation and the examiner stated the criteria for a 30% rating, with a significantly worsened exam findings and worse GAF rating which may have been due to the highly stressful DES process. Although the VA rated their pre-separation exam at 70% for suicidal ideations, the source exam does not support significant suicidal ideations proximate to separation. The CI’s condition at separation is better reflected by the 30% VASRD §4.130 rating criteria of “ o ccupational 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) , ” considering the CI’s generally intact interpersonal functioning and duty performance within the confines of her rating and station. This level of disability is supported by the diagnosis of recurrent depression and the preponderance of the record.

invalid font number 31506 I respectfully submit that the Secretary consider that th invalid font number 31506 e major depressive disorder be added as an unfitting condition for separation rating coded 9434 at 30% IAW invalid font number 31506 VASRD §4.130.
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RECOMMENDATION : The AO 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 Depression Recurrent in Partial Remission	9434	30%
Symptomatic Hallux Rigidus Left Foot	5281	10%
COMBINED	40%

MEMORANDUM FOR DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS COMMANDER,
NAVY PERSONNEL COMMAND

Subj: PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS

Ref: (a) DoDI 6040.44
(b) PDBR ltr dtd 13 Dec 11 ICO xxxxxxx
(c) PDBR ltr dtd 13 Dec 11 ICO xxxxxxx
(d) PDBR ltr dtd 13 Dec 11 ICO xxxxxxx

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

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

         a. XXXXXXXXXX : Separation from the Naval Service due to physical disability rated at 10 percent (increased from 0 percent) effective 1 April 2009.

         b. XXXXXXXXXX : Transfer to the Permanent Disability Retired List at 30 percent effective 15 July 2008.

         c. XXXXXXXXXX : Placement on the Temporary Disability Retired List at 50 percent for the period 30 April 2005 through 30 October 2005 with transfer to the Permanent Disability Retired List at 50 percent effective 31 October 2005.

3. Please ensure all necessary actions are taken to implement these decisions and that subject members are notified once those actions are completed.


                                                      Assistant General Counsel
                                                      (Manpower & Reserve Affairs)

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AF | PDBR | CY2010 | PD 2010 00402

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