RECORD OF PROCEEDINGS

PHYSICAL DISABILITY BOARD OF REVIEW

NAME: xxxxxxxxxxxx BRANCH OF SERVICE: NAVY

CASE NUMBER: PD1100817 SEPARATION DATE: 20030315

BOARD DATE: 20120419

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SN/E-3 (Seaman), medically separated for major depressive disorder (MDD), single episode, severe with psychotic features. The CI was referred urgently to mental health for evaluation of depressive symptoms with suicidal ideation and heavy alcohol consumption. He was hospitalized for attempted suicide and underwent individual and weekly group psychotherapy, alcohol rehabilitation and was placed on antidepressant medication. He did not improve adequately with treatment to fully perform within his rating. He was placed on limited duty (LIMDU) and underwent a Medical Evaluation Board (MEB). “MDD, single episode, sev w/psychotic features; social phobia and alcohol dependence in early partial remission” were forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW SECNAVINST 1850.4E. No other conditions appeared on the MEB’s submission. Other conditions included in the Disability Evaluation System (DES) packet will be discussed below. The PEB adjudicated the MDD condition as unfitting, rated 10%; additionally social phobia was determined to be category II (contributing to the unfitting condition) and the alcohol dependence condition was determined to be category III, (not separately unfitting and does not contribute to the unfitting condition), with likely application of SECNAVINST 1850.4E. The CI made no appeals, and was medically separated with a 10% combined disability rating.

CI CONTENTION: The CI states: “There is a discrepancy between the 10% service rating compared to the 70% awarded by the VA.”

RATING COMPARISON:

* VA increased 9434 rating to 50% effective 20080923, and to 70% effective 20100313 (combined 70%)

ANALYSIS SUMMARY: The Board makes note that some of the CI’s contended conditions are derived from Department of Veterans’ Affairs (DVA) evaluations performed well after separation and that his current DVA ratings are higher than those reflected in the above rating chart. The earliest DVA rating examination underpinning an increased 9434 (depression) rating to 70% was performed more than 5 years after separation. The Board’s operative instruction, DoDI 6040.44, specifies a 12-month interval for special consideration to VA findings. This does not mean that the later VA evidence was disregarded, but the Board’s recommendations are directed to the severity and fitness implications of conditions at the time of separation. In this circumstance, therefore, the evidence from the service record is assigned significantly more probative value as a basis for the Board’s recommendations.

MDD, Single Episode, Severe with Psychotic Features Condition (With consideration of Social Phobia and Alcohol Dependence in early partial remission). The CI was referred urgently to mental health for evaluation of depressive symptoms with suicidal ideation and heavy alcohol consumption and was psychiatrically hospitalized 10 months prior to separation (10 May 2002) and started on anti-depressant medications. The CI was hospitalized 9 months prior to separation (13 June 2002) for a suicide attempt (cut wrists – 16 June 2002), and underwent individual and weekly group psychotherapy, alcohol rehabilitation and his psychiatric medications were adjusted including after a second episode of auditory hallucinations in October 2002 (5 months prior to separation). The record indicated a history of anxiety and abuse as a child with a family history of alcohol issues. Hospital discharge diagnoses were “axis I: major depression, single episode. Simple phobia, social phobia. Dysthymia.” The Global Assessment of Functioning (GAF) had improved from 55 at admission to 60 on hospital discharge (both in the range of moderate symptoms).

At the time of the narrative summary (NARSUM), 4 months prior to separation, the CI continued to have symptoms of depression and the diagnoses were as listed above by the PEB. The mental status exam (MSE) indicated poor eye contact, a dysphoric mood with constricted affect; “he occasionally made clucking sounds in response to stress;” higher cognitive functions were grossly intact and he was oriented in all spheres; denied current suicidal or homicidal ideation; insight was fair with judgment intact. The CI was on three psychiatric medications and the examiner stated impairment for military service was severe, and for “civilian Industrial capacity – moderate.” The non-medical assessment (NMA) indicated the CI was serving in a billet appropriate for a seaman of his rank and level of training and also stated the CI “is unable to perform other duties required for his rate due to his medical condition. His medical condition has prevented him from qualifying for additional duties such as watchstanding.” Pre- medication management and counseling during the month of discharge indicated the CI was “doing ok,’” had plans to attend college and had “fair clinical stability.” There was no overt psychosis; mood was neutral and affect was constricted in range; CI denied hallucinations or suicidal ideations; and judgment was intact. The CI was on four medications. Following separation, during the same month as separation, the CI was seen in the emergency room (ER) for an anxiety attack related to being stopped for driving with an expired license plate the night before. The CI drove to the ER in the vehicle with expired plates. Treatment was an additional dose of medication and counseling. A VA intake assessment the following week indicated the CI was not using alcohol and was continuing his four medications. Mental Status Exam (MSE) indicated agitation, motor restlessness, and a labile mood. There were no hallucinations, delusions, or suicidal ideation. GAF was assessed as 55, in the range of moderate symptoms.

In May 2003, 2 months after separation, the CI had a VA) Compensation and Pension (C&P) evaluation. MSE indicated poor eye contact, recalling two of three objects with otherwise good memory, somewhat restricted affect that was appropriate to content. There were no hallucinations, delusions, or suicidal ideation. The GAF score was 60 (moderate symptoms). The examiner diagnosed “depression, in partial remission with Tx and Rx; anxiety not otherwise specified; R/O social phobia; history of alcohol abuse currently in partial remission." The examiner’s assessment was that the CI was experiencing symptoms of anxiety and depression that were fairly well controlled by medication; and he was attempting to increase his repertoire of coping skills. He was continuing to experience difficulties with social interaction although he noted an improvement in this area as well. The CI was attending community college “and doing well earning good grades. The examiner’s reply to questions from the review board was “his anxiety disorders appeared to have been present during childhood and exacerbated by his poor adjustment to the military. His symptoms of depression were compounded by his use of alcohol.” The VA rated this exam at 30%. Additional data (within 12 months of separation) indicate that in January 2004, 10 months after separation, the CI had a recurrence of his MDD with psychotic features. The CI was drinking alcohol, had stopped school, was sleeping poorly, and felt depressed and paranoid. He had a clinic GAF of 37 and was hospitalized with an intake GAF of 30 (major to serious impairment or reality testing/hallucination issues). There is also an indication (from VARD narrative of October 2005) that the CI was hospitalized again in March 2005 for 5 days for psychotic symptoms.

The PEB rating, as described above, was likely derived from SECNAVINST 1850.4E and DoDI 1332.39 and preceded the promulgation of the National Defense Authorization Act (NDAA) 2008 mandate for DoD adherence to Veterans’ Administration Schedule for Rating Disabilities (VASRD). The Board must determine the most appropriate final rating IAW VASRD §4.130 criteria. The Board first determined that the tenants of §4.129 (mental disorders due to traumatic stress) did not apply in this case, and therefore no constructive Temporary Disability Retired List period is recommended. The Board directed its attention to its permanent rating recommendation, based on the evidence just described. IAW VASRD §4.126 (evaluation of disability from mental disorders), §4.130 (schedule of ratings-mental disorders), VA guidance and Board precedence, all mental disorder symptoms are included in a single §4.130 rating. There is no defensible basis for applying, or means of measuring, any deduction which might be considered for alcohol use/abuse/or dependence. The Board must therefore disregard the influence of alcohol abuse on ratable symptoms for its permanent rating recommendation. Likewise, there is no defensible basis for applying, or means of measuring, any deduction which might be considered for the social phobia condition.

Although at the time of the NARSUM (4 months prior to separation), a case could be made for a 50% rating for continuous occupational and social impairment with reduced reliability and productivity, the record indicated some improvement in functioning proximate to separation and partial remission by the VA C&P after separation exam. All members agreed that the VASRD §4.130 threshold for a 50% rating was not met. The deliberation settled on arguments for a 10% vs. 30% permanent rating. The 30% rating description in VASRD §4.130 (occupational and social impairment with occasional decrease in work efficiency, and intermittent periods of inability to perform occupational tasks) was clearly a better fit than the 10% description (occupational and social impairment due to mild or transient symptoms which decrease work efficiency, during periods of significant stress). The CI was having moderate symptoms and moderate social impairment, was under psychiatric care and was requiring multiple changes in medications. The VA reference to “partial remission” soon after separation was adjudged as transient considering the remainder of the record. After due deliberation and consideration of all the evidence, and mindful of VASRD §4.3 (reasonable doubt), the Board majority recommends a rating of 30% for the MDD (all mental disorders) condition.

Other PEB Conditions. The other conditions forwarded by the MEB and adjudicated as not unfitting by the PEB were social phobia and alcohol dependence in early partial remission. Any contribution from either condition to the CI’s primary unfitting mental disorder symptoms was considered above. IAW DoDI 1332.38, uncomplicated alcohol dependence is not considered a physical disability for separation rating. Both conditions were reviewed by the action officer and considered by the Board. All evidence considered, there is not a preponderance of the evidence in the CI’s favor supporting recharacterization of the PEB adjudications for the stated conditions; both were considered under rating the CI’s primary unfitting mental disorder (above) IAW VASRD §4.126.

Other Contended Conditions. The CI’s application asserts that compensable ratings should be considered for scar right little finger (VA 10% effective 2011) and deviated septum (VA 0%) which were identified in block 14 of the DD Form 294. Both of these conditions were reviewed by the action officer and considered by the Board. There was no evidence for concluding that either of the conditions interfered with duty performance to a degree that could be argued as unfitting. The Board determined therefore that none of the stated conditions were subject to service disability rating.

Remaining Conditions. Other conditions identified in the DES file were left knee pain and acne. 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 non-medical 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 subject to separation rating. Additionally no other conditions were noted in the VA proximal to separation that was not documented in the DES file.

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. In the matter of the MDD condition, the Board by a simple majority recommends a 30% separation rating, coded 9434 IAW VASRD §4.130. The single voter for dissent (who recommended no recharacterization) did not elect to submit a minority opinion. In the matter of the social phobia and alcohol dependence conditions, the Board unanimously recommends no change from the PEB adjudication as not separately ratable. In the matter of any other conditions eligible for 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 and that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20110928, w/atchs

Exhibit B. Service Treatment Record

Exhibit C. Department of Veterans Affairs Treatment Record

XXXXXXXXXXXX

President

Physical Disability Board of Review

MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW

BOARDS

Subj: PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATION

XXXXXXXXXXXXXXX

Ref: (a) DoDI 6040.44

(b) PDBR ltr dtd 25 Apr 12

I have reviewed the subject case pursuant to reference (a) and non-concur with the recommendation of the PDBR as set forth in reference (b). Therefore, XXXXXXXXX, records will not be corrected to reflect a change in either his characterization of separation or in the disability rating previously assigned by the Department of the Navy’s Physical Evaluation Board.

XXXXXXXXXXXXX

Principal Deputy

Assistant Secretary of the Navy

(Manpower & Reserve Affairs)