RECORD OF PROCEEDINGS

PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXX BRANCH OF SERVICE: air force

CASE NUMBER: PD1100972 SEPARATION DATE: 20020416

BOARD DATE: 20120430 DATE OF PLACEMENT ON TDRL: 20020417

Date of Permanent SEPARATION: 20030624

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSGT/E-5 (3P071, Security Forces Craftsman), medically separated for major depressive disorder (MDD). She did not respond adequately to treatment and was unable to perform within her Air Force Specialty (AFS). She was issued a temporary S4 profile and underwent a Medical Evaluation Board (MEB). MDD was forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW AFI 48-123. 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 30%; with application of DoDI 1332.39. The CI was placed on Temporary Disability Retired List (TDRL) with ratings as reflected in the chart below. The CI made no appeals, and was medically separated with a 10% combined disability rating.

CI CONTENTION: The CI states: “Separated due to Major Depressive Disorder with less than 30% rating, however, I had symptoms of the 30-50% rating range on the VASRD. I was discharged from the Air Force due to a diagnosis of Major Depressive Disorder with a rating of less than 30%. However, according to my TDRL/MH evaluation I was displaying the following symptoms: Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; impairment of short- and long-term memory; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. And 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), due to such symptoms as depressed mood, anxiety, chronic sleep impairment, mild memory loss. The aforementioned symptoms are listed in the General Rating Formula for Mental Disorders in the VA Schedule for Rating Disabilities (VASRD) with a 30-50% rating. Additionally, my Major Depressive Disorder symptoms are referenced in DODI 1332.39” She mentions no additional contended conditions.

RATING COMPARISON:

* VA rating based on exam most proximate to date of permanent separation.

ANALYSIS SUMMARY: The CI’s assertion that she had not improved and that her condition worsened over the course of his TDRL period was considered in the Board’s deliberations. The Board takes the position that subjective improvement or worsening during the period of TDRL should not influence its coding and rating recommendation at the time of permanent separation. The Board’s relevant recommendations are assigned in assessment of the service’s permanent separation and rating determination, and the TDRL rating assignment is not considered a benchmark. It is recognized, in fact, that PEB’s across the services sometimes apply an overly generous initial rating in order to meet the DoD requirement of 30% disability for placement on TDRL. This is in the member’s best interest at the time and does not mean that a final lower rating is unfair, even if perceived as incongruent with subjective severity from one rating to the next. Thus the sole basis for the Board’s permanent disability recommendation is the optimal VASRD rating for disability at the time the CI is permanently separated at exit from TDRL.

Major Depressive Disorder. The CI was diagnosed and treated for an episode of depression beginning in October 2001 related to occupational stressors. The CI’s term of enlistment was projected to end 5 December 2001 but the Air Force stop loss program prevented her separation. The CI was also a single mother since a divorce in 1998. The MEB psychiatry narrative summary (NARSUM), 7 January 2002, reported initial improvement on medication but not sufficient to return the CI to full duty as a security forces member. On mental status examination, the mood was mildly depressed with full range of affect. Thought processes were normal with intact concentration. There was no suicidal or homicidal ideation. The examiner concluded with diagnosis of MDD, single episode, mild severity. The social and industrial adaptability impairment was estimated as definite and the Global Assessment of Functioning (GAF) as 62 (some mild symptoms). The commander’s letter, dated 11 January 2002, stated the CI:

“… was relieved of duty in Oct 01 during an investigation of alleged misconduct while performing duties in the missile field. She was suspended from the Personnel Reliability Program at that time. She started seeing a counselor at Life Skills due to stress apparently related to the on-going investigation. Her counselor report putting her on medication shortly thereafter and, due to the longterm nature of her mental health issues, recommended permanent decertification from the Personnel Reliability Program….She does not seem motivated to overcome her mental health issues and return to security force duties. Member has talked about separating from the Air Force in the past, but unsure what her plans are at this time. The Air Force Stop Loss program prevents all security force members from separating.”

The PEB based its 30% rating on the NARSUM report of definite social and industrial adaptability impairment. Mental health clinic encounters from 7 January 2002 to 12 March 2002 report mood as nearly euthymic, with normal affect, normal mental status examination and GAF of 70 by the last appointment in March 2002. At the time of the VA Compensation and Pension (C&P) examination, 12 April 2002, the CI reported feeling better, but “not quite back to her normal self.” She was on terminal leave, and described her normal daily routine as arising at seven in the morning and going to the gym and attending college classes 2 days a week. She noted she had several close friends she could call on at anytime. The examiner observed her to be pleasant and engaging with good eye contact, and no psychomotor abnormalities. Mood was mildly dysphoric with normal affect. Speech, thought processes and cognitive function were normal. There was no suicidal ideation. Insight and judgment were good. The examiner concluded the MDD was in partial remission and estimated a GAF of 65 (some mild symptoms). The CI was seen at the VA mental health clinic on 19 June 2002 and 2 July 2002 for increased symptoms of depression at which time changes in medication treatment were made. The record falls silent until her TDRL reevaluation on 28 April 2003. The CI reported she had not had any further contact with mental health providers since 2 July 2002. The examiner recorded these two mental health clinic appointments were sessions of psychotherapy and the CI did not continue because she felt the therapist was not helpful, however primary documentation reflects the first appointment was an initial evaluation by non-psychiatrist mental health care provider, and the second appointment was a psychiatrist evaluation for medication management. There were no psychotherapy sessions. The CI did not follow up as recommended and stopped new medications due to side effects and decreased her dose of her main anti-depressant medication. She stated she missed doses on occasion. Although nearly a year since her last appointment, she claimed to have had enough medication refills to last. The Board notes that it is not routine practice to provide an extended supply of anti-depressant medication in this manner. The CI endorsed ongoing symptoms of depression (depressed mood, sleep disturbances, decreased interest, guilt hopelessness, decreased energy, concentration, and memory) that the psychiatrist characterized as unchanged from the initial MEB NARSUM. However, the CI was employed fulltime without reported occupational problems. On mental status examination, there was depressed mood with restricted affect. The CI denied suicidal ideation, and thought processes were normal without any disturbances or abnormalities. Cognitive functioning was intact. The examiner concluded there was no change, and estimated the social and industrial adaptability impairment as definite and the GAF as between 65 (some mild symptoms) and 75 (if symptoms are present, they are transient and expectable reactions to psychosocial stressors). The PEB adjudicated a 10% rating and recommended discharge with severance pay. Although 4 years after removal from the TDRL, a C&P examination in September 2007 recorded similar symptoms of depression. The CI was not receiving any kind of treatment including medication or psychotherapy. However, she was employed full time at the same job for 3 years and reported good relationships with co-workers and supervisor.

The Board first addressed if the tenant of §4.129 (mental disorders due to traumatic stress) were applicable. The Board noted that the only stressors were those related to everyday social and work situations, and that there was no “highly stressful event” for which provisions of §4.129 would apply. The Board concludes therefore that the application of §4.129 is not appropriate to this case, and will premise its rating recommendation on the psychiatric acuity at separation. The Board considered the rating recommendation for TDRL entry. All members agreed that the §4.130 criteria for a rating higher than 30% were not met at the time of separation from active duty, and more nearly approximated the 10% rating at the time of the April 2002 C&P examination. The Board then considered the permanent rating for the depressive disorder. The Board noted that although the CI reported depressive symptoms at the time of the TDRL examination, she was not under the active care of a mental health professional and was working fulltime without reported occupational problems. Although 4 years later, an examination recorded similar symptoms without treatment and without occupational impairment. The Board considered §4.126 which states that a rating is based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. Further, when evaluating the level of disability, the extent of social impairment is considered but a rating is not adjudicated solely on the basis of social impairment. In this case, no occupational impairment was reported. Therefore the Board concluded the condition more nearly approximated the 10% rating than the 30% rating. All Board members agreed that the descriptor under the 10% rating (“transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress”) accurately depicted the CI’s condition. All evidence considered, there is not reasonable doubt in the CI’s favor supporting a change from the PEB’s rating decision for the anxiety disorder condition.

Remaining Conditions. Another condition identified in the DES file was low back pain. Several additional non-acute conditions or medical complaints were also documented. None of these conditions were clinically or occupationally significant during the MEB period, none carried attached profiles, and none were implicated in the commander’s statement. 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. No other conditions were service-connected with a compensable rating by the VA within 12-months of separation or contended by the CI. The Board therefore has no reasonable 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 DoDI 1332.39 for rating MDD was operant in this case and the condition was adjudicated independently of that instruction by the Board. In the matter of the MDD condition and IAW VASRD §4.130, the Board unanimously recommends no change in the PEB adjudication. In the matter of the low back pain condition 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. The Board unanimously agrees that there were no other conditions eligible for Board consideration which could be recommended as additionally unfitting for 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 her prior medical separation:

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20111024, w/atchs

Exhibit B. Service Treatment Record

Exhibit C. Department of Veterans’ Affairs Treatment Record

X

Physical Disability Board of Review

SAF/MRB

1500 West Perimeter Road, Suite 3700

Joint Base Andrews MD 20762

X

Dear X

Reference your application submitted under the provisions of DoDI 6040.44 (Title 10 U.S.C. §  1554a), PDBR Case Number PD-2011-00972

After careful consideration of your application and treatment records, the Physical Disability Board of Review determined that the rating assigned at the time of final disposition of your disability evaluation system processing was appropriate. Accordingly, the Board recommended no re-characterization or modification of your separation with severance pay.

I have carefully reviewed the evidence of record and the recommendation of the Board. I concur with that finding and their conclusion that re-characterization of your separation is not warranted. Accordingly, I accept their recommendation that your application be denied.

Sincerely,

X

Director

Air Force Review Boards Agency

Attachment:

Record of Proceedings