RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW
NAME: BRANCH OF SERVICE: NAVY
CASE NUMBER: PD1100255 SEPARATION DATE: 20030321
BOARD DATE: 20120130
SUMMARY OF CASE: Data extracted from the available evidence of record
reflects that this covered individual (CI) was an active duty FC3/E-4
(1119, Aegis Radar System Technician), medically separated for major
depression, recurrent with psychotic features. The CI developed symptoms
of anxiety, depression and paranoid delusions in 2002. He was diagnosed
with major depression with psychotic features. The symptoms of paranoia
improved with the use of anti-psychotic medication, however his depressive
symptoms did not improve adequately to perform within his rating. He was
placed on limited duty (LIMDU) and underwent a Medical Evaluation Board
(MEB). Major depressive disorder, recurrent with psychotic features;
dysthymia and avoidant personality disorder 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 major depression (recurrent with psychotic
features) condition as unfitting, rated 10%; additionally the dysthymia
condition was adjudged Category II (contributing to the unfitting
condition) and the avoidant personality disorder was adjudged Category IV
(condition which does not constitute a physical disability); with
application of the SECNAVINST 1850.4E. The CI made no appeals, and was
medically separated with a 10% combined disability rating.
CI CONTENTION: He elaborates no specific contentions regarding rating or
coding and mentions no additionally contended conditions.
RATING COMPARISON:
|Service IPEB – Dated 20030121 |VA (2 Mos. After Separation) – All |
| |Effective 20030322 |
|Condition |Code |Rating |
|Avoidant |Cat IV |No VA Entry |
|Personality D/O | | |
|↓No Additional MEB/PEB Entries↓|Obstructive Sleep Apnea |6847 |
|Combined: 10% |Combined: 100% |
*Initial VARD rated 9434 at 10% (combined 60%) effective 20030322; VARD of
20061006 increased 9434 to 30%, effective 20060517 (combined 70%); and VARD
of 20080326 (de novo review by DRO [decision review officer]) noted error
at time of initial rating and increased 9434 to 100%, effective 20030322
(as charted).
ANALYSIS SUMMARY:
Major Depression, Recurrent with Psychotic Features Condition. In February
2002, 13 months prior to separation, the CI presented with complaints of
anxiety and panic attacks triggered by large groups of people. Psychiatric
evaluation also documented feelings of depression, hypersomnia, low energy
and poor self-esteem. The CI was diagnosed with agoraphobia (without
history of panic disorder) and dysthymic disorder. There was no formal
Axis II diagnosis, but the CI was noted to have schizoid traits. He was
placed on LIMDU and treatment was initiated with anti-depressant medication
(Paxil) and counseling, with the expectation that he would improve to
return to full duty. In July 2002, eight months prior to separation, the
CI developed paranoid delusions prompting referral to the National Naval
Medical Center (NNMC). Evaluation at the NNMC revealed paranoid ideation,
disorganized thoughts, ideas of reference and cognitive dulling. The
examiner noted the CI’s preoccupation with thoughts of people following
him. The CI denied suicidal ideation, homicidal ideation or
hallucinations. The Axis I diagnosis was rule out schizophrenic disorder,
with an Axis II diagnosis of schizoid personality disorder. The Global
Assessment of Functioning (GAF) was assessed at 55, in the range of
moderate symptoms. Treatment was begun with the antipsychotic medication
risperidone and the CI was referred for MEB.
At the MEB narrative summary exam, seven months pre-separation, the
examiner documented the CI’s history of paranoid delusions with depressed
mood, increased sleep, decreased energy and difficulty concentrating. It
was noted that the CI’s paranoid thoughts had responded well to treatment,
however, the examiner commented, “to date he has not shown a response to
treatment for the depression.” Mental status exam documented a depressed
mood with restricted affect. Thought processes were logical and goal
directed and the CI denied suicidal ideation, homicidal ideation,
hallucinations or delusions. The CI was noted to have “good insight into
the delusional nature of previous beliefs.” The examiner concluded that
“because of member’s personality disorder and difficulty forming
relationships with new people, he is at very high risk of recurrence of
these symptoms in the military environment.” The Axis I diagnoses were
major depression, recurrent with psychotic features, and dysthymia. The
impairment for social and industrial adaptability due to the major
depression was assessed as severe; while impairment due to dysthymia was
assessed as moderate. The Axis II diagnosis was avoidant personality
disorder and the overall GAF was assigned at 60, in the range of moderate
impairment. The non-medical assessment commented that the CI had been
assigned specific tasks designed to limit his personal one-on-one contact
with clients and added that the CI’s “mental condition and paranoia is
considered incompatible with his LIMDU assignment.” As the CI underwent
treatment and therapy during the MEB period, the Axis I diagnoses varied to
include major depressive disorder with psychotic features (+/- in
remission), schizoaffective disorder (depressive type) and dysthymia. The
assigned GAFs during the MEB period ranged from 59 – 60, in the range of
mild to moderate impairment. The service treatment record (STR) also
documented a recurrence of paranoid thoughts requiring a medication
increase, less than two months prior to separation with comment of “he is
stressed in anticipation of MEB coming back” and likely related to the
increased stresses of the DES process.
At the VA C&P exam, two months after separation, the CI endorsed similar
symptoms of depression, anxiety spells and excessive sleeping. The
examiner commented that the CI was taking significant medications without
supervision and noted that “when asked about impaired thinking or
communication, he described a medication haze.” The CI denied auditory
hallucinations, suicidal ideation or homicidal ideation. The examiner did
not comment on paranoid thoughts or delusions and did not comment on the
CI’s affect. Additionally, the examiner did not comment on the CI’s social
interactions or occupational status. There was no irrelevant, illogical or
obscure speech. The Axis I diagnosis was major depression with psychotic
features in partial remission with unsupervised medication and the Axis II
diagnosis was personality traits, unspecified. The GAF was assessed at 70,
in the range of mild impairment.
The VA initially assigned a rating of 10% on the basis of this evaluation.
The narrative accompanying this rating decision, however, described that a
50% rating had been awarded. This discrepancy was initially addressed in
the 23 February 2004 VA rating decision (VARD) which re-affirmed that the
CI’s rating for psychiatric disability was 10%. After a de novo decision
review officer (DRO) examination of the case and review of post-separation
VA treatment records, the 26 March 2008 VARD increased the rating to 100%
effective from the day after discharge from service, noting that “an error
was made on the original decision on your claim.” This award decision also
noted that the CI had not worked since leaving the service and concluded
that his “delusional symptoms have met the requirements for the 100 percent
evaluation since … discharge from service.” Post-separation treatment VA
treatment records, covering the period July 2003–February 2008, indicated
gradual post-separation decline in the CI’s condition which began around
2005. Clinic notes from 2003 thru 2004 revealed a fairly stable clinical
course with the CI continuing to endorse moderate symptoms of isolation,
depression, anxiety and paranoia. At time of formal psychiatric evaluation
in September 2003, six months after separation, the CI reported feeling
alone, depressed and anxious; and he continued to feel that people were
following him. His GAF was assessed at 55 (MEB GAF–60, C&P GAF–70). In
January 2006, (~33 months post-separation) the CI presented with
significant decline in his condition. He had stopped his medication and
begun isolating himself in his room six months prior due to paranoia,
hearing voices, and increasing anxiety. He was hospitalized for
stabilization with the diagnosis of schizophrenia, paranoid type.
The Board directs its attention to its rating recommendations based upon
the evidence just described. It was first adjudged that this case did not
meet the requirements for application of a retroactive Temporary Disability
Retired List rating IAW VASRD §4.129. The psychiatric condition was
adjudged to not be a result of a “highly stressful event” (as per §4.129).
The Board next considered the additional mental health diagnoses of
dysthymia and schizoaffective disorders as both were listed as Axis I
diagnoses proximate to separation. As discussed previously, the specific
diagnosis for the CI’s unfitting mental health condition varied throughout
the MEB period. Regardless of the specific mental health diagnosis IAW
VASRD §4.126, evaluation of disability from mental disorders, all mental
health symptoms will be rated under VASRD IAW §4.130 and the General Rating
Formula for Mental Disorders. The disqualifying PEB diagnosis of major
depression, recurrent with psychotic features, was considered
administratively final.
All Board members agreed that the §4.130 criteria for the 100% threshold
was not approached, at the time of separation. The MEB exam would
independently rate at 30%–70%, while the initial VA C&P exam would be
independently rated at 30%. The Board adjudged that the less-detailed,
almost checklist format of the VA C&P exam rendered it of lower probative
value. The Board acknowledged that the VA conferred a 100% rating on the
basis of their exam; however, IAW VA-specific rules (on effective date),
the VA considered additional post-separation worsening in their rating
determination. The Board did not adjudge that the CI’s condition at
separation reflected total “occupational and social impairment.” The Board
considered the CI’s mood disturbance, anxiety and difficulty in forming
relationships, as well as the MEB’s conclusion of severe impairment for
social and industrial adaptability; and concluded that there was sufficient
evidence that the CI’s condition resulted in definite reduced reliability
and productivity. Additionally, impairment due to the CI’s recurrent
symptoms of paranoid delusions and isolation along with his difficulty
adapting to stressful circumstances were well documented in the STRs and
the post-separation VA clinic treatment notes. The Board considered the
additional impact of the CI’s impaired perception of reality and
deliberated concerning the 70% ratings, “occupational and social
impairment, with deficiencies in most areas.” The preponderant discussions
focused on the level of occupational and social impairment and if it was
constant or occasional. The major depressions, recurrent with psychotic
features; and dysthymia conditions at the time of separation were adjudged
to best reflect occupational and social impairment with occasional decrease
in work efficiency and intermittent periods of inability to perform
occupational tasks. After due deliberation, considering the totality of
the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board
majority recommends 30% as the fair and equitable permanent rating for
major depression, recurrent with psychotic features, and dysthymia, in this
case.
Other PEB Conditions. The other conditions forwarded by the MEB were
dysthymia and avoidant personality disorder. Dysthymia was adjudged as a
Category II condition that contributes to the unfitting condition. As
discussed above, any impairment due to this condition was considered in the
overall rating recommendation for the unfitting mental health condition.
The Board, therefore, adjudged that the dysthymia condition would be
included as part of the unfitting mental health condition rating IAW §4.126
(evaluation of disability from mental disorders). The condition of
avoidant personality disorder does not constitute a physical disability IAW
DoDI 1332.38, Enclosure 5, which corresponds with the PEB Category IV
determination. All evidence considered, the dysthymia condition was not
separately ratable and there is not reasonable doubt in the CI’s favor
supporting recharacterization of the PEB Category IV adjudication for the
avoidant personality disorder condition.
Remaining Conditions. 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 was 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 obstructive
sleep apnea was noted in the VARD proximal to separation but was 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 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 major depression (recurrent with psychotic features) was
operant in this case and the condition was adjudicated independently of
that instruction by the Board. In the matter of the major depression
(recurrent with psychotic features) condition and the dysthymia condition,
the Board in a 2:1 vote recommends a permanent service disability rating of
30% coded 9434 IAW VASRD §4.130. The single voter for dissent (who
recommended no recharacterization of the PEB adjudication) submitted the
addended minority opinion. In the matter of the avoidant personality
disorder condition, the Board unanimously recommends no change from the PEB
adjudication as Category IV. In the matter of 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 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 CONDITION |VASRD CODE |RATING |
|Major Depression, Recurrent w/ Psychotic Features, |9434 |30% |
|& Dysthymia | | |
|COMBINED |30% |
The following documentary evidence was considered:
Exhibit A. DD Form 294, dated 2010403, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans Affairs Treatment Record
President
Physical Disability Board of Review
MINORITY OPINION:
The minority voter agrees with the majority that the psychiatric condition
did not meet the criteria for application of VASRD §4.129; and, therefore
only the MEB and proximate VA psychiatric evaluations are significantly
probative. Based on the MEB exam, in this voter’s opinion, the CI’s
psychiatric impairment would be best characterized as mild. The
psychiatric symptoms had responded very favorably to a course of anti-
psychotic medication (risperidone); there was no indication of psychotic
thought process during the testing; and, the CI was compliant with ongoing
treatment. The assigned GAF of 60 was indicative of mild to moderate
impairment.
The Commander’s Non Medical Assessment (NMA) was written in October 2002
and reflects a period of observation before initiation of treatment with
risperidone as mentioned above. The facts documented by the Commander
cover events from 10 April thru 12 July 2002. In July, the CI was
transferred from the Commander’s unit (branch legal service office) for
further psychiatric evaluation and treatment which carried him to
separation. Treatment with risperidone did not start until mid-July 2002,
and the CI promptly reported subjective benefit. The NARSUM confirmed the
improvement, stating that the CI experienced a rapid resolution of his
paranoia after risperidone was started at a 1 mg dose. In mid-October
2002, the dosage was increased to 2 mg and numerous subsequent treatment
notes documented a consistent GAF of 59. In mid-February 2003 (one month
pre-separation), the dosage was increased to 4 mg because of intrusive
paranoid ideation; and, the resolution of this residual symptom was
documented following this titration of the anti-psychotic. The GAF
recorded at a session on 24 February 2003 was 60; and, ranged from 59-65
(mild to moderate range) throughout the remaining period up to separation.
The Commander would not have been able to observe the CI’s symptoms with
the benefit of this improvement brought by the medication. The duty
limitations and impairments due to the CI’s psychiatric condition, taken
from the NMA (as elaborated in this record), were thus not significantly
probative as rating criteria at separation. The acuity of symptoms and
occupational impairment reflected in the NMA are not corroborated by the
MEB psychiatric evaluation and outpatient record more proximate to
separation. The Commander himself in the NMA stated that if the CI’s
condition stabilized, he would be a welcome addition and asset to any
command; and, would recommend retention on active duty in a Permanent
Limited Duty status.
The VA Compensation and Pension exam was a valid and ratable exam done 2
months post-separation. It corroborates the psychiatric improvement
effected by the pre-separation treatment as discussed above. The examiner
assigned a GAF of 70 (in the range of mild to slight impairment); and, the
VA conferred a §4.130 rating of 10% based on this evaluation. One year
later in February 2004, a subsequent VA rating decision clarified the
previous decision, and verified the 10% rating based on the same May 2003
exam. It was not until October 2006 that the VA increased the rating to
30% based on an exam done August 2006 (3½ years after separation), after
the CI had been hospitalized twice (in 2006) and showed clear post
separation worsening. The CI did not achieve a 100% VA rating until
2008, based again on progression of disease and an exam from September 2007
(4½ years remote from separation); at which time his diagnosis was changed
to schizoaffective disorder, his GAF was lowered to 45, and he was labeled
as “seriously mentally ill.” The VA’s decision to apply the 100% rating
retroactive to separation was therefore completely unsupportable by the
evidence cited in its own rating decisions; and, in this voter’s opinion,
was erroneous and unreasonable. Thus the VA’s retroactive rating and all
VA developments and evidence after its initial examination proximate to
separation hold little or no probative value relative to the Board’s
mission to recommend a fair separation rating for the psychiatric
condition. That (initial) examination and the pre-separation MEB
examination are consistent with a 10% rating IAW VASRD §4.130; a rating
affirmed and re-affirmed by the VA itself based on the probative evidence.
RECOMMENDATION:
The minority voter recommends therefore, that there be no
recharacterization of the CI’s disability and separation determination, as
follows:
|UNFITTING CONDITION |VASRD CODE |RATING |
|Major Depression, Recurrent With Psychotic |9434 |10% |
|Features | | |
|COMBINED |10% |
MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW
BOARDS
Subj: PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATION
Ref: (a) DoDI 6040.44
(b) PDBR ltr dtd 22 Feb 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).
I have considered all available evidence and find the disability rating
award by the Physical Evaluation Board (PEB) accurately reflected the
degree of xxxxxx impairment at the time of his discharge and is in
accordance with regulations. Therefore, xxxxx 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 PEB.
Principal Deputy
Assistant Secretary of the Navy
(Manpower & Reserve Affairs)
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