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AF | PDBR | CY2012 | PD 2012 01500
Original file (PD 2012 01500.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX         CASE: PD-2012-01500
BRANCH OF SERVICE: NAVY  BOARD DATE: 20140529
SEPARATION DATE: 20070320


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty ET1/E-6 (Electronics Technician) medically separated for dysthymic disorder and irritable bowel syndrome (IBS). Neither the gastrointestinal nor the mental health (MH) condition could be adequately rehabilitated to meet the physical requirements of his rating or satisfy physical fitness standards. He was placed on limited duty and referred for a Medical Evaluation Board (MEB). The conditions, characterized as “dysthymic disorder,” “panic disorder without agoraphobia,” “generalized anxiety disorder,” and “passive dependent personality traits” were forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E. No other conditions were submitted by the MEB. The Informal PEB adjudicated “dysthymic disorder” and “irritable bowel syndrome” as unfitting, rated 10% and 10%. The generalized anxiety disorder (GAD), panic disorder without agoraphobia and gastroesophageal reflux conditions were determined to be Category 2 disorders and the passive dependent personality traits condition w as determined to be C ategory 4 (conditions which do not constitute a physical disability) . The CI made no appeals and was medically separated.


CI CONTENTION: “Ratings reviewed by VA and VA claim was rated at 60% for the same issues. Had the military properly rated me, I would have been retired and received proper military benefits.”


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. IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations. The Board’s role is thus confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VA Schedule for Rating Disabilities (VASRD), based on ratable severity at the time of separation. The ratings for the unfitting dysthymic disorder and IBS conditions are addressed below and, 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 Board for Correction of Naval Records.


RATING COMPARISON :

IPEB – Dated 20061130
 VA - (9 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Dysthymic Disorder 9433 10% Generalized Anxiety D/O, Dysthymic D/O, and Panic D/O with Agoraphobia, with Excessive Daytime Sleepiness 9400 50% 20071129
Generalized Anxiety Disorder Category 2
Panic Disorder w/o Agoraphobia Category 2
Irritable Bowel Syndrome 7319 10% Irritable Bowel Syndrome with Gastroesophageal Reflux Disease 7319-7346 10% 20071210
Gastroesophageal Reflux Category 2
Other x 0 (Not in Scope)
 Other x 3 20071210
Combined: 20%
 Combined: 60%
Derived from VA Rating Decision (VA RD ) dated 200 80227 ( most proximate to date of separation [ DOS ] ).


ANALYSIS SUMMARY: IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations. The Board reviews medical records and other available evidence to assess the fairness of PEB rating determinations, using the VASRD standards, based on ratable severity at the time of separation.

The PEB rating preceded the promulgation of the National Defense Authorization Act of 2008 mandate for Department of Defense (DoD) adherence to VASRD §4.129. The Board, IAW DoDI 6040.44 and DoD guidance (which applies current VASRD §4.129 to all Board cases as appropriate), must consider if the definition of §4.129 is met for any psychiatric condition resulting in medical separation; i.e., “a mental disorder that develops in service as a result of a highly stressful event.” If the Board judges that application of §4.129 is appropriate, it will recommend a minimum 50% rating for a retroactive 6-month period on the Temporary Disability Retired List (TDRL). The Board must then determine the most appropriate fit with VASRD 4.130 criteria at 6 months for its permanent rating recommendation, based on the facts in evidence which are most probative for that interval.

Dysthymic Disorder Condition. Review of the service treatment record (STR) revealed that the CI first presented for mental health (MH) care in January 2006 in the context of marital dysfunction, financial problems and chronic gastrointestinal symptoms. Although he had no prior history of MH symptoms, he acknowledged unresolved grief over the death of his mother in November 2004. He complained of sleep disturbance, anxiety, mood swings, panic attacks and increasing irritability. Despite treatment with a combination of psychotherapy and psychotropic medication, he was still not considered fit to transfer to a seagoing command.

The psychiatric narrative summary (NARSUM) on 8 August 2006 (7 months prior to separation) noted that despite medication, the CI continued to report frequent panic attacks. The examiner stated that he performed well in his limited duty position. The mental status exam (MSE) reported a normal appearance and no psychomotor abnormalities. Mood was anxious and affect congruent with mood. There was no evidence of suicidal or homicidal thinking, or of delusions or hallucinations. His sleeping was noted to be good on medication. The Axis I diagnoses were dysthymic disorder, panic disorder without agoraphobia and general anxiety disorder (GAD). A Global Assessment of Functioning (GAF) score was 60, connoting moderate symptoms or impairment. The examiner opined that the degree of civilian performance impairment was mild to moderate. The non-medical assessment on 22 August 2006 indicated that the CI was missing an hour of work per week due to medical treatment, evaluation or recuperation. At the MEB separation exam on 13 September 2006, the CI reported panic attacks 3-4 times per week. The MEB physical exam indicated that the CI “does not appear anxious at this time.”

The VA Compensation and Pension (C&P) examiner on 29 November 2007 (8 months after separation) indicated that the CI and his wife had divorced and that he was caring for their three children, ages 6, 8 and 11. For the previous 6 months he worked fulltime as a host at Disney attractions. The CI described work as “ok” noting there were “no complaints coming from supervisor.” He had missed no work for MH reasons. He had in-laws who functioned as his primary source of local support and he communicated regularly with his father and sister, but had no friends in the area. He reported no participation in leisure activities, denied prior psychiatric hospitalization and was under no current psychiatric treatment. He complained of low mood, poor sleep, poor energy and difficulty concentrating. He showed an unkempt, fatigued and tense appearance, although at least a minimum of personal hygiene was deemed to be maintained. Mood was anxious and depressed and affect constricted. Attention span was observed to be short, but tested memory was normal. He was fully oriented and showed no evidence of impaired judgment, insight, abstract thinking or impulse control; of ritualistic behaviors; or of thoughts of harm, hallucinations or delusions. Panic attacks were present, but their frequency was not specified. The Axis I diagnoses were GAD, dysthymic disorder, panic disorder with agoraphobia and excessive daytime sleepiness. The assigned GAF was 51 (moderate symptoms or impairment).

The Board directs attention to its rating recommendation based on the above evidence. As previously elaborated, application of VASRD §4.129 is considered by the Board for all cases of service-connected psychiatric conditions resulting in separation; but, all members agreed that the “highly stressful event” requisite for §4.129 was not satisfied in this case. The Board therefore will consider only the VASRD §4.130 impairment present at separation for a single rating recommendation. The Board also notes that the disability associated with all psychiatric conditions, regardless of the diagnosis or multiple diagnoses, is subsumed under a single rating using the same criteria IAW VASRD §4.130. Therefore the applicant’s service disability rating assigned by the PEB and the recommendation from the Board, will be unaffected by the number of psychiatric diagnoses or the specific psychiatric diagnosis determined to be unfitting by the service.

The PEB assigned a 10% rating for dysthymic disorder under the 9433 code (dysthymic disorder) and properly subsumed GAD and panic disorder within that rating. The VA used the 9400 code (GAD) to assign a 50% rating, indicating the condition was characterized by “occupational and social impairment with reduced reliability and productivity.” Although one 50% threshold symptom was noted by the MEB examiner, Board members agreed that the level of occupational functioning described by the NARSUM examiner and the VA C&P examiner was not consistent with the “reduced reliability and productivity” stipulation of the 50% rating. Debate therefore settled on a 10% vs. 30% rating. The 10% rating specifies “occupational and social impairment due to mild or transient symptoms which decrease work efficiency … only during periods of significant stress, or; symptoms controlled by continuous medication.” The §4.130 criteria for the 30% rating are “occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.” Although the CI reported social isolation and had recently gone through a divorce, there was no evidence of impaired relationships with his children, in-laws, father, or sister. The Board considered he worked in a full-time job that presumably required frequent public interaction, did not miss any work due to mental health problems and performed occupationally in a manner that did not generate supervisory complaints. However, Board members also deliberated that several 30% threshold symptoms were present and that GAF scores were consistent with moderate symptoms or impairment in the context of utilizing no psychotropic medication or psychotherapy. The Board majority concluded that the evidence just described was most accurately depicted by the 10% rating. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the dysthymic disorder condition.
Irritable Bowel Syndrome. The STR revealed initial complaints of nausea, vomiting, abdominal pain and diarrhea in February 2005. Weight at that time was 160 pounds. Subsequent clinical visits reflected some alternating diarrhea and constipation, and prominent nausea with intermittent vomiting. Due to persistent symptoms, an extensive evaluation by a gastroenterologist uncovered no clear etiology. Although mild inflammation of the esophagus was found, treatment intended to resolve the inflammation did not result in appreciable change in nausea or vomiting. However, medication for symptomatic treatment of nausea was transiently helpful. At a gastroenterology visit on 10 November 2005 (16 months prior to separation) the CI continued to complain of vomiting 2-3 times per week. Alternating diarrhea, constipation and abdominal discomfort were thought to be due to IBS. At the MEB separation exam on 13 September 2006 (6 months prior to separation), the CI reported “constant nausea, frequent vomiting” since January 2005. Diarrhea or abdominal pain was not mentioned. The abdominal examination was normal, and weight was 170 pounds. A gastrointestinal condition was not listed among a “Summary of Defects and Diagnoses” by this examiner.

At the VA C&P exam on 10 December 2007 (9 months after separation), the CI reported that “mild irritable bowel symptoms” significantly worsened after the death of his mother (i.e. in November 2004). He continued to experience near-constant nausea and vomiting once or twice every two weeks. He also endorsed acid reflux, but denied weight loss or dysphagia (difficulty swallowing). Diarrhea was noted to be episodic, occurring 4-7 times per year. When present, he experienced diarrhea 4-6 times daily for three days. The CI reported he “missed several days (of work) in last 6 months because of diarrhea and nausea with vomiting.” Mild upper abdominal pain was reported to occur daily and last for “minutes,” while heartburn of moderate severity occurred several times per week. Physical examination showed a normal weight and minimal abdominal tenderness.

The Board directs attention to its rating recommendation based on the above evidence. Although the CI was experiencing upper and lower gastrointestinal symptoms (heartburn and diarrhea), the PEB and the VA appropriately applied a single rating for an abdominal condition IAW VASRD §4.113 and §4.114. The Board must follow suit, but IAW VASRD §4.7 (higher of two evaluations), must confirm that its choice of applicable code achieves the optimal rating allowed by §4.114 criteria. Under 7319 (irritable colon syndrome) used by the PEB, “moderate” symptoms characterized by “frequent episodes of bowel disturbance with abdominal distress” warrants a 10% rating. Board members agreed the diarrhea symptoms were not consistent with next higher 30% rating criteria (“Severe; diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress”). The Board considered if a higher rating under the 7346 code (hiatal hernia) used in combination with the 7319 code by the VA was justified. A 30% rating under this code requires “persistently recurrent epigastric distress with dysphagia, pyrosis (heartburn), and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health.” The 10% rating stipulates two or more of the symptoms for the 30 percent evaluation, but of less severity. Board members agreed that dysphagia and “considerable impairment of health” stipulations were not present, and therefore the evidence was most accurately depicted by the 10% rating. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the irritable bowel syndrome condition.


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 dysthymic disorder condition and IAW VASRD §4.130, the Board by a vote of 2:1 recommends no change in the PEB adjudication. The dissenting voter elected not to submit a minority opinion. In the matter of the IBS condition and IAW VASRD §4.130, the Board unanimously recommends no change in the PEB adjudication. There were no other conditions within the Board’s scope of review for consideration.


RECOMMENDATION: The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120816, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record



                                   
XXXXXXXXXXXXXXXXXX
President
Physical Disability Board of Review



MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW
BOARDS

Subj: PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS

Ref: (a) DoDI 6040.44
(b) CORB ltr dtd 28 Oct 14

In accordance with reference (a), I have reviewed the cases forwarded by reference (b), and, for the reasons provided in their forwarding memorandum, approve the recommendations of the PDBR the following individual’s records not be corrected to reflect a change in either characterization of separation or in the disability rating previously assigned by the Department of the Navy’s Physical Evaluation Board:
- XXXXXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXXXXX, former USN


                                                      XXXXXXXXXXXXXXXXXX
                                            Assistant General Counsel
                                                      (Manpower & Reserve Affairs)

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