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AF | PDBR | CY2012 | PD2012 01077
Original file (PD2012 01077.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:    BRANCH OF SERVICE: Army
CASE NUMBER: PD1201077   SEPARATION DATE: 20011113
BOARD DATE: 20130410


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (92G10/Food Service), medically separated for major depressive disorder (MDD) with psychotic features. Her depressed mood started in May 2000, while experiencing difficulty sleeping, anxiety, difficulty concentrating, decreased appetite, feeling worthless and overwhelmed. She did not improve adequately with treatment to meet the physical requirements of her Military Occupational Specialty (MOS). She was issued a permanent S4 profile and referred for a Medical Evaluation Board (MEB). MDD was forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW AR 40-501. The MEB forwarded no other conditions for Physical Evaluation Board (PEB) adjudication. The Informal PEB (IPEB) adjudicated the MDD condition as unfitting, rated 10%, with application of the Department of Defense Instruction (DoDI) 1332.39 and AR 635-40. The CI did not concur with the IPEB waived a Formal PEB (FPEB) and submitted a written appeal to the US Army Physical Disability Agency (USAPDA). The USAPDA affirmed the IPEB’s findings; and the CI was then medically separated with a 10% disability rating.
CI CONTENTION: “Chronic back pain now it’s worse. The Sergeant knew that I was in chronic pain and also that I was also on medication for my major depression. They gave me this stuff. They knew I was sick. (continue block 12) I was a good soldier then I got sick. They said I had a major depressive disorder. They gave me medication like Ritalin, Paxil, Effexor, other stuff (meds). Celebrex, Naproxen, Ibuprofen for my knee, chronic pain lower back, thumb. I was taking so much medicine they gave me. I couldn’t think . (continue block 13) I was there on 911 I had to go the DEFAC for accountability. I was working but, I was working hard 12 hours a day as a cook-food specialist for those who were going into training for mobilization. I was proud to help. I was ready to go no matter what, with the Army to fight. But they said I was unfit and I had to go on Medical Discharge. I was having panic attacks. I felt a failure (continue block 14) I felt like a failure. I couldn’t sleep, I couldn’t function well, I felt like a failure. They said I was a good soldier and then they threw me away. It hurt so bad! I took the Anthrax shot, so they wouldn’t put me out of the Army. This was what they said I was gonna get 10%. I knew they were wrong cause they gave me so much medicine. (continue block 15) I really was confused if I was sick like they said and I couldn’t work down to about to just but if I could make it cause I was taking strong medicine for my depression, PTSD, chronic pain. I was so weak and I would cry, I still cry. But I go to the VA I take medicine for my sickness, chronic pain. Now I couldn’t remember people names and other things. I forget. I can’t remember a whole song. And I like singing!”

The CI also attached two statements pleading to her application which were reviewed by the Board and considered in its recommendations.


SCOPE OF REVIEW: The Board wishes to clarify that the scope of its review as defined in DoDI 6040.44, Enclosure 3, paragraph 5.e. (2) is limited to those conditions which were determined by the PEB to be specifically unfitting for continued military service; or, when requested by the CI, those condition(s) “identified but not determined to be unfitting by the PEB.” The ratings for unfitting conditions will be reviewed in all cases. The other requested conditions [posttraumatic stress disorder (PTSD), back, knee, and thumb] are not within the Board’s purview. Any condition or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Army Board for Correction of Military Records.

The Board acknowledges the sentiment expressed in the CI’s application regarding the significant impairment with which her service-incurred condition continues to burden her. The Board wishes to clarify that it is subject to the same laws for service disability entitlements as those under which the Disability Evaluation System (DES) operates. The DES has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation. That role and authority is granted by Congress to the Department of Veterans Affairs (DVA), operating under a different set of laws (Title 38, United States Code). The Board evaluates DVA evidence proximal to separation in arriving at its recommendations, but its authority resides in evaluating the fairness of DES fitness decisions and rating determinations for disability at the time of separation. While the DES considers all of the member's medical conditions, compensation can only be offered for those medical conditions that cut short a member’s career, and then only to the degree of severity present at the time of final disposition. The DVA, however, is empowered to compensate all service-connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time.


RATING COMPARISON :

Service IPEB – Dated 20010810
 VA (~5 Mos. Post-Separation) – All Effective Date 20011114
Condition
 Code Rating Condition Code Rating Exam
Major Depressive D/O with psychotic features 9434 10% Major Depressive D/O, Severe with Psychotic Features 9434 70%** 20020418
No Additional MEB/PEB Entries
 Other x 7 20020418
Combined: 10%
 Combined: 70%
** Increased to 100% effective 20050318 by VARD 20050406 , based on C&P 20050318 .


ANALYSIS SUMMARY: N/A

Major Depressive Disorder Condition. At the psychiatric MEB exam approximately 7 months prior to separation the CI reported difficulty with sleep, constant fatigue, decreased appetite, constant anxiety, and feeling overwhelmed. She also described difficulty concentrating and staying on task, unable to do the work that was expected of her, and was feeling worthless about her. She had what she described as anxiety attacks which included feeling of hot flashes, shortness of breath, sweating, and rapid heart rate. She denied any history of manic symptoms. She reported a history of seeing people and hearing voices in the past, but it was unclear whether it was actual hallucinations or culturally acceptable descriptions of religious experiences. The pertinent mental status exam (MSE) findings included, being appropriately dressed, but in a guarded posture rocking back and forth during the interview, normal affect but visibly anxious and a depressed mood. She denied suicidal or homicidal ideation, but did describe a "voice" telling her things about herself. There were no delusions, or rank symptoms of psychosis. She had difficulty with counting, immediate recall, and attention. Psychological testing was remarkable for depression and anxiety and Intelligence Testing was remarkable for IQ of 77, with all indices below 80 reflective of borderline intelligence. She was ultimately diagnosed with an Axis I diagnosis of MDD, single episode, severe with psychotic symptoms and an Axis II diagnosis of borderline intellectual functioning.
She was given a trial of multiple medications and became more stable with the anti-depressant medication, Effexor, helping her depression, the antipsychotic medication, Zyprexa helping her auditory and visual hallucinations and the anti-depressant, Trazodone helping her sleeplessness. However, she continued to be easily overwhelmed by the simplest of tasks such as making a salad bar, attending appointments, and had difficulty learning any new tasks. She continued to have problems with sleep and was very anxious about not being able to do her job. The examiner opined her predisposition for a mental health disorder was high with the Axis II diagnosis present. The examiner further opined the degree of impairment for military service and the degree of impairment for social and industrial adaptability was severe and assigned a Global Assessment of Functioning (GAF) of 55 connoting moderate impairment.

The permanent profile was at the worst characterization “S4” and the limitations included no assignment to isolated areas where definitive medical care (US Armed Forces Hospital) was not available, no contact with weapons or explosives, all physical conditioning at own pace and distance, no physical fitness testing and the duty day not to exceed 8 hours. The commander’s statement further documented her medical condition severely restricted her ability to function in any stressful environment.

At the VA Compensation and Pension (C&P) exam approximately 5 months after separation, the CI reported completing the 9th grade and received a GED, became a certified nursing assistant, then joined the Army National Guard and enjoyed functioning as a cook and had no major problems. She enlisted in the regular Army in 1997 and worked in the Food Service as a cook. It was at her last duty station prior to discharge when she began experiencing sleep difficulties, feeling “constantly harassed”, being overwhelmed, became convinced that “people were talking about me”, had auditory hallucinations and episodes of severe anxiety. She sought care with the chaplain and entered mental health treatment. She reported that she was not in a current relationship but had been married twice. She had a son who lived with and cared for her and a daughter who lived in Mississippi. She was not employed at the time of the exam. The pertinent VA MSE findings included very infrequent eye contact, appeared to be rather evasive and defensive, and seemed to be trying to keep herself under control, then became quite tearful and sobbed for some five minutes. She had a soft, somewhat pressured speech at times, flat affect, an anxious mood at times, and some insight. During the exam she demonstrated paranoid thoughts, circumstantial thought, appeared delusional, overwhelmed, and obsessed and was convinced that other people “make me feel like a failure.” She had some difficulties maintaining attention and concentration with a fair fund of knowledge. She presented herself as a proud, ambitious, adventurous lady who had become someone who had no plans, no ambition, and a severe sense of loss. She reported not driving, cooking or taking care of her home and preferred to spend most of her day in the bed. The examiner did not have the service treatment records (STR) available for review and no additional testing was performed. The examiner diagnosed MDD severe, with mood congruent psychotic features and no Axis II diagnosis. The examiner opined there had been a minor improvement with adjustment of medication, but she currently remained severely impaired and generally was functioning poorly and assigned a GAF of 40 connoting serious symptoms.

The Board directs attention to its rating recommendation based on the above evidence. The Board utilizes VA evidence proximal to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence. The Board’s authority as defined in DoDI 6040.44, however, resides in evaluating the fairness of DES fitness determinations and rating decisions for disability at the time of separation. Post-separation evidence therefore is probative only to the extent that it reasonably reflects the disability and fitness implications at the time of separation. It is clear the VA post separation evidence reflects a worsening mental health condition due to the loss of the CI’s military career and likely due to transition to civilian life. This does not mean that the VA information was disregarded, as it was a valuable source for clinical information and opinions relevant to the Board’s evaluation. In matters germane to the severity and disability at the time of separation, however, the information in the service record was assigned proportionately more probative value as a basis for the Board’s rating recommendations. The PEB’s DA Form 199 reflected application of the Department of Defense Instruction (DoDI) 1332.39 and AR 635-40 for rating, and its 10% determination was inconsistent with §4.130 standards. The Board also notes while there is no specific rating deduction evidenced by the PEB, they cited that the Axis II diagnosis contributed to the condition and therefore the final rating was apportioned, as the Axis II diagnosis was not ratable. The Board agreed the Axis II condition likely contributed to the MDD condition however IAW DoD and VA regulations is not ratable therefore would not be considered for an apportionment in its final rating recommendation. The Board first agreed, on the day of the MEB, the psychiatric MSE exam exceeded the elements of the 10% threshold, meets 4 of 6 elements of the 30% threshold, approaches the 50% threshold, meeting 3 of 9 elements, and does not approach the 70% threshold. The Board next considered the general description in §4.130 for a 50% rating which is “occupational and social impairment with reduced reliability and productivity” and the 30% general description which is “occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.” While the MEB GAF of 55 connotes moderate symptoms, the commanders statement, and the MEB examiner’s opinion both support severe occupational and social impairment supporting the 50% rating. Furthermore the Board notes the CI is restricted to an 8 hour duty day and has profile characterized as an “S4” connoting a serious psychiatric condition. The Board considered VASRD §4.7 (higher of two evaluations) during its deliberation which directs the evaluator to assign the higher of two valid ratings if the disability picture more nearly approximates the criteria. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 50% as a fair permanent separation rating for the MDD 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. The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised. As discussed above, PEB reliance on the Department of Defense Instruction (DoDI) 1332.39 and AR 635-40 for rating MDD was operant in this case and the condition was adjudicated independently of that policy by the Board. In the matter of the MDD condition, the Board unanimously recommends a disability rating of 50%, coded 9434 IAW VASRD §4.130. There were no other conditions within the Board’s scope of review for consideration.
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:
UNFITTING CONDITION
 VASRD CODE RATING
Major Depressive Disorder 9434 50%
COMBINED
 50%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120609, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record




        
         Physical Disability Board of Review


 SFMR-RB                                                                         


MEMORANDUM FOR Commander, US Army Physical Disability Agency
(TAPD-ZB),


 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for AR20130009465 (PD201201077)


1. Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 50% effective the date of the individual’s original medical separation for disability with severance pay.

2. I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum:

         a. Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay.

         b. Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay.

         c. Adjusting pay and allowances accordingly. Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 50% effective the date of the original medical separation for disability with severance pay.

         d. Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.

3. I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures.

BY ORDER OF THE SECRETARY OF THE ARMY:




Encl                                                 
                                                      (Army Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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