Search Decisions

Decision Text

AF | PDBR | CY2012 | PD2012 01439
Original file (PD2012 01439.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:    CASE: PD1201439
BRANCH OF SERVICE: ARMY  BOARD DATE: 20130410
SEPARATION DATE: 20050715


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard SPC/E-4 (9SB10/Military Police), medically separated for major depressive disorder (MDD) condition. The CI returned from Iraq and was evaluated for mental health problems. The CI had first contact with mental health system in November 2003 when while visiting Puerto Rico on a "rest and relaxation" visit had to go to the VA hospital because he put a knife to his neck. At that time, the CI stated that he was anxious and angry and felt that he should not be in Iraq. The CI was diagnosed with Axis I MDD. The MDD could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was issued a permanent S3 profile and referred for a Medical Evaluation Board (MEB). The MDD condition, characterized as, single “AXIS I” and was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501, Chap 3, Para 32b,c. The MEB also identified and forwarded six other conditions (multiple somatic pains to include knee, arm, shoulder, ankle, and back conditions, characterized as Axis III) for Physical Evaluation Board (PEB) adjudication. The Informal PEB (IPEB) adjudicated MDD, single condition as unfitting, rated 10% without mention of Axis III conditions listed on the MEB IAW AR 635-40, Appendix B-107, paragraph e. The CI appealed to the Formal PEB (FPEB) [MDD requiring psychotropic medication and outpatient treatment], which affirmed the PEB findings. The remaining condition was determined to not unfitting and not rated.


CI CONTENTION: “Member was evaluated at 10% at the time of separation. Later The VA rated him at 50% and recently at 70% for his PTSD condition.”


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. The rating for the unfitting MDD condition is 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 Military Records.


RATING COMPARISON :

Service FPEB – Dated 20050615
 VA - (71 Mos. Pre/Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Major Depressive Disorder 9434 10% Post-Traumatic Stress Disorder (Claimed as Mental
Condition)		 9411 Initially not rated* 20110106
Multiple Somatic Pains to Include Knee, Arm, Shoulder, Ankle, and Back Not Unfitting Lumbar Discogenic and Degenerative Joint Disease By MRI; Claimed as Back Pain 5242 10%** 20111006
Cervical Discogenic Disease By MRI; Claimed as Back Pain 5242 10%** 20111006
No Additional MEB/PEB Entries
 Other x 0%: Unknown/NSC: x 4 20110106
Combined: 10%
 Combined: 20%***
VARD 20100202 (most proximate to Date of Separation). Or iginal VARD not included in CPF. Missing page of RD.
* PTSD rating appear not to have been initiall y rated; rated 50% 20060613; increased to 70% 20090320 **Rating 20% from 20050716 .***Rating increased two time i.e. 60% from 20060613 then 70% from 20090928 . VARDs were missing pages so unknown number of 0% and NSC.

invalid font number 31506
ANALYSIS SUMMARY : The Disability Evaluation System (DES) is responsible for maintaining a fit and vital fighting force. 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 DES has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation nor for conditions determined to be service - connected by the Department of Veteran Affairs (DVA) but not determined to be unfitting by the PEB. Howeve r the DVA, operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service - connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the V eteran’s disability rating should the degree of impairment vary over time. The Board’s role is confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to Veterans Administration Schedule for Rating Disabilities ( VASRD ) standards, based on severity at the time of separation. The Board acknowledges that records to include VARDS and Compensation & Pension (C&P) exams of 2005 and 2007 were not available in the evidence before it; and, could not be located after the appropriate inquiries. Further attempts at obtaining the relevant documentation would likely be futile and introduce additional delay in processing the case. The missing evidence will be referenced below in relevant context; and, it is not suspected that the missing evidence would significantly alter the Board’s recommendations.

Major Depressive Disorder Condition . The Board noted the CI contended posttraumatic stress disorder ( PTSD ) which was not adjudicated by the PEB. Ordinarily, conditions not adjudicated by the PEB are not in the purview of the Board. However, the Board acknowledges that mental health condition s present a unique challenge. The CI was permanently separated for a mental health condition and is contending a mental health condition . Service treatment records (STRs) confirm that the CI received mental health care for a mental health condition that was assessed throughout the records variously as acute stress reaction; depressive episode, single; depression/rule out adjustment disorder; depression/rule out PTSD; PTSD rule out adjustment disorder; PTSD; acute stress disorder . None of the STR notes indicate that the CI had multiple mental health conditions; each examiner gave him only one A xis I diagnosis.

In accordance with DoDI 6040.44 and DoD guidance the Board is obligated to apply current VASRD §4.129 to Board cases with PTSD where appropriate, and recommend a minimum 50% PTSD rating for a retroactive six month period on the Temporary Disability Retired List (TDRL). The Board must then determine the most appropriate fit with VASRD §4.130 criteria at six months for its permanent rating recommendation. Regardless of final PEB diagnosis, §4.129 does not specify a diagnosis of PTSD, rather it states “mental disorder due to a highly stressful event”, and its application is not restricted to PTSD. The Board also noted that relative contribution to impairment from the depressive disorder and PTSD could not be separated, therefore the Board considered the mental health conditions together in its deliberations. The MEB narrative summary (NARSUM) psychiatric addendum (authored by the CI’s treating psychiatrist) noted that the CI’s history of mental health problems began in November 2003. According to the NARSUM, the CI was first seen for evaluation because while on leave in Puerto Rico he put a knife to his neck in a suicidal gesture. STR notes indicate that the CI was an MP and while deployed was involved in three shootouts with in a few months and a fellow unit member was killed in June or July of 2003 in an ambush . The CI reported that when he first sought treatment he was anxious and angry , with sleeping difficulty , and felt he should not be in Iraq. He was unarmed and treated with medication, but returned to duty. He was returned to his unit in the theater but continued under mental health care treatment with medications and therapy and attended a co mbat stress clinic. The CI returned to Puerto Rico and was seen 14 May 2004. His medications were adjusted. He then missed several appointments, attending eight out of eleven visits until the MEB exam 13 December 2004. At the MEB exam the CI reported irritability, feeling angry for no reason, decreased interest in pleasurable activities, and difficulty sleeping. At the exam the CI was noted to make good eye contact, be cooperative, alert and oriented , mildly anxious, displayed no paranoia or delusions, have normal cognition, thought, and speech. He denied suicidal or homicidal ideations or any hallucinations. The CI’s medications had been stopped a couple months prior to due to side effects. The MEB examiner restarted the CI on an antidepressant noting that the CI was experiencing “symptoms” at the exam . The diagnosis was Axis – MDD , single ; n o other A xis diagnoses were noted; no Global Assessment of Functioning ( GAF ) was provided. STR notes indicated immediately followi ng the suicidal gesture referenced above the CI was diagnosed by a psychiatrist in November 2003 with A xis 1 - Depressive Disorder, rule out adjustme nt disorder with depression; A xis IV exposure to war an d hostilities ; GAF was 65 (GAF 70 - 61 Some mild symptoms OR some difficulty in social, occupational, or school functioning, but generally functioning pretty well, has some meaningful interpersonal relationships ). The examiner noted that he should not handle weapons, was not deploy able, but could return to duty. He was still receiving mental health treatment but was returned to the theater . At the mental health intake 16 December 2003 the psychiatrist diagnosed “ PTSD, acute onset, rule out adjustment reaction wi th mixed emotional features.” T he CI reported being depressed, irritable, and difficulty with sleep and concentration. He reported dreams of hurting himself and others and related a recent dream of shooting himself in the face. T he examiner noted the CI “ has flashbacks, nightmares, startle response, hyper - vigilant and had somatic symptoms of anxiety and occasional suicidal thoughts (not active, no plans no ideation), periods of loss of control with some explosive episodes.” In therapy sessions the CI was noted to be tense and agitated with “signs of PTSD” of startle response and vigilan c e. 6 January 2004 the psychiatrist said the CI was not fit for his job. The CI moved locations and again had a mental health evaluation on 17 January 2004. The CI’s his tory since was summarized and the CI again related symptoms of anger, i rritability , decreased interest in activities, difficulty concentrating, and sleeping . The examiner note suicidal and homicidal ideation wi th no planned intent, but a plan of “could sh oot self or jump off a building ” was listed. Also noted , related to risk of harm to self or others, the CI “feels safer with an escort . ” Mental status observations were that the CI was quiet tense with a constricted affect. His mood was described as sad, angry, and nervous. Thought, speech, and memory were normal with the exception of occasional paranoia. The examiner said that the CI was only back a week but seemed more relaxed the last few days. His job performance was good, but he could not function as an MP without a weapon. He was “admitted as a resident” and his medications were changed. During this few days period notes indicate t he CI reported homicidal thoughts regarding his comman der , and that he doesn’t want to go back to his unit due to conflicts with “certain” people. Later notes indicate t he CI’ symptoms did improve though - sleep was improved, appetite was good, mood was okay, he was calm, without suicidal or homicidal thoughts, interacted well with others and successfully completed work details. T he CI returned to Puerto Rico and continued mental health treatment indicating fatigue and difficulty sleeping. Primary care notes on 9 September 2004 and 19 November 2004 indicat ed the CI’s diagnosis for medical board referral was PTSD , but referred the CI to his treating psychiatrist for a NARSUM . The NARSUM diagnosis was MDD , as previously discussed. The c ommander’s statement says , “ Soldier wa s diagnos ed with chronic low back pain and PTSD. ” The Board considered whether VASRD §4.129, mental disorders due to traumatic stress, was applicable. Mental health records proximate to the CI’s deployment period indicated that the CI was involved in three episodes of crossfire in a several month period in which a friend from his unit was killed. The Board considered that over the course of treatment two psychiatrists diagnosed depressive disorder, one diagnosed PTSD, and a clinical psychologist diagnosed acute stress disorder. Post-separation the VA Compensation and Pension (C&P) examiner diagnosed PTSD. The Board notes that there was diagnostic uncertainty in the records. Although PTSD is a typical mental disorder for which the provisions of §4.129 would apply, its application is not restricted t o a diagnosis of PTSD. The Board opined that since the CI can only be rated for one mental health diagnosis and IAW §4.1 30 both PTSD and MDD are rated according to the General Rating Formula for Mental Disorders , the determination of the occurrence of “a highly stressful event” is more important than the specific mental health condition d iagnosis. The Board noted that the circumstance of crossfire, with personal danger and loss of a fel low unit member were sufficient to concede a “highly stressful event . ” After due deliberation and consideration of reasonable doubt, the Board agreed that application of §4.129 is appropriate in this case.

The records close to separation are limited to the MEB examination and the STR. The Board unanimously agreed that the §4.130 criteria for rating higher than 50% were not met at the time of separation, and therefore the minimum 50% entrance TDRL rating was applicable. The first C&P exam , 18 January 2007, was approximately 18 months post separa tion. At th is exam the CI reported anxiety and depression, interpersonal relationship dif ficulties, sle ep problems, and problems with loss of control or violence. The mental status exam (MSE) was noted as normal. T he C&P psychia tric exam (on the same day) indicated that the CI had a psychiatric hospita lization at a VA hospital in Novem ber 2005 , approximately 5 months post separation, and the discharge diagnosis was PTSD . These records were unavailable to the Board for review. The CI reported a startle response and poor control of his temper as frequent outbursts when he is upset. He had thoughts of death, as recently as two weeks prior to the exam ; he reported thinking of jumping in front of a moving vehicle . He reported difficulties with remembering specific details of his life. He was separated from his second wife and was living with his parents. On exam the CI was tense and not talkative, but his speech was clear and coherent and his thoughts were n ormal. H e was irritable with a f l a t affect ; recent and past memory were normal. His mood was anxious and depressed. His attention, concentration, judgment, insight were normal. There were no delusions or paranoia noted. Hallucinations were reported as hearing voices at night impairing his sleep. He reported problems with physical aggression and assaults . The examiner noted suicidal thoughts, no current plans, but previously had plans. The CI had been un employed since separation ( usual occupation doing odd jobs ) . The A xis 1 diagnosis was PTSD and the GAF was 55 “over the past 2 years.” ( GAF 60 - 51 Moderate symptoms OR moderate difficulty in social, occupational, or school - functioning in social, occupational, or school functioning ) . There are no exams or records in evidence proximate to the end of the six month constructive TDRL period to assist t he Board’s effort to arrive at a permanent rating recommendation . The first C&P exam 18 January 2007 noted above occurred approximately 1 2 months after the proposed TDRL exit examination date. Therefore, the Board must weigh the evidence contained in the STR and the psychiatric NARSUM, balanced by VA evidence fairly remote from the targeted time frame of six months post permanent separation. At the time of separation the NARSUM indicated that the CI was having symptoms of irritability, problems with sleep, impulse control issues, and decreased interest in activities. He was restarted on medications at that exam. The Board opined that at the time of permanent separation , the CI met the 1 0% (Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication) rating IAW §4.130. The C&P exam 18 months after separation indicated that the CI was continuously unemployed since separation; was separated from his wife; was experiencing suicidal thoughts; was having difficulties with aggression; was anxious; depressed; irritable; reported hallucinations at night; but had normal speech, concentration; judgment, and insight. The examiner said the CI had suicidal thought but no plans. The examiner stated “ the above described symptoms reflect a severe impairment in his social, occupational, interpersonal and marital functioning ” . Based on this evaluation the VA rated the CI at 50%. The C&P history noted that the CI had a mental health hospitalization 5 months post separation for a diagnosis of PTSD. The Board opined that based on the evidence it could be concluded that the CI had not improved compared to separation at the end of the six month TDRL . However, t he B oard opined that the VA rating of 50% occurred more than a year after the end of the TDRL period and it would be overly speculative to assume the CI’s condition then reflected his condition at the end of TDRL. The Board therefore deliberated between the 10% and 3 0% ratings. (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, suspiciousness, panic attacks - weekly or less often, chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). The Board agreed that the mental health hospitalization in late November 2005 supported the 30% rating IAW §4.130. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a permanent disability rating of 30% for the MDD .


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, the Board unanimously recommends that application of §4.129 is appropriate; placement on TDRL for a period of 6 months at 50% as required; and a final disability rating of 30% coded 9434 IAW VASRD §4.130. There were no other conditions within the Board’s scope of review for consideration.


RECOMMENDATION: The Board, therefore, recommends that the CI’s prior separation be modified to reflect that the CI was placed on the TDRL at 50% for a period of 6 months and then permanently separated with a final disability rating of 30% 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 TDRL RATING PERMANENT
RATING
Major Depressive Disorder
 9434 50% 30%
COMBINED
 50% 30%



The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120803, 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 AR20130009578 (PD201201439)


1. I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual. Under the authority of Title 10, United States Code, section 1554a,
I reject the Board’s recommendation to change the disability rating for Major Depressive Disorder to 30% and hereby deny the individual’s application. There is insufficient justification to support the Board’s recommendation in accordance with Army and Department of Defense regulations.

2. The PDBR acknowledges that at the time of permanent separation the individual’s condition met the criteria for a 10% rating. Their recommendation for a 30% rating was based on their estimation of his condition 6 months after separation and included a temporary rating of 50% (per VASRD 4.129) for the first 6 months following separation (on the Temporary Disability Retired List). VASRD 4.129 is applicable when a mental disorder that develops in service as a result of a highly stressful event is severe enough to bring about the veteran’s release from active military service.

3. I have determined that VASRD 4.129 is not applicable in the individual’s case for the following reasons:

a.       There is no evidence in the record of any highly stressful event that was the proximate cause of his depression. Although while on emergency leave he initially said that he was involved in a crossfire and that a friend was killed, this was not repeated in any of the mental health records from Kuwait or Iraq. These records showed disaffection with certain unit personnel including his commander, sadness regarding conditions in Iraq, and other personal stressors.

b.       The Veterans Affairs (VA) did not cite any specific stressful event resulting in the individual’s disability when they evaluated him about 18 months after separation. The Compensation and Pension (C&P) examiner specifically stated “We consider that the overall stressing experience, not an (sic) specific stressor, is responsible for the above diagnosed NP condition”.

c.       The VA did not apply VASRD 4.129. When the VA retroactively increased his mental health disability rating, the effective date was one year after separation.

4. Because VASRD 4.129 is not applicable and it is the consensus of both the Physical Evaluation Board (PEB) and the PDBR that the individual met the criteria for a 10% rating at the time of separation, there is no justification for changing the applicant’s permanent disability rating.

5. This decision is final. The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

BY ORDER OF THE SECRETARY OF THE ARMY:




Encl                                                 
                                                      (Army Review Boards)

CF:
( ) DoD PDBR
( ) DVA

Similar Decisions

  • AF | PDBR | CY2012 | PD2012 01862

    Original file (PD2012 01862.rtf) Auto-classification: Approved

    The Board also noted that relative contribution to impairment from the CI’s OCD, PTSD, depression, and anxiety disorders diagnosed could not be separated, therefore the Board considered the mental health conditions together in its deliberations. The examiner also noted no suicidal thoughts. 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...

  • AF | PDBR | CY2012 | PD2012 00843

    Original file (PD2012 00843.rtf) Auto-classification: Approved

    The veteran is planning on attending school full-time. Later that month the CI was hospitalized and medicated for increased suicide ideations.Just 4 months later, in January 2007 (2 months after separation), the only C&P PTSD exam available for Board review, documented the CI’s “affective state is that of an individual who experiences anxiety, depression, irritability and fluctuating ego states.” The examiner rendered a GAF of 55 or moderate impairment. Consequently, both MEB and VA...

  • AF | PDBR | CY2013 | PD2013 02168

    Original file (PD2013 02168.rtf) Auto-classification: Approved

    The informal PEB combined the two mental health conditions forwarded by the MEB and adjudicated “posttraumatic stress disorder (PTSD) stating “symptoms of major depressive disorder are interrelated and included in this rating” as unfitting, rated 10% with likely application of DODI 1332.39 [ rescinded ] and/or AR 635-40 in effect at the time.The remaining four conditions were determined to be not unfitting.The CI made no appeals, and was medically separated. The VA assigned a disability...

  • AF | PDBR | CY2013 | PD2013 00503

    Original file (PD2013 00503.rtf) Auto-classification: Approved

    SCOPE OF REVIEW : The CI was notified by the Army that his case may eligible for review of the military disability evaluation of any mental health (MH) condition in accordance with Secretary of Defense directive for a comprehensive review of Service members who were referred to a disability evaluation process between 11 September 2001 and 30 April 2012 and whose MH diagnoses were changed or eliminated during that process. The Board’s authority as defined in DoDI 6044.40, however, resides in...

  • AF | PDBR | CY2009 | PD2009-00641

    Original file (PD2009-00641.docx) Auto-classification: Denied

    The medical basis for the separation was Major Depressive Disorder, Single Episode, and moderate in severity (MDD). The VA examination at four months post-separation stated “The Veteran has two Axis I diagnoses (PTSD and Depressive disorder, NOS) that mutually aggravate one another, and I cannot ascribe a specific degree of impairment of any one, independent of the other, with any medical certainty, without resorting to speculation.” The CI’s symptoms that would typically be attributable to...

  • AF | PDBR | CY2011 | PD2011-00855

    Original file (PD2011-00855.docx) Auto-classification: Approved

    CI CONTENTION : “The diagnosis of the Primary Condition rated by the Physical Evaluation Board (Major Depressive Disorder) was not the same condition I was diagnosed with (PTSD), resulting in an inappropriate disability rating and percentage. A remote VA exam, 31 months after separation, indicated continued unemployment, mental disorder symptoms that were less severe, and a GAF of 55. The PEB did not list PTSD or disability code 9411 on the PEB form; however, the preponderance of the...

  • AF | PDBR | CY2010 | PD2010-01164

    Original file (PD2010-01164.docx) Auto-classification: Approved

    However, the VA then considered additional treatment notes from 9 September 2003 and 22 December 2003 (GAF = 50, serious symptom range) and increased the CI’s rating to 50% from the date of separation. Outpatient VA AK records demonstrated worsening of symptoms continued treatment and additional medications being initiated to help with her anxiety and sleep symptoms. In the matter of the PTSD and major depressive disorder condition, the Board unanimously recommends a 30% permanent rating...

  • AF | PDBR | CY2013 | PD-2013-01644

    Original file (PD-2013-01644.rtf) Auto-classification: Denied

    The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of theVeterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation. RECOMMENDATION : The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of her prior medical separation: I have carefully reviewed the evidence of record and the...

  • AF | PDBR | CY2009 | PD2009-00106

    Original file (PD2009-00106.docx) Auto-classification: Denied

    The MEB forwarded the PTSD, MDD, Psychological Factors Affecting a General Medical Condition, Right shoulder pain, LBP, neck pain, and right knee pain conditions to the PEB as medically unacceptable IAW AR 40-501. The most proximate source of comprehensive evidence on which to base the permanent rating recommendation in this case is the VA psychiatric rating evaluation 4 months after separation. In the matter of the Chronic Right Shoulder & Knee Pain condition, the Board unanimously...

  • AF | PDBR | CY2010 | PD2010-00209

    Original file (PD2010-00209.docx) Auto-classification: Denied

    The PEB’s unfitting determination under the PTSD diagnosis is considered administratively final for the Board, and the Board focused on adjudicating the CI’s mental health disability under Veterans Administration Schedule for Rating Disabilities (VASRD) coding for PTSD 9411. The most proximate source of comprehensive evidence on which to base the permanent rating recommendation in this case is the VA examination 4 months after separation, summary of psychiatric hospitalizations in Nov 2008...