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AF | PDBR | CY2012 | PD2012 01523
Original file (PD2012 01523.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXX        CASE: PD1201523
BRANCH OF SERVICE: Army  BOARD DATE: 20130904
DATE OF PLACEMENT ON TDRL: 19980121
Date of Permanent SEPARATION: 20030709


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active Guard/Reserve SSG/E-6. The CI has two different Military Occupational Specialties (MOS) listed in record. According to DD Form 214 dated 10 June 1991, the MOS was 29E30 (Radio Repairer) and the MEB dated 27 February 1996 listed the CI’s MOS as 68N30 (Cardiovascular Specialist). The CI was medically separated for major depressive disorder (MDD). His depressive symptoms began in 1991 during a deployment to Saudi Arabia. Upon his return home, he was reportedly diagnosed with MDD and posttraumatic stress disorder (PTSD). The condition could not be adequately rehabilitated to meet the physical requirements of his MOS or satisfy physical fitness standards. He was issued a temporary P3S4 profile and referred for a Medical Evaluation Board (MEB). The MDD condition was forwarded to the Informal Physical Evaluation Board (IPEB) as medically unacceptable IAW AR 40-501. The MEB also identified and forwarded 4 other conditions as medically acceptable (alcohol dependence, idiopathic thrombocytopenia, fatty liver disease and fibromyalgia) for IPEB adjudication. The IPEB adjudicated the MDD as unfitting, rated 30%. The IPEB determined that the condition was not stabilized to the point that a permanent degree of severity could be established and entered the CI on the Temporary Disability Retirement List (TDRL). The remaining conditions were determined to be not unfitting and therefore not ratable. The CI met a final IPEB, in May of 2003, that determined his condition was sufficiently stable for adjudication and rated the MDD as unfitting at 10%. The CI first appealed to the Formal PEB (FPEB) which affirmed the IPEB findings. He then appealed for a formal reconsideration of his case, which determined that based on a review by the Physical Disability Agency (PDA) of the evidence in this case and the guidance contained in the PDA Policy Letter #7, a 0% rating more accurately reflected the current degree of severity for the condition. The CI was then removed from TDRL and permanently separated.


CI CONTENTION: “only rated for PTSD at 0% where the VA awarded 50% rating me ‘unfit for duty at 0%?; have been hospitalized for PTSD; medical conditions not rated.”


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. Although the contended PTSD condition was not identified by the PEB, and is thus not within the defined purview of the Board as a distinct condition per se; 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 CI’s disability rating recommendation from the Board will be unaffected by the specific psychiatric diagnosis determined to be unfitting by the Service. Of the conditions determined to be not unfitting by the PEB, members judged that the alcohol dependence, thrombocytopenia, fatty liver disease and fibromyalgia conditions were sufficiently implied in the application to meet the DoDI 6040.44 scope requirements; and are accordingly addressed below. 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:

Final Service PEB - 20040426
 VA (7 years Prior to Adjudication Date*) - Effective 19970201
On TDRL - 19980121
 Code Rating Condition Code Rating Exam
Condition
 TDRL Sep.
MDD
 9434 30% 0% PTSD 9411 50% 19970201
Alcohol Dependence
 Not Unfitting No Corresponding VA Rating
Idiopathic Thrombocytopenia
 Not Unfitting Idiopathic Thrombocytopenia Purpura 7705 70% 19940627
Fatty Liver Disease
 Not Unfitting Fatty Liver Disease Willful Misconduct-Substance Abuse
Fibromyalgia
 Not Unfitting Fibromyalgia** 5025 20% 19980217
No Additional MEB/PEB Entries.
 Other x 5 19980217
Combined: 30% → 0%
 Combined: 90%
*Reflects VA rating exam proximate to TDRL placement; no VA rating evidence proximate to permanent separation.
**Condition identified by 1998 VA examiner, but not rated by VA until 20040607 decision; effective 20021226.


ANALYSIS SUMMARY: The Board acknowledges the CI’s implied contention for ratings of the various conditions noted above which was determined to be not unfitting by the PEB; and, emphasizes that disability compensation may only be offered for those conditions that cut short the member’s career. Should the Board judge that any contested condition was most likely incompatible with the specific duty requirements; a disability rating IAW the Veterans Affairs Schedule for Rating Disabilities (VASRD), and based on the degree of disability evidenced at separation, will be recommended.

Major Depressive Disorder Condition. Although the PEB rating preceded the promulgation of the National Defense Authorization Act 2008 mandate for DoD adherence to VASRD §4.129, IAW DoDI 6040.44 and DoD guidance the Board must apply §4.129 to all relevant Board cases. The salient question before the Board is whether the CI’s psychiatric condition meets the §4.129 definition of “a mental disorder that develops in service as a result of a highly stressful event [that] is severe enough to bring about the veteran’s release from active military service.” In this case, the clinical record provides enough evidence. The CI’s condition arose as a result of highly stressful events that the Board agrees §4.129 are applicable. The Board is therefore obligated to recommend a minimum 50% rating for a retroactive 6-month period on the TDRL. Since the service was in compliance with the §4.129 TDRL requirement, the Board need not apply a constructive TDRL rating interval in this case, although the 50% minimum TDRL rating remains applicable. The Board must then determine the most appropriate fit with VASRD §4.130 criteria at the end of the TDRL interval for its permanent rating recommendation.

At an initial narrative summary (NARSUM), on 17 October 1995 (over 2 years prior to placement on TDRL), the CI stated that his depressive symptoms began while deployed to Saudi Arabia in 1991 in the context of his wife moving in with another man. During the deployment, he was also exposed to night raids, air attack alarms and missile attacks; and witnessed “dead, smoking bodies along the road to Kuwait.” After deployment, he experienced startle responses, jitteriness, and awakening from sleep in a cold sweat; and was diagnosed with depression and PTSD. He was hospitalized at the VA from January to July 1994 for depression, suicidal ideations and feeling tense and anxious. Although he was previously diagnosed with PTSD, at the time of this examination, he denied current re-experiencing symptoms suggestive of PTSD. Previous medication trials were not helpful for his symptoms, but since recently beginning a new antidepressant, he was sleeping better, and rarely awoke with a cold sweat. Startle reactions were rare and intrusive memories were not regular. However, he endorsed severe anhedonia (no engagement or interest in enjoyable activities). He had not worked since April 1993 due to “frequent medical visits, medical admissions and feeling weak and tired.” A follow up psychiatric assessment on 5 December 1997 (a month prior to placement on TDRL) noted that the CI was currently incarcerated for failure to pay child support. He underwent three more psychiatric hospitalizations, the last one from November 1996 through January 1997; he was on the PTSD unit at that time. He noted that he experienced trouble sleeping “at times.” He complained of irritability, anger, a variable energy level and anhedonia. He denied crying spells, hopelessness, or suicidal or homicidal ideation. He was on one psychotropic medication. Mental status examination (MSE) revealed no psychomotor abnormalities and no evidence of hallucinations or thought disorder. Mood was “up and down” although he was feeling well at the time of the interview. Affect was somewhat restricted. Alertness and orientation were normal; insight and judgment were intact. The examiner’s assessment was that symptoms of PTSD were well controlled but symptoms of depression persisted. Depression was considered to be recurrent and of moderate severity, while PTSD was in remission. Global Assessment of Functioning (GAF) was 55, connoting moderate symptoms or impairment. The interim NARSUM examiner on 30 July 1999 (18 months after placement on TDRL) reported that “since his separation from the military, the (CI) has been unable to work.” Since the last psychiatric hospitalization, in January 1997, the CI reported that had had no difficulty with PTSD symptoms except for a slight startle response to fireworks. He was taking two psychotropic medications. MSE was remarkable for slight agitation and anxiousness, and slightly restricted affect. The examiner’s assessment was that PTSD remained in remission and that the depression was improved slightly. He was actively pursuing employment. His GAF was 65 (some mild symptoms or some difficulty in social, occupational, or school functioning, but generally functioning pretty well). The next interim TDRL examiner on 24 April 2001 (over 2 years prior to permanent separation) stated that the CI was unable to hold a job due to persistent depressive symptoms. He continued to experience depressed mood, and decreased concentration, energy, motivation and appetite. He remained housebound except for visits to the VA medical center. He reported mildly exaggerated startle reflex and awakening due to bad dreams. He was on two psychotropic medications and was receiving counseling. MSE revealed appropriate appearance, eye contact and cooperation. Speech was normal, mood was “okay” and affect was depressed and restricted. Thought processes, judgment and impulse control were normal. Insight was fair and there was no evidence of suicidality or homicidality. The MDD was considered moderate, chronic and recurrent, while PTSD was considered mild. GAF was 65.

At the final NARSUM exam on 22 January 2003 (6 months prior to permanent separation), the CI stated that he “is still unable to work, primarily due to his multiple physical complaints, and he has not had employment since he was placed on the TDRL.” He continued to be seen once every 3 months by his psychiatrist, and was taking three psychotropic medications. The CI reported an overall improvement in depression and PTSD. In recent months, he had experienced improved mood (although not to his baseline), and normal energy and concentration. He denied anhedonia. The only lingering depression symptom was ongoing sleep disturbance (difficulty going to sleep; frequent awakenings). He also endorsed continuing exaggerated startle response, but no other PTSD symptoms, including nightmares. MSE showed appropriate dress and grooming. There was no psychomotor agitation and speech was normal. Affect, thought processes, judgment and insight were normal. The examiner’s assessment was that the recurrent MDD was in partial remission. GAF was 65. At the VA psychiatric Compensation and Pension (C&P) exam on 1 October 2003 (3 months after permanent separation), the CI expressed no chief complaint. He remained unemployed because he felt that employers would not tolerate his multiple medical problems; he reported that “the medical problems are the real issue behind his not being able to work.” He stayed busy on a day-to-day basis by taking care of rental properties that he owned. He served as an interpreter in the community, and spent a lot of time with his 13-year-old daughter and with friends. He was taking the same three psychotropic medications. The CI indicated that he felt well emotionally, and that he thought his psychiatric symptoms were “gone.” He denied excessive anxiety, flashbacks, and feelings of distress, nightmares or dreams. He denied difficulty relating to or connecting to other people. He had some sleep difficulty that he attributed to pain from other medical issues. MSE showed the CI to be alert and oriented. Speech was normal, mood euthymic, and affect broad ranged. He was cooperative, polite and engaging. There was no evidence of hallucinations or delusions. The examiner’s assessment was that there was no acute psychiatric diagnosis. A history of PTSD appeared to be in full remission. GAF was in the range of 80-90 (absent or minimal symptoms, good functioning in all areas).

The Board directs attention to its rating recommendation based on the above evidence. As previously elaborated, since the VASRD rating criteria for MDD and PTSD are the same under §4.130, the distinction between them for rating purposes is not relevant. At the time of entry on TDRL, the PEB assigned a 30% rating. The VA had assigned a temporary 100% rating at the time of hospitalization in 1996, and then reduced it to 50% effective 01 February 1997, where it has since remained. As previously elaborated, IAW DoDI 6040.44 and DoD guidance, a 50% rating at the time of TDRL entry in this case is applicable. All members agreed that the §4.130 criteria for a rating higher than 50% were not met at the time of placement on TDRL. With regard to a permanent rating at the time of removal from the TDRL, the evidence from the examinations at the time showed significant, sustained improvement, and Board members agreed that criteria for a 30% rating were not met. Therefore, Board deliberations centered on a 0% versus a 10% rating. The IPEB assigned a permanent rating of 10%; however, a reconsideration PEB reduced this to 0%. The general description for a §4.130 rating of 10% is “occupational and social impairment due to mild or transient symptoms; or, symptoms controlled by continuous medication;” and for a 0% rating “symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication.” The NARSUM exam near the time of permanent separation documented only lingering sleep disturbance and some exaggerated startle response, whereas the VA examiner reported that sleep disturbance was in fact not due to depression. Although the CI did not work, this was due to other medical concerns, and not depression. Board members agreed that the CI’s symptoms did not interfere with occupational and social functioning, but also concluded that continuous medication was required for control. The Board therefore agreed that this condition more nearly approximated the criteria for the 10% rating. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a permanent disability rating of 10% for the depression condition.

Contended PEB Conditions. The Board’s main charge is to assess the fairness of the PEB’s determination that alcohol dependence, idiopathic thrombocytopenia, fatty liver disease and fibromyalgia conditions were not unfitting. The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.

Alcohol Dependence. According to the 17 October 1995 NARSUM examiner, VA providers had previously given the CI a diagnosis of alcoholism; but the examiner concluded “there is no historical data to support this.” The psychiatric assessment a month prior to entry on TDRL likewise opined that there was no history to support that diagnosis. Neither examiner included a history of an alcohol related diagnosis in their final assessment.

Idiopathic Thrombocytopenia. This diagnosis, characterized by low platelet counts, was made after an admission to a VA hospital in 1993 and was treated with a course of steroids and by removal of the spleen. Follow up with a hematologist in November 1994 reported no easy bleeding or spontaneous bruising; the platelet count was considered stable at 82,000 (normal 150,000–450,000). There was no evidence that providers ever cautioned the CI against participating in activities that could result in traumatic bleeding.
Fatty Liver Disease. Due to persistently elevated liver enzymes, a liver biopsy was performed in November 1994 which showed fatty liver. Although further evaluation identified no underlying cause, alcohol use was considered. There was no evidence that this condition caused any symptoms.

Fibromyalgia. A C&P exam performed on 27 June 1994 noted a diagnosis of Persian Gulf Syndrome with Polymyalgia. According to the psychiatric NARSUM examiner in October 1995, the diagnosis of fibromyalgia was rendered by the VA, but it is not clear when this occurred. Ultimately the VA assigned a 20% rating for this condition, but it was effective 26 December 2002. One temporary profile for fibromyalgia (with MDD included) was written in February 1996.

Except for the one temporary profile for fibromyalgia, there was no documentation that the three remaining contended conditions were ever profiled or judged to fail retention standards. All were reviewed by the action officer and considered by the Board. There was no performance based evidence from the record that any of the conditions significantly interfered with satisfactory duty performance. After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the any of the contended conditions and so no additional disability ratings are recommended.


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 major depressive disorder condition, the Board unanimously recommends an initial TDRL rating of 50% in retroactive compliance with VASRD §4.129 as DOD directed; and unanimously recommends a permanent rating after removal from the TDRL of 10% IAW VASRD §4.130. In the matter of the contended alcohol dependence, idiopathic thrombocytopenia, fatty liver disease and fibromyalgia conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting. 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, effective as of the date of his prior medical separation:

UNFITTING CONDITION
 VASRD CODE RATING
TDRL PERMANENT
Major Depressive Disorder
 9434 50% 10%
COMBINED
 50% 10%



The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120709, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record





XXXXXXXXXXXXX, DAF
President
Physical Disability Board of Review
SFMR-RB                                                                         


MEMORANDUM FOR Commander, US Army Physical Disability Agency
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557


SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for XXXXXXXXXXXXXXXXXXXXXX, AR20130022001 (PD201201523)


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 constructively place the individual on the Temporary Disability Retired List (TDRL) at a combined rating of 50% rather than 30% for the period 10 July 1998 to 8 July 2003 and then following this period no recharacterization of the individual’s separation but modification of the permanent disability rating from 0% to 10%.

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 as follows:

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

         b. Providing orders showing that the individual was separated with a permanent combined rating of 10% effective the day following the TDRL period with no recharacterization of the individual’s separation.

         c. Adjusting pay and allowances accordingly. Pay and allowance adjustment will provide 50% retired pay for the temporary disability retired period effective the date of the individual’s original medical separation and adjusting severance pay as necessary to account for the additional TDRL time in service.







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                                                  XXXXXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary
                                                      (Army Review Boards)

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