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AF | PDBR | CY2012 | PD2012 01973
Original file (PD2012 01973.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:    CASE: PD1201973
BRANCH OF SERVICE: Army  BOARD DATE: 20130501
SEPARATION DATE: 20021017


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (91J/Medical Supply Specialist) medically separated for schizophrenia. His first psychiatric encounter in service was a command referral to mental health in May 2001, which resulted in a diagnosis of “schizotypal personality traits.” He was again command referred in October 2001 and was diagnosed with “schizophrenia, paranoid type.” A third command referral occurred in January 2002 and the CI was involuntarily hospitalized for treatment. The condition was stabilized after inpatient intervention, but he was placed on an S3 profile and referred for a Medical Evaluation Board (MEB). The psychiatric condition was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. An additional condition, “mild gastroesophageal reflux disease [GERD] - resolved,” was identified by the MEB and forwarded as medically acceptable. No other conditions were submitted by the MEB. The Informal PEB (IPEB) determined that the diagnosis of schizophrenia existed prior to service (EPTS) and was not permanently aggravated by service. The CI appealed to the Formal PEB (FPEB). Upon receipt of an updated psychiatric opinion, the FPEB determined that the condition was not EPTS; and, adjudicated it as unfitting with a 10% rating. The FPEB’s DA Form 199 cited “symptoms are controlled by continuous medication” as a 10% criterion of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD); and “rated as mild social and industrial impairment” referencing AR 635-40 (derived in turn from Department of Defense Instruction [DoDI] 1332.39). The GERD condition was determined to be not unfitting by the IPEB, but not specifically adjudicated by the FPEB (assumed to be an erroneous omission and a de facto adjudication as not unfitting). The CI made no appeals and was medically separated with a 10% disability rating.


CI CONTENTION: The application states simply, “VA states an error exist rating for VA should have been 50% not 10% given on Oct 24 2002 for paranoid schizophrenia.”


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 psychiatric condition is addressed below. The GERD condition, identified as not unfitting by the PEB, was not requested for review and thus is not within the defined scope. That, and any other conditions or contention not requested in this application, remain eligible for future consideration by the Board for Correction of Military Records.
RATING COMPARISON:

Service FPEB – Dated 20020724
 VA (1 Mo. Pre-Separation)
Condition
 Code Rating Condition Code Rating Exam
Schizophrenia, Paranoid Type 9203 10% Paranoid Schizophrenia 9203 10%* 20020919
GERD Not Unfitting GERD 7399-7346 0% 20020919
Combined: 10%
 Combined: 10%
Derived from VA Rating Decision (VA RD ) dated 200 21024 ( most proximate to date of separation [ DOS ] ).
* In creased to 50% (retro effective to DOS ) by VARD dated 20100629 (explanation to follow).


ANALYSIS SUMMARY:

Schizophrenia, Paranoid Type. The CI’s initial command referral occurred as a result of an assault on a supervisor after a friendly pat on the shoulder, associated with a perception of harassment by a “gay gang.” His psychological evaluation resulted in a diagnosis of schizotypal personality disorder; he was returned to duty without treatment; and he was acquitted upon court martial. His second command referral was precipitated by a report of hearing voices and he was diagnosed with paranoid schizophrenia and placed on medication (risperidone). His final referral was precipitated by various bizarre behaviors (unprovoked laughter, talking to himself, stating that the FBI had directed him to be late for work, etc.) and non-compliance with treatment. At this time he was exhibiting frank psychosis and refusing treatment. As a result, he was hospitalized (psychiatric admission - initially involuntary) from 23 February to 18 March 2002. MEB proceedings were initiated while the CI remained an inpatient, and the narrative summary (NARSUM) was prepared on 7 March (~3 months prior to separation). The NARSUM noted that the CI had been stabilized with anti-psychotics (initially by injection), and conveyed a reported history of a pre-service diagnosis of schizophrenia in 1990 followed by treatment with anti-psychotics for 2 years. The mental status exam (MSE) documented an unkempt appearance, psychomotor agitation, and “mild derailment” of thought processes. Mood and affect were normal, suicidal/homicidal ideation were absent, and all delusions and hallucinations had resolved. Cognitive testing was normal. The Global Assessment of Functioning (GAF) assignment was 55 (moderate impairment on that scale). The entry for “current condition” is excerpted below (based on an exam on 27 February 2002).
The service member currently displays no evidence of psychosis. He is cooperative with treatment and demonstrates excellent insight into his illness and a desire to continue medication to avoid a recurrence of symptoms. There is no evidence of a mood disorder, cognitive function is intact. He is not experiencing any side-effects on the Risperidone.
It was stated, however, that the CI “remains at risk for a recurrence of psychotic symptoms if placed in a stressful situation.” The commander’s statement noted that the CI “has been unable to perform his MOS”; but, “has been able to perform duties assigned to him within the limits of his profile.” The only limitation on his S3 profile was assignment in proximity to psychiatric care; there was no weapon proscription. After the initial IPEB determination that his condition was EPTS, the CI submitted a cogent appeal stating that the diagnosis of schizophrenia was “purely speculative;” insisting that he had no prior diagnosis of schizophrenia, that his symptoms had been precipitated by the stress of the “unfairly initiated” court martial, and that a serious diagnosis was entertained only after acquittal. In response to the appeal, the PEB requested clarification of the prior psychiatric history from the MEB psychiatrist (NARSUM examiner). The response affirmed that the history accurately reflected facts conveyed by the CI at the time and detailed efforts to confirm the reported history had been futile. The psychiatrist’s concluded, “Based on the lack of evidence of a pre-existing psychiatric condition and the possibility that the patient's mild derailment on 27 February 2002 resulted in confabulation of a past psychiatric history it is reasonable to conclude that the psychiatric diagnosis most likely did not exist prior to service.” At the VA psychiatric Compensation and Pension (C&P) evaluation (a month prior to separation), the CI endorsed his diagnosis of schizophrenia and remained compliant with risperidone. The examiner’s symptom description is excerpted below.
At the present time, the veteran states that he is doing quite well. He reports to sleeping well. He denies feeling depressed. For most part, he enjoys life. He states that his energy level is decreased since he has been on the medication. He denies auditory or visual hallucinations. ... At the present time, the veteran is denying any symptoms of psychosis, depression, anxiety, mania, or hypomania.
The examiner stated that he was living in the barracks without further elaboration of social history. The CI expressed post-separation aspirations of going to college. The MSE documented a normal mood and affect, normal speech and thought processes, no homicidal/suicidal ideation, no detectable paranoia, no delusions or hallucinations, but “limited” insight, judgment and impulse control. The GAF assignment was 60-65 (mild) and the examiner concluded that “symptoms are well controlled with the medication.”

The Board directs attention to its rating recommendation based on the above evidence. It is first noted that the VA retroeffective rating increase was granted under the provisions for a minimum 50% initial rating IAW VASRD §4.129 and a determination that a “clear and unmistakable error” had occurred by not originally applying §4.129. That decision, however, stated that the case satisfied the §4.129 qualifier, “when a mental disorder is severe enough to bring about a Veteran’s release from active military service” [quoted from VARD dated 29 June 2010]. The precise language of §4.129 is, “when a mental disorder that develops in service as a result of a highly stressful event [italics added] is severe enough to bring about a Veteran’s release from active military service.” The rating decision offered no rationale for satisfying this additional requisite. All members agreed that there was no external ‘highly stressful event’ (the court martial considered) that could be invoked as a substrate for the diagnosis of schizophrenia (an inherently endogenous condition); and, the action officer, with concurrence of all members, does not find a reasonable basis for challenging a diagnosis made by the inpatient, MEB, and VA psychiatrists. Members therefore do not concur with the subsequent VA opinion that there was a ‘clear and unmistakable error’ in the initial rating decision and, accordingly find it appropriate in this case to recommend a separation rating premised solely on §4.130 criteria and based on the preponderance of evidence probative to the date of separation.

With regards to a §4.130 based rating, the psychiatric acuity during active symptoms was quite high; and, the long term consequences of schizophrenia are predictably disabling. The Board, however, operating within the parameters of the Disability Evaluation System (DES), must base its recommendation on the disability in evidence for the stable period existing at the time of separation. 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, operating under a different set of laws. Members agreed that neither the NARSUM nor the even more temporally probative VA prior to separation C&P evaluation would support a §4.130 rating of 50%. That rating denotes “occupational and social impairment with reduced reliability and productivity;” referencing typical symptoms of flat affect, stereotyped speech, frequent (> weekly) panic attacks, deficits in comprehension and memory, impaired judgment, mood disturbance, and difficulty with establishing relationships. The deliberation thus settled on arguments for a 30% versus a 10% permanent rating recommendation. The §4.130 description for a 30% rating is “occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily …);” referencing typical symptoms of depression, anxiety, suspiciousness, panic attacks (≤ weekly), sleep disturbance, and mild memory loss. That for a 10% rating is “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 evidence reflects that in a stable, treated state there were no significant psychiatric symptoms; and, therefore, no basis for concluding that occupational efficiency would suffer or that any lapses in occupational performance would result. That conclusion is also consistent with the commander’s statement and profile. Furthermore, both the MEB and VA psychiatrists provided conclusions very much aligned with the 10% criteria; and, the VA arrived at a 10% rating based on this evidence, applying exclusively §4.130 criteria. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), members agreed that there was insufficient cause to recommend a change in the PEB adjudication for the condition of schizophrenia in this case.


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 deference to AR 635-40 and DoDI 1332.39 for the psychiatric rating was operant in this case, and the psychiatric rating was adjudicated independently of that guidance by the Board. In the matter of the condition of schizophrenia (paranoid type) 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, as follows:

UNFITTING CONDITION
 VASRD CODE RATING
Schizophrenia, Paranoid Type 9203 10%
COMBINED
 10%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20121210, 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 AR20130010300 (PD201201973)

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 accept the Board’s recommendation and hereby deny the individual’s application.
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

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