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AF | PDBR | CY2013 | PD-2013-01683
Original file (PD-2013-01683.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:xxxxxxxxxxxxxxxxxxx         CASE: PD-2013-01683
BRANCH OF SERVICE: Army  BOARD DATE: 20150709
DATE OF PLACEMENT ONTO TDRL: 20000131
DATE OF REMOVAL FROM TDRL: 20040324


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-7 (Recruiter) medically separated for major depressive disorder. The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS). He was issued a permanent S4 profile and referred for a Medical Evaluation Board (MEB). The “major depressive disorder, single episode, severe” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded left patellofemoral syndrome as an Axis III condition. The Informal PEB (IPEB) adjudicated “major depressive disorder” as unfitting, rated 30%, with likely application of the Department of Defense Instruction (DoDI) 1332.39. The CI made no appeals and was placed on the Temporary Disability Retired List (TDRL). Approximately 4 years later, the re-evaluation IPEB adjudicated the major depressive disorder as unfitting, rated 0%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The CI made no appeals and was medically separated.


CI CONTENTION: The applicant makes no specific contention in his application. His complete submission is at Exhibit A.


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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting. Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records. Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate. The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the VASRD standards to the unfitting medical condition at the time of separation. The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions. That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws. The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation. In addition, the Secretary of Defense Mental Health Review Terms of Reference directed a comprehensive review of Service members with certain mental health (MH) conditions referred to a disability evaluation process between 11 September 2001 and 30 April 2012 that were changed or eliminated during that process. The MH condition was reviewed regarding diagnosis change, fitness determination and rating in accordance with VASRD §4.129 and §4.130.
RATING COMPARISON :

Final PEB – 20040303
 VA Rating Decision1 - 20000620
TDRL Placement – 20000131
 Code Rating Condition Code Rating
Proximate
Condition
 TDRL
Placement		 TDRL Removal TDRL2
Placement
 TDRL3 Removal
History of Major Depressive Disorder 9434 30% 0% Major Depressive Disorder 9434 30% 30%
Left Patellofemoral Syndrome Not Unfitting (implied) Chondromalacia Patellae, Left 5299-5257 0% 0%
Other x 0 (Not in Scope)
 Other x 5
RATING: 30% → 0%
 RATING: 30%
1. Most proximate to TDRL Placement
2. Rating derived from C&P exam dated 20000412, ~3 mos. post-TDRL placement
3. Rating derived from C&P exam dated 20021202, ~35 mos. post-TDRL placement


ANALYSIS SUMMARY:

Major Depressive Disorder. Service treatment records noted the CI was seen as a walk-in at an outpatient MH clinic on 6 April 1999. He reported he was having “scary thoughts” that included suicidal ideation as recently as the past Sunday. He felt “so alone” he thought of “hanging myself with a door knob.” He cut himself on his left wrist to see “if it would hurt.” He was speeding and became inattentive while driving. He was not sleeping well and nearly fell asleep while driving. The stress and pressures from his recruiting job left him feeling, “I just can’t do it anymore.” He was not seeing his family much because of his long hours at work and his wife told him she didn’t want to be with him if things continued as they were. He felt hopeless and like he was “failing at everything.” He was afraid to seek help because of his command. He received a diagnosis of major depressive disorder (MDD) and was hospitalized for 3 days. At discharge, he attended the partial hospital program (PHP) for 8 days. He returned to work but when he could not complete a routine monthly task, he began shaking and having chest pain, fearful of separation if he could not handle recruiting. He was readmitted to the PHP for a week. He was removed from recruiter duties and assigned to his battalion, which did not reduce his stress.

The commander’s statement on June 1999 noted that the CI had been an outstanding recruiter and station commander until March 1999. After he began treatment for MDD, he was reluctant to return to work. When he was ordered to work in May 1999, he became violent in commander’s office and in the lobby. He was charged with violating Article 91 of the Uniform Code of Military Justice (UCMJ) and relieved of his duties. A memo dated, November 1999, documented he received an Article 15 for his actions in the commander’s office. The September 1999 narrative summary (NARSUM), performed 5 months prior to placement on TDRL, noted the CI remained depressed, fearful, agitated with insomnia, with lack of energy, and feelings of hopelessness and worthlessness. The mental status exam (MSE) noted mild psychomotor agitation, and a depressed and fearful mood. Psychological testing in August 1999 noted depression likely due to accumulated stress and anxiety with multiple somatic symptoms. A diagnosis of MDD was rendered with a Global Assessment of Function (GAF) score of 60 (moderate on the cusp of mild impairment, symptoms).

At the VA Compensation and Pension (C&P) exam performed 2 months after separation, the CI reported he felt “scared, not knowing what is going to happen.” He had been working full-time for 2 months. He denied he would commit suicide because of his children although he thought about it at times. He had difficulty with sleep and energy was variable. He had not taken any medication for about 2 months but was planning to call a private psychiatrist to receive care and he had his wife to turn to. During the MSE he appeared withdrawn, exhibited slow speech, blunted affect and psychomotor retardation. A diagnosis of MDD was rendered with a GAF score of 60 (the cusp of moderate to mild impairment symptoms.)

The TDRL evaluation, dated 20 January 2004, (performed 2 months prior to TDRL removal) noted there had been periods of brief improvements of his symptoms. The CI reported depressed mood, irritability, anxiety, isolative behavior, insomnia, decreased energy, feelings of hopelessness and helplessness. He felt everything had “gone downhill” since placement on TDRL. He reported he had not taken medication for a year because could not get to the VA hospital an hour away. Additional stressors included a divorce in the past year and his father’s recent diagnosis of lung cancer. He had custody of his children but his daughter wanted to go live with her mother. He had “gainful employment” since placement on TDRL except for the time between September 2002 and April 2003. He denied current suicidal ideation but admitted passive thoughts of not wanting to wake up. MSE revealed his mood as “scared” and his affect was sad. An Axis I diagnosis of MDD with an Axis II listing of dependent and self-defeating traits was rendered with the GAF score of 55 (moderate impairment symptoms.) The examiner noted the CI had significant symptoms of depression and remained fairly isolative and unable to enjoy daily activities.

The Board directed attention to its rating recommendation based on the above evidence. The Board reviewed the records for evidence of inappropriate changes in diagnosis of the MH condition during processing through the Disability Evaluation System (DES). MDD was the only diagnosis rendered. The Board determined that the MH diagnosis was not changed to the applicant’s possible disadvantage in the disability evaluation. The CI therefore did not appear to meet the inclusion criteria in the Terms of Reference of the MH Review Project.

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 considered if there was evidence for a § 4.130 rating higher than 30% at the time of TDRL entry. The higher 50% rating is for “Occupational and social impairment, with reduced reliability and productivity.” The CI continued to work full time, albeit in a different assignment. There was no evidence in the record of recurrent suicidal behaviors, no recurrent psychiatric hospitalizations, and no impairment in judgment. The Board concluded that the record in evidence did not support a higher than 30% rating at TDRL entry and there was insufficient reasonable doubt for recommending a 50% TDRL entry rating.

The Board agreed that at the time of permanent retirement, the record adequately demonstrated that the applicant did meet diagnostic criteria for MDD. The Board noted that he continued to have persistent depression, and determined that MDD was the appropriate diagnosis. However, he had not accessed psychiatric care and not been in treatment for a year. The Board considered if there was evidence for a § 4.130 rating higher than 0% at the time of TDRL exit. The higher 10% rating is for “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.” The applicant worked as a lab tech for the past nine months and had been employed since placement on TDRL except for a seven-month period. He had custody of his children. There were additional stressors that included a divorce, his father recently diagnosed with lung cancer and his daughter was requesting that she go to live with her mother. The CI was never hospitalized psychiatrically, panic attacks were absent, and he was never treated in the emergency department for MH concerns. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a TDRL placement rating of 30% and permanent disability rating after TDRL removal of 10% for the MDD condition, coded 9434.
Contended Patellofemoral. The Board’s main charge is to assess the fairness of the PEB’s determination that patellofemoral syndrome (PFS) was not unfitting. The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard. The NARSUM exam noted the CI had a 14-year history of right and left knee pain, left worse than right. He was diagnosed in 1994 with PFS with patella alta (a high riding patella) in his left knee. The VA C&P exam in April 2004 noted he had not had surgery on his knees and took over the counter medication for the knee pain. Physical exam showed a normal gait, full range-of-motion in all joints including the knees. There was no swelling, inflammation, or warmth in the knees although there was some crepitus. During the DES process, the PFS was not profiled or implicated in the commander’s statement and was not judged to fail retention standards. All were reviewed and considered by the Board. There was no performance based evidence from the record that PFS 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 PFS contended condition and so no additional disability rating is 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. As discussed above, PEB reliance on DoDI 1332.39 for rating the MDD was operant in this case and the condition was adjudicated independently of that instruction by this Board. In the matter of the MDD condition, the Board recommends a TDRL placement rating of 30%, and §4.130; and a 10% permanent rating at TDRL removal. In the matter of the contended PFS, the Board agrees that it cannot recommend it for additional disability rating. 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:

CONDITION VASRD CODE RATING
TDRL PERMANENT
Major Depressive Disorder 9434 30% 10%
Left Patellofemoral Syndrome Not Unfitting
COMBINED 30% 10%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20130917, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans Affairs Treatment Record




XXXXXXXXXXXXXXXXXXXX
President
Physical Disability Board of Review

SAMR-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 xxxxxxxxxxxxxxxxxxxxxxxxx , AR20150012524 (PD201301683)
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 accept the Board’s recommendation to modify the individual’s disability rating to 10% without recharacterization of the individual’s separation. This decision is final.

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.

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                                                  xxxxxxxxxxxxxxxxxxxxxxxxxxxxx
                                                      Deputy Assistant Secretary of the Army
                                                      (Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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