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AF | PDBR | CY2013 | PD-2013-02272
Original file (PD-2013-02272.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXX       CASE: PD-2013-02272
BRANCH OF SERVICE: Army          BOARD DATE: 20150730
SEPARATION DATE: 20050829


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Unit Supply Specialist) medically separated for major depressive disorder (MDD). The condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty but was authorized to perform the Army physical fitness test per profile. She was issued a permanent S4 profile and referred for a Medical Evaluation Board (MEB). The “major depressive disorder” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded one other condition, “borderline and schizotypal personality disorders,” for PEB adjudication. No other condition was submitted by the MEB. The Informal PEB adjudicated “major depressive disorder” as unfitting, rated 10% with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The remaining condition was determined to be not unfitting . The CI made no appeals and was medically separated.


CI CONTENTION: “ Army evaluation did not include PTSD/MST; ER treatments for MST were documented for more than one occurrence; instead of PTSD, it was evaluated as major depressive disorder. The PEB/MEB included carpal tunnel, tinnitus, right knee . ”


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 :

IPEB – Dated 20050602
 VA* - (~8 Mos. Pre-Separation)
Condition
 Code Rating Condition Code Rating Exam
Major Depressive Disorder 9434 10% Major Depression with Psychotic Features (Also Diagnosed as PTSD) 9411-9434 70% 20051020
Other x 1 (Not In Scope)
 Other x 4
RATING: 10%
 RATING: 70%
* Derived from VA Rating Decision (VA RD ) dated 20 060425 (most proximate to date of separation ( DOS ) ) .


ANALYSIS SUMMARY:

MDD. Service treatment records noted the CI had five suicide attempts between February 2001 and February 2005. She enlisted in the Army in 1998 and was fondled by her first sergeant right before she went active duty. A friend sexually assaulted her in 2001 a day after her wedding and while 3 months pregnant. She tried to cut her wrists. She reported the incident to the Criminal Investigation Division (CID) but was treated as a suspect and nothing was done. She dropped the charges. She was referred to MH, her first experience with counseling and MH treatment, although she had a history of childhood abuse. She was diagnosed with depression. In December 2002, she tried to hang herself by putting a cord around her neck due to marital problems with her husband. She was seen in the emergency room. She refused medication after these first two attempts because she was pregnant each time. A Non-Commissioned Officer evaluation report for the period from February 2003-August 2003 documented a 1, Superior and a 1, Successful. In September 2004 she was raped again by someone she knew. In December 2004 she walked along the highway in hopes of being run over, feeling that no one cared for her. She was hospitalized for a week and treated with medicine for depression and mood stabilization. She was hospitalized again in January 2005 for 2 weeks and while in the hospital, attempted to hang herself on one occasion and ran full speed into a window another time. Her medications were changed and she received three psychotropic medications. At discharge, a diagnosis of major depression (MDD) was rendered with a Global Assessment of Functioning (GAF) score of 15 (some danger of hurting self or others.) She was referred for MEB and received a S4 profile.

The commander’s statement noted the CI’s past performance was excellent, minus her judgment. She was performing duties within the scope of her MOS. Behavioral Health Clinic Psychology Exam, dated 14 February 2005, noted the results of the MMPI-2 showed exaggerated responses and elevated the schizotypal and borderline scales on the MCMI-III. She reported she was severely abused as a child and was raped twice before she joined the Army. She requested a divorce because she did not want to burden her husband. The narrative summary dated 7 April 2005, noted the CI had not worked in her MOS since January 2005 and she was performing light duties in the medical library shelving books and making copies. However, she felt she could perform duties of her MOS. She was passing her fitness test and other military training and wished to remain on active duty. She reported she was still taking three psychotropic medications and was “better.” An Axis I diagnosis of MDD failing to meet retention standards and Axis II diagnoses of borderline and schizotypal personality disorders that did not cause her to fall below retention standards was rendered.

A Psychiatric Addendum dated 20 May 2005 clarified concerns expressed by the PEB, specifically there was no information in the reports that the depression diagnosis existed prior to service (EPTS) and what part of the diagnosis were the Axis II diagnoses. The reviewer opined the MDD condition did not exist prior to service and there was no evidence of MH treatment until her hospitalization in Hawaii in 2001. Impairment for military function was severe because of five suicide attempts since becoming active duty and a recent hospitalization with a very low GAF score at discharge. The examiner noted a diagnosis of MDD with a GAF score of 55 (moderate impairment, symptoms.) Apportioned impairment between Axis I and Axis II disorders was 75% for Axis I and 25% for Axis II.

The VA Compensation and Pension (C&P) exam performed 2 months after separation, noted the CI missed about a month during the last 12 months of duty due to depression. She was not in treatment nor was she taking any medication because it made her feel like a zombie. She had individual therapy 1-2 times per week until July 2005. She was not employed but would like to get a supply job and was looking for a job through the internet. She enjoyed watching “Anyme” and taking her children to the park. She denied a legal history and alcohol. She had dreams of the sexual assault and endorsed symptoms of PTSD. MSE noted she was extremely guarded and uncomfortable, exhibited significant psychomotor retardation, was tearful and appeared dysphoric and withdrawn. She denied suicidal ideation. The examiner opined she met diagnostic criteria for PTSD with depression due to sexual assault and treatment by the CID. Her GAF score was 45 (severe symptoms, impairment.)

Administrative note, dated 11 January 2006, noted she was diagnosed with MDD due to military sexual trauma. She made a suicidal gesture in April 2006 by tying a cord around her neck but thought of her children and untied it. A C&P exam, dated October 2008, noted the CI was taking a new medication that helped a great deal with her raciness and jitteriness. She reported continuing symptoms of PTSD, including nightly nightmares of killing her perpetrators and trying to get people back. She had flashbacks a few times per month. She also had symptoms of a depression with racing thoughts, impulsivity, a great deal of energy and broken sleep. She was working full time at a library and missed work occasionally. She was also taking a course online and had good grades. She was also receiving individual therapy and had been seen fairly consistently since her last evaluation in 2005. She last attempted suicide in 2006 and was hospitalized for 3 days in September 2008 due to an overdose of an anti-depression medicine. She was tearful through the mental status exam. Diagnoses were PTSD and bipolar disorder was a GAF of 45 (serious symptoms, impairment)

The Board directed its attention to its rating recommendation based on the above evidence. Disability associated with any psychiatric condition, regardless of the diagnosis(s), is subsumed under a single rating using the same criteria IAW VASRD §4.130 general rating formula for MH conditions. The PEB rated the condition at 10% under the code 9434 (MDD disorder) and the VA rated the condition at 70% under the code 9411-9434 (MDD with psychotic features, also diagnosed as PTSD). The PEB adjudicated the Axis II diagnoses of borderline and schizotypal personality disorders as not unfitting and therefore not ratable or compensable.

The Board considered whether the provisions of VASRD §4.129 (mental disorder due to a highly stressful event) were applicable for the unfitting MH condition. Regardless of final PEB MH diagnosis, §4.129 does not require a PTSD diagnosis, but is utilized to determine if a mental disorder is due to a highly stressful event that is severe enough to bring about the veteran’s release from active military service. The Psychiatric addendum noted that her condition did not exist prior to service. The Board determined the CI’s unfit MH condition had its onset due to military sexual trauma, and therefore §4.129 is applicable. Accordingly, the CI must then be placed into constructional TDRL with a minimum 50% rating followed by a TDRL removal MH rating 6 months later IAW the VASRD, DoDI 6040.44 and DoD guidance.

All members agreed that the VASRD §4.130 (MH rating) for the CI’s TDRL placement was higher than a 50% rating. She had been psychiatrically hospitalized twice in the year prior to separation due to suicide attempts. Her most recent hospitalization 7 months prior to separation included two serious suicide attempts on the inpatient unit. She had not worked in her MOS since that time, only performing light duty. After due deliberation and consideration of all of the evidence, and mindful of the VASRD §4.3 (reasonable doubt), the Board unanimously recommends a rating of 70% for the MDD condition at TDRL placement.

The Board then determined the §4.130 MH rating at TDRL removal (end of the constructional TDRL) for the permanent rating recommendation. The Board determined the most proximate source of comprehensive evidence, to evaluation the CI at TDRL removal, was the VA (C&P) dated October 2008, and performed 20 months after separation. Subsequent MH examinations post-TDRL placement for Board consideration included a C&P exam dated October 2005, an administrative note dated January 2006. Records show she made a suicide gesture in 2006 and overdosed on her medication in September 2008, resulting in a 3-day hospitalization. She remained in treatment, receiving individual therapy regularly and taking two psychotropic medications. She had continu ing symptoms of a mood disorder, chronic sleep impairment and PTSD and her level of functional level was judged to be serious. The Board adjudged that the CI met the 50% criteria for reduced reliability and productivity at TDRL removal. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends application of 4.129 with a retroactive 6-month constructive TDRL rating of 70% and a permanent rating of 50% 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. In the matter of the MDD condition, the Board unanimously recommends a disability rating of 70% for a prescribed 6-month period of temporary retirement IAW VASRD §4.129; followed by a 50% permanent rating, coded 9432, 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 re-characterized to reflect permanent disability retirement, effective as of the date of her prior medical separation:

UNFITTING CONDITION VASRD CODE RATING
TDRL PERMANENT
Major Depressive Disorder 9434 70% 50%
RATING 70% 50%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131104, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans Affairs Treatment Record



XXXXXXXXXXXXXXX
President
DoD 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 XXXXXXXXXXXXXXXXXXXX, AR20150015453 (PD201302272)


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
70% disability for six months effective the date of the individual’s original medical separation for disability with severance pay and then following this six month period recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 50%.

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 of this memorandum:

         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 retired with permanent disability effective the day following the six month TDRL period.

         c. Adjusting pay and allowances accordingly. Pay and allowance adjustment will account for recoupment of severance pay, provide 70% retired pay for the constructive temporary disability retired six month period effective the date of the individual’s original medical separation and then payment of permanent disability retired pay at 50% effective the day following the constructive six month TDRL period.

         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                                                  XXXXXXXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary of the Army
                                                      (Review Boards)

CF:
( ) DoD PDBR
( ) DVA
        

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