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AF | PDBR | CY2013 | PD-2013-02446
Original file (PD-2013-02446.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX         CASE: PD-2013-02446
BRANCH OF SERVICE: Army  BOARD DATE: 20141125
SEPARATION DATE: 20050131


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-6 (Armor Crewman) medically separated for major depressive disorder (MDD). The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS). He was issued a permanent S3 profile and referred for a Medical Evaluation Board (MEB). The condition, characterized as “major depressive disorder” was forwarded to the Physical Evaluation Board (PEB) in accordance with (IAW) AR 40-501. No other conditions were submitted by the MEB. The Informal PEB (IPEB) adjudicated MDD as unfitting, rated 30%, with application of the AR 635-40, appendix B-107(e) and placed the CI on the Temporary Disabled Retirement List (TDRL). After re-evaluation under TDRL, the IPEB adjudicated MDD again as unfitting, rated 10%, again with application of AR 635-40, appendix B-107(e). The CI made no appeals and was medically separated.


CI CONTENTION: “Because the VA evaluated me at 70% for Depression w/possible PTSD. Also 60% for recurring gout. For a total disability rating of 90%”.


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 Veterans Affairs Schedule for Rating Disabilities (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 :

Service IPEB – Dated 20050112
 VA - (1 mo. Pre-Separation)
Condition
 Code Rating Condition Code Rating Exam
Major Depressive Disorder 9434 10% Major Depression 9434 50% 20041223
Other x 0 (Not in Scope)
 Other x 8 (Not in Scope)
Combined: 10%
 Combined: 80%
Derived from VA Rating Decision (VA RD ) dated 200 50705 ( most proximate to date of separation [ DOS ] ).


ANALYSIS SUMMARY:

Major Depressive Disorder Condition. Review of the service treatment records (STR) reveals that the CI, with over 19 years of continuous active service, had a history of depression, starting in 1998, which included two hospitalizations for suicidal ideation in 1998 and 2002, with multiple stressors including divorce, multiple deployments (Desert Storm, Bosnia, South Korea), and two occasions of driving under the influence of alcohol (DUI), which resulted in a diagnosis of alcohol abuse. The CI was treated regularly, and in March 2003 (10 months prior to TDRL placement) with little improvement noted, he received a permanent (S3) profile and was referred for an MEB. At this time, his commander’s memorandum to the MEB stated that the CI could “not adequately perform the duties normally expected” of his MOS, but noted that, after reassignment to a less stressful position, he performed “his duty competently” and his “condition did not limit him in the performance of his assigned duty.”

At the MEB exam (dated a year prior to TDRL placement) the CI reported “frequent trouble sleeping” and feeling “depressed.” Current medications reported were Remeron, Ativan and Ambien. The MEB physical exam noted that the CI was “moderately depressed with a blunt, poorly reactive affect.” The narrative summary (NARSUM), dated 4 months prior to TDRL placement noted “moderate psychomotor retardation and fair eye contact. Speech was monotone, non-spontaneous speech and without any inflection.” The NARSUM documented the diagnoses of (1) alcohol abuse (with complete abstinence, at that time, for ten months) and (2) MDD, recurrent, severe and treated, but without improvement, with recurrent suicidal ideation and considerable social and industrial impairment. The Global Assessment of Functioning (GAF) assignment was 55, which is in the moderate range of impairment. The MEB (4 months prior to TDRL placement) forwarded to the PEB the diagnosis of MDD, recurrent and severe. The IPEB noted multiple hospitalizations, recurrent suicidal ideation and requirement for continuous medication and psychotherapy, and stated that the condition was not “sufficiently stable for final adjudication” and placed the CI on TDRL, effective on 22 January 2004.

TDRL re-evaluation (dated 10 months after TDRL placement) noted that the CI was working “part time (3 times a week) as a repair technician,” but it was not clear if this was due to his illness or to other circumstances. The CI reported taking a college-level business course, adding that he had “very limited social activities outside of work and school.” Continuous use of medications was noted and no hospitalizations in the interim period were documented. The mental status exam (MSE) noted anxious mood with appropriate affect and was otherwise normal without suicidal or homicidal ideation or other acute features. Additionally, speech, language, cognition, reasoning, judgment and memory were intact. The GAF assignment was 60, which is in the moderate range of impairment.

According to the VARD dated 5 July 2005 (5 months after TDRL removal) the CI had first requested a VA evaluation in September 2004. VA QTC examinations were performed in December 2004 (11 months after TDRL placement).
The VARD noted that the VA examiner found some improvement in the CI’s condition, but concluded that there were “disturbances of motivation and mood, and difficulty establishing and maintaining effective work and social relationships.”

The Board directed attention to its rating recommendation based on the above evidence. I
The Board’s first assessment with regard to the MH condition is to determine whether a diagnosis was changed or unfairly eliminated to the disadvantage of the CI. The MDD diagnosis remained unchanged throughout disability processing, therefore, this case does not meet the inclusion criteria in the Terms of Reference of the MH Review Project. The Board next considered whether VASRD §4.129 was applicable to the unfitting MH condition; noting that §4.129 does not specify a diagnosis of PTSD, but rather any “mental disorder due to a highly stressful event” severe enough to result in release from military service. There was neither claim nor documentation that this condition resulted from a stressful event. Although the deployment stressors may have played some role in the evolution of the CI’s psychiatric disorder, the evidence is clear that non-service-connected domestic stressors were the primary underlying issues. The Board members agreed that the provisions of §4.129 were not satisfactorily supported in this case.

The Board deliberated if there was evidence for a VASRD §4.130 rating higher than 30% at the time of placement on TDRL. At the time of placement onto TDRL, the STR had not noted any of the criteria for a rating higher than 30%, noting the absence of occupational and social impairment with reduced reliability and productivity, and absence of specific symptoms and signs such as panic attacks, difficulty following commands, impaired memory or difficulty in establishing and maintaining relationships. The Board carefully weighed the probative value of previous hospitalizations for suicidal ideation and a blunted poorly-reactive affect and slight altered speech patterns which had been noted in the NARSUM. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication at TDRL placement for the MDD condition.

The Board considered if there was evidence for a §4.130 rating higher than the PEB’s 10% at time of removal from TDRL and permanent separation. The most proximate sources of comprehensive evidence on which to base the permanent rating recommendation in this case are the single TDRL examination, the VA QTC examination and VA treatment records, which were referenced in the VARD. The TDRL examination noted that the CI was still depressed, but was employed part-time and was taking college courses, and reported “very limited social activities outside of work and school.” On MSE, the evaluation noted an “anxious” mood with appropriate affect, normal speech, normal cognition, and absence of suicidal ideation or acute features of illness. The TDRL IPEB rated the condition at 10%, IAW AR 635-40, noting that the CI required psychotropic medication and treatment, had no hospitalizations during the TDRL period and was employed part-time. The IPEB cited the rating IAW AR 635-40, appendix B-107 (e) as “mild social and industrial impairment.” Review of AR 635-40, appendix B-107 (e)(4) reveals that a 30% rating “does not require hospitalization,…displays some signs or symptoms of mental illness on examination, ...usually requires medication and or psychotherapy,” job instability and “borderline social adjustment.” IAW AR 635-40, a 10% rating “may require medication or psychotherapy especially during times of stress,” displays minimal signs and symptoms with probing, and specifies “adequate social and job adjustment.” The VARD noted that the VA examiner noted “some improvement.” Although the VARD did document that the QTC examination revealed “disturbances of motivation and mood and difficulty establishing and maintaining effective work and social relationships,” it did not the document failure in self–care, panic attacks, sleep impairment, memory loss or other criteria consistent with a 30% or higher rating.

After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt) and §4.7 (higher of two evaluations), the Board recommends a disability rating of 30% for the MDD condition at the time of TDRL removal and permanent separation.


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 the AR 635-40 for rating the MDD was operant in this case and the condition was adjudicated independently of that regulation by this Board. In the matter of the MDD condition and IAW VASRD §4.130, the Board unanimously recommends no change in the PEB adjudication at the time of placement onto TDRL. By a majority, the Board recommends a disability rating of 30%, coded 9434 IAW VASRD §4.130 at the time of TDRL removal and permanent retirement. There were no other conditions within the Board’s scope of review for consideration.


RECOMMENDATION: The Board, therefore, recommends that the CI’s prior determination be modified 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 RATING
TDRL PERMANENT
Major Depressive Disorder Condition 9434 30% 30%
COMBINED 30% 30%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131118, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record








                 
XXXXXXXXXXXXXXXXXX
President
DoD Physical Disability Board of Review









 invalid font number 31502 SAMR-RB                                                                         

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

 invalid font number 31502 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
invalid font number 31502 for invalid font number 31502 XXXXXXXXXXXXXXXXXX invalid font number 31502 , AR20150008380 (PD201302446)

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 recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 30% effective the date of the individual’s original medical separation for disability with severance pay.

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:

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

         c. Adjusting pay and allowances accordingly. Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 30% effective the date of the original medical separation for disability with severance pay.

         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                                                  invalid font number 31502 XXXXXXXXXXXXXXXXXX invalid font number 31502
                                                      Deputy Assistant Secretary of the Army
                                                      (Review Boards)
CF:
( ) DoD PDBR
 invalid font number 31502 ( ) DVA invalid font number 31502

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