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AF | PDBR | CY2013 | PD-2013-02462
Original file (PD-2013-02462.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXX     CASE: PD-2013-02462
BRANCH OF SERVICE: AIR FORCE     BOARD DATE: 20140619
SEPARATION DATE: 20050506


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty 1LT/O2 (33S3/Communications and Information Officer) medically separated for a depression, not otherwise specified (NOS) condition. He was issued a permanent S4 profile and referred for a Medical Evaluation Board (MEB). The MH condition characterized as “depression NOS,” was forwarded to the Physical Evaluation Board (PEB) IAW AFI 48-123. The MEB also identified and forwarded a hypertension condition. The Informal PEB adjudicated “Depression NOS” as unfitting, rated 30%, with a 20% deduction for aggravating/contributory factors. The final permanent rating was 10%. The remaining hypertension was determined to be Category II (category II is can be unfit, but not compensable/ratable). An additional adjustment disorder condition was identified on the PEB as Category III (not separately unfit & compensable/ratable). The CI made no appeals and was medically separated.


CI CONTENTION: “I feel that the findings and rating given by the MEB/PEB may not have been fair and accurate. I request that all MEB/PEB conditions be considered for being unfit for duty and 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 depression condition is addressed below; and additionally the hypertension and adjustment disorder conditions are within the DoDI 6040.44 defined purview of the Board. 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 :

Service IPEB – Dated 20050103
 VA - (7 Mos. Post-Separation…Missing Exam)
Condition
 Code Rating Condition Code Rating Exam
Depression 9434 30% Depression NOS and Adjustment Disorder 9434 50* STR**
-20%
Hypertension 7101 CAT II Hypertension 7101 0% 20051006
Adjustment Disorder CAT III No VA Entry
No Additional MEB/PEB Entries
 Other x 3 20051006
Combined: 10%
 Combined: 20%
Derived from VA Rating Decision (VA RD ) dated 2 0060124 ( most proximate to date of separation [ DOS ] ). * VARD 20100405 awarded 50% eff 20050705 (day after separation), and 30% eff 20050112 citing C&P Exam 20080131. CI faile d to show for VA Exam for mental conditions on 20051103. ** MH Condition Deferred and awarded per De Novo review VARD 20100405 .





ANALYSIS SUMMARY:

Depression NOS Condition. Available treatment records demonstrated the CI was diagnosed with adjustment disorder NOS in August 2003 with a rule-out of depression NOS. Symptoms were not described; however, it was noted there was a separate MH chart. A psychiatry medication entry dated 26 September 2003, recorded disturbance of mood and an otherwise normal mental status examination (MSE). The CI was prescribed Wellbutrin and reported tachycardia (rapid heartbeat) and insomnia. He was switched to Zoloft in February 2004, and had an adverse reaction to it. A psychiatry entry on 24 March 2004 suggested that all psychotropic medications had been discontinued, and he continued with talk therapy for the diagnosis of adjustment disorder, with a rule-out of depression NOS. However, a primary care entry on 21 April 2004 indicated the CI was re-started on Wellbutrin on 23 March 2004. His visit to primary care regarded questions about his depression and the Wellbutrin. The CI stated he “still felt depressed” and was forgetful. A temporary S4 profile was recorded. On 11 May 2005, his treating psychiatrist diagnosed depression NOS and adjustment disorder NOS, chronic. His Global Assessment of Functioning (GAF) score was 70 (mild). A month later, the diagnosis of anxiety disorder NOS was added, and a GAF of 60 (borderline mild-moderate) was recorded. On 1 September 2004, the CI presented to the MH clinic as a walk-in with report of passive suicidal ideations. He stated he felt overwhelmed and helpless and noted he had awakened with the thoughts after oversleeping for work. He indicated he feared being in trouble for his tardiness. The CI denied active suicidal thoughts and was able to contract for safety. On 7 September 2004, his treating psychiatrist recorded the diagnosis of partner relational problem and depression NOS, with a GAF of 65 (mild). Treatment records demonstrated that the CI had diagnoses of adjustment disorder NOS, anxiety disorder NOS and depression NOS, with GAF scores predominately in the borderline mild to moderate range.
The psychiatry MEB conducted by his treating psychiatrist, recorded a synopsis of his treatment from 7 August 2003-“present.” The writer indicated the documented had been “typed” on 12 November 2004. The psychiatrist noted the CI had struggled with issues at home and at work; both had been overwhelming at times. Treatment had not been effective; however, at the time of the MEB, the CI noted things were going fairly well, although he continued to feel tired and had continued to oversleep. The examiner stated his frequent tardiness to work produced an “acute adjustment disorder reaction.” The MSE was essentially normal; his mood was recorded as frustrated and affect congruent to mood. The examiner noted the CI underwent a sleep study that was interpreted as excessive daytime sleepiness due to depression. The psychiatrist concluded, “the overarching diagnosis at this time appears to be depressive disorder NOS.” A GAF of 60 was assessed and the examiner noted there was moderate to severe degree of impairment for military service and moderate impairment for civilian, social and industrial adaptability, with moderate external precipitating stressors. The CI was non-attendant to the scheduled VA Compensation and Pension evaluation.

The Board directs its attention to the rating recommendation based on the evidence just described. The PEB rated the condition of depression NOS, coded 9434, at 30% minus 20% for aggravating/contributory factors. On 3 October 2006, the VA, noted the condition was not service-connected and not incurred/caused by service. The Board first noted the diagnosis of adjustment disorder was not included in the narrative summary (NARSUM) and was not forwarded to the PEB. The PEB adjudicated the condition as non-ratable/non-compensable, Category III, not separately unfitting. The adjustment disorder is not a physical disability and is not ratable IAW DoDI 1332.38. The Board next unanimously agreed that VASRD §4.129 was inapplicable in the absence of a highly stressful causative event. The NARSUM examination described moderate impairment in social and occupational functioning, and assigned a GAF of 60 (moderate symptoms or moderate difficulty in social and occupational functioning), 6 months prior to separation. As noted above, the PEB reduced the rating by 20% and opined the adjustment disorder had significantly affected the severity of the CI’s depression. The PEB stated had it not been for the adjustment disorder, the CI’s social and industrial adaptability impairment rating would have been best described as mild; therefore, a disability rating of 10% was assigned. The Board concluded, although, the CI was diagnosed with adjustment disorder NOS, the clinical evidence supported the primary diagnosis of depression NOS, and that the symptoms of an unspecified adjustment disorder lie within the depression spectrum, and therefore, is better understood by the diagnosis of depression NOS. All Board members agreed the diagnosis of depression NOS superseded the adjustment disorder diagnosis, and therefore, must be rated based on the clinical evidence for that diagnosis. At the time of separation the Board agreed that the §4.130 threshold for a 50% rating (occupational and social impairment with reduced reliability and productivity) was not approached. A rating of 30% requires “occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.” The records noted the CI was never hospitalized, and, although, on one occasion expressed suicidal thoughts, he had demonstrated the ability to remain safe and to commit to safety. The record demonstrated his response to treatment intervention was minimal; he remained symptomatic with sleep, energy and mood disturbance. The commander’s statement indicated inconsistent job performance was unreliable at times and his performance varied and was unpredictable. All Board members agreed, at the time of separation, the evidence supported the 30% rating. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was sufficient cause to recommend a change in the PEB adjudication for the depression NOS condition. All evidence considered, the Board recommends coding 9434 at 30% as the fair permanent separation rating for depression in this case.


Contended PEB Conditions. The Board’s main charge is to assess the fairness of the PEB’s determination that the condition of hypertension was 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. The condition was not profiled or implicated in the commander’s statement and was not judged to fail retention standards. The condition was reviewed by the action officer and considered by the Board. There was no performance-based evidence from the record that this condition 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 contended condition of hypertension.


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 depression NOS condition, the Board unanimously recommends a disability rating of 30%, coded 9434 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 his prior medical separation.

UNFITTING CONDITION VASRD CODE RATING
Depression Not Otherwise Specified 9434 30%
COMBINED 30%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131113, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record







                                   
XXXXXXXXXXXXXX
President
Physical Disability Board of Review


 SAF/MRB
Dear XXXXXXXXXXXXXX:
         Reference your application submitted under the provisions of DoDI 6040.44 (Title 10 U.S.C. § 1554a), PDBR Case Number PD-2013-02462.
         After careful consideration of your application and treatment records, the Physical Disability Board of Review determined that the rating assigned at the time of final disposition of your disability evaluation system processing was not appropriate under the guidelines of the Veterans Affairs Schedule for Rating Disabilities. Accordingly, the Board recommended your separation be re-characterized to reflect disability retirement, rather than separation with severance pay.
         I have carefully reviewed the evidence of record and the recommendation of the Board. I concur with that finding, accept their recommendation and determined that your records should be corrected accordingly. The office responsible for making the correction will inform you when your records have been changed.
         As a result of the aforementioned correction, you are entitled by law to elect coverage under the Survivor Benefit Plan (SBP). Upon receipt of this letter, you must contact the Air Force Personnel Center at (210) 565-2273 to make arrangements to obtain an SBP briefing prior to rendering an election. If a valid election is not received within 30 days from the date of this letter, you will not be enrolled in the SBP program unless at the time of your separation, you were married or had an eligible dependent child, in such a case, failure to render an election will result in automatic enrollment.

                                                               Sincerely,




        
XXXXXXXXXXXXXX
Director
Air Force Review Boards Agency
Attachment:
Record of Proceedings

cc:
SAF/MRBR
DFAS-IN

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