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AF | PDBR | CY2013 | PD2013 00503
Original file (PD2013 00503.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX         CASE: PD1300503
BRANCH OF SERVICE: Army  BOARD DATE: 20140422
SEPARATION DATE: 20060430


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve CW2 (915A0/Maintenance Tech) medically separated for major depression disorder (MDD). CI was activated from reserve status in November 2003 and his unit deployed to Iraq in February 2004. In June 2004, he presented to the Combat Stress Control unit with a 3-month history of symptoms of anxiety and difficulty sleeping. He also reported irritability and low energy level. Treatment was initiated with counseling as well as the medication Effexor (XR 75 mg daily). He presented again to the Combat Stress Team on 19 July 2004 with complaints of wanting to harm one of the soldiers in his unit. The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards. He was issued a permanent S3 profile and referred for a Medical Evaluation Board (MEB). The MDD condition was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501 as medically unacceptable. No other conditions were submitted by the MEB. The PEB adjudicated MDD as unfitting, rated 10% ci ting criteria of VA Schedule for Rating Disabilities (VASRD). The CI appealed to the US Army Physical Disability Agency which affirmed the PEB finding and rating; he was then medically separated.


CI CONTENTION: “After involuntary separation, medical record show my condition is worse that [sic] believed.”


SCOPE OF REVIEW: The CI was notified by the Army that his case may eligible for review of the military disability evaluation of any mental health (MH) condition in accordance with Secretary of Defense directive for a comprehensive review of Service members who were referred to a disability evaluation process between 11 September 2001 and 30 April 2012 and whose MH diagnoses were changed or eliminated during that process. In accordance with Secretary of Defense directive for a comprehensive review of the MH diagnoses that were changed during the Disability Evaluation System (DES) process, the applicant’s case file was reviewed regarding diagnosis change, fitness determination, and rating of the unfitting MH diagnoses in accordance with the VA Schedule for Rating Disabilities (VASRD) §4.129 and §4.130.

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 MDD condition is addressed below; no additional 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 20060118
 VA - (4 Mos. Pre-Separation))
Condition
 Code Rating Condition Code Rating Exam
Major Depressive Disorder 9434 10% MDD with PTSD 9411-9434 50% 20051228
No Additional MEB/PEB Entries
 Other x 4 (NSC) 20051213
Combined: 10%
 Combined: 50%
Derived from VA Rating Decision (VA RD ) dated 200 60223 ( most proximate to date of separation [ DOS ] ). Changed from Major Depressive Disorder to Major Depressive Disorder with Posttraumatic Stress Disorder 20100323 to DOS.


ANALYSIS SUMMARY: The DES is responsible for maintaining a fit and vital fighting force. While it considers all of the member's medical conditions, compensation can only be offered for those medical conditions that cut short a member’s career, and then only to the degree of severity present at the time of final disposition. 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 nor for conditions determined to be service-connected by the Department of Veterans Affairs but not determined to be unfitting by the PEB. However, the VA, operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service-connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time. The Board’s role is confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VASRD standards, based on severity at the time of separation. The Board utilizes VA evidence proximal to separation in arriving at its recommendations; DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence. The Board’s authority as defined in DoDI 6044.40, however, resides in evaluating the fairness of DES fitness determinations and rating decisions for disability at the time of separation. Post-separation evidence therefore is probative only to the extent that it reasonably reflects the disability and fitness implications at the time of separation.

Major Depression Disorder Condition. There are no mental health (MH) records in evidence prior to separation other than a VA neurology evaluation in December 2004 which is addressed in the discussion of the VA Compensation and Pension (C&P) examination. The CI was issued a permanent S3 profile dated 8 July 2005 for MDD and posttraumatic stress syndrome (PTSD). The narrative summary dated 19 August 2005, 8 months prior to separation, noted that the CI had been activated in February 2004 and presented in June with a 3-month history of poor sleep and anxiety. On 19 July 2004, he again presented with a 2-day history of wanting to harm a subordinate soldier, whom he perceived as disrespectful, by shooting him in the foot. He denied homicidal ideation, though. He was redeployed and treated in the military and VA health care systems. In late 2004, his symptoms worsened and there were two dissociative episodes. A neurological work-up was negative for organic pathology and the symptoms were thought to be related to the MH conditions. His medications were increased with improvement. On examination, the CI was appropriately dressed, mood was sad and affect subdued, thought processes and content were normal. He denied suicidal ideation, but endorsed potential violent thoughts if faced with the same subordinate soldier. He was thought to have a MDD, single episode, without psychosis and given a Global Assessment of Functioning (GAF) score of 55 (consistent with moderate symptoms or moderate difficulty in social, occupational, or school functioning). He was noted to have a concentration impairment which would preclude him from successfully supervising others in his unit and to be at high risk for recurrent depression if redeployed. He was not thought to meet the diagnostic criteria for PTSD. The commander’s letter dated 22 November 2005 noted that he is unable to work with others. At the C&P examination performed on 28 December 2005, 4 months prior to separation, the CI reported symptoms since returning from Desert Storm in 1991. Nightmares began in 1996 related to Iraq. He deployed again in February 2004 and presented in June 2004 with a 3-month history of poor sleep and anxiety. The examiner further noted that the CI began treatment in the VA outpatient clinic on 4 September 2004 and had the full spectrum of PTSD symptoms as well as MDD symptoms. The CI reported no particular stressors since return from Iraq. He endorsed low patience and easily losing his temper. He also had prolonged periods of depression which interfered with duty performance. He reported two episodes of flashbacks, nightmares, intrusive thoughts, anhedonia and avoidance behavior. His affect range was observed to be restricted. On examination, he was mildly to moderately depressed and anxious. He denied hallucinations, suicidal ideation and homicidal ideation. Insight, judgment, and thought processes were not impaired. He was thought to have moderate to severe social and vocational impairment. He was diagnosed with both PTSD and MDD with a current GAF of 45 (consistent with serious symptoms or any serious impairment in social, occupational or school functioning). The CI was seen again on 30 August 2006, 4 months after separation, the nursing intake note documented that the CI was oriented, but had some obsessions. However, thought content, memory, judgment and insight were thought to be good. The psychiatrist noted that the CI was responding well to his medications and both the depression and nightmares were improved. He was appropriately dressed and groomed; mood was sad and affect restricted; thought content was coherent, relevant and logical. He was fully oriented. The examiner noted that the memory and concentration were not preserved, but this is not consistent with the remainder of the examination or with the nursing intake and is thought to be an error. Insight and judgment were fair. The diagnosis was MDD with PTSD and the GAF was 61 (consistent with some mild symptoms or some difficulty in social, occupational, or school functioning, but generally functioning pretty well, has some meaningful interpersonal relationships). The CI was seen a month later on 29 September 2006, 5 months after separation, again in psychiatry. He had a good relationship with his wife and brothers. He was employed as a teacher without major problems, but did feel restless when his co-workers talked in a “load” (loud) voice to the students. Psychomotor retardation was noted with slow speech. His mood was anxious and affect blunted, restricted and constricted. Thought processes, insight, judgment and memory were all intact. He was thought to have a MDD in partial remission and was assigned a GAF of 60, essentially unchanged from the previous month. He was noted to be future oriented with plans and commitments. At a psychiatric appointment on 8 February 2007, just over 9 months after separation, the CI remained in remission and doing well on medications. The Board observed that the VA clinicians fairly, consistently used a diagnosis of MDD in the post-separation treatment notes. This had no bearing on the rating determination. The PEB diagnosed MDD, single episode, in partial remission coded 9434 (MDD) and rated at 10%. The VA diagnosed MDD with PTSD, coded 9411 (PTSD) and 9434, but determined a 50% disability rating under VASRD §4.130.

The Board first considered if VASRD §4.129 was applicable. The Office of the Under Secretary of Defense memorandum July 17, 2009 states: "Therefore, as a matter of policy, the PDBR and all three BCMRs will apply VASRD Section 4.129 to PTSD unfitting conditions for applicants discharged after September 11, 2001, and in such cases, where a grant of relief is appropriate, assign a disability rating of not less than 50% for PTSD unfitting conditions for an initial period of 6 months following separation, with subsequent fitness and PTSD ratings based on the applicable evidence.” The Board concluded that sufficient evidence supports that a highly stressful event severe enough to bring about the Veteran’s release from active military service did occur and that the application of §4.129 is appropriate in this case.

The VA C&P examination dated 28 December 2005 and the post-separation psychiatric evaluation on 30 August 2006 bracket the separation date of 30 April 2006, each being separated by 4 months. The Board reviewed these two examination and determined that a rating no higher than 50% (occupational and social impairment with reduced reliability and productivity) is supported under VASRD §4.130 and recommends that the CI be placed on the Temporary Disability Retired List (TDRL) for 6 months at 50% disability. The most proximate source of comprehensive evidence on which to base the permanent rating recommendation in this case are the VA psychiatric evaluations performed on 29 September 2006, 5 months after separation, and the evaluation on 8 February 2007, 9 months after separation. The initial evaluation noted that the CI was in partial remission and improving on medications. The second evaluation noted that the CI continued in remission (on medications). The Board considered these two examinations and determined that the CI best fit the description of the 10% rating (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, or; symptoms controlled by continuous medication) at the 6-month point.

The board opined that the primary diagnosis in the record was MDD and that no change in the PEB diagnosis is warranted. The Board also determined, therefore, that the MH diagnosis was not changed to the applicant's possible disadvantage in the disability evaluation process. This applicant therefore did not meet the inclusion criteria in the Terms of Reference of the MH Review Project.


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 50%, coded 9434 IAW VASRD §4.129 and 130, for a constructive 6-month TDRL and then a 10% permanent 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 separation be modified to reflect that the CI was placed on the TDRL at 50% for a period of 6 months (MDD at 50% IAW §4.129 and DoD direction) and then permanently separated with severance pay by reason of physical disability with a final 10% rating as indicated below:

UNFITTING CONDITION VASRD CODE TDRL RATING PERMANENT
RATING
Major Depressive Disorder 9434 50% 10%
COMBINED 50% 10%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20130415, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record


                                    XXXXXXXXXXXXXXXXXX, DAF
President
Physical Disability Board of Review
SFMR-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 XXXXXXXXXXXXXXXXXX , AR20140008183 (PD201300503)
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
50% 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 no recharacterization of the individual’s separation or modification of the permanent disability rating of 10%.

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 as follows:

         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 separated with a permanent combined rating of 50% effective the day following the six month TDRL period with no recharacterization of the individual’s separation.

         c. Adjusting pay and allowances accordingly. Pay and allowance adjustment will provide 50% retired pay for the constructive temporary disability retired six month period effective the date of the individual’s original medical separation and adjusting severance pay as necessary to account for the additional TDRL time in service.

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                                                  XXXXXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary
                                                      (Army Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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