RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXX 	BRANCH OF SERVICE:  NAVY
CASE NUMBER:  PD1100255 	SEPARATION DATE:  20030321
BOARD DATE:  20120130

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty FC3/E-4 (1119, Aegis Radar System Technician), medically separated for major depression, recurrent with psychotic features.  The CI developed symptoms of anxiety, depression and paranoid delusions in 2002.  He was diagnosed with major depression with psychotic features.  The symptoms of paranoia improved with the use of anti-psychotic medication, however his depressive symptoms did not improve adequately to perform within his rating.  He was placed on limited duty (LIMDU) and underwent a Medical Evaluation Board (MEB).  Major depressive disorder, recurrent with psychotic features; dysthymia and avoidant personality disorder were forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW SECNAVINST 1850.4E.  No other conditions appeared on the MEB’s submission.  Other conditions included in the Disability Evaluation System (DES) packet will be discussed below.  The PEB adjudicated the major depression (recurrent with psychotic features) condition as unfitting, rated 10%; additionally the dysthymia condition was adjudged Category II (contributing to the unfitting condition) and the avoidant personality disorder was adjudged Category IV (condition which does not constitute a physical disability); with application of the SECNAVINST 1850.4E.  The CI made no appeals, and was medically separated with a 10% combined disability rating.

CI CONTENTION:  He elaborates no specific contentions regarding rating or coding and mentions no additionally contended conditions.

RATING COMPARISON:  

Service IPEB – Dated 20030121	VA (2 Mos. After Separation) – All Effective 20030322	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Major Depression…w/ Psychotic Features	9434	10%	Major Depression with Psychotic Features	9434	100%*	20030512	
Dysthymia	Cat II	No VA Entry	
Avoidant Personality D/O	Cat IV	No VA Entry	
↓No Additional MEB/PEB Entries↓	Obstructive Sleep Apnea	6847	50%	20030508	
	0% x 0/Not Service Connected x 1	20030512	
Combined:  10%	Combined:  100%	
*Initial VARD rated 9434 at 10% (combined 60%) effective 20030322; VARD of 20061006 increased 9434 to 30%, effective 20060517 (combined 70%); and VARD of 20080326 (de novo review by DRO [decision review officer]) noted error at time of initial rating and increased 9434 to 100%, effective 20030322 (as charted).

ANALYSIS SUMMARY:  

Major Depression, Recurrent with Psychotic Features Condition.  In February 2002, 13 months prior to separation, the CI presented with complaints of anxiety and panic attacks triggered by large groups of people.  Psychiatric evaluation also documented feelings of depression, hypersomnia, low energy and poor self-esteem.  The CI was diagnosed with agoraphobia (without history of panic disorder) and dysthymic disorder.  There was no formal Axis II diagnosis, but the CI was noted to have schizoid traits.  He was placed on LIMDU and treatment was initiated with anti-depressant medication (Paxil) and counseling, with the expectation that he would improve to return to full duty.  In July 2002, eight months prior to separation, the CI developed paranoid delusions prompting referral to the National Naval Medical Center (NNMC).  Evaluation at the NNMC revealed paranoid ideation, disorganized thoughts, ideas of reference and cognitive dulling.  The examiner noted the CI’s preoccupation with thoughts of people following him.  The CI denied suicidal ideation, homicidal ideation or hallucinations.  The Axis I diagnosis was rule out schizophrenic disorder, with an Axis II diagnosis of schizoid personality disorder.  The Global Assessment of Functioning (GAF) was assessed at 55, in the range of moderate symptoms.  Treatment was begun with the antipsychotic medication risperidone and the CI was referred for MEB.  

At the MEB narrative summary exam, seven months pre-separation, the examiner documented the CI’s history of paranoid delusions with depressed mood, increased sleep, decreased energy and difficulty concentrating.  It was noted that the CI’s paranoid thoughts had responded well to treatment, however, the examiner commented, “to date he has not shown a response to treatment for the depression.”  Mental status exam documented a depressed mood with restricted affect.  Thought processes were logical and goal directed and the CI denied suicidal ideation, homicidal ideation, hallucinations or delusions.  The CI was noted to have “good insight into the delusional nature of previous beliefs.”  The examiner concluded that “because of member’s personality disorder and difficulty forming relationships with new people, he is at very high risk of recurrence of these symptoms in the military environment.”  The Axis I diagnoses were major depression, recurrent with psychotic features, and dysthymia.  The impairment for social and industrial adaptability due to the major depression was assessed as severe; while impairment due to dysthymia was assessed as moderate.  The Axis II diagnosis was avoidant personality disorder and the overall GAF was assigned at 60, in the range of moderate impairment.  The non-medical assessment commented that the CI had been assigned specific tasks designed to limit his personal one-on-one contact with clients and added that the CI’s “mental condition and paranoia is considered incompatible with his LIMDU assignment.”  As the CI underwent treatment and therapy during the MEB period, the Axis I diagnoses varied to include major depressive disorder with psychotic features (+/- in remission), schizoaffective disorder (depressive type) and dysthymia.  The assigned GAFs during the MEB period ranged from 59 – 60, in the range of mild to moderate impairment.  The service treatment record (STR) also documented a recurrence of paranoid thoughts requiring a medication increase, less than two months prior to separation with comment of “he is stressed in anticipation of MEB coming back” and likely related to the increased stresses of the DES process.

At the VA C&P exam, two months after separation, the CI endorsed similar symptoms of depression, anxiety spells and excessive sleeping.  The examiner commented that the CI was taking significant medications without supervision and noted that “when asked about impaired thinking or communication, he described a medication haze.”  The CI denied auditory hallucinations, suicidal ideation or homicidal ideation.  The examiner did not comment on paranoid thoughts or delusions and did not comment on the CI’s affect.  Additionally, the examiner did not comment on the CI’s social interactions or occupational status.  There was no irrelevant, illogical or obscure speech.  The Axis I diagnosis was major depression with psychotic features in partial remission with unsupervised medication and the Axis II diagnosis was personality traits, unspecified.  The GAF was assessed at 70, in the range of mild impairment.  

The VA initially assigned a rating of 10% on the basis of this evaluation.  The narrative accompanying this rating decision, however, described that a 50% rating had been awarded.  This discrepancy was initially addressed in the 23 February 2004 VA rating decision (VARD) which re-affirmed that the CI’s rating for psychiatric disability was 10%.  After a de novo decision review officer (DRO) examination of the case and review of post-separation VA treatment records, the 26 March 2008 VARD increased the rating to 100% effective from the day after discharge from service, noting that “an error was made on the original decision on your claim.”  This award decision also noted that the CI had not worked since leaving the service and concluded that his “delusional symptoms have met the requirements for the 100 percent evaluation since … discharge from service.”  Post-separation treatment VA treatment records, covering the period July 2003–February 2008, indicated gradual post-separation decline in the CI’s condition which began around 2005.  Clinic notes from 2003 thru 2004 revealed a fairly stable clinical course with the CI continuing to endorse moderate symptoms of isolation, depression, anxiety and paranoia.  At time of formal psychiatric evaluation in September 2003, six months after separation, the CI reported feeling alone, depressed and anxious; and he continued to feel that people were following him.  His GAF was assessed at 55 (MEB GAF–60, C&P GAF–70).  In January 2006, (~33 months post-separation) the CI presented with significant decline in his condition.  He had stopped his medication and begun isolating himself in his room six months prior due to paranoia, hearing voices, and increasing anxiety.  He was hospitalized for stabilization with the diagnosis of schizophrenia, paranoid type.  

The Board directs its attention to its rating recommendations based upon the evidence just described.  It was first adjudged that this case did not meet the requirements for application of a retroactive Temporary Disability Retired List rating IAW VASRD §4.129.  The psychiatric condition was adjudged to not be a result of a “highly stressful event” (as per §4.129).  The Board next considered the additional mental health diagnoses of dysthymia and schizoaffective disorders as both were listed as Axis I diagnoses proximate to separation.  As discussed previously, the specific diagnosis for the CI’s unfitting mental health condition varied throughout the MEB period.  Regardless of the specific mental health diagnosis IAW VASRD §4.126, evaluation of disability from mental disorders, all mental health symptoms will be rated under VASRD IAW §4.130 and the General Rating Formula for Mental Disorders.  The disqualifying PEB diagnosis of major depression, recurrent with psychotic features, was considered administratively final.  

All Board members agreed that the §4.130 criteria for the 100% threshold was not approached, at the time of separation.  The MEB exam would independently rate at 30%–70%, while the initial VA C&P exam would be independently rated at 30%.  The Board adjudged that the less-detailed, almost checklist format of the VA C&P exam rendered it of lower probative value.  The Board acknowledged that the VA conferred a 100% rating on the basis of their exam; however, IAW VA-specific rules (on effective date), the VA considered additional post-separation worsening in their rating determination.  The Board did not adjudge that the CI’s condition at separation reflected total “occupational and social impairment.”  The Board considered the CI’s mood disturbance, anxiety and difficulty in forming relationships, as well as the MEB’s conclusion of severe impairment for social and industrial adaptability; and concluded that there was sufficient evidence that the CI’s condition resulted in definite reduced reliability and productivity.  Additionally, impairment due to the CI’s recurrent symptoms of paranoid delusions and isolation along with his difficulty adapting to stressful circumstances were well documented in the STRs and the post-separation VA clinic treatment notes.  The Board considered the additional impact of the CI’s impaired perception of reality and deliberated concerning the 70% ratings, “occupational and social impairment, with deficiencies in most areas.”  The preponderant discussions focused on the level of occupational and social impairment and if it was constant or occasional.  The major depressions, recurrent with psychotic features; and dysthymia conditions at the time of separation were adjudged to best reflect occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.  After due deliberation, considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority recommends 30% as the fair and equitable permanent rating for major depression, recurrent with psychotic features, and dysthymia, in this case.  

Other PEB Conditions.  The other conditions forwarded by the MEB were dysthymia and avoidant personality disorder.  Dysthymia was adjudged as a Category II condition that contributes to the unfitting condition.  As discussed above, any impairment due to this condition was considered in the overall rating recommendation for the unfitting mental health condition.  The Board, therefore, adjudged that the dysthymia condition would be included as part of the unfitting mental health condition rating IAW §4.126 (evaluation of disability from mental disorders).  The condition of avoidant personality disorder does not constitute a physical disability IAW DoDI 1332.38, Enclosure 5, which corresponds with the PEB Category IV determination.  All evidence considered, the dysthymia condition was not separately ratable and there is not reasonable doubt in the CI’s favor supporting recharacterization of the PEB Category IV adjudication for the avoidant personality disorder condition. 

Remaining Conditions.  Several additional non-acute conditions or medical complaints were also documented.  None of these conditions were significantly clinically or occupationally active during the MEB period, none carried attached duty limitations, and none was implicated in the non-medical assessment.  These conditions were reviewed by the action officer and considered by the Board.  It was determined that none could be argued as unfitting and subject to separation rating.  Additionally obstructive sleep apnea was noted in the VARD proximal to separation but was not documented in the DES file.  The Board does not have the authority under DoDI 6040.44 to render fitness or rating recommendations for any conditions not considered by the DES.  The Board therefore has no reasonable basis for recommending any additional unfitting conditions for separation rating.

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 major depression (recurrent with psychotic features) was operant in this case and the condition was adjudicated independently of that instruction by the Board.  In the matter of the major depression (recurrent with psychotic features) condition and the dysthymia condition, the Board in a 2:1 vote recommends a permanent service disability rating of 30% coded 9434 IAW VASRD §4.130.  The single voter for dissent (who recommended no recharacterization of the PEB adjudication) submitted the addended minority opinion.  In the matter of the avoidant personality disorder condition, the Board unanimously recommends no change from the PEB adjudication as Category IV.  In the matter of any other medical conditions eligible for Board consideration, the Board unanimously agrees that it cannot recommend any findings of unfit for additional rating at separation.

RECOMMENDATION:  The Board 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	
Major Depression, Recurrent w/ Psychotic Features, & Dysthymia	9434	30%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 2010403, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

	          

MINORITY OPINION:

The minority voter agrees with the majority that the psychiatric condition did not meet the criteria for application of VASRD §4.129; and, therefore only the MEB and proximate VA psychiatric evaluations are significantly probative.  Based on the MEB exam, in this voter’s opinion, the CI’s psychiatric impairment would be best characterized as mild.    The psychiatric symptoms had responded very favorably to a course of anti-psychotic medication (risperidone); there was no indication of psychotic thought process during the testing; and, the CI was compliant with ongoing treatment.   The assigned GAF of 60 was indicative of mild to moderate impairment.   

The Commander’s Non Medical Assessment (NMA) was written in October 2002 and reflects a period of observation before initiation of treatment with risperidone as mentioned above.  The facts documented by the Commander cover events from 10 April thru 12 July 2002.  In July, the CI was transferred from the Commander’s unit (branch legal service office) for further psychiatric evaluation and treatment which carried him to separation.  Treatment with risperidone did not start until mid-July 2002, and the CI promptly reported subjective benefit.  The NARSUM confirmed the improvement, stating that the CI experienced a rapid resolution of his paranoia after risperidone was started at a 1 mg dose.  In mid-October 2002, the dosage was increased to 2 mg and numerous subsequent treatment notes documented a consistent GAF of 59.  In mid-February 2003 (one month pre-separation), the dosage was increased to 4 mg because of intrusive paranoid ideation; and, the resolution of this residual symptom was documented following this titration of the anti-psychotic.  The GAF recorded at a session on 24 February 2003 was 60; and, ranged from 59-65 (mild to moderate range) throughout the remaining period up to separation.  The Commander would not have been able to observe the CI’s symptoms with the benefit of this improvement brought by the medication.  The duty limitations and impairments due to the CI’s psychiatric condition, taken from the NMA (as elaborated in this record), were thus not significantly probative as rating criteria at separation.  The acuity of symptoms and occupational impairment reflected in the NMA are not corroborated by the MEB psychiatric evaluation and outpatient record more proximate to separation.  The Commander himself in the NMA stated that if the CI’s condition stabilized, he would be a welcome addition and asset to any command; and, would recommend retention on active duty in a Permanent Limited Duty status.

The VA Compensation and Pension exam was a valid and ratable exam done 2 months post-separation.  It corroborates the psychiatric improvement effected by the pre-separation treatment as discussed above.  The examiner assigned a GAF of 70 (in the range of mild to slight impairment); and, the VA conferred a §4.130 rating of 10% based on this evaluation.    One year later in February 2004, a subsequent VA rating decision clarified the previous decision, and verified the 10% rating based on the same May 2003 exam.   It was not until October 2006 that the VA increased the rating to 30% based on an exam done August 2006 (3½ years after separation), after the CI had been hospitalized twice (in 2006) and showed clear post separation worsening.    The CI did not achieve a 100% VA rating until 2008, based again on progression of disease and an exam from September 2007 (4½ years remote from separation); at which time his diagnosis was changed to schizoaffective disorder, his GAF was lowered to 45, and he was labeled as “seriously mentally ill.”  The VA’s decision to apply the 100% rating retroactive to separation was therefore completely unsupportable by the evidence cited in its own rating decisions; and, in this voter’s opinion, was erroneous and unreasonable.  Thus the VA’s retroactive rating and all VA developments and evidence after its initial examination proximate to separation hold little or no probative value relative to the Board’s mission to recommend a fair separation rating for the psychiatric condition.  That (initial) examination and the pre-separation MEB examination are consistent with a 10% rating IAW VASRD §4.130; a rating affirmed and re-affirmed by the VA itself based on the probative evidence.

RECOMMENDATION:

The minority voter recommends therefore, that there be no recharacterization of the CI’s disability and separation determination, as follows:

UNFITTING CONDITION	VASRD CODE	RATING	
Major Depression, Recurrent With Psychotic Features	9434	10%	
COMBINED	10%	

MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW      
                                        	BOARDS 

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATION

Ref:   (a) DoDI 6040.44
          (b) PDBR ltr dtd 22 Feb 12

         I have reviewed the subject case pursuant to reference (a) and non-concur with the recommendation of the PDBR as set forth in reference (b).  I have considered all available evidence and find the disability rating award by the Physical Evaluation Board (PEB) accurately reflected the degree of xxxxxx impairment at the time of his discharge and is in accordance with regulations.  Therefore, xxxxx records will not be corrected to reflect a change in either his characterization of separation or in the disability rating previously assigned by the Department of the Navy’s PEB.