RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	 	CASE:  PD-2011-00607
BRANCH OF SERVICE:  ARMY		BOARD DATE:  20140731
SEPARATION DATE:  20040904

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSG/E-6 (42A30/Human Resources Specialist) medically separated for depressive disorder, not otherwise specified (NOS), requiring psychotropic medication and psychotherapy, rated as mild social and industrial impairment.  The condition could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty.  He was issued a permanent S3 profile and referred for a Medical Evaluation Board (MEB).  The MEB identified and forwarded posttraumatic stress disorder (PTSD) for Physical Evaluation Board (PEB) adjudication.  The initial Informal PEB (IPEB) adjudicated the PTSD condition as unfitting, rated 10%.  The case was returned to the IPEB by the US Army Physical Disability Agency (USAPDA) for clarification of the diagnosis.  The IPEB discontinued the case to obtain the requested clarification from a psychiatrist.  That clarification resulted in the Axis I diagnosis being clarified to be depressive disorder, NOS treated and improved.  The Informal Reconsideration IPEB adjudicated the depressive disorder NOS, as unfitting, still rated at 10%.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Adjustment Disorder with Anxiety and Depression, claimed as PTSD.”  

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 mental health (MH) condition is addressed below; no additional conditions are within the Board’s defined DoDI 6040.44 purview.  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 Recon IPEB – Dated 20040715	VA - (Exam ~ 2 Mos. Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Depressive Disorder, NOS	9434	10%	Adjustment Disorder w/Anxiety & Depression (Claimed as PTSD)	9434	10%	20040706	
No Additional MEB/PEB Entries 	Other x 17	20040714 	
Combined:  10%	Combined:  50%	
Derived from VA Rating Decision (VARD) dated 20070918 (Original VARD closest to separation is not available for review).

ANALYSIS SUMMARY:

Mental Health Condition.  The following narrative, which presents the evidence relevant to the MH condition, refers to the following criteria for the diagnosis of PTSD from the Diagnostic and Statistical Manual for Mental Disorders IV - Text Revision (DSM IV-TR): the evidence for the stressor (criterion A), re-experiencing of the event (criterion B), persistent avoidance of stimuli associated with the trauma (criterion C), hyperarousal (criterion D), duration and onset (criterion E), and presence of significant distress or impairment in social, occupational or other important area of functioning (criterion F).

The narrative summary (NARSUM) notes the CI was scheduled for knee surgery in Germany 2 weeks before he was deployed to Kuwait in March 2003.  The CI alleged that his command disregarded medical recommendations regarding the knee condition and related profile limitations and required him to deploy with his unit.  The CI alleged the conflict with his command caused him to develop anxiety and depressive symptoms.  The CI was treated in Kuwait with antidepressant medication for his symptoms of sleep difficulties, loss of interest in activities, decreased energy and concentration diagnosed as adjustment disorder with mixed emotional features.  At the initial MH visit upon return to CONUS, on 30 October 2003, the CI described conflict with his command over his knee condition while deployed in Kuwait.  The examiner indicated there was “no other stressor except conflict with CO due to mistreatment by CO in Kuwait” and listed diagnosis of adjustment disorder with depressed mood versus depression, NOS.  At an MH visit on 8 December 2003 the CI reported PTSD symptoms including depression, decreased concentration, memory, avoidance symptoms, anxiety, sleep walking, hypervigilance, nightly dreams and recurrent distressing memories of events during deployment in Iraq and he was diagnosed with mild PTSD and depression, NOS.  Subsequent notes in the record indicated the CI reported concern regarding retaliation from his leadership.  Treatment visits noted that the CI reported improvement in his symptoms since he was removed from dealing with his previous command and that he experienced increased anxiety when faced with the return of his unit from deployment because he did not want to interact with them.  He reported continued symptoms primarily of depression and anxiety about the MEB process and his future.  Treatment notes indicated the applicant was working during medical hold.  At the psychiatric NARSUM evaluation on 19 March 2004, 6 months prior to separation, the CI recounted PTSD symptoms including feeling his life was in danger in Kuwait and that he had seen dead bodies in Kuwait during a motor vehicle accident.  The NARSUM examiner recounted the CI’s MH history per his records and the CI reported current symptoms of sleep difficulties decreased interest and pleasure in activities, distressing thoughts and dreams of events in Kuwait, and anxiety about his future.  The CI was on medications for depression and anxiety.  The mental status examination (MSE) noted the CI appeared anxious and depressed and the CI described his mood as anxious, depressed and angry, but was otherwise within normal limits with no thought or speech abnormalities, cognitive deficits or evidence of hallucinations, delusions, or suicidal ideation (SI).  The Axis 1 diagnosis was PTSD with a Global Assessment of Functioning (GAF) of 55 (moderate impairment range).  The Informal PEB adjudicated PTSD as unfitting rated at 10%.  The USAPDA requested a clarification of the diagnosis noting that there was no evidence of a “trigger mechanism for PTSD” and noted that the CI was in Kuwait, not Iraq.  A review of the CI’s MH records by the Chief of Psychiatry concluded that there was insufficient evidence to support a diagnosis of PTSD, but the evidence did support an Axis 1 diagnosis of depressive disorder, NOS, with stressors of routine military duty.  The Informal Reconsideration PEB adjudicated the depressive disorder, NOS as unfitting and rated it 10%.

At the VA Compensation and Pension (C&P) examination for PTSD on 6 July 2004, 2 months prior to separation, the CI reported that conflict with his command regarding his medical treatment for non-MH conditions caused anxiety and depression and that his condition had “improved since taking medication and being free from his previous command.”  The CI reported being in Iraq.  He reported working in an office in personnel, but experienced distress when asked to carry a weapon and regular gear.  He reported when moving in convoy from one area to another military police did not come to protect them and he could have been subject to an attack.  The MSE noted that the CI reported a depressed mood and sleep difficulties, but no panic attacks, problems with impulse control or physical violence.  During the interview there were no abnormalities of thought or speech, cognitive deficits or evidence of delusions, hallucinations or SI.  The VA examiner noted that nine months following his return from deployment the CI’s “condition appears to be improved”.  Regarding a specific stressor for PTSD the VA examiner noted 

“It is unclear to this examiner that this veteran was subject to a combat stressor which threatened death or serious injury, normally associated with criterion A and PTSD…The stressor that he cites primarily is the conflict between himself and his command which caused him great distress while he was in a combat zone in Iraq.”

Regarding the CI’s reported recurrent distressing memories the examiner noted that they were also related to conflict with his command.  The examiner commented that there was little evidence that DSM –IV-Criteria B or C were met.  The Axis 1 diagnosis was adjustment disorder with anxiety and depression and noted “PTSD symptoms” that were responding to treatment, but did “not meet full criteria for PTSD diagnosis.”  Under Axis IV stressors were noted to be “situational, inability to perform military duties.”  The GAF was 70.

The Board directs attention to its rating recommendation based on the above evidence.  The Informal Reconsideration PEB adjudicated depressive disorder, NOS as unfitting, rated 10%, coded 9434 (Major Depressive Disorder).  The VA rated adjustment disorder with anxiety and depression, also at 10%, coded 9440.  The CI appealed the original VARD and the VARD dated 17 August 2010 indicated a “clear and unmistakable error” occurred in the original VARD due to lack of application of §4.129, which the VA deemed to have applied based upon the CI’s self report of deployment stressors during his C&P evaluation.  The adjustment disorder rating was increased to 50% retroactively to the first day following the date of separation.

The evidence in record supports that the CI reported depression and anxiety while deployed due to conflict over personal issues with his command.  After his return from deployment he reported PTSD symptoms and was diagnosed with mild PTSD.  During the Disability Evaluation System (DES) process it was noted that there was no indication in his record of a highly stressful event occurring during his deployment that satisfied DSM-IV-TR criterion A for a PTSD diagnosis.  The CI repeatedly, consistently and nearly exclusively, discussed the tensions between himself and his command during MH evaluations and follow-up visits.  He did not describe specific trauma but alluded to “Iraqi-related events” and to “distressing memories of events during deployment.” Upon review of his records, a psychiatrist indicated the CI did not meet criteria for PTSD, but did meet criteria for diagnosis of depressive disorder, NOS.  The Board noted that the change in the CI’s MH diagnosis during the MEB process and agreed that there was not sufficient evidence in the record to support a diagnosis of PTSD according to DSM-IV-TR criteria, either prior to separation or after separation; the CI was never diagnosed with PTSD by the VA.  Regardless of final PEB diagnosis, §4.129 does not specify a diagnosis of PTSD, rather it states “mental disorder due to a highly stressful event,” and its application is not restricted to PTSD.  The Board noted however, that the lack of documented evidence of a highly stressful event meeting DSM-IV criterion A was central to the DES and VA C&P examiner assessments that the CI did not meet PTSD criteria.  The Board acknowledges that the VA later applied §4.129 based upon the CI’s self report of events, which were not otherwise substantiated by the military.  The Board concludes that there was not sufficient evidence that a highly stressful event severe enough to bring about the Veteran’s release from active military service occurred and that the application of §4.129 is not appropriate in this case.  The Board next considered if the evidence in the record supported a higher rating IAW §4.130 than 10% at separation.  The evidence supports that the CI experienced MH symptoms related to conflict with his command regarding his non-MH medical condition while deployed.  He was treated and responded well to medications.  The CI reported that he was improved since no longer having to interact with the individuals involved in the earlier conflict.  The record indicates the CI was transferred from his position to medical hold to avoid interactions with his previous supervision, and reported his anxiety decreased as a result.  The commander’s statement noted that his mental condition interfered with satisfactory duty performance due to medication side effects of drowsiness or dizziness, at times being unable to drive.  MH notes around the same time noted medication changes to minimize the noted medication side effects which were effective.  At the final MH visit before separation noted in the record the CI reported he was improved on his current medication regimen and his MSE was normal and at the prior to separation C&P examination, a week later, the CI was also noted to be improved with a GAF of 70.  The Board agreed that the applicant’s disability due to the MH condition was most appropriately rated 10% IAW §4.130, specified as “occupational and social impairment due to mild or transient symptoms which decrease work efficiency … only during periods of significant stress, or; symptoms controlled by continuous medication” and did not meet the higher evaluation of 30% as the evidence in record did not support the  criteria of “intermittent periods of inability to perform occupational tasks” at the time of separation.  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 for the depressive disorder NOS, 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 depressive disorder, NOS condition and IAW VASRD §4.130, the Board unanimously recommends no change in the PEB adjudication.

RECOMMENDATION:  The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140402, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

				

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 XXXXXXXXXXXXXXXXX, AR20150002625 (PD201100607)

I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual.  Under the authority of Title 10, United States Code, section 1554a,   I accept the Board’s recommendation and hereby deny the individual’s application.  
This decision is final.  The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

BY ORDER OF THE SECRETARY OF THE ARMY:

Encl						     
						         
CF: 
(  ) DoD PDBR
(  ) DVA