RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD1300158
BRANCH OF SERVICE:  Army	BOARD DATE:  20140214
DATE OF PLACEMENT ON TDRL:  20031003
Date of Permanent SEPARATION:  20050310

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSG/E-6 (12B/Combat Engineer) medically separated off the Temporary Disability Retired List (TDRL) for major depressive disorder (MDD) with psychotic features.  The CI developed depressive symptoms which he self-managed for a period of years until a suicide gesture in 2003.  He was psychiatrically hospitalized for a 2-week period following this suicide attempt.  Shortly after discharge from this hospitalization, the CI underwent a permanent change-of-station, after which, he became acutely suicidal, resulting in a second inpatient psychiatric admission, this time for a period of 5 weeks.  During this hospitalization, he was diagnosed with recurrent depression with psychotic features.  After discharge from this admission, the CI continued with psychiatric therapy and medication, but eventually his mental health (MH) condition could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty (MOS).  He was issued a permanent S3 profile and referred for a Medical Evaluation Board (MEB).  The MDD, characterized as the same by the MEB, was forwarded to the Physical Evaluation Board (PEB).  No other conditions were identified by the MEB.  The PEB adjudicated “major depressive disorder with psychotic features” as unfitting, rated 30%.  The PEB determined the CI’s MH condition was not permanent and/or stable and accordingly placed him on TDRL.  The CI did not appeal this finding and was placed on TDRL as of 3 October 2003.  Approximately 17 months later, after a TDRL reevaluation, the PEB found his MH condition unfitting and stable.  The PEB then rated the CI’s MDD at 0% disabling.  The CI made no appeals and was medically separated.

CI CONTENTION:  “My VA disability rating from the VA was 30% for mental disorder acquired while on active duty and 10% for each foot for hammertoe from my service for a total combined rating of 50%.  I do not even know what my total rating from the Army was at the time I was boarded out but I was found unfit for duty and given severance pay after being on the TDRL for almost 2 years.  I think I should have been rated higher and permanently retired.”

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 MDD is addressed below.  The CI’s contended hammertoe condition was not identified by the MEB or PEB and is therefore not within the 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.  The Board acknowledges the CI’s information regarding the disparity between disability determinations by his service department and the Department of Veterans Affairs (DVA).  The Board must emphasize that the Disability Evaluation System has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation.  That role and authority is granted by Congress to the DVA, operating under a different set of laws.  Service disability compensation may only be offered for those conditions that cut short the member’s career.  The Board considers DVA evidence proximate to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence.  Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.

RATING COMPARISON:

Final PEB - 20050302	VA (13 Mo. Prior to Final Adjudication Date) - Effective 20031003	
On TDRL - 20031003	Code	Rating	Condition	Code	Rating	Exam	
Condition		TDRL	Sep.					
Major Depressive Disorder	9434	30%	0%	Bipolar Disorder with Depression	9432	30%	20040212	
No Additional MEB/PEB Entries	Other x3	20040204	
Rating:  0%	Combined Rating: 50%	

ANALYSIS SUMMARY:  The VA evidence and the service treatment record evidence were not available in evidence before the Board and could not be located after inquiries.  Further attempts at obtaining the relevant documentation were futile and introduced additional delay in processing the case.

MDD Condition.  In 2001, the CI experienced severe work-related stress which was compounded by marital discord that culminated in a suicide attempt.  He was stationed in Hawaii at that time, was hospitalized for approximately 2 weeks and discharged with no medications.  He was transferred stateside and in 2003, experienced another bout of deep depression and was hospitalized at a VA hospital for 5 weeks.  Prior to this admission, he reported symptoms of feeling elevated mood with increased spending, racing thoughts, decreased need for sleep and excess energy.  He was started on a combination of medications for depression and bipolar disorder (Celexa, Risperdol, Quetiapine and Lithium).  The applicant was given a permanent S3 Profile.  Documentation from that admission reported psychometric testing results which demonstrated confused and disorganized thoughts which supported the diagnosis of recurrent depressive illness with psychotic features.  The commander’s statement indicated that because of the CI’s need to be heavily medicated for his mental condition, he was unable to perform his MOS duties.  The initial MEB narrative summary (NARSUM) exam accomplished approximately 3 months prior to TDRL entry documented that the CI continued to have difficulty performing his military duties and remained profoundly uncomfortable in the work place.  He was engaged to be married at that time.  At the time of this exam, the CI had been discharged from VA psychiatric hospitalization for about 4 months and was still taking Celexa and Seroquel.  The examiner noted that his illness had improved only slightly despite medications.  The mental status exam (MSE) demonstrated poor eye contact, a mood described as “not good” with a constricted affect, fair judgment and insight.  The examiner diagnosed recurrent, severe MDD with psychotic features and marked military impairment and definite impairment in social and civilian industrial capacity.  The Global Assessment of Functioning (GAF) was 55 (moderate difficulty in social, occupational, or school functioning).  The CI was placed on TDRL on 3 October 2003.

The Board directs attention to its rating recommendation at TDRL entry based on the above evidence.  The TDRL entry PEB coded the MDD condition as 9434 and rated at 30%.  The Board reviewed the 30% rating criteria for “Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal)” and agreed that the CI’s impairment exceeded that rating standard.  The NARSUM documented that his occupational impairment was more than “occasional” as he was “profoundly uncomfortable in the work place.”  Additionally, his MSE revealed a constricted affect which is noted in the 50% rating criteria.  His two suicidal gestures/attempts would be considered in the 70% rating standard; however, there was no suicidal ideation at the time of TDRL entry.  His documented GAF of 55 is more consistent with the 50% rating level.  The Board then considered the 70% rating criteria (Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood) and found his impairment did not reach that level as his judgment was “fair,” thinking was “logical and goal directed” and his family relations were not impaired as he was engaged to be married at the time.  The Board considered applicability of §4.129, but could not identify any “highly stressful event” and determined that §4.129 did not apply.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 Reasonable doubt, the Board recommends a TDRL entry rating of 50%.

The VA Compensation and Pension exam accomplished approximately 4 months after TDRL entry and approximately 13 months prior to TDRL removal documented that the CI was depressed, had increased sleep of 8 to 10 hours a day and had periods of decreased energy and anxiety secondary to his being unemployed.  He desired and actively sought employment (with the US Postal Service), however, he reported that his VA disability claim needed to be settled prior to being offered a job.  He had not taken any psychotropic medication since leaving the military and “he feels he is fine.”  He characterized his marriage as “great.”  His MSE was essentially normal despite frustration that the Post Office wouldn’t hire him until the VA disability issue was resolved.  The examiner diagnosed bipolar disorder, currently depressed, with a GAF of 60 ( moderate difficulty in social, occupational, or school functioning).  The TDRL revaluation NARSUM accomplished approximately a month prior to TDRL removal documented that he had infrequent periods of decreased energy, concentration and motivation which lasted for 5 days then would clear.  During those periods, he could still function at work and home but a greater effort was required to do so.  At this exam, the CI reported that his mood was a 9-10, with 10 being the best he felt.  His MSE was essentially normal.  The examiner addressed the bipolar diagnosis from the VA and did not feel that it was appropriate as the CI did not exhibit any mania symptoms with the possible exception of distractibility which occurred only during depressive episodes.  The examiner diagnosed recurrent MDD in full remission with marked impairment for military duty and definite impairment for social and industrial adaptability and assigned a GAF of 75 (if symptoms are present they are transient and expectable reactions to psychosocial stressors; no more than slight impairment in social, occupational, or school functioning).  Additional VA documentation confirmed that the CI was employed full-time at a major hardware store in 2004, then as a Postal Worker from 2004 until 2008.

The Board directs attention to its permanent separation rating recommendation at TDRL removal based on the above evidence.  The PEB rated the MDD at 0% upon removal from the TDRL while the VA rated bipolar disorder with depression at 30% almost 13 months before TDRL removal.  During that time interval, the CI’s mental status improved to the point where the TDRL re-evaluation examiner, a month prior to TDRL removal, opined that the CI experienced only transient periods of decreased energy, concentration and motivation which lasted for 5 days then would clear.  The examiner further noted that during these 5-day periods, the CI could still function at work and home but a greater effort was required to do so.  The examiner diagnosed marked impairment for military duty and definite impairment for social and industrial adaptability with a GAF of 75.  The Board considered the criteria for a 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) and agreed that, at TDRL removal, the CI exhibited symptoms that are most reflective of the 10% rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3, the Board recommends a change in the permanent separation rating to 10% for the MDD 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 MDD condition, the Board unanimously recommends a TDRL entry rating of 50% and a 10% permanent rating, 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, effective as of the date of his prior medical separation:

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

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130410, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

			

SFMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(TAPD-ZB / XXXXXX), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 
for XXXXXXXXXXXXXXXXXX, AR20140009385 (PD201300158)

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 but modification of the permanent disability rating from 0% to 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 10% 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						     

CF: 
(  ) DoD PDBR
(  ) DVA