RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2013-00213
BRANCH OF SERVICE:  Army 	BOARD DATE:  20140213
SEPARATION DATE:  20081015

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an Army National Guard SGT/E-5 (68W20, Combat Medic) medically separated for depression, not otherwise specified (NOS).  The CI experienced mental health (MH) symptoms during his deployments to Afghanistan and Iraq timeframe and received psychiatric treatment.  His condition did not improve to meet the physical requirements of his Military Occupational Specialty.  He was issued a permanent S3 profile and referred for a Medical Evaluation Board (MEB).  The MH condition, characterized as “depression, not otherwise specified,” was forwarded to the Physical Evaluation Board (PEB) as not meeting medical standards IAW AR 40-501.  No other conditions were submitted by the MEB.  The PEB adjudicated depression NOS, condition as unfitting rated at 10%, with application of the Veterans’ Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  The CI elaborated no specific contention in his application.

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, NOS, condition is addressed below.  Any other condition or contention not requested in this application remains eligible for future consideration by the Board for Correction of Military Records.  IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations.  The Board’s role is thus 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 ratable severity at the time of separation.  

RATING COMPARISON:

Service PEB – Dated 20081015	VA* - (5.6 Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Depression, NOS	9434	10%	PTSD	9411	100%	20080428	
No Additional MEB/PEB Entries	Other x 8	20080428	
Combined:  10%	Combined:  100%	
*Derived from VA Rating Decision (VARD) dated 20080522 (most proximate to date of separation (DOS)).

ANALYSIS SUMMARY:

Depression Not Otherwise Specified.  According to the narrative summary (NARSUM), the CI was deployed to Afghanistan from August 2003 until May 2004.  His responsibilities included working as a medic transporting patients to and from the fixed hospital and working with a forward surgical team.  During his duties, he reported having to “carry dead body parts” and seeing “wounded children.”  He was referred to combat stress control for nightmares and insomnia, but returned to his unit with reassignment as a prison medic.  Upon return to CONUS, the CI would drink heavily in order to sleep.  He reported no irritability or difficulties with his wife after this deployment.  He volunteered for a deployment to Iraq January 2005 to February 2006 with a new unit for “financial reasons” and served as a MP on a Provisional Security Force unit.  In this capacity he provided escorts on convoys.  During one mission the convoy sustained an improvised explosive device (IED) attack with close proximal death of an associate. The CI reported going to combat stress initially and four times later for counselling.  He noted not wanting to take medications for fear of being sent home from the unit.  Following return, the CI developed symptoms of irritability, mood lability, depression, anger, night mares, with heavy alcohol consumption and sought VA treatment.  Symptoms improved with medication.  The CI had psychiatric hospitalization from 25 January to 4 February 2008 for symptoms of increasing stress, depression and anxiety with difficulty containing his nightmares.  These improved after medication adjustment.

At the VA Compensation and Pension (C&P) exam on 28 April 2008, 6 months prior to separation, the CI reported symptoms of mild depression, anxiety and nightly insomnia sleeping 6-7 hours a night and nightmares, not described.  The CI reported symptoms were improved with medication and he was able to go out in public, feel comfortable around people and sleep better.  The CI noted marital problem related to his older children, but good relations with children and parents.  Combat stressors reported were seeing cleanup of military and civilian bodies on a medevac mission, involvement in resuscitation of a civilian teenager injured in an IED at the hospital front gate and an IED where a projectile penetrated the cabin killing one friend.  The CI noted he was wounded at this time.  The CI also reported prior non-combat stressors having impact on his life to include suicide of cousin while speaking with him on the phone and identification of the body of his brother in an alcohol related car accident.  At this time the CI was not employed.  He had worked in fire rescue after returning from deployment, but was released when he “froze at a multiple car accident”; as a medic at a prison where he quit for being passed over for promotion; and most recently, as a factory worker dismissed after 2 weeks because of work conflicts with medical appointments.  The CI reported no problem “doing” the job.  At this time, the CI reported involvement with Rolling Thunder International, a veterans’ motorcycle club.  The examiner reported the CI to have social support and to surround himself with personal interests.  On Mental Status Examination (MSE), appearance was normal, mood was anxious and affect was normal.  Behavior, orientation and impulse control were normal.  Thought content was normal without hallucination or delusions.  Suicidal and homicidal ideations (SI/HI), and obsessive behavior were absent.  The examiner diagnosed AXIS I Alcohol abuse and PTSD.  A Global Assessment of Functioning (GAF) of 60 was assigned (GAF: 60-51 moderate symptoms or moderate difficulty in social, occupational or school functioning).  The examiner concluded there, was not “total occupational and social impairment” due to PTSD and noted the CI may “minimize the roll [sic] of alcohol” in his condition.

At the MEB/NARSUM psychiatric exam, approximately 5 months prior to separation, the CI continued to endorse symptoms of stress, depression and anxiety, but denied psychosis and mania.  On MSE, the CI appeared appropriate with good grooming.  He was cooperative and appropriate.  He was anxious with poor eye contact, but was able to discuss some of his combat traumas.  Speech was regular, mood anxious and affect depressed.  Thought processes were normal with some rumination regarding his deployments.  There was no SI/HI, hallucinations or delusions.  Cognition was grossly intact and judgment good.  The examiner noted that the Commander of the Guard unit does not fully endorse some of the (traumatic) instances the CI claims during this deployment.  For clarification, the examiner obtained Minnesota Multiphasic Personality Inventory (MMPI) testing.  MMPI testing, performed the day of the NARSUM, revealed an “overendorsing [sic] of symptoms” by the CI and confirmed the diagnosis of depression, not PTSD.

The NARSUM examiner, upon review of this report, adjured that, although the CI met some of the clinical criteria for PTSD, the MH condition was depression based on a lack of confirmation of stressors.  He reported that, although the CI may experience difficulties as a medical provider, he “should be able to function occupationally in other areas in the civilian sector”.  He assigned an AXIS I diagnosis of depression, without Axis II or III diagnosis and assigned a GAF of 60.

The Board directs attention to its rating recommendation based on the above evidence. The PEB and the VA both rated the MH condition IAW VASRD §4.126.  The PEB rated the depression condition at 10%, coded 9434.  This rating requires occupational and social impairment due to mild or transient symptoms that impact function only during periods of great stress.  A higher rating of 30% requires intermittent symptoms that cause occupational and social impairment.  The VA rated the PTSD condition 100%, coded 9411 citing total impairment in the CI’s ability to work as a medic.  The Board first undertook to determine the correct MH diagnosis.  The Board noted the CI had compelling reports of symptoms consistent with PTSD, but noted the MMPI, which suggested over-endorsement of symptoms and presented that the condition was not PTSD.  The Board further noted the referenced commander’s statement (not in evidence) which did not fully endorse some of the instances claimed by the CI.  The Board notes the absence of any combat medals as reported by the CI and an NCO evaluation performed after return from theater which confirms the CI performed well, but is silent about convoy or combat activity and responsibilities.  The Board unanimously agreed that the available evidence in record did not support a PTSD diagnosis since Diagnostic and Statistical Manual of Mental Disorders (DSM IV ) criteria were not fully met.  Specifically, Criterion C (absence of markedly diminished interest or participation in significant activities, denied feeling detached or estranged from others, and denied sense of foreshortened future) requiring the presence of at least 3 out of 5 symptoms.  Additionally, the Board majority agreed there was no clear evidence Criterion A was met.  Therefore, the diagnosis of depression NOS was the appropriate diagnosis at the time of separation.  The Board acknowledged the VA diagnosis of PTSD, but noted the absence of a detailed account of PTSD symptoms to satisfy DSM-IV diagnostic criteria for PTSD.  Specifically there was no evidence that Criterion C or F was met.  The Board noted the MH condition was rated 100% by the VA.  The Board agreed this was not supported by the record, specifically the VA C&P statement of no total occupational and social impairment.  All available MSE’s were essentially normal with no impairment in judgment, no report of panic attacks, memory loss; no recorded SI.  The Board agreed that, at the time of separation, the CI had been working and was socially involved and symptoms were controlled with medication, and/or related to exogenous factors not ratable.  The Board agreed that the 10% rating best fit the clinical situation at time of separation and that application of § 4.129 was not indicated.  Considering the totality of the evidence, Board agreed that a disability rating of 10% for the depression NOS condition was appropriate in this case.  

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 condition and IAW VASRD §4.126, the Board, by a majority vote, recommends no change in the PEB adjudication.  The single voter for dissent submitted the appended minority opinion.  There were no other conditions within the Board’s scope of review for consideration.

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

UNFITTING CONDITION	VASRD CODE	RATING	
Depression, Not Otherwise Specified	9434	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130429, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

MINORITY OPINION:  I recommend the modification of the PEB’s findings with the application of §4.129 (Mental disorder due to traumatic stress) to establish constructive Temporary Disability Retirement List (TDRL) with the depression NOS diagnosis, rated 50% at TDRL entry, and 50% at TDRL removal IAW §4.130 (Schedule of ratings–mental disorders) and §4.3 (Reasonable doubt).  In this case, the MH condition was the result of traumatic stressful events; with documented MH impairments found in the S1 profile, commander’s statement, MEB Psychiatric NARSUM with a collaborating VA MH examination.  The objective evidence is as follows:

Applying 4.129 Recommendation:
§4.129 states when a mental disorder that develops in service as a result of a highly stressful event is severe enough to bring about the veteran’s release from active military service, the rating agency shall assign an evaluation of not less than 50 percent and schedule an examination within the 6 month period following the veteran’s discharge to determine whether a change in evaluation is warranted (Authority: 38 U.S.C. 1155).  Per the MEB Psychiatric NARSUM, the CI was deployed to Afghanistan from 2003-2004 and Iraq from 2005-2006 where he served as a combat medic, prison medic and military police augmentee.  He was exposed to traumatic stressful events:  transported badly wounded or diseased bodies, worked with the surgical team, worked prison medical details, provided escort duty for conveys and on one occasion his vehicle was struck by an IED blast where he witnessed the death the gunner (no factual evidence to the contrary).  The Diagnosis Section, clearly states the CI was treated with continued symptoms of depression, anhedonia, hyperviligence, increased startle response, isolative behaviors, mood labiality, nightmares, insomnia, poor concentration and irritability since his deployment; particularly his second deployment.  Based on the aforementioned traumatic stressful events and IAW with §4.3 and §4.129, the Board minority recommends the application of constructive TDRL to this case.

TDRL Entry at 50% Recommendation:
The CI received an S3 profile for depression, NOS without another MH or physical diagnosis.  He was restricted from carrying and firing a weapon that implicates his mental condition/diagnosis; meaning the issuing psychiatrist did not believe he was capable of carrying or firing a weapon without danger to himself and/or others.  The commander’s statement clearly implicates the CI’s MH condition in that he states the CI was not able to maintain a level of attention and focus to carry out instructions and complete tasks in a timely manner (unable to focus on task), relate civilly to supervisors and other workers (easy to anger), make basic work-related decisions (not able to focus well and make a decision), ask simple questions and request help when appropriate, and respond appropriately to changes in routine.  The Board majority concedes that the NARSUM psychiatrist documented the CI with “mild” not normal symptoms (was guarded, appeared anxious with some mild psychomotor shaking, maintained poor eye contact, and affect was depressed) during the mental status exam and stated the CI over endorsed his symptoms within the MMPI.  However, the psychiatrist diagnosed the CI with “moderate to severe” symptoms in the Diagnoses section:  Axis I depression, NOS, with a GAF of 60 (moderate symptoms); treated with continued symptoms of depression, anhedonia, hyperviligence, increased startle response, isolative behaviors, mood labiality, nightmares, insomnia, poor concentration, and irritability since his deployment, particularly his second deployment (supports §4.129 application).  The external precipitating condition:  Severe with Onset 2005 (supports 4.129 application); Degree of Military/Psychiatric impairment:  Marked with “definite” impairment for social and industrial adaptability in relation to his work serving in a medical profession, otherwise none.  Additionally, in the Conclusions/Recommendations section, the psychiatrist stated, “He should continue in outpatient supportive psychotherapy and appropriate pharmacotherapy at a Veteran's Administrative Medical Center nearest his home” (referring to post separation).  Of further note, the VA MH examination, performed a month prior to the NARSUM, diagnosed the CI with Axis I alcohol abuse and PTSD also with a GAF of 60; with moderate difficulty in social, occupational or school functioning.  However, the Board unanimously agreed that the available evidence in record did not support a PTSD diagnosis since DSM-IV diagnostic criteria were not fully met.  The probative value taken by the Board minority from this VA exam is that the VA psychiatrist documented the majority of MH symptoms noted in the aforementioned MEB Psychiatric NARSUM; thereby, collaborating the CI’s moderate to severe MH condition.

Summary of applicable §4.130 ratings:
70% > Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.
50% > Occupational and social impairment with reduced reliability and productivity
30% > 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)
10%> 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.

Based on §4.3, §4.130 and the aforementioned evidence, the CI demonstrated occupational and social impairments that reduced his reliability and productive indicative of a 50% rating.  The S3 profile showed he was not trusted to carry a firearm; his commander stated he was easy to anger and could not get along civilly with his supervisors or other workers; the NARSUM rendered an Axis I depression, NOS diagnosis, with a GAF of 60 or moderate symptoms, and he was treated with continued symptoms of depression, anhedonia, hyperviligence, increased startle response, isolative behaviors, mood labiality, nightmares, insomnia, poor concentration and irritability.  All of this combined objective evidence yields a disability condition greater in severity than the 10% (mild or transient symptoms) rating or 30% (occasional decrease in work efficiency) rating.  Additionally, the CI’s condition meets the 50% rating criteria in that although he was married he was still having marital difficulties; even though the CI planned to go back to work there was no evidence that he actually did; and he endorsed symptoms of stress, depression, anxiety, irritability, isolation, anger, nightmares and hyperviligence. 

TDRL removal at 50% Recommendation:
The Board minority also relied upon the NARSUM, which was most proximate to TDRL removal, to project the CI’s MH condition at the constructive §4.129 6-month TDRL point.  The VA did not perform a subsequent MH exam until 2011 because it rated the applicant at 100% disabled (not able to work in the medical field) and another exam was not required.  Based on §4.3, §4.130 and NARSUM evidence, the Board minority recommends continuing the 50% rating.  The NARSUM psychiatrist stated, the applicant was treated with continued (i.e. long standing) MH symptoms and should continue in outpatient supportive psychotherapy and appropriate pharmacotherapy at the VA (after separation).  Consequently, there is no evidence to presume the CI’s long standing conditions improved within 6 months after separation; especially in a less structured civilian environment with martial challenges.  

The minority member recommends that the CI’s prior determination be modified to reflect placement on the TDRL with a disability rating of 50% (IAW §4.129), and then a permanent combined 50% disability retirement effective as of the date of his prior medical separation.

UNFITTING CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
Depression, Not Otherwise Specified	9434	50%	50%	
COMBINED	50%	50%	

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 XXXXXXXXXXXXXXX, AR20140019692 (PD201300213)

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