RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  xxxxxxxxxxxxxxxxxxxxxx	CASE:  PD1300815
BRANCH OF SERVICE:  Army	BOARD DATE:  20131205
SEPARATION DATE:  20060224

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was a mobilized National Guard SGT/E-5 (88M/Motor Transport Operator) medically separated for major depressive disorder (MDD).  The applicant reported symptoms of insomnia, nightmares and depression due to his deployment to Iraq and sought treatment in May 2005, a few months after his return from Iraq.  The mental health (MH) condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  He was issued a permanent S3 profile in September 2005 and referred for a Medical Evaluation Board (MEB).  The MEB forwarded MDD to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB (IPEB) adjudicated MDD as unfitting and rated it 10%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The applicant initially demanded a Formal PEB, but subsequently concurred with the IPEB findings and recommendations.  The applicant elected separation with severance pay in lieu of being transferred to the Retired Reserve with entitlement to retired pay at age 60.  The Board observed that the PEB had requested clarification of the diagnoses between posttraumatic stress disorder (PTSD) and MDD.  While this is not in evidence, the PEB adjudicated the MDD as unfitting 2 days later.

CI CONTENTION:  “No rating was given for PTSD or the developing rash, sleep apnea, major depression.”

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.  In addition, the CI was notified by the Army that his case may eligible for review of the military disability evaluation of any 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 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 unfitting MH diagnoses in accordance with the VASRD §4.129 and §4.130.  The contended rash and sleep apnea were not identified by the MEB, and are not within the DoDI 6040.44 defined purview of the Board.  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 Army Board for Correction of Military Records.  The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues to burden him, but must emphasize that 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.  That role and authority is granted by Congress to the Department of Veteran Affairs (DVA), operating under a different set of laws.  The Board considers DVA evidence proximate to separation in arriving at its recommendations; DoDI 6040.44 defines a 12-month interval for special consideration to after separation evidence.  After 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:

Service IPEB – Dated 20060105	VA - (# 1 Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Major Depressive Disorder	9434	10%	PTSD	9411	30%	20060104	
No Additional MEB/PEB Entries	Other x 13		
Rating:  10%	Combined Rating:  90%	
Derived from VA Rating Decision (VARD) dated 20060321 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Major Depressive Disorder.  The CI had psychological testing performed in 1997 after referral from an orthopedic surgeon.  His results were suggestive of conversion of stress and psychological problems into somatic complaints.  An information sheet for an antidepressant is also in the record, but there is no other indication that he was treated with an antidepressant.  There are no further MH visits in the records until 3 May 2005.  He was in medical hold for his knees when he was diagnosed with PTSD secondary to his complaints of insomnia and nightmares after his deployment.  He was evaluated in psychiatry on 12 May 2005 and noted significant trauma while deployed.  He endorsed flashbacks, nightmares and feeling like he was back in-theater at times.  He also noted isolation, avoidance, detachments, anhedonia and a sense of a shortened future.  He reported that he was depressed and irritable and that he had trouble sleeping, poor concentration, hypervigilance and an exaggerated startle response.  On examination, he was agitated and crying continuously.  Mood was depressed, but thinking organized.  He had auditory hallucinations and suicidal ideation (SI).  There was some impairment with attention span and concentration.  Insight was poor.  He was begun on medications and counseling.  He was seen several more times that same month and the diagnosis of PTSD was continued.  On 13 June 2005, he was diagnosed with MDD with PTSD symptoms by a different psychiatrist.  However, this same psychiatrist diagnosed PTSD at the next appointment on 12 July 2005.  There were two profiles issued on 23 September 2005 by the MEB psychiatrist.  Both were S3, but one was for PTSD and the other for MDD.  Only the former was signed by the commander.  The MEB MH narrative summary written on 30 September 2005, by the psychiatrist who evaluated the CI in July endorsed SI, drinking to be able to sleep and dreaming of the killing while deployed as his chief complaints.  He reported exposure to improvised explosive device, blasts, gunfire and mortar attacks.  At the time of the examination, he reported that his depressive symptoms had improved considerably.  He was well-dressed, but continued to have concentration difficulties.  However, he was able to report to work and do various jobs in medical hold (on which he had been placed for orthopedic issues).  He was concerned that he would not be able to return to his job as a railroad engineer/conductor due to his knee problems.  He stated that his irritability and relationship with his wife were improved as was his ability to function sexually.  On examination, he was well groomed and oriented.  His speech was normal and he denied hallucinations.  He was not delusional, but was emotionally unstable.  He reported distressing flash backs and memories, but without dissociation.  He had severe sleep problems, but had recently been diagnosed with sleep apnea.  The Board noted that the 71 inch CI weighed 282 pounds, a 78-pound increase from enlistment.  He avoided sleep due to the nightmares.  He endorsed hopelessness and helplessness and felt depressed most of the time.  He had anhedonia and was noted to continue to have problems with intimacy and sexual function.  Startle was still present.  He denied suicidal or homicidal plans, but did have some SI.  He was diagnosed with MDD with definite impairment for industrial and social adaptability.  A Global Assessment of Functioning (GAF) of 60 was assigned, consistent with moderate symptoms or impairment.  The commander’s evaluation on 29 November 2005 noted that he was physically incapable of reasonably performing his duties due to his PTSD and that he could not perform the very heavy physical demands of his MOS.  The Board observed that the duty limitation was more likely due to the orthopedic problem, but that the CI was also in the DES for MH issues.  An updated performance statement by the same commander on 5 January 2006 reported that the CI was working CQ and as a duty driver 5 days a week and 8 hours a day, and was performing his work in the proper military uniform.  On 2 December 2005, The MEB physical examination listed PTSD as a disqualifying diagnosis.  When seen by the MEB psychiatrist on 15 December 2005, the last in the treatment record, he was again diagnosed with MDD.  

At the VA Compensation and Pension (C&P) examination performed on 4 January 2006, 2 months prior to separation, the CI reported that he was working 40-50 hours a week and doing light duty since his knee surgery 7 to 8 months earlier.  He reported recurrent distressing thoughts, avoidance, detachment, a foreshortened future and poor sleep secondary to insomnia after awakening from nightmares.  He also endorsed easily being angered and road rage, increased startle and difficulty concentrating at times.  He was geographically separated from his wife and children, but made frequent trips back home and spoke with his wife multiple times a day.  He endorsed continued auditory hallucinations hearing explosions twice a day.  Memory and hygiene were good.  Speech was normal.  Affect was anxious, but there was no history of panic attacks.  He denied current suicidal ideation, but endorsed depressive feelings.  A GAF of 70 was determined, consistent with mild symptoms and at the cutoff for transient symptoms.  The examiner diagnosed PTSD.  There were no additional examinations proximate to separation.  The next evaluation was a VA diagnostic assessment on 13 June 2007, over 15 months after separation.  He had apparently not been in treatment since separation, but continued to take a psychoactive medication.  However, he took it at a sub-therapeutic dose on an intermittent schedule.  He continued to endorse depressive symptoms, anxiety, social phobias and PTSD symptoms including intrusive thoughts and nightmares.  He had poor eye contact, was tearful, and had a depressed mood, flat affect and slow speech.  He was unemployed and on disability.  The note did not indicate why he had not returned to work.  He was thought to have poorly controlled PTSD with a depressed mood.  A GAF of 41 was assigned, consistent with serious symptoms or impairment.

The Board directs attention to its rating recommendation based on the above evidence.  The MEB forwarded the MH diagnosis of chronic MDD to the PEB for adjudication.  The PEB adjudicated the CI for the diagnosis of MDD.  However, the PEB physical examination listed PTSD as the working MH diagnosis as did the profile signed by the commander.  The SRP determined that the MH diagnosis was changed to the applicant's possible disadvantage in the disability evaluation process.  This applicant therefore did appear to meet the inclusion criteria in the Terms of Reference of the MH Review Project.  The Board next considered the diagnosis.  It noted that the CI was diagnosed with PTSD in both the service treatment records and on the VA C&P examination.  However, the MEB psychiatrist, who had also treated the CI in multiple appointments, determined that the diagnosis was best described as MDD and made this diagnosis on multiple occasions.  The Board determined that while there was evidence to support the diagnosis of PTSD, there was not a preponderance of evidence to support a change in the MEB diagnosis.  The Board then considered if the provisions of 4.129 were applicable.  The Board observed that while the CI was evaluated in MH in 1997, there is no other evidence in the record that he had any MH problems until he deployed in 2005.  His symptoms began while in theater and continued after redeployment.  These were clearly linked in the record to the traumatic experiences he had while deployed.  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 Board then considered the appropriate rating for entry into the 6-month constructive Temporary Disability Retired List (TDRL) period.  It noted that the CI was working 40-50 hours a week and met the requirements of his job in medical hold.  Also, he had been placed in medical hold for his orthopedic conditions, not for a psychiatric issue.  The commander noted that the CI’s duty was impaired due to the physical conditions.  The Board also reviewed the MEB and the VA MH examinations.  It determined that the disability evidenced did not rise above the minimum 50% rating mandated by VASRD §4.129.  The Board recommended a 50% disability rating for entry into TDRL.

The Board then considered the permanent disability rating.  It noted that the VA awarded a 30% rating at separation, but that the examiner determined a GAF of 70 and the CI was working at least 40 hours a week in medical hold status.  The commander cited PTSD, but did not attribute any duty impairment to it; rather, he listed the limitations from the physical impairments.  There was an MH evaluation 15 months after separation, but the CI was apparently not in active treatment at the time.  The Board noted that both the second commander’s statement and the VA C&P were within 2 months of separation and 8 months of the end of the constructive TDRL period.  They were also consistent with the improving picture noted in the service treatment notes.  The Board observed that the level of symptomatology reported was not consistent with the report that the CI was able to work 40-50 hours a week on a regular schedule.  The after service appointment was 15 months after separation and 9 months after the end of the constructive TDRL period.  In addition, the CI was no longer in active treatment.  The action officer noted that the cessation of psychotropic medications can lead to a rebound of symptoms further reducing the probative value of this examination.  While the CI endorsed significant symptoms at the time of the VA C&P examination, the notation by the commander that the CI was able to work 5 days a week, 8 hours a day, while in proper uniform was determined to be more consistent with a 10% disability rating rather than a 30% rating as awarded by the VA.  The Board also observed that in the MEB psychiatric addendum, the CI stated that he loved his work (as a train engineer/conductor), but feared that he may not be able to return to this position due to his knees.  In addition, at the 13 June 2007 MH assessment, he reported that he was unemployed and living on disability.  No other reason for not working was cited.  The Board did not find evidence in the record to support a contention that the CI was not able to work due to a MH condition.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 50% for the MDD condition at TDRL entry and 10% at TDRL exit.

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 9343 IAW VASRD §4.129 and 4.130 at TDRL entry and 10% at TDRL exit 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	9343	50%	10%	
RATING	50%	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130613, 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 
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 
for xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx, AR20140003456 (PD201300815)

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 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