RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2013-01449
BRANCH OF SERVICE:  Army	BOARD DATE:  20141113
SEPARATION DATE:  20040312

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a mobilized Reserve SGT/E-5 (63Y/Track Vehicle Mechanic) medically separated for Obsessive Compulsive Disorder.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  He was issued a permanent S3 profile and referred for a Medical Evaluation Board (MEB).  Obsessive compulsive disorder (OCD) was forwarded by the MEB to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “Obsessive Compulsive Disorder” as unfitting, rated 10%, referencing application of AR 635-40, appendix B-107, paragraph e.  The CI made no appeals and was medically separated.

CI CONTENTION:  “The rating in comparison medically does not support or have the same rating as the Veteran Administration which supports all my listed condition related to health condition.”

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 OCS is addressed below; and, 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 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 VA Schedule for Rating Disabilities (VASRD) standards, based on ratable severity at the time of separation.

RATING COMPARISON:

Service IPEB – Dated 20040116	VA - (<1 Mos. Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Obsessive Compulsive Disorder	9404	10%	Obsessive Compulsive Disorder	9404	70%	20040218	
Other x 0 (Not in Scope)	Other x 2	20040209	
Rating:  10%	Combined Rating:  80%	
Derived from VA Rating Decision (VARD) dated 20040504 (most proximate to date of separation)

ANALYSIS SUMMARY:

Obsessive Compulsive Disorder.  The psychiatric narrative summary (NARSUM) notes the CI developed mental health (MH) symptoms of anxiety and depression with obsessive thoughts and compulsive behaviors while deployed.  The CI was hospitalized with suicidal ideation (SI) and subsequently medically evacuated from theater.  Limited MH evaluation and treatment notes in the service treatment record indicated that the CI initially managed the “stressors of combat zone” well, but had time on his hands and became depressed and anxious.  The CI reported he had periods of decreased mood and anxiety in the past few years, but never serious enough to seek treatment.  On a post-deployment health assessment (PDHA) on 5 August 2003, the CI responded yes to frightening, horrible or upsetting experiences in the past month with associated nightmares, intrusive thoughts, avoidance of reminders, feeling on guard, and feeling detached from others.  The PDHA also noted the CI was diagnosed with mild depression prior to deployment, not confirmed in any other available records.  A psychiatric evaluation on 13 August 2003 noted the CI did not experience exposure to combat injuries or handle the dead.  According to the NARSUM, there were different MH diagnoses at various times, but the CI continued with symptoms of checking and rechecking to see if doors were closed, checking his uniform, obsessive worrying about being on time and he was diagnosed with OCD.  The CI was tried on multiple medications and was on antidepressant and anti-anxiety medication with some improvement.  The 21 November 2003 commander’s statement indicated the CI was performing “maintenance duties” in a temporary capacity; that the CI “is unable to perform his duties that his MOS requires him to do because of Psychiatric Disorders.”

At the MEB psychiatric examination on 5 January 2004 (approximately 2 months prior to separation), the examiner noted, “While his [the CI] mood has improved and he seems less obsessive, he continues to complain of a general sense of anxiety and depression.”  On mental status examination (MSE) the CI was noted to be restless and shaking, with an anxious and depressed mood, normal cognitive functioning, and no psychotic features or SI.  The examiner considered the CI’s insight good, but judgment poor.  The Axis I diagnosis was OCD with a Global Assessment of Functioning (GAF) of 55-60 (moderate impairment range).  The examiner described the CI’s social and industrial impairment as excerpted below.

Definite due to symptoms including anxiety, shaking, obsessive thought pattern that permeates nearly every activity in which the patient is involved.  His disorder prevents him from focusing on any type of job and causes him difficulty interacting with others.

At the VA Compensation and Pension (C&P) examination (performed 3 weeks prior to separation), the CI reported feeling anxious and depressed, worrying about many things, sleep difficulties and compulsive behavior of repeatedly closing doors (noted to take up many hours per day).  The examiner indicated the CI was “unable to work at anything other than medial [menial] tasks within the military unit, such as sweeping out the laundry room and things of that sort.”  On MSE the CI was fully oriented and had a depressed and anxious mood, difficulty concentrating, but no evidence of memory problems, thought or speech abnormalities, delusions, hallucinations, SI, or panic attacks.  The Axis I diagnoses were OCD and depression, not otherwise specified, with a GAF of 35 (major impairment range).  The examiner indicated that the CI may improve following military separation and recommended re-evaluation in 6 months to a year.

A remote VA psychiatric C&P examination dated 29 August 2008 (approximately 4 years after separation), is not in the available records; however, the VARD on 5 September 2008 cited the examination.  At the examination the CI reported continued problems with obsessions and rituals.  The VARD noted that the CI was employed for the past 4 years as a civilian mechanic for the military without any documented problems.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB rated the OCD at 10%, coded 9404 and the VA rated it 70%, both coded 9404 (OCD).  The Board first reviewed to see if application of VASRD §4.129 was appropriate in this case, which states “when a mental disorder that develops in service as a result of a highly stressful event is severe enough to bring about…release from active military service, the rating agency shall assign an evaluation of not less than 50% and schedule an examination within the 6 month period following…discharge to determine whether a change in evaluation is warranted.”  The Board agreed that the evidence in record supports that the CI though deployed, had not been involved in combat operations when the MH symptoms developed.  His unit was not given a mission immediately and during this period the CI’s MH symptoms worsened without a specific inciting incident.  Members agreed that deployment to a combat zone is not in all cases 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 deliberated the permanent rating recommendation.  The most proximate sources of evidence on which to base the permanent rating recommendation in this case include both the MEB examination and the VA C&P examinations which were performed 6 weeks apart, close to the date of separation.  The VARD dated 5 September 2008 was remote from separation, but important functional information refers back to the relevant time period.  All examinations indicated that, despite medications, the CI continued with obsessive compulsive behaviors.  Prior to separation, both the MEB and VA psychiatrists indicated that the CI was significantly impaired and that the prognosis for civilian function following separation from the military was unknown.  However, the remote VARD and 2010 military documents provided probative information that within the 12-month interval for special consideration to post-separation evidence defined by DoDI 6040.44, the CI was employed by the federal government as a Heavy Mobile Equipment Repairer in a military technician position (hired 12 August 2001).  He returned to his military technician position and remained employed there in the intervening 6 years.  Military documents in record dated 8 February 2010, 7 April 2010 and 22 February 2010 indicated that the post-separation “civilian mechanic” position was a military technician position.  The CI was removed from that position effective on 5 March 2010 for failure to maintain a basic condition of employment (Selected Reserve membership).

The Board considered the 10% rating but all Members agreed the 10% rating criteria were exceeded.  Board deliberations therefore settled upon the 50% rating, specified as “reduced reliability and productivity” versus the 30% rating, specified as “occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily).”  The Board concluded from the available evidence (which requires a degree of speculation) that post-separation the CI continued with OCD symptoms that did not preclude his effective occupational functioning, but could reasonably be anticipated to cause “occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks,” consistent with the 30% rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a permanent disability rating of 30% for the OCD 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 OCD condition, the Board unanimously recommends a disability rating of 30%, coded 9404 IAW VASRD §4.130.

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	
Obsessive Compulsive Disorder	9404	30%	
RATING	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130917, 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, AR20150006459 (PD201301449)

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 recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 30% effective the date of the individual’s original medical separation for disability with severance pay.  

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:

	a.  Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay.

	b.  Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 30% effective the date of the original medical separation for disability with severance pay.

	d.  Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.

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