RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-01516
BRANCH OF SERVICE:  Army	BOARD DATE:  20150225
SEPARATION DATE:  20040528

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty 0-3 (Contingency Contracting Officer) medically separated for major depressive disorder (MDD).  The condition could not be adequately rehabilitated 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).  “Major depressive disorder, single episode, severe, with psychotic features,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated MDD as unfitting rated 10%, citing application of the AR 635-40.  The CI made no appeals and was medically separated.

CI CONTENTION:  The CI elaborated no specific contention in his application, but listed the following conditions:  bipolar disorder, mood swing, back pain, depression, loss of strength of my wrist, skin rashes, shoulder pain, knee pain, earing [sic], and anxiety.

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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation. 

RATING COMPARISON:

IPEB – Dated 20040311	VA* - (~1 Mo. Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Major Depressive Disorder	9434	10%	Major Depressive Disorder	9434	30%	20040420	
Other x 0 (Not In Scope)	Other x 12	
RATING:  10%	RATING:  60%	
*Derived from VA Rating Decision (VARD) dated 20040623 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Major Depressive Disorder Condition.  Review of the service treatment record (STR) found no mental health treatment entries except a brief note on 22 December 2003 indicating only that the CI was seen in the Department of Psychology.  According to the narrative summary (NARSUM) and the VA Compensation and Pension (C&P) evaluations, the CI had no history of mental disorders until his deployment to Kuwait in March 2003.  He returned from Kuwait for a month after the premature birth of his critically ill daughter in April 2003.  After returning to Kuwait, he was transferred to Iraq in June 2003 where additional stressors included the suicide of a co-worker and long work hours with little sleep.  In August or September 2003, he experienced the onset of depressive symptoms and auditory hallucinations of a male voice instructing him to kill himself.  He also had the sense he was being followed by others.  Poor sleep, sadness, low energy and decreased appetite led to a 30-pound weight loss while in Iraq.  He was medically evacuated for inpatient treatment of major depression with psychotic features.  Treatment did not include medication because the CI declined it.  Hallucinations resolved after 4-6 weeks, but he continued to experience moderately severe depressive symptoms.

The commander’s statement on 12 January 2004 reported that prior to deployment the CI’s performance was above average.  Since returning to duty in December however, performance was described as “borderline unsatisfactory.”  He displayed little concern for the mission, reintegrating into the unit or becoming a productive team member despite being placed in a “low tempo” position.  He displayed an inability to concentrate or to communicate effectively.

Ongoing symptoms reported by the NARSUM examiner performed on 2 March 2004 (3 months prior to separation) included sadness, poor sleep which was improving, and poor appetite.  There were never thoughts of harm to himself or others.  The CI continued to decline psychotropic medication and was no longer receiving psychotherapy.  The mental status exam (MSE) performed by the NARSUM reported slow, monotone speech and a dysphoric, nonreactive affect.  There was no evidence of auditory hallucinations or psychotic behavior.  The psychiatrist’s diagnosis of severe MDD (single episode, severe) with psychotic features was opined to impose considerable social and industrial impairment.

The VA C&P exam performed a month prior to separation indicated the available STR contained no psychiatric entries.  CI reported that he was never exposed to significant battle trauma.  Current symptoms included feeling depressed, sleep difficulty, fatigue, diminished appetite and difficulty concentrating.  He had lost about 40 pounds during a period of 4 months and had regained 10 pounds by forcing himself to eat.  MSE was remarkable for some psychomotor retardation, depressed mood and constricted affect.  Appearance, orientation, memory, judgment and insight were normal.  There were no signs of hallucinations or thoughts of harm.  An assigned Global Assessment of Functioning (GAF) was 40, connoting major impairment in several areas.  The examiner’s diagnosis was major depression with psychosis, in partial remission.

The Board directed its attention to a rating recommendation based on the above evidence.  Application of VASRD §4.129 is considered by the Board for all cases of service-connected psychiatric conditions resulting in separation; but, all members agreed that the “highly stressful event” requisite for §4.129 was not satisfied in this case.  The PEB assigned a 10% rating under the 9434 code (major depressive disorder) while the VA rated the condition at 30% under the same code.  The Board considered if a rating higher than the 10% adjudicated by the PEB was justified.  The 10% rating specifies “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.”  The §4.130 criteria for the 30% rating includes occupational and social impairment “with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks”; and for 50% “with reduced reliability and productivity.”  The commander’s statement portrayed significant occupational difficulty.  The Board concluded that the clinical picture was not consistent with the “mild or transient symptoms” stipulation of the 10% rating, and debate settled on a 30% vs. 50% rating.  Board members considered that the NARSUM and C&P examiners identified at least two 30% threshold symptoms, and debated the possible presence of one or two 50% threshold symptoms.  While the C&P examiner identified a significantly low GAF score, this appeared incongruent with a condition that was deemed to be in partial remission.  Ultimately the Board agreed that the evidence presented above could not be reconciled with the 50% rating description, and that the condition was more accurately depicted by the 30% rating criteria.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 30% for the major depression 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.  As discussed above, PEB reliance on AR 635-40 for rating MDD was operant in this case and the condition was adjudicated independently of that regulation by this Board.  In the matter of the MDD condition, the Board unanimously recommends a disability rating of 30%, 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; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

CONDITION	VASRD CODE	RATING	
Major Depressive Disorder	9434	30%	
RATING	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130914, 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 XXXXXXXXXXXXXXX, AR20150011092 (PD201301516)

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