RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD1301632
BRANCH OF SERVICE:  Army	BOARD DATE:  20140612
SEPARATION DATE:  20080907

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (25U/Signal Support System Specialist), medically separated for depressive disorder.  The CI entered active duty on 14 September 2005.  He deployed to Iraq from October 2006 until December 2007.  The CI’s mental health (MH) condition could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty.  He was issued a permanent S3 profile and referred for a Medical Evaluation Board (MEB).  The MEB psychiatric addendum listed “depressive disorder not otherwise specified (NOS)”.  The MEB forwarded the same diagnosed condition to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also forwarded two non-MH conditions, “hypertension” and “diverticula of the colon” as meeting retention standards.  The PEB adjudicated “Depressive Disorder” as unfitting rated 10% citing criteria of the VA Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be not unfitting and not ratable.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Rating was 10% through Army and VA rating is 60% just for depression/PTSD/Anxiety.  Total VA rating was 90%.  They added Bipolar.  Disability is now causing serious issues at home and in working.  Holding any position aggravates the disability listed.”

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 his mental health (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 during that process.  The CI is also eligible for PDBR review of other conditions evaluated by the PEB and has elected review by the PDBR.  In accordance with Secretary of Defense directive for a comprehensive review of the 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 mental health diagnoses in accordance with the VASRD §4.129 and §4.130.  Accordingly, the service rating for the unfitting depressive disorder is addressed below.  The Board considered the CI’s contention as an implied request to review all conditions which the MEB and or PEB addressed (subsequently addressed by the VA).  As such, the contended not unfitting conditions of hypertension and diverticula of the colon meet the criteria prescribed in DoDI 6040.44 for Board purview.  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.  

RATING COMPARISON:

Service IPEB – Dated 20080715	VA - (10 days and ~1 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Depressive Disorder	9434	10%	Anxiety and Mood Disorder with Depressive Features	9400	50%	20080917	
Hypertension	Not Unfitting	Hypertension	7101	10%	20081021	
Diverticula of the Colon	Not Unfitting	Mild Colitis With Gastroenteritis	7319	NSC	20081021	
Other x 0 (Not in Scope)	Other x 8	20081021	
Combined:  10%	Combined:  70%	
Derived from VA Rating Decision (VARD) dated 20090209 (most proximate to date of separation [DOS]).   
* VARD 20130109 changed DC 9400 to 9432 (Bipolar Disorder) and increased the disability percentage to 70% from 20120718.

ANALYSIS SUMMARY:  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 Veterans Affairs, operating under a different set of laws.  The Board considers VA 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.

Depressive Disorder.  The psychiatric narrative summary (NARSUM) notes the CI first was referred behavioral health (BH) for depression and social withdrawal in June 2006 but declined the referral and was subsequently deployed to Iraq.  Following return from deployment he was again recommended to see BH by his Command.  At the BH evaluation the CI reported a family history of depression and bipolar disorder.  He reported a history of being unhappy and depressed in high school with family issues and some “acting out” behaviors, but he had not been diagnosed with or treated for a MH disorder.  During deployment the CI did experience significant combat-related stresses, but also his girlfriend and mother of his 4-year-old child broke off their relationship.  The CI reported that he did not think his current depression symptoms were related to combat related events during deployment but to missing his son and friends.  He reported loss of interest and pleasure in activities he used to enjoy (anhedonia), social withdrawal, crying spells and sleep problems but no nightmares.  He was diagnosed with depression and treated with psychotropic medications and talk therapy.  Mental status evaluations (MSE) at BH visits noted depressed, anxious mood and affect but were otherwise normal, without suicidal or homicidal ideation (SI/HI).  The CI’s depression symptoms were assessed as severe and a medical evaluation board was scheduled pending his response to treatment.  Despite some improvement, the CI continued with significant depression symptoms daily and was put on an S-3 permanent profile.

At the MEB examination on 2 April 2008, 5 months prior to separation, the CI endorsed insomnia, decreased concentration and appetite, irritability, crying more, feeling sad all the time, worthless, cut off from others and discouraged about his future.  Standardized testing results were noted to indicate severe depression.  The MEB MSE noted depressed mood and affect, but was otherwise normal.  The Axis I diagnosis was depressive disorder, NOS, severe with a Global Assessment of Functioning (GAF) of 55 (moderate impairment range).  The DD Form 2808 report of medical examination noted diagnoses of depression and anxiety.  The CI was seen in the emergency room on 13 July 2008, after the PEB, for depression with increasing suicidal ideation while intoxicated.  He requested and was transferred to a hospital for assistance with alcohol detoxification.  The psychiatric profile was S-3.  At BH visits the CI reported that his symptoms were affecting his work.  At the Warrior Transition Unit (WTU) intake interview he rated his functioning at work at 5/10.  The commander’s statement noted that the CI was working full time, but not performing his duties well, had a permanent profile with which Command agreed and that assignment to the WTU would be in the best interest of the CI.

At the VA Compensation and Pension (C&P) examination on 17 September 2008, 10 days after separation, the CI reported ongoing symptoms of depression, present at least half the time, sometimes intense and anxiety.  He again reported that he had no lasting traumatic effects from his tour in Iraq.  The CI was hoping to find a job in communications and was planning to return to school.  He reported sleep problems without nightmares, decreased appetite and energy, decreased interest in socializing, though he did some socializing despite this.  He denied any current suicidal thoughts.  He reported panic attacks one to two times per week, but that anxiety was generally improved since discharge from the military.  On MSE the CI had a depressed and anxious mood and affect and the examination was otherwise normal with a GAF of 55.

The Board directs attention to its recommendations based on the above evidence, incorporating the MH Review Project stipulations as elaborated above in the scope analysis.  The PEB adjudicated the depressive disorder as unfitting and rated at 10%, coded 9434 (major depressive disorder).  The VA rated anxiety and mood disorder with depressive features at 50%, 5 months after separation.  The Board reviewed the records for evidence of inappropriate changes or elimination of diagnosis of the MH condition during processing through the DES.  The DD Form 2808 listed anxiety and depression, the service psychologist diagnosed depressive disorder, NOS and the same diagnosis was forwarded by the MEB and adjudicated by the PEB.  Therefore, this case did not appear to meet the inclusion criteria in the Terms of Reference of the MH Review Project.

The following discussion refers to the criteria for the diagnosis of posttraumatic stress disorder (PTSD) from the Diagnostic and Statistical Manual for Mental Disorders IV - Text Revision (DSM IV-TR): the evidence for the stressor (criterion A), re-experiencing of the event (criterion B), persistent avoidance of stimuli associated with the trauma (criterion C), hyperarousal (criterion D), duration and onset (criterion E), and presence of significant distress or impairment in social, occupational or other important area of functioning (criterion F).

The Board considered whether depressive disorder, NOS was a diminution of a PTSD diagnosis.  The CI did not report any combat related nightmares, intrusive thoughts or reliving experiences such as flashbacks and consistently reported that he did not have any lasting traumatic effects from combat related events while deployed at BH treatment visits, the psych NARSUM evaluation and the C&P examination.  The CI was not diagnosed by any MH professional with PTSD while in service or after separation from the military.  All members agreed that DSM IV-TR Criteria A – F for a diagnosis of PTSD were not satisfied by a preponderance of evidence.  The Board noted that the CI notes in his contention that he was provided disability rating for PTSD and bipolar disorder through the VA.  No VA records before the Board include a diagnosis of or disability rating for PTSD.  A remote VA C&P MH examination changed the previously noted original VA diagnosis to Bipolar II disorder.  There is no evidence in the service treatment record (STR) of a diagnosis of Bipolar II disorder in Service.  However, the Board notes that the specific MH diagnosis in this case of depressive disorder versus Bipolar II disorder is a moot issue because only one MH disability rating can be provided IAW VASRD §4.130 based on social and occupational functioning regardless of the specific diagnosis.  The Board next considered if application of §4.129 was appropriate in this case, regardless of MH diagnosis and unanimously agreed that it was not; based upon the lack of support in the record for a causative highly stressful event.  The Board next considered if there was evidence to support a rating higher than 10% at permanent separation, specified as “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” and agreed that the 10% rating was exceeded.  Board deliberations therefore settled upon 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 …)” and the 50% rating specified as “occupational and social impairment with reduced reliability and productivity;” elaborating reference symptoms of flat affect, stereotyped speech, frequent (> weekly) panic attacks, deficits in comprehension and memory, impaired judgment, mood disturbance, and difficulty with establishing relationships.  The Board considered that at the time of separation the CI was on medications and continued with daily symptoms of depression and that after the PEB’s adjudication he was treated in the emergency room for an episode of worsened symptoms.  The Board noted that there was not much evidence regarding the CI’s occupational functioning prior to separation except the CI’s own estimation of his ability to function rated 5/10.  The commander’s statement noted the CI was working full time, albeit with some performance issues.  At the C&P examination a few days after separation the CI was not yet employed, but did socialize with friends at times and had a good relationship with his child.  The CI reported panic attacks more than once per week at the VA examination, but also indicated that his anxiety had improved since separation and panic attacks were not noted in the STR or the NARSUM.  Board members agreed that the CI’s disability most closely met the 30% rating as referenced above.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a change of the applicant’s disability and separation determination to a permanent disability rating of 30% for the depressive disorder, NOS condition.

Contended PEB conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the hypertension and colon diverticula conditions were not unfitting.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  (1) Hypertension -- the CI was noted to have asymptomatic moderately elevated high blood pressure at a primary care visit in February 2008 and was started an antihypertensive medication.  Blood pressures noted in the record while on medication were reduced to the pre-hypertensive range.  The NARSUM noted that the CI had elevated blood pressure that was well controlled on medication. (2) Colon Diverticula -- the NARSUM noted only that the CI had colon diverticula (outpouchings of the wall of the colon) that were causing no symptoms (may become inflamed).  Notes in the STR indicated the CI reported 3 weeks of abdominal pain and was evaluated with abdominal X-rays, CT of the abdomen and CT of the pancreas.  The colonic diverticula were noted on these imaging studies.  There was no indication in the record that the diverticula were related to the CI’s abdominal pain, which the CI indicated at the C&P examination was due to an abdominal muscle tear.  The hypertension and colonic diverticula conditions were not profiled or implicated in the commander’s statement and were not judged to fail retention standards.  All were considered by the Board.  There was no performance based evidence from the record that either of these conditions significantly interfered with satisfactory duty performance.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended conditions and so no additional disability ratings are recommended.

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 depressive disorder, NOS condition, the Board unanimously recommends a change of the applicant’s disability and separation determination to a permanent disability rating of 30%, coded 9434 IAW VASRD §4.130.  In the matter of the contended hypertension and colon diverticula conditions, the Board unanimously recommends no change from the PEB determination as not unfitting.  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 recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Depressive Disorder, NOS	9434	30%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130920, 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 XXXXXXXXXXXXXXXXXX, AR20140016132 (PD201301632)

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 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:

CF: 
(  ) DoD PDBR
(  ) DVA