RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2013-01644
BRANCH OF SERVICE:  AIR FORCE	BOARD DATE:  20150311
DATE OF PLACEMENT ON TDRL:  20040728
Date of Permanent SEPARATION:  20051228

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Maintenance Scheduling Craftsman) medically separated for major depressive disorder (MDD) associated with social phobia.  The mental health (MH) condition could not be adequately rehabilitated to meet the physical requirements of her Air Force Specialty.  She was issued an S4 profile and referred for a Medical Evaluation Board (MEB).  MDD was forwarded to the Physical Evaluation Board (PEB) IAW AFI 48-123.  No other conditions were submitted by the MEB.  The PEB adjudicated MDD with social phobia as unfitting, rated 50%, but reduced the rating by 20% for contributory/aggravating factors; and placed the CI on the Temporary Disability Retired List (TDRL).  The contributory factor was personality disorder (not otherwise specified), adjudicated as a Category III condition (conditions that are not separately unfitting and not compensable or ratable).  After 16 months on the TDRL, the MDD associated with social phobia condition was considered to be stable but still unfitting.  She was removed from the TDRL on 8 December 2005 and permanently separated, without appeal (30% less 20% for contributory/aggravating factors).

CI CONTENTION:  “My condition never should have been rated below 30%.  My condition is recurrent and hasn’t changed from active duty.”

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. 

In addition, the Secretary of Defense Mental Health Review Terms of Reference directed a comprehensive review of Service members with certain mental health (MH) conditions referred to a disability evaluation process between 11 September 2001 and 30 April 2012 that were changed or eliminated during that process.  The MH condition was reviewed regarding diagnosis change, fitness determination and rating in accordance with VASRD §4.129 and §4.130.

RATING COMPARISON:

Final PEB – 20051024	VA Rating Decision1 - 20050622	
TDRL Placement – 20040728	Code	Rating	Condition	Code	Rating
Proximate	
Condition		TDRL
Placement	TDRL Removal			TDRL2
Placement	TDRL3 Removal	
Major Depressive Disorder with Social Phobia	9434	30%	10%	Major Depressive Disorder and Social Anxiety Disorder 	9434	50%	50%	
Personality Disorder	Cat III	Personality Disorder	9499-9410	NSC	NSC	
Other x 0	Other x 3	
RATING:  30% → 10%	COMBINED RATING:  60%	
*Reflects VA rating exam proximate to TDRL placement; no VA rating evidence proximate to permanent separation.

ANALYSIS SUMMARY: 

Major Depressive Disorder Associated with Social Phobia Condition.  Review of the service treatment record revealed that in 2002 the CI first presented for MH care and was diagnosed with social phobia.  She received ongoing medication and psychotherapy management.  In May 2003 a diagnosis of episodic depressive disorder was added.  In the context of a break-up with her boyfriend, she was hospitalized in January 2004 for stabilization.  However, on 10 February 2004 she was re-admitted for a week, after superficially cutting her wrist.  The CI’s final performance report, written a year prior to placement on TDRL gave the highest possible marks in all rating areas.  She was noted to be an “exceptionally effective leader” and “highly skilled writer and communicator.”  She completed a professional development course and was recommended for immediate promotion.  At a psychology clinic visit on 12 April 2004, 3 months prior to TDRL placement, the CI complained of social isolation, excessive sleep, loss of interest and poor energy, concentration and appetite.  Mental status examination (MSE) noted normal speech, absence of suicidal ideation, normal memory testing and intact abstraction.  Mood was dysphoric and affect sad.  The narrative summary (NARSUM) on 29 April 2004 reported that the CI had “taken a handful of aspirin pills” during “an angry period while in junior high school.”  There were no other suicidal attempts or gestures until 2004.  Current treatment consisted of two psychotropic medications and a sleep aid.  MSE noted a euthymic mood and flat affect.  Appearance was normal.  Thought processes were normal and there was no evidence of psychoses, suicidal or homicidal ideation.  Judgment was fair.  The Axis I diagnoses were recurrent, moderate MDD and social anxiety disorder.  Personality disorder was also listed as an Axis II diagnosis.  A Global Assessment of Functioning (GAF) of 48 was assigned, connoting serious symptoms or impairment.  Outpatient notes leading up to the time of TDRL placement reported some insomnia issues, fluctuating affect (dysphoric to flat) and fair to poor judgment.  

The commander’s statement on 17 May 2004 (2 months prior to TDRL placement) noted that the CI was working in her primary specialty, but missed extensive periods of work because of her condition or for medical appointments.  It was stated that she had communicated a desire to commit suicide on three separate occasions, all of which required hospitalization.  A memo written by the CI on 11 May 2004 stated that she was admitted a third time at a civilian facility from 30 April to 7 May 2004 for an overdose.  Subsequent MH noted did not discuss this event, although the psychiatry entry on 20 May 2004 referred to a recent “suicide gesture” and the commander’s statement mentioned three psychiatric hospitalizations.  The final psychiatry note in evidence on 27 May 2004 (2 months prior to TDRL placement) indicated that the MDD was in partial remission.  At the VA Compensation and Pension (C&P) exam on 2 May 2005 (9 months after placement on TDRL and 8 months prior to removal from TDRL) the CI reported that she had been hospitalized three times in 2004.  She denied any history of physical or sexual abuse.  She was currently employed full-time in an assembly line for the past 2 months, but reported having no friends.  She complained of low mood, lack of interest, hypersomnia, low energy, fear of social situations and intermittent suicidal ideation.  MSE showed tearfulness, although she was pleasant and appearance was otherwise normal.  She denied the presence of suicidal ideation; however, noted that she had thought of driving off the road days earlier.  Orientation and speech were normal.  There were no panic attacks or memory loss.  The Axis I diagnoses were recurrent MDD and social anxiety disorder.  A GAF of 50 was assigned for depression and 55 (moderate symptoms or impairment) for social anxiety.  At a general medical C&P exam on 1 June 2005, the CI stated that she had “lost no time from work in the past 12 months as an assembly line employee.”  At the TDRL re-evaluation NARSUM on 6 October 2005 (3 months prior to removal from TDRL), the CI reported continued anxiety symptoms over the prior year.  The social anxiety was “severe to the point that she is unable to eat in public cafeterias and she has quit eight jobs in the past year due to her anxiety.”  Her depression “has improved.”  She was hopeful about her involvement in a vocational rehabilitation program and about the possibility of returning to active duty.  She was on two psychotropic medications and was receiving psychotherapy.  She reported normal sleep, good enjoyment of activities such as school and family visits, normal energy and concentration, and normal appetite.  She stated that she initially lived in North Carolina with her sister after entering TDRL; after supporting her sister through a divorce, they moved together to New Hampshire to be near family.  She lived with her parents for a time and was now living with an uncle.  MSE showed a normal appearance and behavior.  Mood was “not depressed” though affect was dysphoric and restricted.  Speech was soft and slow and thought processes normal.  Although she reported some occasional suicidal ideation, there were no current suicidal thoughts.  Judgment and impulse control were normal.  The Axis I diagnoses were MDD (in partial remission) and social phobia (not in remission).  No Axis II diagnosis was assessed.  The social phobia was considered to cause “severe” impairment for civilian social and industrial adaptability and marked occupational impairment, as evidenced by “multiple unsuccessful attempts at employment.  The examiner assigned a GAF of 65 (some mild symptoms or impairment).

At another psychiatric C&P evaluation on 22 August 2008 (3 years after separation) the CI informed the examiner of two jobs she had since her last exam and prior to moving to Florida in 2006.  She quit the job she had started in March 2005 because she felt like “another employee hated her.”  She moved to another facility in an assembly line position and then quit that job prior to entering vocational rehabilitation.  The Board noted the September 2008 VA rating decision (VARD) documented that the vocational and rehabilitation file had been reviewed and that an independent living needs assessment suggested that the CI would likely have difficulty in maintaining employment.  The Board considered the appropriateness of changes in MH diagnoses, whether the provisions of VASRD §4.129 were applicable and a disability rating recommendation in accordance with VASRD §4.130.  The Board determined that no MH diagnoses were changed to the applicant's possible disadvantage in the disability evaluation process.  This applicant therefore did not meet the inclusion criteria in the Terms of Reference of the MH Review Project.  The Board considered whether the provisions of VASRD §4.129 were applicable for the unfitting MH conditions.  Regardless of final PEB diagnosis, §4.129 does not specify a diagnosis of posttraumatic stress disorder (PTSD), rather it states “mental disorder due to a highly stressful event” and its application is not restricted to PTSD.  Members agreed that the requisite §4.129 link that the condition occurred “as a result of” in-service stressors was not adequately satisfied and therefore concluded that application of §4.129 was not appropriate in this case.

The Board directed attention to its rating recommendation based on the above evidence.  Relevant to both the TDRL and permanent recommendations, the Board considered the impact on rating of the contribution from the underlying and un-ratable personality disorder.  The PEB adopted the position that “personality disorder not otherwise specified” accounted for 20% of the rating, which was then deducted from 50% to achieve a TDRL placement rating of 30%; and from 30% to achieve a permanent rating after removal from TDRL of 10%.  While Board members agreed that personality disorders can carry significant psychopathology for which deduction could be warranted, the NARSUM psychiatric examiner (prior to TDRL placement) gave no information on which to base the assessment of a personality disorder.  The CI’s performance review in the year prior to separation noted good duty performance and provided no evidence for the basis of a personality disorder interfering with performance.  Diagnostic criteria for any personality disorder require the ability to determine that symptoms described in a personality disorder are not better accounted for by another mental illness.  The Board could not find convincing evidence for a pre-existing formally diagnosed personality disorder prior to service and the entry (Military Entrance Processing Station) physicals from July 1996 had no evidence of any MH disorder or MH symptoms.  Furthermore, the VA examiner and second NARSUM examiner (prior to removal from TDRL) did not diagnose a personality disorder.  The Board considered a recommendation for a formal deduction.  Members thus agreed that its recommendation should concede the total §4.130 impairment in evidence as subject to service rating.

Regarding the rating at the time of placement on TDRL, the Board considered the 50% level of disability which requires “Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.”  Board members considered that there had been recent psychiatric hospitalizations (three of them), and continued thoughts of self-harm; however, there was no current thoughts of self-harm.  She continued to have symptoms of both depression and anxiety, and her overall functioning was consistent with the 50% criteria.  The commander referred to occupational impairment due to the MH condition, but she was able to work within her specialty; however, she missed a lot of work, due to hospitalizations, and treatment visits.  As to the permanent rating recommendation, it was noted that clear symptom improvement in some areas had occurred (for example, sleep, energy, activity enjoyment, hopefulness), consistent with her own assessment that her depression was improved; social anxiety and its reported significant negative effect on employment was debated in the context of somewhat conflicting information.  The NARSUM examiner (prior to removal from TDRL) indicated that anxiety resulted in the loss of eight jobs during the prior year.  However, the VA examiner 5 months previously only indicated one job and that same examiner in 2008 reported only two jobs during that same timeframe, that examiner documented a pattern of inability to maintain employment attributed to the symptoms of social anxiety. The 2008 VARD documented the possibility that the CI would not be able to maintain employment.  All members agreed that the §4.130 criteria for a 50% rating were not present and debate therefore settled on a 30% versus a 10% rating (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 Board considered that there were no reported emergency room visits or hospitalizations during the TDRL period, and the CI continued to have significant anxiety symptoms opined to have been the cause of poor employment history.  She had clear social engagement with family members and a GAF score suggestive of some mild symptoms or impairment.  However, the examiner opined her symptoms were not stable enough to allow removal from the TDRL.  She continued to have some thoughts of self-harm, and was assessed to have considerable to severe impairment for occupational functioning.  Her symptoms were present not only during times of significant stress, and they were not well controlled by medication.  The examiner noted she continued with symptoms of guilt, depressed mood and occasional suicidal ideation especially in regards to employment stressor, and although it was stated the CI had improved overall, her condition was opined to not have improved since TDRL placement.  Therefore, the 30% more accurately described the level of impairment at the time of TDRL removal.  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 MDD associated with social phobia 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.  In the matter of the MDD associated with social phobia condition, the Board unanimously recommends a 50% rating at the time of placement on TDRL, and a permanent rating of 30% upon removal from TDRL 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, effective as of the date of her prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
Major Depressive Disorder Associated with Social Phobia	9434	50%	30%	
RATING	50%	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

	
Dear XXXXXXXXXXXXXXXXXXXX:

	Reference your application submitted under the provisions of DoDI 6040.44 (Title 10 U.S.C. § 1554a), PDBR Case Number PD-2013-01644.

	After careful consideration of your application and treatment records, the Physical Disability Board of Review determined that the rating assigned at the time of final disposition of your disability evaluation system processing was not appropriate under the guidelines of the Veterans Affairs Schedule for Rating Disabilities.  Accordingly, the Board recommended your separation be re-characterized to reflect disability retirement, rather than separation with severance pay.

	I have carefully reviewed the evidence of record and the recommendation of the Board.    I concur with that finding, accept their recommendation and determined that your records should be corrected accordingly.  The office responsible for making the correction will inform you when your records have been changed.

	As a result of the aforementioned correction, you are entitled by law to elect coverage under the Survivor Benefit Plan (SBP).  Upon receipt of this letter, you must contact the Air Force Personnel Center at (210) 565-2273 to make arrangements to obtain an SBP briefing prior to rendering an election.  If a valid election is not received within 30 days from the date of this 
letter, you will not be enrolled in the SBP program unless at the time of your separation, you were married or had an eligible dependent child, in such a case, failure to render an election will result in automatic enrollment.  

Attachment:
Record of Proceedings

cc:
SAF/MRBR
DFAS-IN