RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2013-01690
BRANCH OF SERVICE:  Army	BOARD DATE:  20150121
SEPARATION DATE:  20041119

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty Reserve (AGR) SGT/E-5 (42A2O, Personnel Specialist) 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).  The condition, characterized as “major depressive disorder,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded two other conditions (hypertension and obstructive sleep apnea) for PEB adjudication.  The Informal PEB adjudicated his depressive disorder as unfitting and rated it at 10% IAW AR 635-40.  The remaining conditions were determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “PEB did not provide a complete diagnosis of unfitting conditions or condition that rendered soldier’s disability ratings.”

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 depressive disorder is addressed below; as well as the contended hypertension and obstructive sleep apnea (OSA) 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 20040831	VA - (9 Months Post-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Major Depressive Disorder	9434	10%	Schizoaffective Disorder…	9211	70%	20050809	
Hypertension	Not Unfitting	Hypertension	7101	0%	20050816	
OSA	Not Unfitting	OSA	6847	50%	20050816	
Other x 0 (Not In Scope)	Other x 5	
Combined:  10%	Combined:  90%	
Derived from VA Rating Decision (VARD) dated 20050908 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Major Depressive Disorder (MDD). The CI was initially diagnosed with chronic adjustment disorder with mixed anxiety and depressed mood and rule-out of MDD in March 2003.  He was prescribed antidepressant medication and talk therapy.  Psychiatry entry dated 4 April 2003 noted the CI reported ongoing stress at work and harassment by the commander.  The diagnosis of adjustment disorder with rule-out of MDD was recorded.  A week later he presented to the emergency room (ER) with the report of being stressed out.  He was not suicidal or homicidal.  The examiner recorded the diagnosis of adjustment disorder and discharged him to home.  Psychiatry entry dated 14 April 2003 recorded the commanding officer noted the CI’s job performance had decreased and that there was an ongoing investigation under “Chapter 5-16” [sic].  On 1 May 2003, the commander referred the CI for a command-directed mental evaluation; however, the CI refused to sign the referral.  The commander noted there was a pending AR 15-6 investigation related to forgery, fraud and sexual harassment.  The commander also recorded the CI had sent threatening email to a general officer about other Soldiers.  The CI denied the above statements.  Two months later, mental health (MH) follow-up recorded a normal mental status examination (MSE) and noted the CI reported he had been transferred to a new command and had fewer stressors.  He was still under investigation for the AR 15-6 issue.  Psychiatry entry dated 25 March 2004 recorded the investigation was completed and the recommendation was for reassignment.  His MH condition was opined to have been stable at the time and he had continued with medications for depression and insomnia.  On 30 March 2004, the CI was admitted to a psychiatry inpatient unit after he reported suicidal thoughts with plan to overdose on pills.  He noted he had been harassed by his commander and had filed a complaint.  The CI reported he had been removed from the command for 6 months but was returned to the command and the harassment worsened.  He noted he felt threatened by the commander, that he was subjected to derogatory statements and had been hit on the back of the head.  He reported he heard his commander’s voice and could not sleep.  The CI also reported poor energy, daytime fatigue, poor concentration, lack of pleasure and decreased appetite.  At the time of discharge, he no longer had auditory hallucinations, was able to sleep without disturbance and continued to worry about being harassed by his commander.  He was discharged on 2 April and diagnosed with MDD.   The CI continued to report worsening mood symptoms and reported he was being harassed at his job.

The psychiatric MEB dated 13 May 2004, approximately 6 months prior to separation, contained clinical information related to the single hospital admission on 30 March 2003, including the recorded MSE, and the hospital course of treatment.  At the time of hospitalization, the CI related he had had been under a lot of stress.  He had experienced symptoms of excessive worry, frustration, anger, poor concentration, fatigue, strange thoughts, headaches, dizziness, diarrhea, chest pains, increased heart rate, sweating and thoughts of being better off dead.  Over time these symptoms worsened and were accompanied by depressive symptoms that led to suicidal thoughts.  Hospital admission MSE recorded the CI was in acute distress and was cooperative.  His mood was dysphoric, affect was constricted and mood congruent.  There was no evidence of a formal thought disorder or psychosis.  The CI reportedly had passive suicidal ideation with vague plans to overdose.  The examiner noted he had minimal improvement in his MSE during the hospital course and that he had been prescribed an antipsychotic medication to address sleep and agitation.  He had continued on the antidepressant as well.  The examiner (his treating psychiatrist) noted the CI had not yet received day hospital treatment, which had been recommended.  The CI had continued with persistent depressed mood, lack of pleasure, low energy and difficulty concentrating.  The psychiatrist opined the condition of MDD had marked military impairment and considerable social and industrial impairment, and did not record a post hospitalization Global Assessment of Functioning (GAF); however recommended an S4 profile.  Post-discharge psychiatry follow-up visit on 5 April 2004, recorded the CI’s report that he had suicidal ideation when he felt aggravated by command.  The physician noted the CI’s condition was stable for outpatient care, but required day hospital program to facilitate recovery and to prevent deterioration.  On 21 April 2004, the treating psychiatrist added the diagnoses of general anxiety disorder and Cluster B and C personality traits.  The CI’s referral to day hospital was still pending.

The VA Compensation and Pension (C&P) mental evaluation on 9 August 2005, approximately 9 months after separation, noted that the CI worked part-time and was seeking full-time employment.  The CI had remained on the antipsychotic and antidepressant medication and also took a pill for insomnia.  He stated his medications had not worked; he was agitated all the time and was not getting along with people, including his family.  The CI also reportedly stated he had not received any MH treatment for his condition, although he had acknowledged taking medications.  The CI noted one of his sisters had died since his separation.  MSE noted lack of facial expression and paranoia, although thought processes were recorded as “logical, coherent and relevant.”  He was polite and somewhat hesitant and anxious.  He was “well oriented to time, place, person, and situation,” and had good reasoning ability.  He had the ability to solve simple math problems, he denied memory issues but “his sensorium was cloudy.”  The CI reportedly stated he had command hallucinations telling him to leave his wife and that he heard voices that said, “Somebody is out to get you.”  The psychologist noted criteria for posttraumatic stress disorder were not met, but stated, “Presently he is primarily suffering from a schizoaffective disorder in this examiner’s opinion.”  The examiner diagnosed schizoaffective disorder, bipolar type and assigned a GAF of 45 (serious).

The Board directs its attention to the rating recommendation based on the evidence just described.  The PEB and the VA rated the condition the same, at 10%, coded 9434 and stated “symptoms strongly associated with Job related stress and requires psychotropic medication and outpatient therapy.”  The VA rated the condition diagnosed as schizoaffective disorder, bipolar type, at 70% coded 9211.  The narrative summary (NARSUM) examiner indicated “considerable impairment in social or occupational functioning, and did not record a GAF.”  The Board discussed the findings of the VA MH evaluation and noted the CI reported symptoms suggestive of psychosis; however, the service treatment records and the NARSUM did not support the diagnosis of a psychotic or bipolar disorder at the time of separation.  The Board also noted the internal discrepancy in the MSE recorded at the VA, specifically, the description that the CI had a cloudy sensorium; while at the same time, he was completely oriented, assessed with good reasoning, had logical, coherent, and relevant thought processes.  The CI was working part-time and had not reported any issues at work related to his MH condition.  He was seeking full-time employment.  All Board members agreed the C&P examination offered limited probative value.  The Board agreed that at the time of separation, the §4.130 threshold for a 70% rating (occupational and social impairment in most areas due to suicidal or psychotic symptoms and demonstration of impairment in judgment, thinking) was not approached.  There was no evidence of impairment in thinking or judgment in the 6 months prior to separation.  A rating of 50% 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 or impaired judgment; impaired abstract thinking”; was not supported by the evidence.  A rating of 30% requires “occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.”  The records noted the CI was hospitalized for a MH condition 7 months prior to separation and in the 2 weeks prior to the NARSUM the psychiatrist continued to seek a day hospital program for further stabilization.  Although he was not actively suicidal, he continued to express passive suicidal thoughts that suggested he had not achieved complete stability.  All Board members agreed the record adequately reflected the 30% level of disability at the time of separation.  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 condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the OSA and hypertension 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.

Although his condition of OSA was profiled, there was no evidence of profiles specifically written for the OSA condition.  All remarks on the profile were specific to the MH condition.  The Board acknowledged the commander’s performance evaluation dated 29 July 2004, which implicated the OSA condition; however, the evaluation most proximal to separation indicated good duty performance.  The Board therefore concluded there was no performance based evidence from the record that the OSA condition significantly interfered with satisfactory duty performance.  The Board next considered the hypertension condition and noted this condition was not profiled in the year prior to separation and was not implicated in the August 2004 commander’s statement and was not judged to fail retention standards.  There was no performance based evidence from the record that the hypertension 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 conditions of OSA and hypertension, therefore, no additional disability rating is 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.  As discussed above, PEB reliance on AR 635-40, for rating major depressive disorder was operant in this case and the condition was adjudicated independently of that policy/instruction 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  In the matter of the contended OSA and hypertension conditions, the Board unanimously recommends no change from the PEB determinations 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	
Major Depressive Disorder	9434	30%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131011, 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, AR20150002974 (PD201301690)

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