RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2013-01994
BRANCH OF SERVICE:  Army	BOARD DATE:  20140723
DATE OF PLACEMENT ON TDRL:  20020901
DATE OF REMOVAL FROM TDRL:  20041108

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve CW2 (350L/Attaché Technician) medically separated for a major depressive disorder (MDD) and anxiety disorder, not otherwise specified (NOS) conditions. The conditions could not be adequately rehabilitated to meet the operational requirements of his Military Occupational Specialty (MOS).  He was issued a permanent S3 profile and referred for a Medical Evaluation Board (MEB).  The MDD and anxiety disorder NOS conditions were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “Major Depressive Disorder (MDD) and Anxiety disorder” as a single combined condition, determined to be unfitting, and rated at 30%.  The CI made no appeals and was placed on the Temporary Disability Retirement List (TDRL).  A TDRL Psychiatric narrative summary (NARSUM) performed 4 months prior to TDRL exit determined the CI did not meet retention standards IAW AR 40-501.  The PEB adjudicated MDD and anxiety disorder NOS as unfitting, rated at 10%.  The CI was removed from TDRL and medically separated.

CI CONTENTION:  “Please consider all MEB/PEB conditions.”

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 MDD and anxiety disorder NOS conditions are addressed below; 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 Army Board for Correction of Military Records.

RATING COMPARISON:

Final Service PEB - 20040928	VA (1 Mo. Post TDRL Removal Date) - Effective 20041222	
On TDRL - 20020901	Code	Rating	Condition	Code	Rating	Exam	
Condition		TDRL	Sep.					
MDD and Anxiety Disorder, NOS	9434	30%	10%	Major Depression, also claimed as Anxiety	9434	30%	20041126	
Other MEB/PEB Entries x 0	Other x 4	
Combined:  30% → 10%	Combined: 30%	
Reflects VA rating exam proximate to TDRL placement; no VA rating evidence proximate to permanent separation

ANALYSIS SUMMARY:  IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations.  The Board reviews medical records and other available evidence to assess the fairness of PEB rating determinations, using the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards, based on ratable severity at the time of separation.

MDD and Anxiety Disorder NOS Condition.  The CI was removed from his embassy duties in Kenya due to depressive symptoms and transferred to CONUS for psychiatric evaluation and treatment.  At the time of initial onset of the depression, he endorsed symptoms of continuous ruminations about all of the duties that he could not complete, sleep impairment, poor appetite, loss of interest in pleasurable activities, with a pervasive sense of helplessness and hopelessness which culminated in suicidal ideations.  Although the CI made no attempts to harm himself, the thoughts were so distressing he feared that he might act.  He tried several anti-depressant medications, but the side effects were too severe and he was finally stabilized on the anti-depressant medication, Serzone, 200mg once daily.  The CI was given a permanent S3 profile with a code F for MDD.  The commander’s statement indicated that although the CI capably performed his duties, his emotional condition prevented him from performing the basic functional activities required of his MOS.  

The NARSUM exam approximately 5 months prior to TDRL entry documented that the CI continued to endorse symptoms of persistent anxiety symptoms, hypervigilance, hyper arousal, insomnia, easy fatigability, a sense of defeat or hopelessness, dread of the future and intermittent suicidal ideation.  Because of the Serzone side effects, the examiner could not increase the dosage.  The CI had spells where his anxiety peaked like a panic attack, but he did not meet diagnostic criteria for panic disorder.  The mental status exam showed a dysthymic mood and a constricted affect.  He was seen twice a month for outpatient follow up.  The examiner opined that his prognosis for employment was fair.  The examiner diagnosed MDD manifested by decreased mood, altered sleep, social isolation; marked impairment for military duty and moderate impairment for social and industrial adaptability.  The anxiety disorder NOS manifested by a pervasive increase in arousal, near panic attacks with a history of traumatic exposures; marked impairment for military duty and moderate impairment for social and industrial adaptability.  The Global Assessment of Functioning (GAF) was 75, no more than slight impairment in social, occupational, or school functioning.  

The VA Compensation and Pension (C&P) exam approximately a month prior to TDRL placement documented that the CI had an increase in anxiety, sleep impairment, impaired concentration, intermittent and passive suicidal ideation, depression and short term memory impairment.  The mental status exam showed a blunted affect, fair judgment and insight.  The examiner noted that the CI’s marriage was good and that his wife was very supportive, however, he was unemployed.  The examiner diagnosed moderate MDD and rule out anxiety disorder NOS with a GAF of 65, some difficulty in social, occupational, or school functioning, but generally functioning pretty well, has some meaningful interpersonal relationships.  The CI had no emergency room visits or hospitalizations for acute depression or anxiety.  The CI was placed on the TDRL 31 August 2002.

The Board directed attention to its TDRL placement rating recommendation based on the above evidence.  The PEB coded the MDD and anxiety disorder NOS condition as code 9434; rated at 30%.  The VA chose the same disability code and also rated the condition at 30%.  The evidence documents that the CI experienced symptoms of depressed and anxious mood with chronic sleep impairment.  His GAF was assessed at 75 (slight impairment) and 65 (some difficulty) by PEB and VA psychiatrists respectively.  He was in a stable marriage, enjoyed reading and had some hobbies.  He was unemployed at that time, “currently on leave from the US military.”  The Board reviewed the criteria for a 50% rating (occupational and social impairment with reduced reliability and productivity) versus a 30% rating (Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks).  The CI’s blunted affect was the only symptom present under the 50% rating; all other mental health symptoms were consistent with the 30% rating.  The Board noted that there were no treatment records in the file for review, only NARSUMs and C&P exams were available for reaching a rating recommendation.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the MDD and anxiety disorder condition at TDRL placement.

There were two MEB psychiatric NARSUM exams present in the evidence for review, one dated approximately 10 months prior to TDRL removal and the other dated 6 months prior to TDRL removal.  Both were performed by the same psychiatrist.  The CI continued to exhibit symptoms of MDD and anxiety.  He continued to be seen for monthly outpatient follow-up.  The mental status exam showed a nervous mood with a congruent affect.  The examiner opined that the CI had a moderate improvement with the depression which responded more than the anxiety.  The examiner diagnosed MDD and anxiety disorder, both with marked impairment for military duty and moderate impairment for social and industrial adaptability.  The assigned GAF was 75, no change from prior assigned GAF.  The VA C&P exam 19 days prior to TDRL removal documented that the CI was only able to work 8 hours per week in a bookstore owned by friends, as he was not sure how much he could take working full time.  The CI continued with social isolation although his wife was very supportive.  The mental status exam showed a moderately depressed mood with a constricted affect and both concentration and attention were moderately impaired.  The examiner diagnosed MDD with a tendency for social isolation, unemployment and a GAF of 62, some difficulty in social, occupational, or school functioning, but generally functioning pretty well, has some meaningful interpersonal relationships.  The CI was removed from TDRL on 8 November 2004.

The Board directed attention to its permanent separation rating recommendation based on the above evidence.  During the CI’s TDRL removal, the PEB rated the MDD disorder at a 10%.  The CI continued to be unemployed at a full time job, he was only able to work 2 half days of 4-hour intervals each week at a bookstore owned by friends.  Both exams document continued symptoms of MDD and anxiety.  While the MEB psychiatric NARSUM documented the same GAF of 75, the C&P exam documented a lower GAF of 62.  The C&P exam most proximate to separation also documented a constricted affect and that concentration and attention were both moderately impaired.  The examiner opined that the CI tended toward social isolation, and unemployment.  The Board agreed that the CI’s symptoms were greater than the 10% criteria, occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress.  The Board then considered the 30% criteria (occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks) versus the 50% (occupational and social impairment with reduced reliability and productivity).  The CI’s level of functional impairment is more accurately described by the 30% criteria with deficiencies in depression, anxiety, social relations and employment.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 the Board recommends a change in the permanent separation rating to 30% for the MDD 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 Major Depressive Disorder and Anxiety Disorder conditions and IAW VASRD §4.130, the Board unanimously recommends no change in the PEB adjudication at TDRL placement.  In the matter of the Major Depressive Disorder and Anxiety Disorder conditions, the Board unanimously recommends a permanent disability rating of 30%, coded 9434 IAW VASRD §4.130 at the TDRL removal.  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 to reflect a disability rating of 30% for the period of temporary retirement, and then a permanent combined 30% disability retirement effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
MDD and Anxiety Disorder, NOS	9434	30%	30%	
COMBINED	30%	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131027, 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, AR20150007050 (PD201301994)

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