RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXX	CASE:  PD-2013-02005
BRANCH OF SERVICE:  NAVY 	BOARD DATE:  20140917
SEPARATION DATE:  20060303

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PO2/E-5 (EM2/Electrician’s Mate) medically separated for major depressive disorder.  The major depression could not be adequately rehabilitated to meet the physical requirements of his rating.  He was placed in a medical holding company and referred for a Medical Evaluation Board (MEB).  The depression, characterized as “major depressive disorder, single episode, unspecified”, was the only condition forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  The Informal PEB adjudicated “major depressive disorder, single episode” as unfitting, rated at 10%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION: The CI writes: “I have struggled with the condition/issues every day since they happened.  The way my command and superiors handled the situation always with the discussions that we had to try and make me stay still affect my mindset/wellbeing.  I have further lost my father, mother, 2 uncles, and my wife has miscarried.  I see a therapist on occasion through an employee assistance program, but cannot attend a constant one.  I feel I am unable to daily cope, and that my rating should be reviewed.  Thank you.  I am also not sure if am 10 or 20% for this disability.”

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 major depression is 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 Board for Correction of Naval Records.

RATING COMPARISON:  

Service IPEB – Dated 20051212	VA - (4 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Major Depressive Disorder, Single Episode	9434	10%	Major Depression	9434	10%	20060706	
Other x 1 (Not in Scope)	Other x 2	20060801	
Combined:  10%	Combined:  30%	
Derived from VA Rating Decision (VARD) dated 20060816 (most proximate to date of separation)

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 Disability Evaluation System 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.

The PEB rating preceded the promulgation of the National Defense Authorization Act (NDAA) 2008 mandate for DoD adherence to VA Schedule for Rating Disabilities (VASRD) §4.129.  The Board, IAW DoDI 6040.44 and DoD guidance (which applies current VASRD §4.129 to all Board cases as appropriate), must consider if the definition of §4.129 is met for any psychiatric condition resulting in medical separation; i.e., “a mental disorder that develops in service as a result of a highly stressful event”.  If the Board judges that application of §4.129 is appropriate, it will recommend a minimum 50% rating for a retroactive 6-month period on the Temporary Disability Retired List (TDRL).  The Board must then determine the most appropriate fit with VASRD §4.130 criteria at 6 months for its permanent rating recommendation, based on the facts in evidence which are most probative for that interval.

Major Depressive Disorder.  Service treatment records showed that the CI experienced symptoms of depression following the death of his pregnant fiancé in a motorcycle accident on 1 October 2005; their wedding was planned for 10 October 2005.  Subsequent use of anti-depressant medication rendered him disqualified from submarine duty.  At a psychology evaluation on 24 October 2005 (approximately 5 months prior to separation), the CI complained of profound difficulty with depression and guilt following the death of his fiancé.  Examination showed the CI was alert and oriented with slow, barely audible speech and a dysphoric affect.  Mood was “ok.”  Thought was normal and there was no evidence of hallucinations or delusions.  Judgment, insight and impulse control were intact.  Although the CI had experienced vague suicidal thoughts 2 weeks previously, he denied current suicidal or homicidal ideation, plan or intent.  The Axis I diagnosis was depressive disorder not otherwise specified (NOS).

The 25 October 2005 non-medical assessment was submitted from the medical holding company in place of an evaluation by CI's parent command to expedite processing.  The assessment indicated that because of the CI’s medical condition, he was working out of his specialty, was absent from duties approximately 28 hours per week and was not worldwide assignable.  It related that the CI had good potential for continued service but that he did not desire to continue his military service.  The MEB psychiatric narrative summary (NARSUM) on 10 November 2005 (4 months prior to separation) related that the CI was referred by his command due to depression following the death of his fiancé.  The CI denied a history of past psychiatric evaluations or of episodes of depression or anxiety; however, the interview revealed a long history of interpersonal difficulties.  The CI endorsed depressed mood, crying spells, anxiety, poor concentration, decreased appetite, nightmares, insomnia, apathy, lack of interest in pleasurable activities and feelings of helplessness and guilt.  Because of an episode of suicidal ideation after his fiancé’s death (planned alcohol overdose), the CI had been urgently evaluated as a suicide risk; but he no longer had suicidal ideation.  He reported that his inability to concentrate on tasks or interact with others rendered him unable to function at work.  He was not motivated for continued military service and felt he could not function without local social/family support.  

The mental status examination showed the CI was alert, oriented and well-groomed.  He demonstrated a depressed mood with constricted affect, motor slowing and slow speech.  Thought processes were normal and there was no evidence of thoughts of suicide or homicide, or of hallucinations.  Judgment appeared fair and insight was good.  Psychometric testing revealed deficiencies in his ability to relate and connect with others, suggesting a personality disorder.  Diagnoses were listed as major depressive disorder, single episode (Axis I) and personality disorder not otherwise specified with schizoid, dependent and avoidant features (Axis II).  The highest Global Assessment of Functioning (GAF) score in the past year was listed as 85 (absent or minimal symptoms with good functioning in all areas) and the current GAF listed as 60 (moderate symptoms or impairment).  Because there was minimal improvement noted to date in response to medications and weekly psychotherapy in the context of a pre-existing personality disorder and lack of motivation for military service, the psychiatrist opined that recovery after a limited duty period was unlikely.

At the VA Compensation and Pension (C&P) examination on 31 July 2006 (5 months after separation) the CI related that he temporarily wished to be dead after his fiancé died.  He used to blame himself for things that happened, but didn't feel like that now.  He had discontinued the anti-depressant medication in April 2006 (a month post-separation) and was not receiving counseling.  His previous symptoms were improved.  He reported enjoying himself more and denied sleep impairment, although still felt tired when he got up in the morning.  Energy, interest, motivation and concentration were “good.”  Since the day post-separation, he worked in a bank full-time.  He lived with two friends with whom he shared housework and enjoyed playing softball, going to movies, having people over for barbecues, watching ballgames, playing video games and surfing the internet.  He kept up with friends and family (parents and siblings) with routine calls and visits.  Mental status exam showed a normal appearance and good spirits.  Mood was “decent” and orientation, memory, speech, insight and judgment were good.  There were no thoughts of harm or hallucinations and no evidence of impaired impulse control or obsessive behavior.  He “worried about some things” (i.e. going to college or events at work) and felt overwhelmed a lot of times.  However, “he is making decisions without problems at work and at home.”  The examiner concluded: “…continues to have symptoms of depression though he tries to shrug them off.  They are getting better as time goes by.”  The Axis I diagnosis was major depression and an assigned GAF score was 60.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB and the VA rated the condition at 10% under the code 9434 (major depressive disorder).  The Board first deliberated whether the DoD mandate for application of VASRD §4.129, as previously elaborated, was relevant to its recommendations in this case.  The clinical record provides enough evidence the CI’s condition arose as a result of a highly stressful event that the Board agrees §4.129 is applicable.  The Board is therefore obligated to recommend a minimum 50% rating for a retroactive 6-month period on the Temporary Disability Retired List (TDRL).  The Board must then determine the most appropriate fit with VASRD §4.130 criteria at the end of the constructional TDRL interval for its permanent rating recommendation.  The Board next considered if a rating higher than 50% was warranted at the time of entry on the constructional TDRL period.  The next higher 70% rating requires “occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood”.  Board members agreed however that these criteria were not approached, and therefore a rating higher than 50% was not supported.

In regards to a recommendation at the time of removal from the constructional TDRL period, the most proximate source of comprehensive evidence in this case was the VA (C&P) examination performed 5 months after separation.  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 criteria for the next higher 30% rating are “occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.”  The Board noted that there were no 30% threshold symptoms reported at the C&P exam and while the CI still reported some depression symptoms, occupational and social functioning appeared to be quite good.  Board members therefore concluded that the 10% rating most accurately depicted the condition at the time of removal from TDRL.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a TDRL rating of 50% and permanent disability rating after removal from TDRL of 10% for the major depressive disorder, coded 9434.

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, the Board unanimously recommends an initial TDRL rating of 50% in retroactive compliance with VASRD §4.129, as DoD directed and §4.130; and a 10% permanent rating at 6 months 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 his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
Major depressive disorder 	9434	50%	10%	
COMBINED	50%	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131021, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

			
	
MEMORANDUM FOR COMMANDER, NAVY PERSONNEL COMMAND
		   DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS
	                          
Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS          

Ref:   (a) DoDI 6040.44
       (b) PDBR ltr dtd 14 Apr 15 ICO XXXXXXXXXXXXXXX
	 (c) PDBR ltr dtd 7 Apr 15 ICO XXXXXXXXXXXXXXX 
	 (d) PDBR ltr dtd 14 Apr 15 ICO XXXXXXXXXXXXXXX
	 (e) PDBR ltr dtd 14 Apr 15 ICO XXXXXXXXXXXXXXX
       (f) PDBR ltr dtd 21 Apr 15 ICO XXXXXXXXXXXXXXX
                 
1.  Pursuant to reference (a) I approve the recommendations of the Physical Disability Board of Review set forth in references (b) through (f).

2.  The official records of the following individuals are to be corrected to reflect the stated disposition:

     a. XXXXXXXXXXXXXXX, former USN: Entitlement to disability severance pay with a disability rating of 20 percent (increased from 10 percent) effective date of discharge. 

     b. XXXXXXXXXXXXXXX, former USMC: Entitlement to disability severance pay with a disability rating of 20 percent (increased from 0 percent) effective date of discharge.

     c. XXXXXXXXXXXXXXX, former USMC: Entitlement to disability severance pay with a disability rating of 20 percent (increased from 10 percent) effective date of discharge.

     d. XXXXXXXXXXXXXXX, former USMC:  Entitlement to disability severance pay with a disability rating of 10 percent (increased from 0 percent) effective date of discharge. 

     e. XXXXXXXXXXXXXXX, former USN: Retroactive placement on the Temporary Disability Retired List with a disability rating of 50 percent for the 6 months immediately preceding discharge followed by disability separation effective date of discharge with a 10 percent disability rating. 

3.  Please ensure all necessary actions are taken to implement these decisions, including the recoupment of disability severance pay, if warranted, and notification to the subject members once those actions are completed.

	
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