RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00070
BRANCH OF SERVICE:  Army	BOARD DATE:  20150507
SEPARATION DATE:  20071220

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Construction Equipment Repairer) medically separated for major depressive disorder (MDD).  The condition could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty (MOS).  He was issued a permanent S3 profile and referred for a Medical Evaluation Board (MEB).  “Major depressive disorder, single episode, severe, without psychotic features” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded three other conditions (patellofemoral pain syndrome, cervicalgia and mild sleep apnea) for PEB adjudication.  The Informal PEB adjudicated the MDD condition as unfitting, rated 10%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining three conditions were determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  His conditions continue to worsen and negatively impact his daily activities.  His complete submission is at Exhibit A.

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 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.

RATING COMPARISON:

IPEB – Dated 20071126	VA* – ~3 Mos. Post-Separation	
Condition	Code	Rating	Condition	Code	Rating	Exam	
MDD	9434	10%	MDD, Alcohol Abuse, Anxiety and Adjustment Disorder	9434	30%	20080311	
Cervicalgia	Not Unfitting	Cervical Strain with DJD (Claimed as Neck Pain with Disc Bulge)	5242	0%	20030311	
Other x 2 (Not In Scope)	Other x 9 (Not in Scope)	
RATING:  10%	COMBINED:  30%	
*Derived from VA Rating Decision (VARD) dated 20080821 (most proximate to date of separation [DOS]).
ANALYSIS SUMMARY: 

MDD Condition.  In April 2007, the CI was referred for a mental health (MH) evaluation after a Soldier Readiness Program screening identified significant symptoms for depression.  He complained of significant financial stress that resulted in depressed mood, helplessness, poor sleep, pervasive anhedonia, 20-pound weight loss, and increased alcohol consumption.  The CI was evaluated and diagnosed with moderate major depression and began treatment with anti-depressant medications.  He was seen by the treating psychiatrist who documented that there was no change in symptoms while taking the medications.  Additionally, the psychiatrist wrote the following passage:

“His command was suggesting to him that he will be deploying to Iraq with them in the near future, and the patient stated frankly that he is on the edge, and were he to be in Iraq that he would be so consumed with worry about his finances and about his children that he would use his weapon on others indiscriminately.  It was clear that the patient was not suitable to deploy.  He had been on a temporary profile for several months.  At this point I placed him on a permanent profile and the Medical Evaluation Board process was begun.”

The commander’s statement written nearly 3 months prior to separation contained the following statement:

“SGT M--- has shown he is a hard and competent worker and that he can train and lead soldiers, that changed after SGT M--- was evaluated by Behavioral Health in March of 2007.  It was brought to my attention that SGT M--- was suffering from major depression and stress, since than SGT M--- duty performance has decreased, he is no longer a squad leader and … hold[s] no kind of regular or special responsibilities due to the nature and severity of his condition.  His work performance and ability to function and make decisions about soldier's problems has declined and will probably continue to decline.”

The psychiatric addendum to the narrative summary (NARSUM) prepared almost 2 months prior to separation noted the CI was limiting his use of alcohol and continued to feel very sad, helpless, and hopeless.  His house was in foreclosure, his wife and kids had left him, and he was staying with a friend temporarily as he had no home.  He was still taking anti-depressant medications and denied suicidal ideation.  The mental status exam (MSE) revealed moderate psychomotor retardation with normal speech.  His stated mood was depressed and his affect was severely depressed.  His thought processes were normal, he denied suicidal ideation, and his insight, judgment and impulse control were good.  The examiner diagnosed severe MDD, single episode without psychotic features, and assigned a global assessment of functioning (GAF) score of 51 (moderate symptoms or moderate difficulty in social, occupational, or school functioning).  At the VA Compensation and Pension (C&P) exam performed 3 months after separation, the CI reported he continued to take his anti-depressant medication which was reported to be of limited benefit.  He had not received any follow-up counseling and reported that currently on a scale of 1/10 (with 10 being severe) that his MH functioning was a seven.  He reported being depressed, stressed, having sleep disturbance, decreased interest, social withdrawal, and irritability.  He denied any active suicidal ideation.  The CI was unemployed but looking for work as a heavy equipment mechanic.  His wife and kids were in the process of leaving the state without him.  The MSE revealed a blunted affect and only mild deficits of working memory.  The examiner diagnosed moderate to severe MDD and assigned a GAF of 52.  He also made the following summary statement, “There is occasional decrease in work efficiency or intermittent periods of inability to perform occupational tasks due to mental disorder signs and symptoms, but generally satisfactory functioning with regard to routine behavior, self-care, and normal conversation.”

The Board directed attention to its rating recommendation based on the above evidence.  The PEB adjudicated the MDD by applying VASRD code 9434 (major depressive disorder) and rated it 10%, citing, “Soldier currently working in MOS in a satisfactory level.  Rated 10% for symptoms controlled by continuous medication.”  The VA also applied code 9434; however, they rated it 30% based on the documentation contained in the C&P exam.  Application of VASRD §4.129 is considered by the Board for all cases of service-connected psychiatric conditions resulting in separation, and all members agreed that the “highly stressful event” requisite for §4.129 was not satisfied in this case.  The Board reviewed the VASRD rating criteria contained in the General Rating Formula for Mental Disorders.  The evidence supports that prior to separation the CI still had signs and symptoms of MDD, along with a GAF of 51, in spite of taking the prescribed anti-depressant medication.  Board members agreed that the CI’s MDD was not controlled by medication at the time of separation, therefore exceeded the 10% rating.  Board deliberations settled on 30% versus 50% rating recommendation and relied on documentation in the commander’s statement, along with the psychiatric addendum and C&P exam, as both were equally probative.  All documentation supports that the CI’s duty performance declined as a result of his MDD.  The majority of his symptoms were reflective of the 30% rating criteria associated with occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.  He did have a persistently depressed/blunted affect which was the only symptom of the 50% rating criteria he manifested.  A GAF of 51 is consistent with either the 30% or 50% rating levels.  Additionally, the C&P examiner concluded that the CI met the 30% rating criteria under the general rating formula.  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 Cervicalgia (Neck Pain) Condition.  The Board’s main charge is to assess the fairness of the PEB’s determination that the cervicalgia condition was not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The cervicalgia was not profiled proximate to separation or implicated in the commander’s statement.  It was not judged to fail retention standards as the NARSUM examiner stated, “His Cervicalgia has been episodic and it is not limiting.”  All entries were reviewed and considered by the Board.  There was no performance-based evidence from the record that the neck pain condition significantly interfered with satisfactory duty performance.  After due deliberation, and 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 cervicalgia condition and so 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.  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 MDD condition, the Board unanimously recommends a disability rating of 30%, coded 9434 IAW VASRD §4.130.  In the matter of the contended cervicalgia condition, 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 re-characterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

CONDITION	VASRD CODE	RATING	
Major Depressive Disorder	9434	30%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131222 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 XXXXXXXXXXXXXXXXXXX, AR20150018799 (PD201400070)

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:

			      
						      					
Enclosure
					
CF: 
(  ) DoD PDBR
(  ) DVA