RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00302
BRANCH OF SERVICE:  Navy 	SEPARATION DATE:  20021221

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Psychiatry Technician, medically separated for “major depressive disorder [MDD], recurrent, moderate” and “dysequilibrium and vertigo,” rated 10% and 10%, respectively, with a combined disability rating of 20%.  

CI CONTENTION:  The CI contends all disabilities were not addressed and daily activities are negatively impacted.  The CI’s complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  It is limited to those conditions determined by the Physical Evaluation Board (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 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 based upon a 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.  

RATING COMPARISON:  

SERVICE PEB - 20020821	VARD - 20040303	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Major Depressive Disorder, Recurrent, Moderate	9434	10%	Major Depression with Anxiety Attacks	9434	30%	20040108	
Dysequilibrium and Vertigo	6299-6204	10%	Peripheral Vestibular Disorder with Vertigo	6204	30%	20040107	
Residual Vestibular Migraines	Cat II	Migraine Headaches	8100	10%	20040107	
Left Wrist Carpal Instability Dissociative Status	Cat III	Left Wrist (Major), Status Post Fusion of the … Bones of the Wrist	5215	0%	20040107	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  70%	

ANALYSIS SUMMARY:  

MDD. According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI first presented with a depressed mood in August 1999 associated with marital difficulties, problems sleeping and poor work performance.  She was diagnosed with major depression recurrent and started on Wellbutrin with good results.  In March 2001, the CI had increased symptoms in association with a divorce and caretaker difficulties for her special needs child, and a second medication (Celexa) was added.  Despite treatment with two medications, the CI’s major depression condition did not improve sufficiently to meet the requirements of the CI’s military specialty and she was referred for MEB.  

The MEB NARSUM examination on 12 June 2002, 6 months prior to separation, noted complaints of depressive symptoms including feeling angry and frustrated, difficulty sleeping with insomnia and broken sleep, decreased appetite, difficulty concentrating, lack of motivation, frequent crying episodes, feeling worthless, feeling guilty and having episodes every 1 to 2 weeks of panicky, tense feelings in which she feels out of control.  She also reported memory difficulties, racing heartbeat, palpitations and occasional chest pain and chest pressure energy difficulties.  History included a suicide attempt at age 13 for familial sexual abuse.  In 1994 the CI related being sexually assaulted by an active duty member.  “While working as a psychiatric technician, the service member who had sexually assaulted her was admitted to her ward in 1995.  Despite her request to be reassigned, she was required to remain on his treatment team and participate in his treatment.  She later testified against him at court martial and became depressed requiring her to drop her NEC [enlisted specialty].”  

On mental status examination (MSE) her mood was depressed and the affect was sad.  Thought content focused on her current symptomatology, sense of being overwhelmed and her multiple stressors.  There was no suicidal ideation, delusions, hallucinations or other symptoms suggestive of psychosis, speech disturbance, objective cognitive impairment, or other abnormality.  The examiner diagnosed major depressive disorder, recurrent, moderate.  The psychiatrist opined the CI had minimal-to-mild interference with social adaptability characterized by difficulty in a work and school setting, thinking and concentration and adapting to multiple stressors.  Additionally, the examiner noted minimal-to-mild interference with civilian industrial adaptability characterized by difficulty with concentration and focus as well as decreased energy level.  The psychiatrist stated that “precipitating stress was routine military service as well as the demands and stressors of a single parent, multiple medical problems and caring for a special needs child.”  The global assessment of functioning (GAF) was 65 (in the mild symptom range).  The non-medical assessment, dated 14 June 2002, specified only episodes of vertigo and dizziness as impacting duty performance.  

At the 8 January 2004 VA Compensation and Pension (C&P) evaluation, performed 13 months after separation, the CI reported chronic depression, insomnia, panic attacks twice a month, decreased energy, and below normal concentration.  She reported having “suicidal ideation off and on” and was continuing three medications for depression and insomnia.  She was employed full-time and reported prior hospitalizations for suicidal ideation (in childhood, and in Service in 1995, and 1998).  The CI’s history included the sexual assault in 1994 as related above.  Neuropsychiatric testing in 2002 was reported as showing mild deficits consistent with her emotional problems without organic etiology.  On MSE her mood and affect were depressed and angry, thought content was remarkable for episodic but fleeting suicidal ideation.  Attention span was grossly normal and there was no formal thought disorder.  There were no delusions, hallucinations or other symptoms suggestive of psychosis, speech disturbance, objective cognitive impairment, or other abnormality.  The psychiatrist diagnosed major depression, recurrent with anxiety attacks, with a GAF of 53 (in the moderate symptom range).  The psychiatrist stated the CI did not meet the criteria for panic disorder or post-traumatic stress disorder.  The examiner indicated the CI appeared to have functioned adequately without treatment (following childhood hospitalization and treatment) “until around age 21 when she apparently experienced a sexual assault, and then had to be confronted with the man at work.  After several more hospitalizations for suicidal ideation she finally felt overwhelmed and had major depressive episode and has since had treatment for approximately past six years.” ·

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the major depressive disorder condition 10%, coded 9434 (Major depressive disorder).  The VA rated the major depressive disorder with panic attacks condition 30%, coded 9434, based on the VA C&P examination 13 months after separation, citing moderate impairment of social and occupational functioning with sleep impairment, depression and panic attacks.  

The Board first considered whether the provisions of VASRD §4.129 (Mental disorders due to traumatic stress) were applicable.  The NARSUM psychiatrist attributed the CI’s stressors as “routine military service as well as the demands and stressors of a single parent, multiple medical problems and caring for a special needs child” while the VA psychiatrist’s assessment appeared to implicate sexual assault as the stressor for the CI’s major depression condition.  Although the CI’s history of sexual assaults may have played some role in the evolution of the CI’s psychiatric disorder, the evidence is clear that non‐traumatic service-connected domestic stressors were the primary underlying issues.  All Board members agreed that the evidence of the record did not support a traumatic stressor as the cause of the mental condition for which application of VASRD §4.129 would be appropriate.  

The Board adjudged the NARSUM psychiatric examination was closest to separation and had the highest probative value for rating at separation.  At the time of the MEB mental health NARSUM, examination, 6 months before separation, the psychiatric examiner indicated minimal-to-mild interference with civilian industrial adaptability which best supports a 10% rating.  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 condition.  

Dysequilibrium and Vertigo.  According to the STR and the MEB NARSUM, the CI’s dysequilibrium and vertigo condition began in 1997 after jaw surgery.  She was diagnosed as having had a cerebrovascular accident (CVA) with stroke and had persistent daily episodes of vertigo, dysequilibrium, inability to walk straight at all times, pressure and ringing in her ear, and headaches.  Diagnostic imaging in June and September 1998 (brain MRI) showed an abnormality in the left periventricular region.  The MEB Ear, Nose and Throat (ENT) addendum included/added the diagnosis of “dysequilibrium and vertigo” for PEB adjudication.  

The MEB NARSUM ENT addendum on 28 May 2002, 7 months prior to separation, noted complaints of weekly severe episodes of vertigo with twice weekly dysequilibrium and inability to obtain an upright posture.  She had almost constant unsteadiness, even between the attacks of vertigo and postural instability.  Symptoms were more severe with any upper respiratory infection and activities of daily living were completely disabled during the time of upper respiratory infection (URI) and “completely disabled as well about once or twice a week when she gets the other episodes, be it either the vertigo or the postural instability.”  A full battery of vestibular tests showed a profound dysfunction (including a May 2003 electronystagmogram).  The impression was the CI had “residual vestibular migraines as a result of the CVA suffered around the time of her operation.  These migraines are troublesome, both causing the weekly attacks or twice weekly attacks as well as causing the daily instability or unsteadiness.”  The commander’s comments, dated 14 June 2002, specified episodes of vertigo and dizziness as impacting duty performance.  

At the 7 January 2004 VA Compensation and Pension (C&P) evaluation, performed 13 months after separation, the CI reported daily attacks of vertigo, lasting about 5-10 seconds, with a chronic underlying balance disorder, and frequent falling.  She also complained of migraine headaches (started in 1995) that occurred 2-3 times a month that were controlled by medication, with twice a year severe headaches that required her to go to the hospital for treatment.  Magnetic Resonance Imaging (MRI) revealed no new lesions-other than the known left periventricular lesion.  Physical examination showed the CI’s “gait is steady, she walks hesitantly due to slight vertigo, but is unable to tandem walk.”  
The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the dysequilibrium and vertigo condition 10%, coded 6299-6204 (Peripheral vestibular disorders).  The Navy PEB also listed residual vestibular migraines as a related Category II condition (condition that contributed to the primary unfitting condition but was not separately ratable).  The impairment from the vestibular migraines was properly subsumed under the overall rating for the dysequilibrium and vertigo IAW §4.14 (avoidance of pyramiding; more than one rating based on the same impairment is prohibited).  The CI’s headache-type migraines, as rated by the VA, were not considered vestibular migraines, and were not considered to rise to the level of being separately unfitting.  The VA rated the peripheral vestibular disorder with vertigo condition 30% coded 6204, based on the VA C&P examination 13 months after separation, citing of dizziness with occasional staggering.  The VA separately rated the migraine headaches condition at 10% coded 8100 (Migraine), citing characteristic. Prostrating attacks averaging one in 2 months over the last several months.  The rating criteria under 6204 are “dizziness and occasional staggering” (30%), and “occasional dizziness” (10%).  The CI had objective evidence of profound vestibular dysfunction with postural unsteadiness and attacks of instability that most nearly approximated the 30% rating criteria.  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 dysequilibrium and vertigo condition (with residual vestibular migraines) condition, coded 6299-6204.  

Contended PEB Conditions:  Left Wrist Carpal Instability Dissociative Status.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  The CI had surgical repair of her left wrist in February 1999, continuing wrist pain wrist pain when trying to do push-ups, and declined further surgery.  The contended condition was not part of a limited duty or implicated in the commander's non-medical assessment, but was judged to fail retention standards by an orthopedic NARSUM/MEB in May 2002, due to disabling wrist pain when trying to do push-ups or other strenuous activity.  The CI had been waived from performing push-ups and had passed her physical fitness assessment in April 2002.  There was no performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at separation.  After due deliberation, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition and so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the MDD condition and IAW VASRD §4.130, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the dysequilibrium and vertigo (with residual vestibular migraines) condition, the Board unanimously recommends a disability rating of 30%, coded 6299-6204 IAW VASRD §4.87.  In the matter of the contended left wrist condition, the Board unanimously agrees that it cannot recommend it for additional disability rating.  There were no other conditions within the Board’s scope of review for consideration.  

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 the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Major Depressive Disorder, Recurrent, Moderate	9434	10%	
Dysequilibrium and Vertigo (with Residual Vestibular Migraines)	6299-6204	30%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140106, 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 19 Sep 16 ICO XXXXXXXXXXXXXXXXXXXX   
	(c) PDBR ltr dtd 20 Sep 16 ICO XXXXXXXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 26 Sep 16 ICO XXXXXXXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 19 Sep 16 ICO XXXXXXXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 16 Sep 16 ICO XXXXXXXXXXXXXXXXXXXX
	(g) PDBR ltr dtd 29 Jul 16 ICO XXXXXXXXXXXXXXXXXXXX
	(i) PDBR ltr dtd 20 Sep 16 ICO XXXXXXXXXXXXXXXXXXXX

1.  Pursuant to reference (a), the recommendations of the Physical Disability Board of Review set forth in references (b) through (i) are approved.

2.  The official records of the following individuals are to be corrected to reflect the stated disposition:
     
     a. XXXXXXXXXXXXXXXXXXXX, former USN: Retroactive placement on the Permanent Disability Retired List with a 40 percent disability rating (increased from 20 percent) effective date of discharge.  

     b. XXXXXXXXXXXXXXXXXXXX, former USN: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 10 percent) effective date of discharge.  

     c. XXXXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability severance pay with a 10 percent disability rating (increased from 0 percent) effective date of discharge.  

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

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

     e. XXXXXXXXXXXXXXXXXXXX, former USMC: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 10 percent) effective date of discharge.  

     f. XXXXXXXXXXXXXXXXXXXX, former USN: Retroactive placement on the Permanent Disability Retired List with a 50 percent disability rating (increased from 20 percent) effective date of discharge.

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 complete.

	XXXXXXXXXXXXXXXXXXXX
	Assistant General Counsel
	(Manpower & Reserve Affairs)