RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00840
BRANCH OF SERVICE:  Marine Corps	SEPARATION DATE:  20080830

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E3, Administrative Clerk, medically separated for “major depressive disorder and dysthymic disorder” rated 30% but deducted 20% for dysthymic disorder that existed prior to service (EPTS) yielding a disability rating of 10%.

CI CONTENTION:  “Severe depression and dysthymia.”  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 - 20080718	VARD - 20090331	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Major Depressive Disorder	9434	30%
  -20%
   10%
	Major Depressive Disorder with Dysthymia	9434	30%	STR	
Dysthymic Disorder	EPTS					
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:

Major Depressive Disorder and Dysthymic Disorder.  According to service treatment records (STR), the CI first presented for evaluation of psychological symptoms in December 2007 (6 months after entry and 9 months prior to separation).  By January 2008 he was diagnosed with major depressive disorder and dysthymic disorder and prescribed psychotropic medication.  Despite psychiatric therapy, the CI’s condition could not be adequately rehabilitated to meet the physical requirements of his military specialty and he was referred to a Medical Evaluation Board (MEB).  The MEB forwarded “major depressive disorder, single episode, severe, without mention of psychotic behavior” and “dysthymic disorder” to the PEB for adjudication.

On the DD Form 2807 dated 8 May 2007 (1 month prior to entry on active duty and 16 months prior to separation), the CI checked “No” for “Nervous trouble of any sort (anxiety or panic attacks),” “Received counseling of any type,” and “Depression or excessive worry.”

On 26 March 2008 (5 months prior to separation) the CI was hospitalized for 5 days for a suicide attempt that was considered a “low lethality” attempt via prescription psychotropic drug ingestion.  He reported being more depressed than usual for the prior 6 months, and was acutely worse after he broke up with his fiancée in January.  At that time, the CI reported being “depressed more often than not since the age of 10 years old.”  He also “felt empty inside since teenage years” and “endorsed affective instability, chronic thoughts of suicide, impulsivity, pattern of unstable and intense personal relationships….” He also reported seeing “a counselor once who told him he was okay.”  During the hospitalization, he was noted to socialize adequately and engaged well in group therapy.  Mental status examination (MSE) at the time of discharge showed normal appearance and orientation, “okay” mood, appropriate affect and normal thought processes; and intact memory, judgment, impulse control and abstract thinking.  Although he reported a distant relationship with his parents, he was not considered to have a lack of significant family or social support.  A diagnosis of “dysthymic disorder with early onset” was rendered and a Global Assessment of Functioning (GAF) of 55 was assigned, connoting moderate symptoms or impairment.

In June 2008 (approximately 3 months prior to separation) the CI was again hospitalized after discontinuing psychiatric follow-up care and psychotropic medication due to side effects.  He presented again with a suicide attempt by ingesting an unknown medication.  During hospitalization, he recalled one other time in his life, approximately 2 years previously (i.e. 1 year prior to entry on active duty), when his symptoms were this severe, but he never sought medical help.  “He…got through the symptoms eventually, but it caused him to fail out of college and he lost his job.”  Symptoms were “debilitating at worst and have mildly impaired occupational function on best days.” He “joined the military as a way of trying to motivate himself into recovery.”  At the time of hospital admission, he endorsed depressed mood, fatigue, decreased appetite, weight loss and insomnia, but denied any symptoms of anxiety.  Reported stressors were being in the military, finances and “not doing well at work.”  MSE showed normal appearance, orientation and behavior, slow speech, depressed mood and affect, normal thought processes, and intact judgment, insight and impulse control.  Memory was intact.  During the hospitalization, he was noted to socialize adequately and engaged well in group therapy.  At the time of hospital discharge, MSE was normal.  He was noted to be lacking in social or family support locally, but kept in touch with his grandmother who resided in another state.  The discharge assessment was an Axis I diagnosis of major depressive disorder (single episode, severe) that “did not exist prior to enlistment service (not diagnosed),” and dysthymic disorder “did not exist prior to enlistment service (not diagnosed).”  It was also stated that a history consistent with dysthymic disorder was present for at least 2 years.  An assigned GAF was 55. 

The non-medical assessment (NMA) on 30 June 2008 indicated that, since the hospitalization in March 2008, the psychiatric condition rendered the CI “unable to deal with the stressors and meticulous details that are required of his MOS.”

There was no VA Compensation and Pension (C&P) examination performed proximate to separation as the CI failed to report to his VA examination.  At a VA clinic evaluation on 1 October 2008 (1 month after separation) the CI endorsed low energy, crying spells and feeling depressed.  He reported disturbed sleep, a poor appetite and weight loss in the context of taking no medication.  He felt isolated and did not want to interact with others.  He was living with his grandparents and was unemployed.  Except for depressed mood, the MSE was intact. The GAF was 55.  An anti-depressant medication was prescribed.  At follow-up 2 weeks later, symptoms were reportedly improved, and he had started college.

VA notes subsequently reported discontinuation of counseling and medication, and a period of homelessness, but by July 2009 (11 months after separation) he had moved to another state, was attending church and working part-time at a coffee shop.  He was planning on going back to school and had arranged interviews for full-time work.

At a neuropsychiatric evaluation 1 year after separation the CI confirmed a “life-long” history of depression which worsened when he joined the service.  He was attending church every Sunday, fed the homeless on Mondays, attended bible study group regularly and was part of a running group.  He was taking no medication but was receiving counseling.  He was struggling in his current job due to memory and forgetfulness problems.  The examiner’s assessment was that the CI suffered from a previously undiagnosed cognitive disorder.

The Board directed attention to its rating recommendation based on the above evidence.  First, application of VASRD §4.129 is considered by the Board for all cases of service-connected psychiatric conditions resulting in separation.  Board members agreed that the condition did not occur as a result of stressors that would satisfy the provisions of §4.129, and therefore only the VASRD §4.130 impairment present at separation will be considered.  Also, the Board notes that the disability associated with all psychiatric conditions, regardless of the diagnosis, is subsumed under a single rating using the same criteria IAW VASRD §4.130. Therefore the applicant’s service disability rating assigned by the PEB, and the recommendation from the Board, will be unaffected by the specific psychiatric diagnosis identified by the service.    

The PEB assigned a 10% rating by first rating at 30% under the 9434 code (major depressive disorder), then deducting 20% for dysthymic disorder that was deemed to have existed prior to service.  The VA rated major depressive disorder with dysthymia at 30% using the same 9434 code, based on the STR and outpatient VA clinic notes soon after separation.  The general §4.130 description for a 30% rating is “occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks;” and for a 50% rating is “occupational and social impairment with reduced reliability and productivity.”  The Board agreed that threshold symptoms supportive of a 30% rating, such as depressed mood and sleep disturbance, were present but debated a higher rating.  Although one 50% threshold symptom may have been present (disturbance of motivation and mood), other symptoms such as frequent panic attacks, memory impairment, flattened affect and impairment of abstract thinking were absent.  Regarding social and occupational functioning, it was noted that the CI socialized adequately and responded well to group settings during his hospitalizations, and that he maintained a relationship with his grandmother.  Post-separation evidence showed fairly intact socialization once treatment was established.  The NMA reported an inability to manage stressors and details of his job since the time of his first hospitalization (3 months prior to the date of the NMA).  Post-separation evidence reflected a period of homelessness in the context of sporadic psychiatric treatment, but employment was eventually acquired once counseling was re-established.  The Board considered that symptoms were consistently better when treated.  Board members debated if this evidence reflected the higher 50% rating criteria, but Board consensus was that adequate reasonable doubt favoring this degree of disability was not present.  The Board majority agreed with the PEB and the VA that the evidence, at the time of separation, more nearly approximated the criteria for the 30% rating.

Next, the Board deliberated factors for a deduction for an EPTS disability.  Board members agreed there was convincing evidence of pre-existing symptoms.  Since that history was not disclosed to the service at the time of enlistment (thereby precluding the possibility of clinical evaluation and exclusion from enlistment) the CI’s consistent post-entry statements about pre-service symptoms and disability were the only available evidence on which to base an assessment of baseline disability.  The Board agreed that the CI’s statements in this regard were probative, and it was concluded that a deduction was therefore reasonably imposed.  However, VASRD §4.22 (rating of disabilities aggravated by active service) states: “It is necessary therefore, in all cases of this character to deduct from the present degree of disability the degree, if ascertainable, of the disability existing at the time of entrance into active service, in terms of the rating schedule....”  Board members debated that pre-service symptoms were described as “debilitating at worst and…mildly impaired occupational function on best days.”  Furthermore, they led to failing out of college and losing a job.  The Board considered a rating at the time of service entry of 10% or 30%, and unanimously agreed that the degree of disability was most reasonably characterized by the 10% rating criteria (“…impairment due to mild or transient symptoms…”).  Therefore, after deducting this level of disability from the level of disability at the time of separation (recommended above as 30%), it was concluded that the final rating of 20% was appropriate.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the major depressive disorder, coded 9434.

BOARD FINDINGS:  In the matter of the major depressive disorder condition, the Board majority recommends a disability rating of 20%, coded 9434 IAW VASRD §4.130 and §4.22.  The single voter for dissent recommended re-characterization and did not elect to submit a minority opinion.  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, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Major Depressive Disorder	9434	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140219, 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 24 Jun 16 ICO XXXXXXXXXXXXXXXXXXXX    
       (c) PDBR ltr dtd 29 Aug 16 ICO XXXXXXXXXXXXXXXXXXXX
       (d) PDBR ltr dtd 29 Aug 16 ICO XXXXXXXXXXXXXXXXXXXX
       (e) PDBR ltr dtd 27 Jun 16 ICO XXXXXXXXXXXXXXXXXXXX
       (f) PDBR ltr dtd 29 Aug 16 ICO XXXXXXXXXXXXXXXXXXXX
       (g) PDBR ltr dtd 29 Aug 16 ICO XXXXXXXXXXXXXXXXXXXX

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

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

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

     b.  XXXXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.

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

     d.  XXXXXXXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a 50 percent disability rating (increased from 10 percent) effective date of discharge.

     e.  XXXXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 0 percent) effective date of discharge.

     f.  XXXXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 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)