RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-01272
BRANCH OF SERVICE:  Army	BOARD DATE:  20150327
SEPARATION DATE:  20080811

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-6 (Fire Support Specialist) medically separated for major depressive disorder (MDD).  The condition could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty.  He was issued a permanent S3 profile and referred for a Medical Evaluation Board (MEB).  The condition, characterized as “major depressive disorder,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded seven other conditions (hearing loss, tinnitus, migraine headaches, gastroesophageal reflux disease, chronic costochondritis, chronic right lateral epicondylitis, and traumatic amputation of the left index finger) for PEB adjudication.  The Informal PEB adjudicated his depressive disorder as unfitting and rated it at 10%.  The remaining conditions were determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “PEB gave 10% for Major Depressive Disorder, but was diagnosed with PTSD at 70% from the VA (along with other disabilities).  Would like to obtain a PTSD rating with the D.O.D/Army.”

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 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 IPEB – Dated 20080522	*VA - based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Major Depressive Disorder	9434	10%	Post-Traumatic Stress Disorder	9411	10%	STR*	
Tinnitus	Not Unfitting	Tinnitus	6260	10%	20080784	
Traumatic Amputation Of The Left Index Finger	Not Unfitting	Traumatic Amputation, Left Index Finger	5153	0%	20080724	
Bilateral Hearing Loss	Not Unfitting	Bilateral Hearing Loss	6100	0%	20080724	
Other x 4 (Not In Scope)	Other x 8	
Combined:  10%	Combined:  20%	
Derived from VA Rating Decision (VARD) dated 20081008 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Major Depressive Disorder.  The treatment records indicated the CI was initially diagnosed with an adjustment disorder in January 2007, and he declined further mental health (MH) services.  At the time, the CI expressed anger towards the Army; he had been TDY many times and had deployed twice, causing him to be away from his family.  He reported anxiety and depressive symptoms, opined to have been “PTSD-like” symptoms.  The CI completed the post-deployment health assessment screen on 28 September 2007 and endorsed that he had witnessed wounded, dead, or killed person [sic] during his deployment and had engaged in direct combat where he discharged his weapon.  He noted that he had felt his life was in great danger.  He endorsed symptoms suggestive of depression and PTSD, and was referred to the psychiatry clinic for further evaluation.  Psychiatric evaluation dated 11 October 2007 noted the CI endorsed anxiety, irritability, hypervigilance, compulsions, insomnia, intrusive thoughts, anger, numbing, and problems with concentration and memory since return from his last deployment.  A traumatic stressor was not documented.  The examiner diagnosed anxiety disorder not otherwise specified, and prescribed psychotropic medication for anxiety and agitation.  Treatment records demonstrated that in addition to medication, the CI participated in a 10-day psychiatry Intensive Outpatient Program (IOP) where he was provided individual and group therapy, 5 days a week, and medication management.  Treatment entry dated 8 February 2008 recorded the diagnosis of PTSD without reference to DSM diagnostic criteria, or documented PTSD symptoms.  The psychiatrist opined that although the CI completed the IOP, he required additional intensive treatment because he was “still having major symptoms of depression” and confusion about therapy.  Medication follow-up visit in February 2008 noted that the CI reported he had not had panic attacks since October 2007.

The psychiatry NARSUM dated 4 April 2008, conducted by his treating psychiatrist, documented that the CI was medevaced from his third deployment due to severe migraine headaches and perforated tympanic membrane with hearing loss.  The CI reportedly had pre-deployment documented issues with chronic pain, anxiety and anger after his second deployment, but declined further assessment and treatment; and the 2007 pre-deployment assessment documented that the CI denied MH issues and was subsequently deployed for the third time.  The physician recorded that the CI’s primary ongoing complaint had been persistent difficulty with falling to sleep, and staying asleep.  He was unaware of any specific dreams or nightmares that may have interfered with his sleep, but at times he awakened with a feeling of being startled.  The examiner documented that after the CI was placed in the Rear Detachment for over 2 months, he began experiencing daily anhedonia, depressed mood, was not motivated, and had feelings of helplessness and hopelessness.  He did not have a history of suicidal thoughts.  The psychiatrist noted that despite consistent treatment, the CI had not improved and had deteriorated “to some extent in terms of his insomnia and signs of depression and PTSD, most notably anger.”  In the review of symptoms, some of the items endorsed were sleep disturbance, no recall of nightmares, constant anxiety, rare panic attacks, severe irritability, low energy, problems with concentration and attention, severe lack of interest in social activities, and mild guilt about past events.  Mental status examination recorded depressed mood with constricted affect, and all other aspects were normal.  The psychiatrist documented that PTSD criteria were not met, but the depression had interfered with military performance.  The diagnosis of MDD, single episode, severe, was recorded and a Global Assessment of Functioning (GAF) score of 51-60 (moderate) was assessed.  The CI was non-attendant to the scheduled VA Compensation and Pension mental examinations (2008 and 2009).

The Board directed attention to the rating recommendation based on the evidence just described.  The PEB’s rating of 10% coded 9434 cited symptoms controlled with continuous medication.  The VA used the STR, and assigned a rating of 10%, coded 9411 (PTSD).  The Board first considered whether this condition meets the §4.129 definition of “a mental disorder that develops in service as a result of a highly stressful event [that] is severe enough to bring about the veteran’s release from active military service.”  There was no indication of any specific highly stressful event, though a stressful time period is acknowledged.  The Board also noted that the VA had not applied the provisions of §4.129.  The Board concludes therefore that application of §4.129 are not applicable to this case.

The Board next proceeded to the rating recommendation under §4.130.  The higher rating of 30% requires evidence of “Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or 
less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events)”.  The NARSUM examiner recorded a GAF of 51-60 (moderate), and opined that his condition required maintenance therapy; however, stated despite over 5 months of active treatment the CI’s symptoms of depression, insomnia, and anger had worsened.  There were no recorded panic attacks, no visits to the emergency room for MH issues, no psychiatric hospitalization, and although the CI reported extreme anger, there were no report of threats of violence or legal history.  There were no objective findings of memory deficits, and no report of excessive daytime sleepiness interfering with work productivity.  The commander statement 3 months prior to the NARSUM documented the CI’s MH treatment and noted that he had been recommended for the MEB “due to a diagnosis of PTSD,” by the IOP psychiatrist.  The commander noted despite the CI’s reported MH issues and treatment, the CI should be retained.  It was documented that the CI had the capacity to perform many different jobs other than an Artilleryman, and “given his skill set,” it was believed that he was capable of performing his duties as an NCO.  All Board members agreed the 30% disability criteria were not met.  All Board members agreed, at the time of separation, the record most accurately reflected the 10% criteria.  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.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the tinnitus, traumatic amputation of the left index finger and the bilateral hearing loss were 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 Board noted that although the hearing loss condition was profiled; it was not judged to fail retention standards.  The conditions of tinnitus and traumatic amputation of the left index finger were not profiled and were not implicated in the commander’s statement or judged to fail retention standards.  The commander recommended retaining the CI.  There was no performance based evidence from the record that any of these conditions significantly interfered with satisfactory duty performance.  After due deliberation 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 any of the contended conditions and so no additional disability ratings are 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 and IAW VASRD §4.130, the Board unanimously recommends no change in the PEB adjudication.  There were no other conditions within the Board’s scope of review for consideration. In the matter of the contended tinnitus, traumatic amputation left index finger, and bilateral hearing loss conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.

RECOMMENDATION:  The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140310, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXX
President
DoD Physical Disability Board of Review

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 XXXXXXXXXXXXXXX, AR20150013366 (PD201401272)

I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual.  Under the authority of Title 10, United States Code, section 1554a,   I accept the Board’s recommendation and hereby deny the individual’s application.  
This decision is final.  The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

 BY ORDER OF THE SECRETARY OF THE ARMY:

Encl		XXXXXXXXXXXXXXX
			Deputy Assistant Secretary of the Army
			     (Review Boards)
						         
CF: 
(  ) DoD PDBR
(  ) DVA