RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01467
BRANCH OF SERVICE:  Marine Corps 	SEPARATION DATE:  20090130

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Fixed-Wing Aircraft Power Plant Mechanic, medically separated for ““major depressive disorder (MDD)” with a combined disability rating of 20%.

CI CONTENTION: “Since my discharge I have been unable to maintain employment do to the severity of my disability.  I am currently having great difficulties due to this & request reconsideration.”  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 - 20081103	VARD - 20090323	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Major Depressive Disorder	9434	20%	Major Depressive Disorder	9434	70%	20081119	
Anxiety Disorder NOS	Cat II					
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  70%	

ANALYSIS SUMMARY:  

Mental Health Conditions.  Review of the record shows that the CI developed stuttering at age 8 and suffered teasing from it resulting in fighting.  He reported speech therapy throughout his school years.  He was also treated by his family doctor for depression in high school with multiple anti-depressant medications, but stopped them due to the side effects.  He reported that he had few problems from his stuttering his senior year due to his athletic achievements.  In fact, he attended college on a football scholarship.  However, he did stop attending college after being teased in an English class when he stuttered in an oral presentation.  He enlisted on 7 February 2006.  He reported the stuttering, and the examiner noted that he “stutters only when around family; no problem in school or work; very mild,” and remedial work not necessary in school.”  He denied the history of mental health treatment.  In July 2006, 6 months after enlistment, the CI voluntarily sought mental health treatment for insomnia.  At the time, he reported his full history of stuttering.  The examining psychologist administered the Zung Depression and Zung Anxiety Inventory and the CI was not positive for depression and was in the normal range for the anxiety test.  The examiner concluded:  “SVM's (service member’s) symptoms and presentation were consistent with stuttering but inconsistent with a mood, thought, or anxiety disorder.”  The examiner went on: “Of note, became tearful at end of the session when we described how minimal his stuttering was his senior year of high school compared to the increase presently experienced.”  In that the examination took place toward the end of the CI’s training tour with 4 weeks remaining at that location, the examiner recommended four sessions of cognitive behavior therapy (CBT) and that the CI see a speech therapist at his next command.  There was no record of mental health treatment in evidence after this examination until April 2008, which at that time, was in conjunction with the CI’s suicidal ideation (SI).  

Initially, the CI did outstanding in his career, including graduating from A and C schools.  During his initial tour he received a meritorious promotion.  The promotion led to increased communications with others including higher ranking individuals and public speaking.  This had an adverse impact on his ability to perform his job despite ongoing speech therapy.  On 5 April 2008, he had a command directed mental health evaluation for suicidal ideation due to depression secondary to his stuttering and its impact on his job performance and personal life.  He was started on medications and CBT.  Despite treatment, he did not improve sufficiently to meet his duty requirements.  It was noted that his stuttering improved when he was at home on leave.  The report of the Medical Evaluation Board (MEB) was dated 13 August 2008, 6 months prior to separation.  The CI reported that his symptoms had progressively worsened despite treatment.  He attributed his anxiety and depression to his stuttering.  He reported suicidal ideation throughout his life.  He was able to cope with these by talking to his friends and family prior to enlistment.  In the Marine Corps though, he did not have friends with whom he could talk and did not want to worry his family.  He noted that he was able to do his job with little interpersonal interaction prior to his promotion.  Afterwards, he was forced to speak in public leading to significant anxiety and fear of humiliation from his stuttering.  He also reported a 4-month history of irritability, outbursts of anger, difficulty concentrating, and panic attacks.  On examination, stuttering was present.  His affect was generally serious and constricted.  The CI was diagnosed with major depressive disorder (MDD) and anxiety disorder, not other specified (NOS) both of which existed prior to service (EPTS).  His military, social, and industrial impairment was severe for both conditions.  He had not been hospitalized nor was there a need for hospitalization.  The non-medical assessment, dated 4 September 2008, noted that the CI’s performance of duties and tasks assigned had been exemplary, but that he was held back by his inability to communicate clearly.  Retention was not recommended.  At the VA Compensation and Pension (C&P) examination performed on 19 November 2008, 2 months prior to separation, the CI reported that he did well in school and had 1 year of college (no mention of why he left college).  He denied any “run-ins” with the law.  He reported that he had a problem with stuttering after return from a deployment which had an impact on his job performance.  He also reported some “exposure” to antidepressants as an adolescent (he was treated by the family physician), but no actual psychiatric treatment.  The Board noted the discrepancies in this history and the history previously reported.  The CI reported that he had mild depression for many years, but that it had gotten relatively severe the past 8-10 months.  He had not lost time from work, but had been on light duty.  On examination, he was noted to stutter and to appear anxious.  He was noted to have reduced reliability and productivity and to be unable to function as a mechanic due to his depression and anxiety, a function which he did well previously.  However, on the 1 December 2008 career counseling contact exit interview, the CI’s commander (different from the commanding officer making the assessment during the disability evaluation process), noted that the CI had been an asset to the Marine Corps and re-enlistment was recommended, but qualified as RE-3P (disability, requiring waiver for re-entry).  The commander noted that the CI’s medical condition would “hold him back from long term (career) progression.”  

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB assigned a 30% rating, coded 9434 (major depressive disorder) for recurrent severe MDD without psychosis.  It then deducted 10% for the EPTS component for a rating of 20%.  The VA assigned a 70% rating, also using the 9434 code, based on the VA C&P examination 2 months prior to separation, citing occupational and social impairment with deficiencies in most areas.  The record documents that the CI had problems with stuttering dating to the age of 8 based on the CI’s self-report.  The CI attributed his problems with depression and anxiety to his stuttering.  Pre-service, the CI’s stuttering apparently led to fights in school, leaving college, speech therapy, and brief treatment with anti-depressants.  He also endorsed a long history of depression and suicidal ideation prior to service, but that this was managed by talking to friends and family, a resource not available after enlistment.  He initially did well in the military and garnered a meritorious promotion.  It was after this promotion that he was put in a position which required both speaking to superiors and in public to subordinates; and this led to recurrent anxiety and depression.  

The Board first considered if the CI’s mental health condition met the description for a 50% level of impairment.  This is described as “occupational and social impairment with reduced reliability and productivity.”  The Board noted that the commander noted his performance was “exemplary” and that he was “an asset to the Marine Corps...”  Retention was not recommended by the first evaluator, but reenlistment was recommended on the second with a RE-3 coding.   The Board determined that the criteria for a higher 50% rating were not met.  The Board then considered the EPTS deduction.  Prior to accession, the CI reported anxiety from public speaking and this was demonstrated by his leaving college after 1-½ years of classes when required to speak in public in an English class.  He also reported “suicidal thoughts” throughout his life which he managed with his social support network (friends and family).  This support network was no longer as accessible after accession.  He also noted the use of anti-depressants in high school.  The PEB deducted 10% for the EPTS component.  The criteria for a 10% rating include “occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress…”  The evidence shows that the CI suffered both anxiety and depression prior to service and that these were associated with his stuttering, a condition aggravated by public speaking.  He had recurrent problems with both anxiety and depression when promoted into a position which required that he speak in public with aggravation of his stuttering problem.  This supports a finding that the criteria for a 10% rating was met in the time proximate to accession and the EPTS deduction.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority concluded that there was insufficient cause to recommend a change in the PEB adjudication for the MDD and anxiety disorder NOS conditions.  The Board also determined that the criteria for VASRD §4.129 (mental disorders due to traumatic stress) were not met.  

BOARD FINDINGS:  In the matter of the MDD and Anxiety Disorder NOS conditions and IAW VASRD §4.130, the Board, by a majority vote, recommends no change in the PEB adjudication.  The single voter for dissent submitted the appended minority opinion.  There were no other conditions within the Board’s scope of review for consideration.  There were no other conditions within the Board’s scope of review for consideration.  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 20140224, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW
               BOARDS 

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS
 
Ref:   (a) DoDI 6040.44
       (b) CORB ltr dtd 24 Jun 16

      In accordance with reference (a), I have reviewed the cases forwarded by reference (b), and, for the reasons provided in their forwarding memorandums, approve the recommendations of the PDBR that the following individual’s records not be corrected to reflect a change in either characterization of separation or in the disability rating previously assigned by the Department of the Navy’s Physical Evaluation Board:

		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USMC 

						XXXXXXXXXXXXXXXXXXXX
	     				  	Assistant General Counsel
						(Manpower & Reserve Affairs)

 
Minority Opinion

As the minority voter in this case, I strongly recommend the Designated Decision Authority (DDA) re-characterize this CI’s disability separation to a disability retirement, with a final disability rating of 30%.  What follows is a detailed and comprehensive review of policy and case facts which I believe are essential to fully understand the policy implications herein and to afford the most fair and transparent assessment of this case on behalf of the DDA and the CI.  

This case rests on the proper application of service department and DoD instructions with the PEB’s reliance on interpretation of evidence at the time of enlistment and prior to enlistment.  Fairness and transparency are paramount in assessing an EPTS deduction in this case, if any would be warranted.  An accurate assessment of the CI’s underlying mental disability at the time of separation and the service department’s willingness and ability to properly recognize the full extent of the service aggravated impairment are at stake.  

As the PEB did recognize that this CI had a ratable mental disability at the 30% level, I will not further elaborate on this finding as I am in agreement with this.  Given the CI’s severe social and industrial impairment as clearly documented in the record, elements of the 50% level of disability are present, although I do believe the 30% level of impairment most accurately described the CI’s mental disability at the time of separation.  

This is an unusual case in that the CI was an exemplary Marine up until the time he was promoted out of his job and into a new position of leadership.  With this promotion came the requirement to verbally interact in a leadership capacity, (based on information in the service treatment record showing this was the case) with others on a continual basis.  In this new position, the CI experienced repeated trauma in the form of hazing from peers and subordinates and became so disabled due to the onset of anxiety and depression, that he became incapable of social interaction.  The CI’s unfitting mental disability only became evident in service when he experienced this repeated trauma due to his debilitating stuttering (which of note, would be considered disqualifying and non-compensable, if it were ever documented as disqualifying – which it was not at any time during the CI’s military career).  Thus, his mental condition deteriorated (characterized by increased anxiety, feelings of worthlessness and failure) and was aggravated by further exposure to these stressors.  Although the CI’s Commanding Officer (CO) lauded praise upon the CI at the time of the CI’s disability evaluation, this assessment was presumably of the CI in his past role, which required a minimum of human interaction, irrespective of his functional capacity in his new role.  To substantiate the missing assessment functioning in the CI’s new role, this same CO concludes his assessment by clearly indicating the CI could not be recommended for retention in the service under any condition given his disability.  The PDBR majority voters stressed the CI’s laudatory performance (prior to his degradation as caused by his new role) as not indicative of a serious mental health disability.  To make this assessment is impertinent and specious as it fails to account for the CI’s functional capacity in his newly established role.  Furthermore, psychiatric professionals who examined him proximate to separation clearly documented that this individual suffered from a severe mental disability which significantly impacted his military, social and industrial functioning.  

As to the PEB’s EPTS deduction of 10%, the following facts pertain to underlying policy as stake:
•	SECNAVIST 1850.4E, section 3804. Paragraphs (n): Presumption of Service Aggravation. Any injury or disease discovered after a service member enters active duty, with the exception of congenital and hereditary conditions, is presumed to have been incurred in the line of duty. However, any aggravation of that disease, incurred in the line of duty, beyond that determined to be due to natural progression shall be deemed service aggravated.  The presumption that a disease is incurred or aggravated (with emphasis) in the line of duty only may be overcome by competent medical evidence establishing by a preponderance of evidence that the disease was clearly neither incurred nor aggravated while serving on active duty or authorized training. Such medical evidence must be based upon well-established medical principles, as distinguished from personal medical opinion alone. 
•	SECNAVIST 1850.4E, section 3804. Paragraphs (o): Presumption of Sound Physical and Mental Condition Upon Entry. A service member is presumed to have been in sound physical and mental condition upon entering active duty except for medical defects and physical disabilities noted and recorded at the time of entrance.
•	SECNAVIST 1850.4E, section 3804. Paragraphs (p): Conditions Presumed to be Pre-Existing. Occurrence of disease as described in paragraphs (1) and (2), below, shall be presumed to have existed prior to entry into military service.
o	(1) Signs or symptoms of chronic disease identified so soon after the day of entry on military service (usually within 180 days) that the disease could not have originated in that short a period will be accepted as proof that the disease manifested prior to entrance into active military service.
o	(2) Signs or symptoms of communicable disease within less than the medically recognized minimum incubation period after entry on active service will be accepted as evidence that the disease existed prior to military service.
o	(3) Congenital and hereditary conditions, even though they do not manifest symptomatology until the member enters active duty, are considered EPTS. Service aggravation of these conditions is discussed in paragraph 3804 m (5).
•	DoDI 1332.38 provided (at the time of the CI’s separation from active duty) that the PEB must determine whether or not service aggravation is attributable to an EPTS condition, and once made attributable, the unfitting condition is deemed compensable (with all other factors determining compensability assumed germane).  Once the condition is compensable, (which it was in this case) it then must be rated IAW VASRD and DoDI 1332.39.
•	The PEB likely used DoDI 1332.39:  para 6.11.3 to make the 10% deduction in this case.  The policy states…”This requirement applies whether the particular condition was noted at the time of entrance into active service or is later determined, upon the evidence of record, to have existed at that time.  It is necessary, therefore, to deduct from the present degree of disability the degree of disability, if ascertainable, (with emphasis) that existed prior to entrance into active service. In assessing EPTS disability, the full EPTS clinical course of the impairing medical condition will be taken into consideration. Such deduction should be in terms of the rating schedule for the given condition (with emphasis). The deduction will be recorded on the rating sheet. If the degree of disability at the time of entrance into the Military Service is not ascertainable in terms of the schedule, (with emphasis) no deduction will be made. The rating sheet will reflect that the EPTS factor is indeterminable, and a zero percent deduction will be made.
•	The PDBR has regulatory authority to recommend service aggravation for EPTS found conditions by PEB.  In this case, the PEB itself found service aggravation for the unfitting condition.  The PDBR does not and cannot challenge the fact of this finding.
•	The PDBR guiding instruction, DODI 6040.44 (republished in July 2015) states under enclosure 4, para 4.f.(3): “If the covered individual was separated from the military on or after January 28, 2008, the PDBR will use the VASRD in accordance with Enclosure 4, Volume 1 of DoDM 1332.18 (Reference (o)).”  That reference reiterates what the PDBR does routinely with respect to proper application of the VASRD.  Therefore, the essential policy at stake in this case is found in VASRD §4.22: “rating disabilities aggravated by service…if the resulting disability at the time of service is not ascertainable in terms of the schedule, no deduction will be made” (with emphasis).

At time of CI’s entrance examination, the CI clearly reported that he stuttered and the examiner clearly documented that the CI stuttered.  The examiner furthermore documented that the stuttering occurred “when only around family; no problem in school or work. “Very mild”.  Remedial work not necessary in school.”  This assessment likely focused on academic performance in school, made no mention of the social aspect of the CI’s stuttering and how this impacted him, nor did this assessment declare any attributable level of disability warranting the 10% level per VASRD standards as established above.  In arriving at its 10% deduction, the PEB did not specifically document (in accordance with the schedule as required in this case) the characteristics present at enlistment, of the CI’s mental disability (in this case depression, and anxiety), which would be required to be clearly attributable to a 10% disability rating at that time.  Prior to enlistment, his single incident of leaving college due to a traumatic humiliation (due to his stuttering) constituted a singular traumatic event which at the time, and leading up to enlistment, did not mentally disable him in terms of his eventual unfitting condition.  His senior year of high school, immediately prior to his college period, reportedly showed the CI to have nearly eliminated his stuttering due to his success within the school’s social structure.  At roughly the 6-month point of his service career, the CI was examined by a military Psychologist due to his stuttering and that examiner definitively ruled out depression and anxiety (by subjective observation and by objective test).    

The 10% VASRD rating criteria for mental conditions are below:  

10%> Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication

To reiterate the refutation of the VASRD 10% standard of disability used for deduction of an EPTS mental condition:  at enlistment, the CI was not on any medication and therefore his condition was not controlled by medication; his eventual unfitting mental condition did not evidence transient symptoms only during times of significant stress as he was subjected to continual stress during boot camp, which never produced symptoms to the level calling into question his fitness for duty during that time.  In fact, upon graduating boot camp, the CI became an exemplary performer as an aviation mechanic with limited social interaction, particularly in a leadership role having to speak to and direct others or represent himself in socially demanding situations.  He went on to perform in this manner for over 2.5 years and it was only when the CI was promoted and forced to interact in a verbally demanding manner as a junior enlisted leader, his inability to do so due to his stuttering impairment, triggered by repeated psychological trauma (similar to what was experienced pre-service) thereby severely caused (recognized as aggravation by the PEB in this case) an underlying mental health condition.  His residual mental disability encompassed depression, anxiety, feelings of extreme worthlessness due to an insurmountable and unavoidable professional failure.

Given these facts, at the time of the CI’s enlistment, his degree of mental disability was not ascertainable in terms of the rating schedule (with emphasis).  At most, one could fairly and objectively, without speculation, say his disability was 0%, characterized by VASRD §4.130 as: “a mental condition was formally diagnosed but symptoms are not severe enough to either interfere with occupational and social functioning or require continuous medication”.  This is not accurate though as at enlistment, his eventual unfitting mental condition was not diagnosed or evident.  The CI’s stuttering certainly was evident; and without waiver, the examining physician granted him entry into active duty with this full knowledge.  

In closing, to the CI’s full credit, his mental disability did not evidence itself due to service aggravation until after the CI had well established himself as an exemplary Marine; and due to the emerging demands of his military requirements, the condition was thus aggravated.  To further frame the history here, the CI was admitted to service with his stuttering, his stuttering was identified early on in his military career as an impediment (and mental illness was definitively ruled out by military mental health professionals), yet the service department did not follow through fully with its own treatment plan as the CI departed his first school.  It was only when, after proving his meritorious worth to the service department, upon which the CI was promoted into a position demanding his performance despite his stuttering impediment, this CI’s mental illness became fully manifest, where it had not been prior to or during service to that point.  This is a case of fairness, rating accuracy, transparency and proper application of service department and DoD policy.  To make the 10% deduction for an EPTS condition in this case can be seen as capricious and overall is simply not correct, representing a clear misapplication of DoD and VA policy to the detriment of the CI.

Based on the above, the minority voter 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 prior to medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Major Depressive Disorder, Recurrent Episode	9434	30%	
Existed Prior to Service	9434	Not ascertainable	
COMBINED	30%