RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2014-01598
BRANCH OF SERVICE:  Army	BOARD DATE:  20141112
SEPARATION DATE:  20081107

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (63B/Wheeled Vehicle Mechanic) medically separated for anxiety disorder, not otherwise specified (NOS).  The CI’s mental health (MH) condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty.  She was issued a permanent P2/L2/S3 profile and referred for a Medical Evaluation Board (MEB).  The MEB referred the anxiety disorder, NOS to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded “adjustment disorder with prolonged depressed mood,” “borderline personality disorder,” “knee pain,” “myalgia,” “temporomandibular joint pain,” and “bruxism,” to the PEB as meeting retention standards.  The Informal PEB (IPEB) adjudicated the anxiety disorder, NOS as unfitting, rated at 10%, citing criteria of Veterans Affairs Schedule for Rating Disabilities (VASRD).  The IPEB initially determined that the CI’s “adjustment disorder” and “borderline personality disorder” conditions were not unfitting.  However, after further reviewed by the PEB an administrative correction to the IPEB proceeding, issuing a new DA Form 199-1 adjudicated “adjustment disorder” and “borderline personality disorder” conditions as not compensable but may be administratively unfitting.  The remaining four conditions were determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Brain tumor in the middle of the brain.  Tumor operation May 12, 2012 and memory before and after was affected and the quality of life was forever changed.  This tumor was not diagnosed in service but I had lots of headaches and Cat Scan was done but not an MRI, which would have been conclusive.  The heavy medications affected me while I was in service.”  [sic]

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 those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  In addition, the CI was notified by the Army that her case may eligible for review of the military disability evaluation of her MH condition in accordance with Secretary of Defense directive for a comprehensive review of Service members who were referred to a disability evaluation process between 11 September 2001 and 30 April 2012 and whose MH diagnoses were changed during that process.  The CI is also eligible for PDBR review of other conditions evaluated by the PEB and has elected review by the PDBR.  In accordance with Secretary of Defense directive for a comprehensive review of MH diagnoses that were changed during the Disability Evaluation System process, the applicant’s case file was reviewed regarding diagnosis change, fitness determination, and rating of unfitting mental health diagnoses in accordance with the VASRD §4.129 and §4.130.  This review encompassed the rating for the unfitting anxiety disorder, NOS.  In addition, this review included the adjustment disorder and borderline personality disorder conditions found to be not compensable by the PEB.  The contended brain tumor and headache conditions were not documented by the PEB or MEB and are therefore not within the purview of the Board.  No additional conditions are within the DoDI 6040.44 defined purview of the Board.  Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Board for Correction of Military Records (BCMR).  The Board acknowledges the CI’s assertions that the existence of her brain tumor may not have been adequately addressed while she was on active duty.  It is noted for the record that the Board has no jurisdiction to investigate or render opinions in reference to such allegations; and, redress in excess of the Board’s scope of recommendations (as noted above) must be addressed by the BCMR and the United States judiciary system.

RATING COMPARISON:

Admin IPEB – Dated 20080829	VA - (6 Mos. Post-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Anxiety Disorder NOS	9413	10%	Adjustment Disorder with Anxiety and Depressed Mood	9400-9440	30%	20090511	
Adjustment Disorder with Prolonged Depressed Mood	Not Compensable					
Borderline Personality Disorder	Not Compensable					
Other x 4 (not in scope)	Combined: 30%	
Combined:  10%		
Derived from VA Rating Decision (VARD) dated 20090707 (most proximate to date of separation)

ANALYSIS SUMMARY:  The CI was diagnosed with a MH disorder (disorder) found to be unfitting by the PEB.  The CI was also diagnosed with an adjustment disorder and a personality disorder that the PEB “found to be not compensable, although they may be administratively unfitting.”  This case is eligible for review under the stipulations of the MH and Review Program as elaborated in the Scope above and, in accordance with VASRD 4.130 (mental disorders), only one disability rating may be provided for MH (except eating disorders) based upon total social and occupational impairment.  Accordingly, the Board agreed that its deliberations of the unfitting anxiety disorder, NOS would address all diagnosed MH conditions.

Anxiety Disorder NOS.  The psychiatric narrative summary (NARSUM) notes that while deployed on a ship in 2007 the CI had physical issues requiring medical intervention when the ship docked.  Following return to her unit, the physical problems recurred and she became depressed with low energy and difficulty keeping up with her job.  She reportedly overheard a Sergeant in her platoon make a negative comment about her work ethic and in response, she cut herself on her arm and took an overdose of sleeping pills.  The CI reported she woke up the next morning late and reported for physical training disheveled and was laughed at by others.  Notes in the service treatment record indicated she was referred to MH following this incident.  At the evaluation performed on 21 September 2007 she reported a history of a depressed mood “all my life” with associated anxiety and cutting behavior, but denied suicidal or homicidal ideation (SI/HI).  A family history of bipolar disorder was noted.  The CI reported that during her first deployment in 2005 she was “cut off” by other unit members because she reported one of them was drinking and driving.  She began to self-mutilate (cutting) after this and was seen by MH and prescribed an anti-depressant, but stopped treatment when she began to feel better.  In August 2007 she was treated for symptoms of depression and anger and prescribed another antidepressant medication.  Mental status exam (MSE) noted a depressed mood and affect with an otherwise normal exam.  The impression was dysthymia, anxiety, NOS, and mixed personality disorder (disorder) with predominant schizotypal traits.  The MH provider indicated that the CI “…despite sx [symptoms], only has minimal to mild occupational and functional impairment.”  The CI was recommended fit for full duty on anti-depressant medication.  A month later, while deployed, the CI was referred by the flight surgeon evaluation on 23 October 2007 for anxiety and insomnia and she reported depression with a suicide attempt (SA) two days earlier.  At the evaluation the CI reported that she had taken a sleeping pill overdose two days earlier, but awakened in the morning.  She reported many episodes of SI with a plan and self-mutilation in the past year, with multiple fresh cuts on her upper arm.  The ammunition was removed from her weapon, her anti-depressant was taken away and she was to sleep with a roommate and have an escort at all times.  The next day the CI was seen at a planned follow-up and her mandatory service escort reported witnessing an officer assigned to bunk with the CI treating her in a rude and demeaning manner the night before.  Later that day the CI was brought back to clinic by her escort because she had made another SA with a medication overdose.  The CI was medically evacuated and was hospitalized stateside for a month.  The hospital discharge summary on 20 November 2007 indicated an Axis 1 diagnosis of major depressive disorder (MDD), moderate, recurrent, with a Global Assessment of Functioning (GAF) of 61 (on the cusp of moderate to mild impairment range).  The discharge summary indicated that the CI had responded “appropriately and robustly” to MH interventions and was “currently without clinically significant mental health symptoms.”  A period of regular duty at her home station was recommended while she continued MH treatment and, if she performed well, consideration should be given to “return to full world-wide deployable status.”  Approximately six weeks later the CI was seen in the emergency room on 4 January 2008 for a deep laceration (three to four inches) on her right arm which required stitches.  The CI denied SI, but reported she cut herself to “relieve tension” and she did not mean to cut so deep.  Following this emergency visit, case management (CM) notes indicated that the CI denied any further cutting behavior, saying that she had scared herself with the last episode and medications seemed to be helping.  Notes in the STR from January 2008 to the date of separation indicated the CI continued to have depressive episodes and anxiety that alternated with better moods and though the CI denied any further cutting behavior she indicated that at times of increased anxiety she struggled to avoid the behavior.  While on leave at home the CI reported by telephone that she was fighting with her mom and that as a teenager they had physical fights and she was in juvenile detention several times.  Throughout this time period the CI experienced the deaths of several people close to her - relatives, including her father and a service member (SM) who was visiting her died of alcohol intoxication - which contributed to recurrent depressive episodes.  At the time of the SM death, the CI was on leave without permission and was disciplined with extra duty.  The CI enrolled in classes to take her mind off things and performed satisfactorily.  A note dated 16 May 2008 indicated that the CI’s room was searched because another SM had seen her with a “powdered substance.”  The CI reported to the MH examiner that this was pain medication (Percocet) that she had crushed.  The CI had an inpatient psychiatric admission on 23 July 2008 for SI without an attempt.  CM records just prior to this noted the CI was more anxious, with mood lability and irritability.  A psychiatric evaluation performed on 24 July 2008 noted a diagnosis of recurrent severe depression, history of anxiety, NOS and polysubstance abuse.  A note during the admission recommended inpatient or outpatient intensive treatment for alcohol and drug abuse.  A medication list dated 28 July 2008 indicated multiple anti-depressants, anti-anxiety medication, an atypical antipsychotic medication (a “mood stabilizer”) and sleep medication.  Subsequent notes in the record to November 2008 indicated continued mood lability with thoughts of self-harm without evidence of cutting behaviors or further SA.  The CM notes most proximate to separation in October 2008 indicated the CI was doing better without recent thoughts of self-harm.

The first S3 psychiatric profile was dated January 2008.  The commander’s statement dated 9 April 2008 indicated that the CI was working well in alternate duty, eight hours per day, but with difficulty adapting to change, and poor reactions when “results don’t meet her expectations,” noted to occur one to four times per week.  The DD Form 2808 report of medical examination performed on 24 April 2008 listed MH diagnoses of “major depression/anxiety.”  At the MEB examination performed on 30 May 2008 (approximately 5 months prior to separation), the CI reported decreased attention, decreased interest in activities, and chronic SI.  The MEB psychiatric examination noted a labile mood and affect ranging from depressed to anxious, without speech or thought abnormality, cognitive deficits, delusions, or hallucinations, with occasional SI and thoughts of self-harm.  The diagnoses were Axis I diagnoses of anxiety, disorder, NOS and adjustment disorder with prolonged depressed mood and an Axis II diagnosis of borderline personality disorder (BPD) with a GAF of 60 (on the cusp of mild to moderate impairment range).

At the VA Compensation and Pension (C&P) PTSD examination performed on 11 May 2009, approximately 6 months after separation, the CI was noted to be on psychotropic medications for mood and anxiety.  The past history was notable for family history of mother with bipolar disorder and legal issues in adolescence.  The CI reported a cocaine overdose treated in the ER, without arrest or drug charges and being incarcerated for the months due to a physical altercation with her mother, both at age 15.  The CI reported depression with daily SI, PTSD, and sleep difficulties.  She had a boyfriend and had a job since military separation, but reported she quit due to harassment by a co-worker and was looking for work.  On MSE mood was noted as “good, elated,” but “sad and tearful” on some subjects, without evidence of speech or thought abnormality, cognitive deficits, or psychotic features.  The CI denied SI, but the VA examiner noted “once a week she can have increased anxiety and feels like cutting on herself, she has to distract herself to move on.”  The Axis I diagnosis was adjustment disorder with anxiety and depressed mood with a GAF of 55 (moderate impairment range).  The VA examiner noted that the CI did not meet diagnostic requirements for PTSD.

The Board directed attention to its rating recommendation based on the above evidence.  The Board first reviewed the records for evidence of inappropriate changes or elimination of diagnosis of the MH condition during processing through the disability evaluation system and found that the DD Form 2808, Report of Medical Examination, listed MH diagnoses of “major depression/anxiety”; the psych NARSUM diagnosed anxiety disorder, NOS and adjustment disorder with prolonged depressed mood and an Axis II diagnosis of BPD and, the MEB forwarded and the PEB adjudicated the same three MH diagnoses.  Therefore, this case did not appear to meet the inclusion criteria in the Terms of Reference of the Review Project.  The Board considered if there was evidence to support a change of the service conferred Axis I MH diagnoses.  The CI was diagnosed in service with anxiety disorder, NOS and major depression, recurrent and by the MEB psychiatrist with anxiety disorder, NOS and adjustment disorder with depressed mood.  The Board opined that the distinction between anxiety disorder, NOS and MDD was moot, because they are rated the same according to VASRD 4.130 and only one MH rating based upon total social and occupational functioning can be provided for these MH conditions.  The Board considered if a diagnosis of MDD was a more appropriate diagnosis than adjustment disorder, but the VA C&P examiner also diagnosed adjustment disorder with depressed mood.  Therefore, the Board agreed there was insufficient evidence to recommend a change of the MH diagnoses.

The Board next reviewed see if the application of VASRD §4.129 was appropriate in this case.  Member consensus was that, although there was service aggravation of the psychiatric condition; the requisite §4.129 link that the conditions occurred “as a result of a highly stressful event” was not adequately satisfied and the Board does not recommend the application of §4.129 in this case.  The Board therefore will consider only the VASRD §4.130 impairment present at separation for a single rating recommendation.  The Board noted that IAW DoDI 1332.38, enclosure 5, the adjustment disorder and the BPD were conditions that did not constitute a physical disability and therefore were not eligible for service disability rating and the anxiety disorder was the sole MH condition eligible for disability rating.  However, as noted above, MH disability rating is based on total social and occupational functioning.  After lengthy deliberations, the Board majority agreed that in this case it is impossible to clinically dissect the psychiatric impairment into ratable and unratable origins without undue speculation and therefore, its recommendation should concede the total §4.130 impairment in evidence as subject to Service rating.

The Board majority agreed that the evidence in the STR supports that the CI had recurrent episodes of increased MH symptoms followed by periods of improvement, and at the time of separation the CI was on psychotropic medications, improved, feeling happy, taking classes, not having SI or engaging in cutting behaviors, despite reported periods of increased anxiety.  Although the CI was doing better in the month prior to separation, the evidence in record of waxing and waning symptoms in the year prior to separation, suggested that symptoms with recurrent exacerbations would likely remain.  At the post-separation C&P examination the CI reported continued daily MH symptoms; was involved in a relationship and, had been working, but had recently quit and was looking for another job.  Board deliberations settled upon the 10% rating (“occupational and social impairment due to mild or transient symptoms which decrease work efficiency … only during periods of significant stress, or; symptoms controlled by continuous medication”) versus the 30% rating (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).  Member consensus was that the totality of the evidence in record provided strong support for the 30% rating reflecting intermittent periods of impairment.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority recommends a change in the PEB adjudication for the anxiety disorder, NOS condition to a permanent disability retirement with a rating of 30%.

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 anxiety disorder, NOS condition, by a majority vote the Board recommends a disability rating of 30%, coded 9413 IAW VASRD §4.130.  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 recharacterized to reflect permanent disability retirement, effective as of the date of her prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Anxiety Disorder, NOS	9413	30%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140410, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		
XXXXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXXXX, AR20150007575 (PD201401598)

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:

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