RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01701
BRANCH OF SERVICE:  NAVY	BOARD DATE:  20150212
SEPARATION DATE:  20060825

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty Navy AS3/E-4 (Aviation Support Equipment Technician) medically separated for major depressive disorder (MDD).  The condition could not be adequately rehabilitated to meet the physical requirements of his Rating.  He was placed on limited duty and referred for a Medical Evaluation Board (MEB).  The MDD was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  The MEB also identified and forwarded “Generalized Anxiety Disorder (GAD) and Other Isolated or Specific Phobias” for PEB adjudication.  The Informal PEB (IPEB) adjudicated MDD, as unfitting, rated 10% with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The GAD condition was adjudicated as Category II (contributing to unfit).  The specific phobia and dependent personality traits were adjudicated as Category IV (do not constitute a physical disability).  The CI made no appeals and was medically separated.

CI CONTENTION:  “Please consider all conditions”

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 20060724	VA - (6 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
MDD	9434	10%	MDD, Competent	9434	100%	20061212	
GAD	CAT II					
Other x 2  (Not in Scope)	Other x 2 (Not Service Connected)	20061212	
Combined:  10%	Combined:  100%	
Derived from VA Rating Decision (VARD) dated 20070307 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:  The PEB rating preceded the promulgation of the National Defense Authorization Act (NDAA) 2008 mandate for DoD adherence to VASRD §4.129.  The Board, IAW DoDI 6040.44 and DoD guidance (which applies current VASRD §4.129 to all Board cases as appropriate), must consider if the definition of §4.129 is met for any psychiatric condition resulting in medical separation; i.e., “a mental disorder that develops in service as a result of a highly stressful event.”  If the Board judges that application of §4.129 is appropriate, it will recommend a minimum 50% rating for a retroactive 6-month period on the Temporary Disability Retired List (TDRL).  The Board must then determine the most appropriate fit with VASRD §4.130 criteria at 6 months for its permanent rating recommendation, based on the facts in evidence which are most probative for that interval.

Mental Health Condition.  The treatment record documents that the CI was hospitalized in a psychiatry ward on 7 April 2006 following a suicide attempt after a history of increasing depressive symptoms.  The 26 June 2006 MEB narrative summary (NARSUM) prepared by psychiatry reported the CI began having MH symptoms while attached to an aircraft carrier.  During periods at sea, he began to experience debilitating panic attacks while working or living in confined spaces.  The CI developed progressive depressive symptoms to include depressed mood, anhedonia (inability to experience pleasure in normally pleasurable acts), insomnia, poor concentration, intense feelings of guilt, hopelessness, fatigue, and thoughts of death and impending doom.  Acute thoughts of suicide emerged on 7 April 2006 and the CI made superficial lacerations to his wrists with a knife.  His visiting mother intervened and the CI was transported by his family to the hospital for evaluation where he denied any history of symptoms of psychosis, mania, hypomania, PTSD, or mood disorders.  The CI denied a history of suicide attempts, hospitalizations, MH evaluations, or psychotropic (affect mind, emotions, and behavior) medication use.  The exam showed the CI was clean but disheveled.  The CI was admitted to the inpatient psychiatry ward for crisis intervention.  His suicidality resolved in response to psychotropic medications and individual, group, and milieu therapies.  His symptoms of depression and anxiety persisted at the time of hospital discharge.  The CI experienced a significant decline when his wife informed him that she no longer wanted to stay married and left taking their son.  As an outpatient, his depressive and anxiety symptoms intensified to the point that he again entertained the notion of suicide.  He was re-admitted to the inpatient psychiatry ward.  Following modification of his pharmacotherapy, his depressive symptoms improved to the point that he was returned to the outpatient environment.  He was diagnosed with MDD and assigned a Global Assessment of Functioning (GAF) score of 35 at first admission, 51 at first discharge, 41 at second discharge, and 45 the MEB exam.  A GAF of 41-50 is indicative of serious impairment and a GAF of 31-40 is indicative major impairment in several areas, such as work, school, family relations, judgment, thinking, or mood.  The CI’s degree of industrial, military, and civilian performance impairment was listed as severe.  The psychiatrist opined that years of intensive psychotherapy and pharmacotherapy may control his depression and anxiety.

Three weeks after separation, the CI was transported by the police to the emergency department and admitted to the psychiatry ward under the "Baker Act" (allows the involuntary institutionalization and examination of an individual who is deemed to be a threat to self or to others).  His parents initiated the “Baker Act” process because of their concerns for his suicidal ideations, history of suicide attempts (cutting wrists, medication overdose), and agitation.  The 1 September 2006 discharge summary by psychiatry listed the diagnoses of MDD with a GAF of 35 on admission and 50 on discharge.  On 8 September 2006, a VA MH nurse spoke (telephone) with the CI’s mother (he was sleeping) and noted that he was feeling better and wanted to go to work and school.  The next day, he presented to the emergency department for anxiety stating that he had run out of his medications.  He was seen for routine MH follow-up 2 days later and reported that he was doing well on medications.  On 22 September 2006 the CI became more anxious and agitated and was assaultive towards his parents.  The parents called the police hoping to have him transported to the VA hospital, but instead he was arrested and jailed overnight.  A follow-up MH visit on 26 September 2006 documented that compliance with appointments and medications had been an issue leading up to this altercation.  He was again seen 3 days later with continued depressive symptoms.  The record then falls silent until the VA Compensation and Pension (C&P) examination for mental disorders on 22 December 2006.  The C&P psychologist reported the CI had had repeated hospitalizations with little change in depression severity.  The CI denied remission of symptoms and complained of severe depression for several hours daily.  He reported occasional to frequent suicidal thoughts, especially during periods of heightened stress.  He endorsed panic attacks several times per week and periodic visual hallucinations.  The CI had no motivation, very low energy, no enjoyment of activities, and occasional hopelessness.  His appetite was erratic and sleep was adequate.  He reported restricted relationships and social isolation.  The mental status exam revealed that the CI was oriented, cooperative, lethargic, and easily distracted.  Speech was hesitant, soft, or whispered.  Affect was blunted and mood was depressed and anxious.  Thought content showed suicidal ideation and thought process revealed a paucity of ideas.  Remote, recent, and immediate memory were intact.  Intelligence was average, judgment was intact, insight was fair, delusions were absent, and impulse control was fair.  The diagnosis was MDD with a GAF of 35.  The psychologist opined that symptom severity caused major impairment in family, occupational, and social functioning and documented total occupational and social impairment.

The Board first deliberated whether the DoD mandate for application of VASRD §4.129, as previously elaborated, was relevant to its recommendations in this case.  The Board concluded there was not sufficient evidence to support a conclusion that a mental disorder developed in service as a result of a highly stressful event severe enough to bring about the CI’s release from active military service.  The Board concluded that the application of §4.129 was not appropriate in this case.  The Board then directed its attention to its rating recommendation based on the above evidence.  The IPEB, a month prior to separation, rated the MH condition at 10% (diagnostic code 9434; major depressive disorder).  The associated Category II GAD was considered to contribute to the unfitting MH condition (MDD).  The Category IV condition of specific phobia was an identified characteristic of the anxiety disorder and, by definition, not deemed to constitute a disability.  The related Category IV condition of dependent personality traits (personality disorder) is not considered a disease or injury in the meaning of applicable legislation for disability compensation purposes.  The 6 months after separation VARD rated the MH condition at 100% (9434).  The MEB NARSUM documented that following modification of his pharmacotherapy, the CI’s depressive symptoms improved to the point that he was returned to the outpatient environment.  The GAF was 45, representing serious impairment.  The degree of industrial, military, and civilian performance impairment was listed as severe.  The psychiatrist opined that years of intensive psychotherapy and pharmacotherapy may control his symptoms.  The outpatient interval between the after separation hospitalization and the C&P exam reflects a period of minimal symptoms and good functioning.  When the CI was compliant with medication and medical follow-up, his symptoms were adequately controlled.  The CI expressed concrete plans for the future, he felt well, slept better, returned to college, and actively sought employment.  When he was intermittently compliant, discontinued, or ran out of medications, and failed to follow-up with scheduled appointments, his symptoms recurred.  This resulted in him seeking emergency medical care and law enforcement involvement.  The C&P exam documented little change in the severity, or remission of, the depressive symptoms.  The CI endorsed daily severe depressed moods, occasional to frequent suicidal thoughts, several panic attacks per week, periodic visual hallucinations, no motivation, very low energy, anhedonia, restricted relationships, and social isolation.  The GAF was 35, representing major impairment.  The psychologist opined that symptom severity resulted in a major impact on functioning and documented total occupational and social impairment.  The Board determined that the criteria for a 30% rating were clearly exceeded.  It then considered the disability in evidence at separation.  Recognizing intermittent compliance with medications and medical follow-up, the CI manifested symptoms most closely approximating a 70% rating.  Findings that supported a 70% rating, consistent with occupational and social impairment with deficiencies in most areas, were the symptoms of: suicidal ideation; near-continuous depression affecting the ability to function independently; impaired impulse control (irritability and violence); difficulty in adapting to stressful circumstances; inability to establish and maintain effective relationships; and neglect of personal appearance and hygiene.  The CI did not manifest the 70% rating symptoms of: obsessional rituals, which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; or near-continuous panic spatial disorientation.  Findings that supported a higher 100% rating, consistent with total occupational and social impairment, were the symptoms of: persistent danger of hurting self or others.  The CI did not manifest the 100% rating symptoms of:  gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 70% for the mental health condition.

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 mental condition, the Board, by a majority vote, recommends a disability rating of 70% coded 9434 IAW VASRD §4.130.  The single voter for dissent did not elect to submit a minority opinion.  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 re-characterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Major Depressive Disorder	9434	70%	
COMBINED	70%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140414, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

			

			XXXXXXXXXXXXXXXXXXXX
President 
DoD Physical Disability Board of Review

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 1 Jul 15 ICO XXXXXXXXXXXXXXXXXX
(c) PDBR ltr dtd 15 Jun 15 ICO XXXXXXXXXXXXXXXXXX
(d) PDBR ltr dtd 12 Jun 15  ICO XXXXXXXXXXXXXXXXXX

1. Pursuant to reference (a) I approve the recommendations of the Physical Disability Board of Review set forth in references (b) through (e).

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

a.	XXXXXXXXXXXXXXXXXXXX, former USMC: Placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 20 percent) effective date of discharge.

b. XXXXXXXXXXXXXXXXXXXX, former USN:  Placement on the Permanent Disability Retired List with a 70 percent disability rating (increased from 10 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. 

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)