RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-01708
BRANCH OF SERVICE:  MARINE CORPS	BOARD DATE:  20141112
Separation Date:  20061215

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSgt/E-6 (0629/Radio Chief) medically separated for depression.  The depression could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  He was placed on limited duty (LIMDU) and referred for a Medical Evaluation Board (MEB).  The depression condition, characterized as “depressive disorder, not otherwise specified,” was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  The MEB also identified and forwarded one other condition.  The Informal PEB adjudicated “depressive disorder, not otherwise specified” as unfitting, rated 10% with likely application of VA Schedule for Rating Disabilities (VASRD).  The remaining condition was determined to be Category II (a condition that contributes to the unfitting condition).  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 those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The rating for the unfitting depression condition and contended category II migraine condition are addressed below.  No additional conditions are within the DoDI 6040.44 defined purview of the Board.  Any condition 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 Naval Records.

RATING COMPARISON:

Service IPEB – Dated 20060907	VA* - (5.8 Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Depressive Disorder, NOS	9424	10%	Depressive Disorder	9434	50%	20060623	
Migraine without Aura	Category II	Migraines	8100	10%	20060623	
Other x 0 (Not in Scope)	Other x 27	
Combined:  10%	Combined:  70%	
*Derived from VA Rating Decision (VARD) dated 20070711 (most proximate to date of separation (DOS))

ANALYSIS SUMMARY:  IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations.  The Board’s role is thus confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VASRD standards, based on ratable severity at the time of separation; and, to review those fitness determinations within its scope (as elaborated above) consistent with performance-based criteria in evidence at separation.

Depressive Disorder, Not Otherwise Specified (NOS) Condition.  The CI developed episodes of panic attacks and was treated with Paxil in November 2004.  He was seen in sick call for panic attack symptoms of heart palpitations, mild shortness of breath, and tingling of the hands and feet.  He was evaluated by psychiatry for a 1-year history of anxiety attacks with symptoms of a decreased appetite, poor sleep, fatigue and depression.  The mental status exam (MSE) showed depressed, mildly slowed responses and a constricted affect.  The examiner diagnosed depression NOS and increased the antidepressant medication.  The MEB narrative summary exam approximately 15 months prior to separation documented that the CI demonstrated a depressed mood, congruent affect, occasional tearfulness and suicidal ideation.  The examiner further documented that because of the CI’s inability to function, he was relieved from recruiting duty.  The CI was placed on LIMDU performed from 25 October 2005 through to 25 April 2006 for depressive disorder NOS, and other medical problems with depression aggravated by occupational stress.  The examiner recommended psychiatric care with medication for depression and further recommended relief from recruiting duties during this LIMDU period.  The CI followed with psychiatry throughout 2005 and 2006.  Despite anti-depressant medication, his mood remained dysthymic and depressed with a constricted affect.  Although he stated that “at times that he could not go on,” the psychiatrist clarified that there was no suicidal ideation.  The CI sought care in the community with a psychologist from 6 October 2005 through to 2006.  The commander’s non-medical assessment (NMA) documented that the CI could not perform even minimal responsibilities since being removed from his MOS and he could not function effectively under conditions of minimal stress.  In June 2006, the CI’s depression symptoms worsened and he felt as though he was being victimized.  His mental status deteriorated due to aggravation by work and family issues.  He continued with middle of the night awakening, non-restorative sleep, loss of pleasure and a lack of energy and he continued to deny suicidal ideation.

The VA Compensation and Pension exam approximately 5.5 months prior to separation documented that the CI exhibited no capacity for developing realistic or creative future work options.  The MSE demonstrated a notable detachment from the evaluation process, a passive subdued appearance with an expression that was mildly perplexed by the evaluation process.  His speech was slowed, awkward and diminished in volume.  He had an extremely dysthymic mood, a bewildered and defeated affect with an expression limited to sadness.  The examiner also noted that the CI’s insight was highly limited.  The examiner opined that the CI “unquestionably” met the full criteria for the diagnosis of major depressive disorder; however, the diagnosis and Global Assessment of Functioning (GAF) were deferred pending review of the PEB.  A psychiatric addendum approximately 3.5 months prior to separation documented that the CI’s depression had not shown a significant improvement despite trials on a number of antidepressant medication.  The examiner further opined that the CI’s ability to function in a military environment was compromised to the point that he was disqualified from further useful military service.  The examiner further opined that the CI’s capacity to function in a civilian environment would be moderately impaired.  The Axis I diagnosis was depressive disorder, NOS and the GAF was 55 (moderate difficulty in social, occupational or school functioning).  Because there was minimal improvement in the CI’s symptoms, the psychiatrist recommended that the CI be recommended for home awaiting orders.  The last psychiatric note dated less than 3 months prior to separation documented that the CI’s mood was still dysthymic; however, his affect was normal (as was the rest of his MSE) and his mood and sleep were improved.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB coded the depressive disorder NOS as 9424 and rated at 10%.  The VA coded the depressive disorder (also claimed as anxiety disorder, panic attacks, panic disorder and sleep disorder) as 9434 and rated at 50%, occupational and social impairment with reduced reliability and productivity.  Board members agreed that VASRD §4.129 was not applicable in this case.  The Board considered the 50%, 30%, and 10% rating criteria.  Board consensus was that the CI did not meet the criteria for a 50% rating at the time of separation.  The commander’s statement documented that the CI could not perform his minimal responsibilities since being removed from his MOS position and he could not function effectively under conditions of minimal stress which exceeded the 10% rating criteria.  Less than 3 months prior to separation, the CI’s MSE was more consistent with the 30% rating criteria and approaching the 10% rating criteria.  After due deliberation based on the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 30% for the depressive disorder NOS condition.

Contended PEB Condition:  The Board’s main charge is to assess the fairness of the PEB’s determination that migraine without aura was a Category II condition which contributed to the unfitting condition.  The Board’s threshold for this Naval Category II condition is to determine if the evidence supports the condition as “reasonably justified as separately unfitting.”  The migraine headache was identified on the CI’s LIMDU document prepared 14 months prior to separation.  The commander specifically identified the CI’s migraine headache condition as causing him to not show up for work “often.”  Throughout the STR, there is evidence that the CI had migraine headaches and was treated with medication.  The evidence supports that within the last 12 months prior to separation, the CI presented to the emergency room twice for treatment of his headaches.  The MEB examiner documented that in spite of several medications, the CI had “frequent” severe headaches which would last half of the day.  The commander’s statement documented that the CI often could not show-up for work due to his migraines, however the number of days was not quantified.  The migraine without aura condition was reviewed by the action officer and considered by the Board.  After due deliberation, the Board members agree that with regard to the functional impairment of the migraine headache condition favors its recommendation as a separately unfitting condition for disability rating.  It is appropriately coded 8100 and meets the VASRD §4.124a criteria for a 10% rating.

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 depressive disorder, NOS condition, the Board, by a split 2:1 vote, recommends a disability rating of 30%, coded 9424 IAW VASRD §4.130a.  The single voter of dissent elected not to submit a minority opinion.  In the matter of the contended migraine without aura condition, the Board unanimously agrees that it was unfitting and unanimously recommends a disability rating of 10%, coded 8100 IAW VASRD §4.124a.  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 his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Depressive Disorder, NOS	9424	30%	
Migraine Without Aura	8100	10%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140421, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

							

XXXXXXXXXXXXXXX
President
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 8 Dec 14 ICO XXXXXXXXXXXXXXX
	 (c) PDBR ltr dtd 15 Dec 14 ICO XXXXXXXXXXXXXXX 
	 (d) PDBR ltr dtd 10 Dec 14 ICO XXXXXXXXXXXXXXX
	 (e) PDBR ltr dtd 24 Dec 14 ICO XXXXXXXXXXXXXXX
       (f) PDBR ltr dtd 18 Dec 14 ICO XXXXXXXXXXXXXXX
       (f) PDBR ltr dtd 18 Dec 14 ICO XXXXXXXXXXXXXXX
	 (h) PDBR ltr dtd 12 Feb 15 ICO XXXXXXXXXXXXXXX
          
1.  Pursuant to reference (a) I approve the recommendations of the Physical Disability Board of Review set forth in references (b) through (h).

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

     a. XXXXXXXXXXXXXXX, former USMC: Placement on the Permanent Disability Retired List with a 40 percent disability rating effective date of discharge.

     b. XXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a 30 percent disability rating effective date of discharge.

     c. XXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a 40 percent disability rating effective date of discharge.

     d. XXXXXXXXXXXXXXX, former USMC:  Placement on the Permanent Disability Retired List with a 30 percent disability rating effective date of discharge. 

     e. XXXXXXXXXXXXXXX, former USMC: Placement on the Permanent Disability Retired List with a disability rating of 40 percent effective date of discharge.

     f. XXXXXXXXXXXXXXX, former USMC: Placement on the Permanent Disability Retired List with a disability rating of 40 percent effective date of discharge.

     f. XXXXXXXXXXXXXXX, former USMC: Disability separation with final disability rating of 20 percent (increased from 10%) 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 completed.

	XXXXXXXXXXXXXXX
	Assistant General Counsel
	  					                        (Manpower & Reserve Affairs)