RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01887
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20060810

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated Army National Guard E-6 (Military Police) medically separated for major depressive disorder (MDD).  The condition did not improve adequately 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 mental health (MH) condition, characterized as “major depressive disorder, recurrent, severe without psychotic features” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also forwarded one other condition (cannabis dependence) for PEB adjudication.  The Informal PEB found the MDD unfitting, and rated it 10%.  The remaining condition was determined to be not ratable.  The CI made no appeals at that time 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 20060518	VA – based on Service Treatment Record (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Major Depressive Disorder…	9434	10%	Depression	9434	----	STR	
			Bipolar Disorder	9432	----	STR	
			Anxiety Disorder	9413	-----	STR	
			Panic Disorder	9412	----	STR	
			Post-Traumatic Stress Disorder	9411	----	STR	
			Schizophrenia	9204	----	STR	
Other x 1 (Not In Scope)	Other x 0 	
Combined:  10%	Combined:  0%	
Derived from VA Rating Decision (VARD) dated 20070411 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:

Major depressive disorder (MDD).  This CI started having abnormal mood symptoms in 1999.  His first contact with a MH provider was in 2002.  He was started on anti-depressant medication at that time.  He had a history of not being fully compliant with the treatments that were prescribed.  During 2005, he was admitted to hospital three times due to recurrent suicidal ideation.  Many different medications were tried, to help alleviate his MH symptoms.  Due to the chronic, recurrent nature of his MH condition, an MEB was initiated.  The MEB psychiatric evaluation was on 3 January 2006.  The CI endorsed prominent depressive symptoms of poor sleep, low interest, poor energy, poor concentration, and recurrent suicidal ideation.  He also endorsed a variety of anxiety symptoms such as nightmares and irritability.  He was living with his wife, their two children, and a 12-year-old stepdaughter.  Although he admitted a history of suicidal thoughts, knowing that his wife and children would lose him prevented him from doing it.

On mental status examination, he was alert and oriented, and appeared to be angry.  His stated mood was “depressed,” which was incongruent with his affect.  He denied any active suicidal ideation, homicidal ideation, or hallucinations.  His thought process was linear, logical, and goal-directed.  Judgment and insight were deemed to be fair to poor.  Cognition was grossly intact.  The Axis I diagnoses were Cannabis dependence, and MDD.  The Global Assessment of Functioning score was 55, indicating moderate symptoms or moderate difficulty in functioning.  In the MEB psychiatric narrative summary, under “Present condition and current findings,” the examiner wrote: “In my opinion, this soldier is currently capable to work full-time in civilian employment in a position with salary commensurate with his current military pay grade.  However, the nature of recurrent major depressive disorder puts him at an increased risk of future episodes that could be significantly impairing.”

On 20 April 2006, the examining psychiatrist contacted the CI by phone.  There had been no further hospitalizations for suicidal ideation.  The last hospital admission had been in October 2005.  The CI reported passive ideation on a chronic basis, but had no formal plan to kill himself.  He said he could not do it on account of his children.  The CI was having marital problems, and felt like he had no meaningful adult friends.  He had low self-esteem, low motivation, and rarely left his house.  He was on four MH medications, and smoking marijuana on a daily basis.  The psychiatrist wrote: “Apparently, none of the medications he has tried have managed to help much with his mood swings.”  The CI was not actively suicidal, and gave a reasonable plan to go to the nearest emergency room if those thoughts were to arise.  From that telephone call, the psychiatrist concluded that there was essentially, no significant improvement in the CI’s condition.  The CI’s DOS was 10 August 2006.  He was scheduled for two VA Compensation and Pension examinations, but he failed to appear on both occasions.  Based on his failure to appear, the VA denied service-connection for his MH condition.

The Board then directed attention to its rating recommendation, based on the evidence in the record.  The Board carefully reviewed all available evidence.  The Board determined that the MH disorder did not result from a highly stressful event, and did not meet the implicit intent of VASRD §4.129.  Therefore, the Board unanimously agreed that VASRD §4.129 did not apply in this case.  The best source of information on which to base the CI’s disability rating is the January 2006 MH exam (performed 7 months prior to DOS).  At that time, the CI was not working.  His impairment for social and industrial adaptability was mild.  With regard to his domestic situation, he was living with his wife, their two children, and a 12-year-old stepdaughter.  Although he was having suicidal thoughts, knowing that his wife and children would lose him prevented him from doing it.  As noted above, the psychiatrist spoke with the CI by phone on 20 April 2006, and confirmed that there had been no further hospitalizations.  The CI was having marital problems, and felt like he had no meaningful adult friends.  He had low self-esteem, low motivation, and rarely left his house.
The Board determined that, at the time of his DOS, the CI was having difficulty with functioning.  The April 2006 statement from his commanding officer indicated that the CI was unable to satisfactorily perform his required military duties for nearly a year at the time of this assessment.  In addition, the commanding officer stated she was unable to utilize the CI at his current rank (E-6) and “definitely did not feel comfortable leaving him alone unsupervised.”  A senior enlisted supervisor in his chain of command had witnessed the CI’s inability to concentrate at work and recurrent thoughts of self-harm.  Although the examining psychiatrist for the MEB opined the CI was capable of full-time civilian employment in a position with salary commensurate with his current military pay grade, this did not comport with the assigned duties with which the CI was entrusted by his command at that time.  The psychiatrist also opined a caveat that the CI’s mental illness put him at increased risk of future episodes that could be significantly impairing.  In addition, this psychiatrist documented that the CI experienced prominent depressive symptoms of poor sleep, low interest, poor energy, poor concentration, and recurrent suicidal ideation.  With regard to the psychiatric rating recommendation, the Board determined (by majority decision) that 30% was appropriate.  The Board felt that (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), the CI could experience occasional decrease in work efficiency and intermittent periods of inability to perform certain tasks.  In addition, it was documented that the CI’s condition was not controlled by medication; and that his MH condition was chronic in nature and did not meet the standard of intermittent or transient symptomology.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends (by majority decision) a rating of 30% for the MDD condition.  It is appropriately coded 9434, and IAW VASRD §4.130, met criteria for the 30% rating level.

Other PEB condition.  One other condition (Cannabis dependence) was considered by the PEB, and was adjudicated as “not ratable.”  This condition was judged by the Board to be outside the scope of review.

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.  In its adjudication, the Army PEB relied upon an article in the American Journal of Psychiatry.  The CI’s MDD condition was adjudicated independently of that journal article by this Board.  In the matter of the MDD condition, and IAW VASRD §4.130, the Board recommends (by majority vote) a rating of 30% for the MDD condition.  The single dissenting voter 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, therefore, 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	
Major depressive disorder, recurrent, severe	9434	30%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140428, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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 XXXXXXXXXXXXXXXX, AR20150018235 (PD201401887)

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 everance 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:

			      
						      					
Enclosure
					
CF: 
(  ) DoD PDBR
(  ) DVA