RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02061
BRANCH OF SERVICE:  AIR FORCE	BOARD DATE:  20150529
SEPARATION DATE:  20071109

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-2 (Diet Therapy Helper) medically separated for major depressive disorder (MDD).  The condition could not be adequately rehabilitated to meet the requirements of her Air Force Specialty.  She was issued a temporary S4 profile and referred for a Medical Evaluation Board (MEB).  “Major depressive disorder with psychotic features” was forwarded to the Physical Evaluation Board (PEB) IAW AFI 48-123.  No other condition was submitted by the MEB.  The Informal PEB adjudicated “major depressive disorder” as unfitting, rated at a combined 10% (30% with a deduction of 20% for “aggravating/contributing factors”), with likely application of the Department of Defense Instruction (DoDI) 1332.39 and Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining condition was determined to be Category III (condition that is not separately unfitting and not compensable or ratable).  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 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:

IPEB – Dated 20070917	VA* -  Based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Major Depressive Disorder	9434	30%-20%**	Major Depressive Disorder w/Psychotic Features (claimed as mental condition)	9434	30%	STR	
Mixed Personality Traits	CAT III	No VA Placement	
Other x 1 (Not In Scope)	Other x 6	
RATING:  10%	COMBINED RATING:  30%	
*Derived from VA Rating Decision (VARD) dated 20080617 (most proximate to date of separation [DOS]).  ** PEB deducted 20% for the Cat III condition.

ANALYSIS SUMMARY:

Major Depressive Disorder Condition and Mixed Personality Traits.  The narrative summary (NARSUM) in August 2007 (3 months prior to separation) noted initial contact with mental health (MH) staff in March 2007 (8 months prior to separation) with “complaints of difficulty coping with several significant life stressors (death of her sister [in December 2006], occupational, financial, and relationship problems).”  The CI developed depressive and psychotic symptoms (auditory and visual hallucinations) with worsening following a miscarriage in April 2007.  In late April 2007, the CI had suicidal and homicidal ideations and was hospitalized for 4 days.  At the time of the NARSUM, 4 months later, the CI was taking Zoloft, and reported she was pregnant and “cautiously optimistic.”  The NARSUM summarized psychiatric testing and the mental status exam noted a “mildly dysphoric” mood with restricted affect congruent with mood.  There were no current homicidal or suicidal ideations.  The diagnosis was Axis I:  MDD with psychotic features and Axis II:  Mixed Personality Traits.  The Global Assessment of Functioning (GAF) was “50-60 (moderate symptoms)” with “definite” social/industrial impairment.  The summary indicated the CI’s symptoms had decreased following regulation of and compliance with medication and being detailed to a new workplace.  The examiner indicated that there were contributions from chronic MDD “and significant personality pathology.  The data available suggest that the personality component plays a significant role in the [CI’s] depressive symptoms, psychotic episodes, and the lack of ability to regulate emotions in response to stressful situations.”

There was no VA Compensation and Pension (C&P) exam performed proximate to separation and the VA 30% rating was derived from the service treatment records.  The initial VA C&P exam was performed in June 2010, over 2 years after separation and documented a change in diagnosis to bipolar disorder with a GAF of 60 and noted that the CI was a full-time student.  The examiner summary included characteristics of paranoia, manic episodes, racing thoughts, suicidal ideation and homicidal ideation with significant social deficiencies, and reduced reliability and productivity.  The VA rated this exam at 50%.

The Board directed attention to its rating recommendation based on the above evidence.  The NARSUM exam had the highest probative value for rating at separation and remote after separation VA exams were adjudged after separation worsening.  The PEB rated the CI’s MH condition at 30% (definite) IAW DoDI 1332.39 (rescinded), and specified a 20% deduction for “personality traits, which play a significant role in your depressive symptoms.  Personality traits are non-ratable/non-compensable under disability law/policy, and the Board has taken an appropriate deduction for their contribution to your overall impairment rating.”  This type of rating deduction, although supported by DoDI 1332.39 at the time, is not in accordance with rating IAW VASRD-only criteria.  The Board therefore rated the CI’s disability IAW VASRD §4.130 criteria as there was insufficient evidence of a highly stressful event for rating IAW VASRD §4.129.  All members agreed that the §4.130 threshold for a 70% rating (deficiencies in most areas) was not approached and the 50% level (occupational and social impairment with reduced reliability and productivity) was not supported by the evidence of improving symptoms.  The deliberation therefore settled on arguments for a 30% versus a 10% rating recommendation.

The Board noted that the NARSUM psychiatrist indicated symptoms “during periods of intense stress” however, the examiner also indicated that the CI’s symptoms appeared “to wax and wane based on the (CI’s) level of perceived stress.”  The Board also considered if the CI’s required psychiatric hospitalization and her being detailed to a new workplace for over 3 months (commander’s statement) met the “transient symptoms” phrasing of the 10% criteria, or if the CI’s disability picture more nearly approximated the 30% rating criteria (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) IAW VASRD §4.130.  The Board considered the July 2007 comments from the supervisor of the CI’s alternate duty location and the co-worker/deputy chief who both indicated the CI performed all duties very well and that she had excellent work relationships.   The commander’s statement dated August 2007, stated the CI’s MH condition “significantly affects her ability to satisfy duty requirements … is a most likeable person … her relations with leadership are hampered by her mental health condition. She has created havoc in the work center and had a negative impact on morale, all the way from flight leadership to the junior Airmen.”  Personality traits are not considered a compensable condition IAW DODI 1332.38, E5 and no separate fitness/rating determination is recommended for that condition.  Additionally, no rating deduction was supported.

The Board consensus was that the 30% description was a better fit with the occupational functioning in evidence since reliability and productivity were affected and did not appear to be either transient, mild or “only during periods of significant stress.”  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt) and §4.7 (higher of two evaluations), the Board majority recommends a disability rating of 30% for the MDD condition, with no deduction.

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.  As discussed above, PEB reliance on DoDI 1332.39 for rating MDD was likely operant in this case (service deduction) and the condition was adjudicated independently of that instruction by this Board.  In the matter of the MDD condition, the Board majority recommends a disability rating of 30%, coded 9434 IAW VASRD §4.130.  The single voter for dissent submitted the appended minority opinion.  In the matter of the contended “mixed personality traits,” condition, the Board unanimously recommends no change from the PEB determination as Category III (not compensable).  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 her prior medical separation:

CONDITION	VASRD CODE	RATING	
Major Depressive Disorder	9343	30%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140509, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

Minority Opinion

The Board deliberated at length as to which VASRD rating was most appropriate.

The Board debated between a 10% and a 30% rating for the MDD condition, coded 9343, however the minority voter believes the evidence does not support the 30% criterion.  The CI’s condition at the time of separation more closely approximates the 10% rating based on the following evidence.

While the CI exhibited some of the symptoms listed in the VASRD 30% rating, a finding for this rating also requires 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).

The minority voter believes the CI’s initial work center conflicts in nutritional medicine (NM) coupled with a series of personal life stressors (her older sister’s sudden death, financial strain, marital strife and abuse, and a miscarriage) led to a high level of stress which resulted in her brief hospital stay. When she received treatment, became compliant with her medication management and was detailed to a new duty section, Medical Readiness (MR), both she and the NARSUM evaluator concurred that her “stress decreased significantly.”

Although the commander noted on August 6, 2007 the difficulties the CI was having in her workplace leading up to and following her hospitalization, his statement also noted that she was working full shifts implying no periods of inability to satisfy duty requirements.

The statement that her “Relations with leadership are hampered by her mental health condition...[she has had] a negative impact on morale, all the way… to the junior Airmen” appears to reference the time period prior to the CI being detailed to MR.  When the commander wrote this, the CI had only been back in NM for a week.  The CI’s more recent extended work experience was during the 3 months in MR where the record clearly reflects that she demonstrated steady periods of work performance, efficiency, and excellent customer and co-worker relations.

Specifically, the CI’s supervisor, an experienced senior non-commissioned officer, and the civilian deputy chief for the section wrote independently on July 26, 2007:

“Always completed tasks in a timely, efficient, and effective manner…outstanding work ethic…very happy person and loves to be around other people…military bearing and conduct on duty is exceptional…. She arrives to work on time and informs me where she is on a project if she has to step away for an appointment….confident that all of my customers are taken care of when Airman G-- helps them… I would add her to my staff…”

“During these 90-days, I have found A-- to be an intelligent, articulate and cordial Airman…totally cooperative…accepts any and all assignments with a positive, can-do attitude.  She picks up her duties quickly and, with minimal supervision, untiringly works until the project is complete.  Her relationships with the office staff are commendable and each of us finds her an energetic and likeable co-worker.  Her military bearing and conduct to this staff as well as our many customers (E-1 through 0-6) is outstanding!  She arrives for duty each day on time and goes straight to work while maintaining exceptional dress and appearance.”

“A-- is currently enrolled in the University of Phoenix's on-line degree program.  Her field
of study is the Bachelor of Science for Health Administrative Services degree program.  She just
completed “Skills for Learning in an Information Age (IT 105)” with a 94% and “Effective,
Persuasive Writing (COM 120) with an 84% grade…”

“I have worked with many Airmen in my four decades of government service.  A-- is one
of the best!  She could easily transition from her current AFSC to that which is assigned to
Medical Readiness.  I would happily add her to our full-time office staff if the opportunity arose!”

The NARSUM examiner’s discussion reinforces the CI’s improvement: “The pt has been engaged in therapy for approximately two months to address these issues and has reported noticing stabilization in her mood over the past two to three weeks following better medication management and gaining stability in her environment.  These two factors (stability in her environment and better medication management) have resulted in an improvement in her depressive and psychotic symptoms along with decreased outburst of anger.  It should be noted that a key contributor to providing stability in her environment is the fact that she is not currently in her original duty section (Nutritional Medicine) which served as a significant stressor.”

The NARSUM examiner also noted that the CI’s psychotic symptoms completely resolved after transfer of duty section.  The examiner further stated that she required psychotherapy treatment for her personality disorders, and documented that medications should be used only during times of “acute” episodes to reduce symptoms.  This clearly implies that her ratable MH symptoms were transient.  The NARSUM examiner additionally stated “It would appear that A1C…depressive symptoms and subsequent psychotic episodes are triggered during periods of intense stress and her inability to adequately cope with this stress in a constructive way”; this statement defines the word transient.  The MMPI (a structured personality test designed to assess predominant aspects of personality and clinical disorders) documented that the CI responded in a manner that “suggests symptom exaggeration or acute emotional turmoil.”

Given this evidence, the minority voter believes the disability picture at the time of separation more nearly approximates the VASRD 10% rating for 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 30% disability rating requires evidence of occupational and social impairment with occasional decrease in work efficiency and was not supported by the evidence cited above. Also not supported were “intermittent periods of inability to perform occupational tasks due to symptoms of depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, and mild memory loss.”  Although the CI had symptoms of depressed mood, anxiety, and sleep impairment, she worked a full-time job successfully learning and performing the mission in a new duty section, was excelling in college and was caring for her children.  Such level of functioning is not consistent with the description of “intermittent periods of inability to perform occupational tasks” due to MH symptoms.

In the matter of the MDD, the minority voter recommends no re-characterization for the disability rating of 10%, coded 9343.

SAF/MRB
1500 West Perimeter Road, Suite 3700
Joint Base Andrews, MD  20762

Dear XXXXXXXXXX:

Reference your application submitted under the provisions of DoDI 6040.44 (Section 1554, 10 USC), PDBR Case Number PD-2014-02061.

After careful consideration of your application and treatment records, the Physical Disability Board of Review determined that the rating assigned at the time of final disposition of your disability evaluation system processing was not appropriate under the guidelines of the Veterans Affairs Schedule for Rating Disabilities.  Accordingly, the Board recommended your separation be re-characterized to reflect disability retirement, rather than separation with severance pay.

I have carefully reviewed the evidence of record and the recommendation of the Board.    I concur with that finding, accept their recommendation and determined that your records should be corrected accordingly.  The office responsible for making the correction will inform you when your records have been changed.

As a result of the aforementioned correction, you are entitled by law to elect coverage under the Survivor Benefit Plan (SBP).  Upon receipt of this letter, you must contact the Air Force Personnel Center at (210) 565-2273 to make arrangements to obtain an SBP briefing prior to rendering an election.  If a valid election is not received within 30 days from the date of this letter, you will not be enrolled in the SBP program unless at the time of your separation, you were married or had an eligible dependent child, in such a case, failure to render an election will result in automatic enrollment.

Sincerely,

Attachment:
Record of Proceedings

cc:
SAF/MRBR
DFAS-IN