RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX 	CASE:  PD-2014-02262
BRANCH OF SERVICE:  NAVY 	BOARD DATE:  20150514
SEPARATION DATE:  20070117

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Damage Controlman) medically separated for depressive disorder.  This condition could not be adequately rehabilitated to meet the physical requirements of his Rating, so he was referred for a Medical Evaluation Board (MEB).  The MEB forwarded “major depressive disorder…,” “anxiety state, unspecified” and “counseling for marital and partner problems…” to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other conditions were submitted by the MEB.  The PEB adjudicated “depressive disorder, NOS” (not otherwise specified), as unfitting, rated 10%.  The remaining conditions were determined to be Category II (a condition that contributes to the unfitting condition).  The CI made no appeals and was medically separated.  

CI CONTENTION:  He was not evaluated for a Diabetes or sleep apnea condition.  His complete submission is at Exhibit A.”

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:  

IPEB – Dated 20060927	VA* - (~1 Mo. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Depressive Disorder, NOS	9434	10%	Acquired Psychiatric Disorder, Diagnosed as Dysthymia and Anxiety Disorder…	9400-9433	30%	20070228	
Partner Relationship Problem	 
Cat II					
Anxiety Disorder, NOS						
Other x 0	Other x 6	
RATING:  10%	RATING:  80%	
*Derived from VA Rating Decision (VARD) dated 20070320 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:

Depressive Disorder.  The CI visited the Mental Health (MH) clinic in January 2006 with a report of feeling depressed for the past 2 years and feeling like sleeping all day.  The depression began with the death of his mother, and was exacerbated by financial stress, the death of his grandmother and his separation from his wife, though they had reunited.  He had little motivation to go to work, engage in family activities, and was oversleeping and overeating, and did not feel happy about anything.  He was worried all the time and described symptoms of panic attacks for about a year.  They occurred when he was stressed.  He denied suicidal ideation and did not have any weapons.  Mental status exam (MSE) was normal.  Diagnoses of major depressive disorder (MDD), partner relational problem, and anxiety disorder were rendered.  Psychotherapy and medication for depression were recommended.  At the narrative summary dated 28 August 2006 (performed 4 months pre-separation), the CI reported the psychopharmacological treatment and supportive psychotherapy had improved his depression and anxiety attacks but not well enough to return to full duty. He reported he was separated from his wife who was living in another state with their daughter.  MSE revealed an anxious mood with congruent affect, and worrying that disturbed his sleep.  Diagnoses of MDD, partner relational problem, and anxiety disorder were rendered with a Global Assessment of Function (GAF) score of 60 (moderate impairment, symptoms).  The examiner opined the degree of industrial and military impairment was moderate to severe and total impairment was moderate.  The non-medical assessment indicated the CI was away from current duties for treatment, evaluation, and/or recuperation 5 hours per week.  His commanding officer reported the CI was an average sailor who displayed little motivation or initiative, noting his MH diagnoses. 

At the VA Compensation and Pension exam for mental disorders, dated 28 February 2008, performed a month after separation, the CI reported a lack of motivation, sad mood, occasional anxiety attacks, passive suicidal ideation, panicky, pressured feelings, worry, and marked sleep disturbance. He cited family and marital stressors as well as occupational stressor of frequent criticism by his supervisor.  He referenced his ongoing treatment and indicated he was applying for outpatient MH treatment at the VA.  He was unemployed though looking for work.  He lived with a girlfriend, but most of his activity was watching television and staying in bed for some hours, house chores, and cooking.  He had no close male friends.  He had not leisurely or recreational activities other than television.  MSE was notable for a soft, mildly dysphoric tone and mood that was mildly to moderately depressed.  A diagnosis of dysthymia and anxiety disorder was rendered with a GAF of 60 (moderate impairment, symptoms).  At the psychiatric consultation, dated 5 March 2007 (2 months post separation), the CI requested medication refill, stating that his medicine ran out two weeks previously.  He reported psychomotor retardation, increased depression, no energy, poor motivation, poor sleep patterns, irritability, and panic symptoms at night.  He was looking for a job without success but had applied at the post office.  GAF was 58 (moderate.)

The Board directed its attention to its rating recommendation based on the above evidence.  Disability associated with any psychiatric condition, regardless of the diagnosis or multiple diagnoses, is subsumed under a single rating using the same criteria IAW VASRD §4.130 General Rating Formula for MH conditions.  The PEB applied the code 9434 (depressive disorder) and the VA applied the 9400-9433 code (generalized anxiety disorder-dysthymic disorder) and arrived at different ratings (10% and 30% respectively) under the VASRD §4.130.  The service cited no reason for the 10% rating and board members presumed it was a reflection of the CI’s use of medication with improvement in symptoms.  The VA cited the social and occupational impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.

The Board first considered if the definition of VASRD §4.129 was met for the unfitting MH condition resulting in medical separation; i.e., “a mental disorder that develops in service as a result of a highly stressful event.”  Board members agreed that although some contribution of service stressors to his MH condition was present, the overwhelming stressors stemmed from his personal marital and family concerns.  Therefore, the requisite §4.129 link that the condition occurred “as a result of a highly stressful event” was not adequately satisfied.  The Board therefore will consider only the VASRD §4.130 impairment present at separation for a single rating recommendation.  Members considered if there was evidence for a §4.130 rating higher than PEB’s 10% at time of separation.  Both the MEB and the VA exams noted the CI had a GAF of 60, connoting a moderate level of impairment.  In spite of medication, he had continuous anxiety and depression related symptoms, reflected in low motivation and poor sleep.  These threshold symptoms supported the 30% level IAW 4.130.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 30% for the depression disorder condition.  Furthermore, the Board unanimously agrees that the partner relational problems and anxiety disorder were Category II conditions and are related to the depression, and are properly adjudicated as part of the psychiatric condition.  They are not separately unfitting psychiatric disorders. 

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 the matter of the depression disorder condition, the Board unanimously recommends a disability rating of 30%, coded 9434 IAW VASRD §4.130.  In the matter of the contended MH conditions, the Board unanimously agrees that it cannot recommend them for additional disability rating.  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 the date of his prior medical separation:  

CONDITION	VASRD CODE	RATING	
Depressive Disorder	9434	30%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140514, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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 27 Aug 15 ICO XXXXXXXXXXXXXXX
      (c) PDBR ltr dtd 28 Aug 15 ICO XXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 31 Aug 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 (d).

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 30 percent disability rating (increased from 10 percent) effective date of discharge.

     b. XXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 10 percent) effective date of discharge.

     c. XXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 20 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.