RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02458
BRANCH OF SERVICE:  Navy 	SEPARATION DATE:  20080317

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Electronics Technician, medically separated for “major depressive disorder,” with a disability rating of 10%.  

CI CONTENTION:  The CI requests the Board consider all conditions.  The CI’s complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  It is limited to those conditions determined by the Physical Evaluation Board (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 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 PEB - 20080115	VARD - 20081023	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Major Depressive Disorder	9434	10%	Major Depressive Disorder to include Insomnia	9434	30%	20080623	
Irritable Bowel Syndrome	Not Unfitting / Cat III	Irritable Bowel Syndrome	7319	0%	20080619	
Nonalcoholic Steatohepatitis (NASH)	Not Unfitting / Cat III	Steatohepatitis, Nonalcoholic	7399-7345	0%	20080619	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Major Depressive Disorder.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s mental health condition began in May 2006 after the death of his father.  The CI had additional family stressors and saw a civilian psychiatrist who prescribed anti-depression/psychotropic medication for major depressive disorder and generalized anxiety disorder.  The CI was seen by military providers, medication was continued/modified and the CI was removed from submarine service.  
The CI was placed on two limited duty (LIMDU) periods for major depressive disorder, and did not improve sufficiently following medication and psychotherapy to return to his rating.  He was referred for a MEB and “major depressive disorder, single episode” was forwarded to the PEB.  

At the MEB NARSUM psychiatry examination dated November 2007, 4 months prior to separation, the CI reported sleep problems, depressed mood, mood lability, anxiety and variable appetite.  The CI was taking daily antidepressant medication and medication for sleep used weekly.  Physical mental status examination showed that “affect was serious, somewhat sad, restricted, but appropriate” and the CI denied suicidal or homicidal ideations.  Examination was otherwise unremarkable.   The diagnosis was major depressive disorder, single episode, moderate severity, without psychotic features; and the Global Assessment of Functioning (GAF) was 51 (at the base of the moderate symptom range of 60-51).  The degree of industrial and military impairment from major depressive disorder was moderate with moderate for the degree of civilian performance impairment.  

At the VA Compensation and Pension (C&P) examination in June 2008, performed 7 months after separation, the CI reported a similar history as the NARSUM and record portrayed.  His symptoms included low energy, lost motivation, feelings of being unsettled, loss of interest, and poor sleep.  His suicidal intent had decreased to fleeting thoughts of suicide without intent and he no longer had a plan.  The CI was a full-time student, was unemployed and having difficulty finding employment.  Mental status examination recorded a calm and somber affect with a several minute long tearful episode.  Energy level was moderate to low and the CI denied current suicidal intent.  Examination was otherwise unremarkable.  The examiner indicated that the CI’s depression negatively affected intrapsychic functioning and interpersonal relationships, and did not impact academic responsibilities.  The diagnosis was major depressive disorder, recurrent, moderate; and the GAF was 55 (in the moderate symptom range).  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under the 9434 code (major depressive disorder).  The VA assigned a30% rating also using a 9434 code based on the VA C&P examination 7 months after separation, citing occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.  

The Board first considered if application of VASRD §4.129 with a constructional 6-month period on the Temporary Disability Retirement List (TDRL) was indicated in this case (per Board directive from DoD).  The Board adjudged that the major depressive disorder was not due to a “highly stressful event” as used in the VASRD, and that §4.129 is not applicable in this case.  The Board next considered its §4.130 rating recommendation at the time of separation.  

The CI had a consistent mental health diagnosis and history, with symptoms and disability pictures that were similar on the service and VA examinations.  All Board members agreed that the §4.130 criteria for the 100%, 70%, or 50% thresholds were not approached, at the time of separation.  The major depressive disorder was not in remission at the time of separation and symptoms were chronic (rather than transient) and were adjudged to be greater than “mild.”  The Board considered that both the NARSUM and VA C&P examiners documented moderate symptoms with moderate impairment of social and industrial adaptability and social and occupational functioning due to the CI’s mental health condition.  The CI’s mental health disability picture at the time of separation was adjudged to best reflect 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).  

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 major depressive disorder condition, coded 9434.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that irritable bowel syndrome (IBS) and nonalcoholic steatohepatitis (NASH-liver) were not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The IBS and NASH conditions were not part of any LIMDU or implicated in the NMA commander’s statement and were not judged to fail retention standards.  There was no performance-based evidence from the record that either of the conditions significantly interfered with satisfactory duty performance at separation.  After due deliberation, and in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended conditions and so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the major depressive disorder condition, the Board unanimously recommends a disability rating of 30%, coded 9434 IAW VASRD §4.130.  In the matter of the contended irritable bowel syndrome (IBS) and nonalcoholic steatohepatitis (NASH) conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.  There were no other conditions within the Board’s scope of review for consideration.  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 the prior medical separation:  

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

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140524, with attachments
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 31 May 16 ICO XXXXXXXXXXXXXXXXXX
	(c) PDBR ltr dtd 6 Jun 16 ICO XXXXXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 7 Jun 16 ICO XXXXXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 27 May 16 ICO XXXXXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 31 May 16 ICO XXXXXXXXXXXXXXXXXX
	(g) PDBR ltr dtd 7 Jun 16 ICO XXXXXXXXXXXXXXXXXX

1.  Pursuant to reference (a), the recommendations of the Physical Disability Board of Review set forth in references (b) through (g) are approved.

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

     a. XXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.

     b. XXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.

     c. XXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 10 percent disability rating (increased from 0 percent) effective date of discharge.
     
     e. XXXXXXXXXXXXXXXXXX, former USN: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 10 percent) effect date of discharge.

     f. XXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.

     g. XXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability separation 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.