RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX		CASE:  PD-2014-02682
BRANCH OF SERVICE:  Army	                              SEPARATION DATE:  20051215

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4, Motor Transport Operator, medically separated for “major depressive disorder…associated with anxiety symptoms similar to …PTSD” with a disability rating of 10%.  

CI CONTENTION:  “Please 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 – 20051020	VARD - 20070420	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Major Depressive Disorder…	9434	10%	PTSD	9411	70%	20060608	
Asthma, Mild, Persistent	Not Unfitting	Asthma	6602	30%	20060601	
Disc Herniation of L5-S1	Not Unfitting 	Lumbosacral Strain	5237	10%	20060601	
 COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  80%	

ANALYSIS SUMMARY:  

Major Depressive Disorder (MDD). According to the service treatment records and the Medical Evaluation Board (MEB) mental health (MH) narrative summary (NARSUM), the CI sought treatment for her symptoms of depression and anxiety, consistent with MDD and posttraumatic stress disorder (PTSD), in September 2004.  The CI had a childhood history of sexual assault, and in 2001, while on active duty, she was abducted from her unit by an NCO and escaped an attempted rape.  In 2003, she reported a second incident of assault while on active duty.  After returning from deployment in August 2003, and following a difficult pregnancy, her symptoms of anxiety, depression and anger escalated.

At the MH NARSUM dated August 2005, the CI reported that she had feelings of re-experiencing traumatic events daily, and that the assaults during active duty had exacerbated the symptoms experienced in early in life.  At the time of the examination, the CI reported anxiety, panic attacks, persistent mood swings, lack of energy and lack of pleasure.  The examiner noted that she had symptoms consistent with depression and PTSD.  Mental status examination demonstrated depressed mood with tearful and angry affect.  Her insight and judgment was intact, and there was no evidence of impairment in cognition.  Suicidal and homicidal ideation was absent.  The diagnoses of MDD, recurrent and PTSD were recorded with a Global Assessment of Functioning (GAF) score in the mild range.

The VA Compensation and Pension (C&P) mental examination was accomplished 6 months after separation.  The examiner reported that since separation, the CI had not received any outpatient MH treatment and had not been hospitalized or treated in the emergency room for MH symptoms.  The CI was working full-time but was having some issues with male co-workers.   The CI noted that she had filed a formal report related to the 2001 assault.  She reported that she had felt intense fear and horror at the time of both attacks, and continued to have PTSD symptoms.  She did not have panic attacks.  The CI spent a good deal of her time at church; she taught dance and sung in the choir.  However, she was otherwise isolative and had no other social activities.  MSE noted psychomotor slowness, flat affect and an anxious and depressed mood.  All other aspects of the MSE was unremarkable.  The GAF score was assessed in the moderate range.

The Board directed attention to its rating recommendation based on the above evidence. The PEB rated the condition of MDD, recurrent, at 10%, coded 9434, and noted that the condition began in 2001 “secondary to a physical assault, and associated with anxiety symptoms similar to those of PTSD.”  It was also noted that the CI had pre-service MH history and history of assault.  The VA rated the condition of PTSD at 70%, coded 9411.  The PEB rating, as described above, was derived from DoDI 1332.39 and preceded the promulgation of the National Defense Authorization Act (NDAA) 2008 mandate for DoD adherence to Veterans’ Administration Schedule for Rating Disabilities (VASRD) §4.129. The Board, IAW DoDI 6040.44 and DoD guidance (which applies current VASRD §4.129 to all Board cases as appropriate), must consider if the definition of §4.129 is met for any psychiatric condition resulting in medical separation; i.e., “a mental disorder that develops in service as a result of a highly stressful event”.  If the Board judges that application of §4.129 is appropriate, it will recommend a minimum 50% rating for a retroactive 6-month period on the Temporary Disability Retired List (TDRL).  The Board must then determine the most appropriate fit with VASRD 4.130 criteria at 6 months for its permanent rating recommendation, based on the facts in evidence which are most probative for that interval.  

The Board considered the evidence in its totality which documented the sexual assaults as traumatic stressors that led to the diagnosis of depression and PTSD.  The Board acknowledged the childhood history of sexual assault and treatment associated with that event; however, PTSD and MDD were not considered EPTS conditions, and thus, must be addressed in the context of the documented evidence in the STR.  Therefore, all Board members agreed the provisions of §4.129 were applicable in this case.  

The Board next proceeded with its rating recommendation under VARSD§ 4.130 based on the evidence at constructive TDRL placement.  Regardless of the diagnosis, 4.130 rating is based on symptoms independent of diagnosis, therefore, all mental health symptoms were considered in the rating.  

The CI had no history of psychiatric hospitalizations or visits to the ER.  She was not taking any psychotropic medications, although she was prescribed an antidepressant medication and she participated in psychotherapy with some benefit.  Suicidal or homicidal ideations were not recorded.  No behaviors or symptoms of her illness was recorded in the commander’s statement.  The Board considered the record in evidence did not support a higher than 50% rating for TDRL placement.  The Board concluded there was insufficient reasonable doubt (IAW VASRD §4.3) for recommending a 70% TDRL placement rating.  

The Board next determined the most appropriate fit with VASRD §4.130 criteria at the end of TDRL for its permanent rating recommendation.  The C&P examination was the sole document in evidence.  That examination noted the CI was working full-time, but had some difficulty with male co-workers.  However, there was no indication that her difficulties impaired her ability to work.  She had some issues with sleep and fatigue, but was not in any form of treatment.  She was isolative, but did attend church-related activities and was a member of the choir.  There was no evidence of impairment in judgment or thinking.  Although the MH C&P examiner documented impairment in most areas of functioning, the evidence in totality did not support that level of disability.  Board members agreed, that no higher than the 10% level of disability was supported.  The Board considered the record in totality which demonstrated that the CI had not been hospitalized, had no recorded ER visits, no acute episodes, no history of chronic sleep impairment interfering with work performance, no history of suicidal or homicidal ideations, or attempts, no objective impairment in memory, and no evidence of significant clinical impairment in judgment.

Board members concluded that the evidence at the time of separation, was most reflective of the 10% level of disability 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; or, symptoms controlled by continuous medication.

After due deliberation, and in consideration of all the evidence and VASRD §4.3 (reasonable doubt), the Board recommends a 50% disability rating at TDRL placement and a permanent 10% rating for the MDD condition.

Contended PEB Conditions.  Asthma and disc herniation of L5-S1.  The Board noted that at the time of the May 2005 commander's statement, the conditions of asthma and herniated disc were profiled.  The commander mentioned all of the CI’s medical diagnoses and stated that her profile “severely limits the activities necessary for her [CI] to perform her duties.”;  However, the last profile in July 2005, 5 months before separation did not include these conditions (only MH conditions).  Therefore, at the time of separation, the asthma and disc herniation conditions were not profiled.  Although the NARSUM recorded that these conditions did not meet retention standards, the PEB judged that neither condition failed retention standards.  The Board noted that the CI used a rescue inhaler for treatment of her asthma, and she had normal PFTS 6 months after separation.  She used inhaled anti-inflammatory medication for allergic rhinitis.  The CI began to have recurrent low back pain in December 2001 after a C-section.  The NARSUM stated she had home physical therapy with good control of her LBP and was not on a profile for her back symptoms.  Both conditions were reviewed and considered by the Board.   Although the conditions were implicated in the commander's statement there was not a preponderance of evidence that these conditions significantly interfered with satisfactory duty performance.  After due deliberation 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 asthma and disc herniation of L5-S1 conditions and so no additional disability ratings are recommended.

BOARD FINDINGS:  In the matter of the MDD the Board recommends a disability rating of 50%, coded 9434 for the TDRL interval and a permanent disability rating of 10%, coded 9411 IAW VASRD §4.130.   In the matter of the contended asthma and disc herniation L5-S1 conditions, the Board 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, effective as of the date of her prior medical separation 

CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
Major Depressive Disorder, Recurrent with anxiety	9434	50%	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, undated, 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

08 DEC 2016

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXX, AR20160018206 (PD201402682)

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  constructively place the individual on the Temporary Disability Retired List (TDRL) at 
50% disability for six months effective the date of the individual’s original medical separation for disability with severance pay and then following this six month period no re-characterization of the individual’s separation or modification of the permanent disability rating of 10%.

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 as follows:

	a.  Providing a correction to the individual’s separation document showing that the individual was separated by reason of temporary disability effective the date of the original medical separation for disability with severance pay.

	b.  Providing orders showing that the individual was separated with a permanent combined rating of 10% effective the day following the six month TDRL period with no re-characterization of the individual’s separation.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will provide 50% retired pay for the constructive temporary disability retired six month period effective the date of the individual’s original medical separation and adjusting severance pay as necessary to account for the additional TDRL time in service.

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:
Enclosures
CF: 
(  ) DoD PDBR