RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02985
BRANCH OF SERVICE:  Army	BOARD DATE:  20150609
DATE OF PLACEMENT ONTO TDRL:  20040325
DATE OF REMOVAL FROM TDRL:  20060712

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-1 (Combat Engineer) medically separated for a mental health (MH) condition.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  He was issued a permanent S4 profile and referred for an Medical Evaluation Board (MEB).  Major depression was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB (IPEB) adjudicated major depressive disorder (MDD) with psychotic features of auditory hallucinations as unfitting, rated 50% with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was placed on Temporary Disability Retired List (TDRL).  Approximately 29 months later, the IPEB adjudicated the MDD as unfitting, rated 0% with likely application of the VASRD.  The CI made not appeals and was medically separate.

CI CONTENTION:  He was given a 100% rating by the VA.  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 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:

Final PEB – 20060614	VA Rating Decision1 - 20040730	
TDRL Placement – 20040205	Code	Rating	Condition	Code	Rating
Proximate	
Condition		TDRL
Placement	TDRL Removal			TDRL2
Placement	TDRL3 Removal	
Major Depressive Disorder	9434	50%	0%	MDD	9434	0%	--	
				Schizoaffective Disorder	9211	--	50%	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 5	
RATING:  50% → 0%	RATING:  0%	
1. Most proximate to TDRL Placement
2. Rating based on service treatment record (STR) effective 20040325
3. Rating derived from C&P exam dated 20090813 (~38 mos. post-TDRL removal) effective 20090217

ANALYSIS SUMMARY:

Major Depressive Disorder.  Review of the medical records shows that prior to enlistment, the CI was expelled from high school due to truancy and substance abuse (alcohol and marijuana), but subsequently graduated from a different school.  He enlisted in 1998 shortly after graduation and apparently did well in basic training per his report.  However, at his first duty station, he had non-judicial punishment (Article 15s) for both underage drinking and being drunk on duty and was reduced in rank to E1.  Subsequently, he reported that he regained his rank back to E-4 although the separation documents indicate that he was an E-1.  On 21 February 2003, the CI was referred for a MH evaluation in association with a Chapter 14 discharge for shop lifting.  The referring officer noted that the CI got along well with others, but did not perform his duties satisfactorily nor care about his appearance or equipment.  He shirked his duties and displayed chronic misbehavior.  He was evaluated 3 days later and reported a family history of depression (mother), alcohol abuse (father), and attempted suicide (sister).  He endorsed one black out spell (a sign of alcohol abuse).  He reported a poor childhood, but denied physical abuse.  He was close to his mother, but estranged from his father.  He stated that his relationship with his spouse was good.  He reported that he was unaware that his spouse was shoplifting and had placed several items in a baby bag without telling him.  He was cleared by MH for administrative and/or judicial action on 3 March 2003.  The CI was next evaluated on 11 June 2003 for alcohol abuse after his spouse informed him that his drinking was out of control.  He met the criteria for treatment of dependency.  He was also begun in marital counseling and started on medications for passive suicidal ideation.  On 16 June 2003, he reported to psychiatry that he was severely depressed and endorsed hearing voices which told him to cut himself.  Both a major MDD episode with psychotic features and an initial psychotic episode were entertained as diagnoses.  On 21 June 2003, he was transferred to an Army medical center for in-patient treatment.  A mental status evaluation request done that day noted that he was no longer cleared for administrative and/or judicial action.  On admission, the CI reported a 4-week history of increasing depression and agitation.  He denied MH problems prior to this.  He stated that he had drunk heavily, but quit 4 weeks earlier.  However, he had abused marijuana daily until 3 days earlier.  He was thought to have pseudo-psychotic thoughts, but to not have a true thought disorder.  Significant anger was noted which was directed at his NCOs; his threats were thought to be manipulative to avoid returning to his unit.  The discharge diagnosis was that of an adjustment disorder with an anti-social personality disorder.  The latter was thought to be significant and to warrant separation.  He was cleared for disciplinary action.  However, the psychiatrist at his home station diagnosed the CI with a MDD with psychosis the following week and dictated the MEB narrative summary (NARSUM).  This psychiatrist did not have the records from the inpatient stay though.  The NARSUM was dated 10 July 2003.  The CI reported that he had two Article 15s (discussed above) and the reduction in rank.  He reported that he had recently accepted another Article 15 for the shoplifting incident discussed above.  He reported that he was expelled twice from high school for truancy (he stayed home smoking tobacco and marijuana) and then graduated from a special school prior to enlistment.  He reported that two sisters and his mother had attempted suicide and that his father was physically abusive.  He was thought to have MDD with psychotic features and schizoid personality traits, but not to the extent of a mental disorder.  He was referred for PEB.

A week later on 18 July 2003, the CI presented with preoccupation of thoughts of the death of an infant son (premature) months earlier as well as auditory hallucinations and was admitted to a local civilian hospital.  He was noted to have an acute, severe MDD with progression since accession and some service aggravation as well as a schizotypal personality disorder (chronic and severe).  A note dated 24 July 2003 reported that the CI was dis-enrolled from substance abuse treatment due to poor motivation and continued abuse of marijuana.  He was transferred back to the Army Medical Center for continued treatment.  The discharge note from the civilian hospital noted a MDD with psychotic features, drug abuse, and a possible personality disorder.  A mental status report dated 19 August 2003 noted that the CI was responsible for his actions prior to March 2003.  The CI was discharged from the hospital on 17 October 2003 after an 80-day admission.  He was diagnosed with a MDD with poly-substance abuse and a personality disorder, not otherwise specified (NOS), with antisocial, borderline, and narcissistic traits.  Persistent suicidal and homicidal ideation was expected to be chronic and associated with the underlying personality disorder.  On 10 December 2003, the treating psychiatrist sent a memorandum to the local legal office stating that the CI was at high risk of ultimately committing suicide (although when could not be predicted) and recommended a discharge which would permit continued care in the VA system.  The CI reported continued persecutory auditory hallucinations at a psychiatric follow-up on 20 January 2004.  A second addendum to the NARSUM was dated 30 January 2004, 8 weeks prior to TDRL placement.  It noted that the CI had been admitted again on 26 January 2004 for depression and an inability to contract for safety.  He was disheveled in appearance.  He was again noted to have a MDD with psychotic features with schizoid personality traits (but not to the extent of a mental disorder).  The final MH evaluation prior to TDRL placement was on 6 February 2004.  The CI reported a dissociative episode in which he made fine cuts on his arm.  This was after his baby threw up and his wife asked for help cleaning it up.  He had refused to go to the hospital, but reported that he was better the next morning and that his auditory hallucinations were minimal 70%.  He was noted to be stable on medications.

Two MH VA Compensation and Pension (C&P) examinations were scheduled, but the CI did not show for the appointments.  The CI was apparently seen in MH during the TDRL period, but these records are not in evidence.  A drug screen on 21 March 2006 was positive for both prescribed medications and marijuana.  The CI was evaluated during the TDRL period on 21 March 2006, just under 3 months prior to TDRL removal.  He reported taking medications and using marijuana (weekly) for rage.  He reported that following separation, he had worked in a hardware store until he moved to a new city.  He worked in a rental business (equipment and trailers) for about a year until he was fired for fits of anger.  It was also recorded that he was fired for refusing a drug test after an injury (he was positive for marijuana on a drug screen dated 23 January 2006).  At the time of the evaluation, he was working in another rental business 50 hours a week and doing well.  He reported that he had been angry since the loss of his son in 2001 and that he and his wife had a “shaky relationship.”  He endorsed panic attacks and physical abuse in childhood.  He continued to use alcohol and marijuana as well as Peyote (for religious purposes as a Native American).  On examination, he showed normal grooming and was on time.  His mood varied from bland to irritable and his mood was “stressed.”  There was no evidence of hallucinations, obsessions, or ruminations.  He denied suicidal or homicidal ideation.  There was no evidence of perceptual distortions.  Judgment was adequate.  Insight was fair.  He was diagnosed with a depressive disorder, NOS with onset his junior year of high school which the PEB determined was not permanently aggravated by service.  His impairment was minimal and he was thought to meet retention standards.  The primary diagnosis was the personality disorder with permanent antisocial and borderline traits which was thought to be more of an administrative than medical problem.  It was noted that he had been employed almost continuously since separation without routine MH care.  The CI contested this assessment and noted on 26 April 2006 that his marriage was stable.  He also noted that he had no administrative problems in his current job.  He stated that his current medication Symbyax (used for depression and for bipolar disorder) was working well and prescribed by the VA.  The TDRL removal PEB noted that the CI was in a stable marriage and was working full-time.  He took medications for his condition sporadically and used alcohol and marijuana for anger control and Peyote for religious purposes.  His impairment was thought to be mild to none after adjustment for the personality disorder contributions.

The first MH C&P was performed approximately 66 months after TDRL placement, and approximately 38 months after TDRL removal; which was remote but deliberate by the Board.  The CI reported that he was estranged from his mother and had a causal relationship with his father.  He reported that he was emotionally and physically abused by his mother and that he was never expelled or suspended from school.  His childhood was described as “pretty good.”  The Board noted that the above contradicts history provided previously by the CI.  He reported that he was working and that his marriage was good.  On examination, he was well groomed and had slow, but clear, goal-directed answers to questions.  His affect was flat with mood that was anxious, depressed and dysphoric (unease or dissatisfied).  His attention was easily distracted.  His though content was suicidal ideation, paranoid ideation.  He endorsed auditory hallucinations.  He was diagnosed with an Axis I schizoaffective disorder with alcohol and cannabis abuse (both in remission) and Global Assessment of Functioning of 32 (some reality testing impairment).

The Board directed attention to its rating recommendation based on the above evidence.  It first considered the rating for TDRL placement.  It noted that the CI had ongoing problems with substance abuse dating back to high school and had been disciplined for these on active duty in his first assignment after initial training.  His MH problems manifested after he was under consideration for an administrative separation due to shop-lifting (by his spouse, but with his alleged knowledge).  Substance abuse remained problematic and he failed rehabilitation.  The admitting psychiatrist determined that most of his problems were secondary to an underlying personality disorder which preceded his accession.  The treating psychiatrist for the MEB NARSUM determined that the primary issue was a MDD.  The Board noted that the history provided by the CI to this clinician was not consistent with official documentation.  The Board also noted that the CI was in a stable marriage and, shortly after TDRL placement, was working in a job which he kept until he moved.  The PEB rated the CI at 50% which is described as “occupational and social impairment with reduced reliability and productivity.”  The Board considered if the description for a 70% rating, “occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood,” was met at TDRL placement and the Board majority determined that this is not consistent with a stable marriage and full time job.  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 mental health condition at TDRL placement.

The Board noted that the VA rated the MH condition at 0% due to the fact that the CI did not show for two C&Ps and kept this rating until 17 February 2009, almost 3 years after TDRL removal.

The Board then considered the rating at TDRL removal.  The Board majority determined the CI was on medications with good effect.  His marriage was good and he was working full time, “50 hours per week, five 10-hour days.  So far this job is going well.”  The PEB rated the CI at 0% attributing most of the disability to the personality disorder.  The CI did not elect to contest this adjudication.  In fact, he reported that his medications really helped his depression.  He reported not having any depression at this time.  The Board majority noted though that the PEB stated that “emotional labiality [sic] would prevent successful return to active service” and that this supports a 10% rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (Reasonable doubt), the Board majority recommends a disability rating of 10% for the MDD condition.

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.  The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised.  In the matter of the MDD condition, the Board recommends no change in the PEB adjudication at TDRL placement; and by a Board majority vote recommends a disability rating of 10% at TDRL removal coded 9434 IAW VASRD §4.130.  There were no other conditions within the Board’s scope of review for consideration.  The single voter for dissent submitted the appended minority opinion.

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:

CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
Major Depressive Disorder	9434	50%	10%	
COMBINED	50%	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140613, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

		

MINORITY OPINION:  Based on VASRD §4.3 (Reasonable doubt), the minority finds the CI’s MDD at the time of TDRL removal supports a 30% rating versus the majority vote 10% recommendation.

The CI final TDRL evaluation was performed at Madigan Army Medical Center on 21 March 2006 or 3 months prior to TDRL removal.  The CI reported his relationship with his wife was shaky.  The death of their first child caused the CI to experience anger and he blamed God.  He tried to deal with the anger by working out and punching a bag, but this did not help.  His wife turned away from religion and they both had anger problems at that time.  The minority concedes the CI was working “full time” at the time of the TDRL evaluation; however, the CI was fired from his former job due to a rage reaction on or about January 2006.  Additionally the CI fractured his right hand by punching a wall on 31 January 2006.  The final TDRL exam documented the CI had “2 VA visits which resulted in prescriptions for Depakote and Seroquel for rage reactions” which also corroborates the CI had a chronic anger management problem similarly documented at the time of TDRL placement.

The final TDLR exam documented the CI’s continued illegal use of marijuana and legal use of Peyote (for Native Americans) which corroborates the CI had a chronic substance abuse problem also documented at the time of TDRL placement.  The final TDRL examination diagnosed the CI with Axis I depressive disorder, NOS as manifest by chronic affective instability with periods of intense dysphoria, intermittent suicidal and homicidal ideation, self-damaging behavior, and impulsivity.  The Global Assessment of Functioning was “about 60” or moderate symptoms.  Similarly, the prior to TDRL placement MEB NARSUM Psychiatric diagnosed the CI with Axis I MDD but with a GAF of 20.  The final TDRL examiner opined, “The clinical picture he [the CI] describes is one of chronic affective instability rather than a major depressive disorder.   He [CI] also indicates difficulty with anger management interpersonal relationships and stress.  He [CI] complains of panic attacks, feeling anxious, angry, and having trouble breathing during those times.  There are no complaints of anything resembling any psychotic disorder or auditory hallucinations.” Lastly, the examiner opined, “The service member’s major challenge to active duty would be his substance abuse and chronic anger problems.”

Based on reasonable doubt, the minority finds that the CI’s MDD at TDRL removal is greater than a 10% which is depicts a stable MH condition controlled by medication.  From the TDRL placement to TDRL removal the CI continued to experience subjective anxiety and panic attacks, and objective lack of anger management and on-going substance abuse.  These symptoms are indicative of a 30% disability rating.  The 30% MH rating criteria allows Veterans to generally function satisfactorily with routine behavior, self-care and conversation normal as did the CI.  However, it is the minority’s position that the CI’s mental disability encompassed an occupational and social impairment with “occasional” decrease in work efficiency and intermittent periods of inability to perform occupational tasks that depicts the 30% rating at the time of TDRL removal.

RECOMMENDATION:  The Board minority, 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:

CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
Major Depressive Disorder	9434	50%	30%	
COMBINED	50%	30%	

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 XXXXXXXXXXXXXXXXXXXXX, AR20160002824 (PD201402985)

1. I have reviewed the enclosed Department of Defense Physical Disability Board of
Review (DoD PDBR) recommendation and record of proceedings pertaining to the
subject individual. Under the authority of Title 10, United States Code, section 1554a,
accept the Board's recommendation to modify the individual's disability rating to 10%
without re-characterization of the individual's separation. This decision is final.

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.

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:

CF:
( ) DoD PDBR
( ) DVA