RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXX					          CASE:  PD-2014-03192
BRANCH OF SERVICE:  AIR FORCE 	
DATE OF PLACEMENT ONTO TDRL:  20030215
DATE OF REMOVAL FROM TDRL:  20031203

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Munitions Systems Journeyman) medically separated from the Temporary Disability Retired List (TDRL) for the human immunodeficiency virus (HIV) condition, rated at 10%.

CI CONTENTION:  The CI requests the Board consider all conditions.  His 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 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 – 20030903	VA Rating Decision1 - 20030228	
TDRL Placement – 20030215	Code	Rating	Condition	Code	Rating
Proximate	
Condition		TDRL
Placement	TDRL Removal			TDRL2
Placement	TDRL3 Removal	
HIV	6351	30%	10%	HIV	6351	60%	60%	
Depression	Category  II	No VA Placement	
Other MEB/PEB Conditions x 0 (Not in Scope)	Other x 1	
RATING:  30% → 10%	RATING:  60%	
1. Most proximate to TDRL Placement
2. Rating derived from C&P exam dated 20021218, ~2 mos. pre-TDRL placement 
3. Rating derived from C&P exam dated 20021218, ~12 mos. pre-TDRL removal 
*Derived from VA Rating Decision (VARD) dated 20030228 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

HIV.  The narrative summary (NARSUM) documented that the CI’s HIV condition of was first diagnosed in September 2002, approximately 4 months prior to TDRL placement.  Prior to receiving his diagnosis, the CI had frequent sore throats on and off since 1999 with one documented positive culture for Streptococcus.  In 2001 he had a tonsillectomy; however, he continued to have intermittent sore throats with occasional adenopathy.  In late February 2002 he had a positive Monospot test coincident with a febrile pharyngitis, adenopathy and fatigue.  His symptoms were treated with a course of antibiotics.  He later developed a generalized pruritic skin rash, which has recurred intermittently ever since its onset.  He was prescribed prednisone for his rash and this led to the development of oral thrush in September 2002.  The NARSUM, dated 23 October 2002 recorded his current symptoms of diarrhea with loose stools up to 5 times a day, weight loss between 10 and 15 pounds and fatigue.  Physical examination documented height of 5’9” and weight of 137 pounds.  His physical examination was unremarkable.  The physician noted that radiograph of the chest was normal.  It was noted that his CD 4 cell count was 266.  The CI developed an AIDS defining illness (candida esophagitis), which was treated, and this led to prophylaxis treatment for pneumocystis pneumonia.  Final diagnoses included HIV associated syndrome, esophageal candidiasis (documented as an AIDS defining condition), weight loss, diarrhea and fatigue, persistent pruritic skin rash and depressive disorder.  Recommendations were made for instituting anti-retroviral medications to treat HIV and management by infectious disease specialist.  The TDRL removal examination was accomplished 9 months after TDRL placement.  The exam documented that the CI had experienced a robust response to treatment with CD 4 cell count (April 2003) of over 900 and most recent count (June 2003) of 750.  The CI reported a 10-pound weight gain and was planning to attend college full-time as well as work a job.  The physical examination was unremarkable.  The physician stated, “Based on his response to treatment and continued suppression of viremia, a favorable prognosis for continued stability on medication may be expected, and he is currently asymptomatic….I feel that these issues should weigh heavily in consideration of his request (CI wishes to return to duty).” 
 
The Board directed attention to its rating recommendation based on the above evidence.  At TDRL placement, the PEB adjudicated the CI’s HIV condition as unfitting, coded 6351 (HIV-related illness) and rated 30%.  The Board deliberated whether the CI’s HIV condition met the 30% or the 60% criteria rating at the time of TDRL placement.  The 30% rating criteria requires demonstrated evidence of “recurrent constitutional symptoms, intermittent diarrhea, and on approved medication, or minimum rating with T4 cell count of less than 200, or hairy cell leukoplakia, or oral candidiasis.”  This was clearly supported by the evidence.  The higher rating of 60% requires demonstrated evidence of “refractory constitutional symptoms, diarrhea, and pathological weight loss, or; minimum rating following development of AIDS-related opportunistic infection or neoplasm.”  The Board opined that the evidence in the record supported that the CI’s HIV condition met the 60% rating criteria of 6351.  He had chronic diarrhea, significant weight loss and an AIDS defining condition of esophageal candidiasis.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 60% for the HIV condition at TDRL placement.  

At the 3 September 2003 TDRL re-evaluation, the PEB adjudicated the HIV condition as unfitting, coded 6351 and assigned a rating of 10%, citing CD4 cell count of 711.  The VA rated the condition at 60% based on the December 2002 VA exam, and there was no indication of any assessment of his condition beyond the initial examination.  At the time of TDRL separation, the Board unanimously agreed that the 10% rating criteria were met.  The record demonstrated CD 4 cell count in excess of 500, weight gain, and absence of HIV related constitutional symptoms, or HIV related infections.  Therefore, the 30% rating was not approached.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the HIV condition at the time of permanent separation.  

Contended PEB Condition.  The Board’s main charge is to assess the fairness of the PEB’s determination that the condition of depression not otherwise specified (NOS) was 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 psychiatric NARSUM noted that the CI had contact with mental health during childhood; however, the majority of his treatment records documents past psychiatric history, “None.”   Although the record did not sufficiently demonstrate that the depression was EPTS, there was no performance based evidence from the record that any mental health condition significantly interfered with satisfactory duty performance. 

The Board directed attention to its rating recommendation based on the above evidence. The PEB adjudicated the condition at TDRL placement as CAT II (conditions that can be unfitting but are not currently compensable or ratable) and existed prior to service (EPTS).  The Board noted the only document in evidence to record this condition as EPTS was suggested by the psychiatric NARSUM.  The PEB did not sufficiently demonstrate that the CI’s condition met the criteria for EPTS (there were no treatment records that suggested this condition EPTS, no treatment entry that noted the CI reported a condition EPTS, and no indication that the PEB supplemented the record with details demonstrating EPTS).  Therefore, Board members concluded there was insufficient evidence to support that the condition of depression NOS EPTS.   The Board observed that no MH condition was claimed with the VA.  The Board next proceeded to determine if there was a preponderance of evidence to support an unfitting MH condition at TDRL placement.  The record demonstrates the CI participated in talk therapy since June 2000, on a regular basis for the diagnosis of adjustment disorder with depressed mood.  In August 2002 he was diagnosed with depressive disorder NOS and placed on antidepressant medication with good response.  After his HIV diagnosis, the CI continued in group therapy and noted that his medication and group therapy had helped him to deal with the news of his illness.  The condition of depression NOS was not profiled.  The NARSUM noted the condition caused mild impairment in social and industrial adaptability and minimal military impairment.  All Board members agreed there was not a preponderance of evidence to support an unfitting MH condition at the time of TDRL placement.  The Board noted with curiosity, a TDRL removal psychiatric NARSUM was accomplished in August 2003.  That exam noted the CI had continued weekly group therapy, and had discontinued antidepressants approximately a year ago.  He has occasional depressed mood but no issues with sleep or energy.  The CI reportedly stated he feels better now than in several years.  His mental status examination was completely normal and the psychiatrist opined that his condition of depressive disorder was in “complete remission.”  He had a GAF of 80 (if symptoms are present, they are transient and expectable reactions to psychosocial stressors).  The examiner noted the CI was qualified for worldwide deployment.  The PEB adjudicated the condition at TDRL removal as “unfitting but EPTS” without any remarks regarding the “unfitting” characterization. There was no condition recorded as Category II. The Board adjudged that the recording of the condition as “unfitting” was likely entered in error.  Again, there was not clear evidence that the condition recorded as EPTS was appropriately designated; however, there was no evidence that this condition was permanently service aggravated, or was unfitting at the time of TDRL removal.  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 determination for the depression NOS condition and so no additional disability rating is recommended.

BOARD FINDINGS: In the matter of the HIV associated syndrome condition, the Board unanimously recommends a disability rating of 60% for the TDRL interval and no change to the permanent disability rating of 10%, coded 6351 IAW VASRD §4.88b.  In the matter of the contended depression NOS condition, the Board unanimously recommends no change from the PEB determination.  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 his prior medical separation:  

CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
HIV	6351	60%	10%	
RATING	60%	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140624, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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

Dear XXXXXXXXXXXX:

Reference your application submitted under the provisions of DoDI 6040.44 (Section 1554, 10 USC), PDBR Case Number PD-2014-03192.

After careful consideration of your application and treatment records, the Physical Disability Board of Review determined that the rating assigned at the time of placement on the Temporary disability Retired List was not appropriate under the guidelines of the Veterans Affairs Schedule for Rating Disabilities.  Accordingly, the Board recommended modification of your records to reflect an increased TDRL rating without change to your assigned permanent disability rating and separation with severance pay, upon final disposition.

I have carefully reviewed the evidence of record and the recommendation of the Board.  I concur with that finding, accept their recommendation and direct that your records be corrected as set forth in the attached copy of a Memorandum for the Chief of Staff, United States Air Force.  The office responsible for making the correction will inform you when your records have been changed.

Sincerely,

Attachment:
Record of Proceedings