RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03528
BRANCH OF SERVICE:  Navy 	SEPARATION DATE:  20060512

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Hospital Corpsman, medically separated for “major depressive disorder,” with “generalized anxiety disorder,” and “social phobia” with a disability rating of 10%.  

CI CONTENTION:  The applicant contends that the VA provided a higher rating for his MH condition and that his asthma and thyroid and hypersomnia conditions should be unfitting and rated.  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 based upon a 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 - 20060207	VARD - 20061006	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Major Depressive Disorder	9434	10%	Major Depressive Disorder, Recurrent, w/Social Phobia	9434	70%	20060802	
Generalized Anxiety Disorder	Category II					
Social Phobia	Category II					
Primary Hypersomnia	Category III
Not Unfitting	Obstructive Sleep Apnea with Asthma	6847	50%	20060808	
Asthma	Category III
Not Unfitting					
Autoimmune Thyroid Disease	Category III
Not Unfitting	Autoimmune Thyroid Disease w/Hypothyroidism	7903	10%	20060808	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  90%	

ANALYSIS SUMMARY:  

Major Depressive Disorder (with Generalized Anxiety Disorder and Social Phobia).  According to service treatment records (STR) and the mental health (MH) Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI had difficulties with depressive and anxious symptoms noted in treatment records beginning in 2003.  He was started on medication and psychotherapy.  At the next set of MH evaluations in November 2004, in the setting of marital and occupational problems, the CI was diagnosed with anxiety disorder NOS and major depressive disorder, recurrent.  Despite treatment with medication and psychotherapy, the CI’s MH conditions did not improve sufficiently to meet the requirements of the CI’s military specialty and he was referred for a MEB.  The MEB forwarded “major depressive disorder, recurrent episode, without mention of psychotic behavior,” “anxiety state, unspecified,” and “social phobia” for PEB adjudication.  

The MEB NARSUM examination on 28 September 2005, 7 months prior to separation, noted complaints of feeling overwhelmed with anxiety and depressive symptoms and social anxiety.  The CI had been seen over 20 times for individual psychotherapy and medication management without sustained benefit and his provider discontinued all psychiatric medication except for Benadryl for sleep.  The CI was noted to have had some mild symptoms prior to entry onto active duty.  The psychiatrist indicated that the CI’s “symptoms have become quite severe and prominent during the course of his service.”  Psychological testing supported the depressive and anxious symptoms with interpersonal disturbances.  On mental status examination his mood was described as “depressed,” affect was anxious, dysthymic and mood congruent.  There was no suicidal ideation, delusions, hallucinations or other symptoms suggestive of psychosis, speech disturbance, objective cognitive impairment, or other abnormality.  The psychiatrist diagnosed major depressive disorder, recurrent, severe without psychotic features with considerable social and industrial impairment; anxiety disorder with considerable social and industrial impairment; and social phobia, with mild social and industrial impairment.  The current Global Assessment of Functioning (GAF) was 41-50:  severe symptoms, with the highest GAF having been 61-70:  some mild symptoms.  A follow-up MH clinic visit dated 7 October 2005, by the NARSUM psychiatrist, indicated the major depressive disorder, recurrent was moderate, and the GAF was 51-60:  moderate symptoms.  

The commander’s non-medical assessment (NMA) indicated that the CI missed 6-10 hours of work per week.  Work quality was consistent with his peers, with hampered timely completion of assignments.  The NMA stated that the CI’s “personal and medical detractors interfere with his ability to interact decisively and independently.”  

At the 8 August 2006 VA Compensation and Pension (C&P) evaluation, performed 3 months after separation, the CI reported problems of insomnia, social anxiety, and depression.  The CI was not employed and reported suffering severe anxiety in public and meeting new people, inability to deal with stressful situations such as work, loss of interest and impaired impulse control.  On mental status examination his mood was mildly depressed; “This seemed to be near continuous and it does affect his ability to function independently.”  Communication was somewhat inhibited and in a passive manner.  The CI had sweaty palms and “his voicing indicates anxiety as well.”  There was no suicidal ideation, delusions, hallucinations or other symptoms suggestive of psychosis, speech disturbance, objective cognitive impairment, or other abnormality.  The psychiatrist diagnosed major depressive disorder, recurrent, and social phobia.  The GAF was 48 (in the serious symptom range).  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the major depressive disorder condition 10%, coded 9434 (Major depressive disorder), citing decrease in performance, poor prognosis and “functions well.”  The PEB also listed the generalized anxiety disorder and social phobia conditions as related Category II conditions (conditions that contributed to the primary unfitting condition but were not separately ratable).  Rating under §4.130 is based on overall occupational and social impairment due to MH symptoms and not based on any specific MH diagnosis.  The impairment from the generalized anxiety disorder and social phobia conditions was properly subsumed under the overall rating for the major depressive disorder IAW §4.130, and are not separately ratable since such ratings would be based on the same occupational and social impairment and are prohibited by VASRD §4.14 (avoidance of pyramiding; the granting of more than one rating for the same impairment).  

The VA rated the major depressive disorder, recurrent, with social phobia condition 70% coded 9434, based on the VA C&P examination 3 months after separation, citing occupational and social impairment, with deficiencies in work, family relations, and mood, due to: past suicidal ideation and near-continuous depression that affects your ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); and difficulty in adapting to stressful circumstances (including work or a work-like setting).  The VARD dated 1 May 2007, 12 months after separation, granted Entitlement to individual unemployability effective May 13, 2006 (due to disabled due to major depressive disorder, obstructive sleep apnea with asthma, and hypothyroidism).  

Although the VA C&P examination was closest to separation, there were some indications that there was post-separation worsening and the Board adjudged that the NARSUM and follow-up psychiatry examinations had the highest probative value for rating at separation.  The Board agreed that the 70% rating was not approached and deliberated on the 50%, 30% and 10% rating levels.  

The Board considered that the NMA statement may have supported either consistently decreased occupational functioning with “interfere with (the CI’s) ability to interact decisively and independently” (50%), or substantially less impairment with only timeliness of on-level quality impacted.  The psychiatric evaluations noted severe to moderate symptoms with “considerable” social and occupational impairment, but also indicated periods of higher functioning with mild symptoms within the last year.  There was no indication that the CI’s occupational and social impairment was only during what unimpaired individuals would consider as periods of significant stress, and symptoms were not controlled by continuous medication.  A 50% rating IAW §4.130 would rely on an inference that the acuity of reported symptoms could reasonably be expected to result in impaired occupational reliability and productivity, without objective confirmation that this was indeed the case.  The 30% description (“occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks”) is a better fit with the occupational functioning in evidence since decreased efficiency and productivity were implicated by the NMA.  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 (with generalized anxiety disorder and social phobia) condition, coded 9434.  

Contended PEB Conditions:  Primary Hypersomnia, Asthma, and Autoimmune Thyroid Disease.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended conditions were not unfitting.  None of the conditions were part of any limited duty (LIMDU), or implicated in the NMA commander’s statement, or judged to fail retention standards.  There was no performance-based evidence from the record that any of the conditions significantly interfered with satisfactory duty performance at separation.  After due deliberation, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for any of 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 primary hypersomnia, asthma, and autoimmune thyroid disease 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 (with Generalized Anxiety Disorder and Social Phobia)	9434	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140725, 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 19 Sep 16 ICO XXXXXXXXXXXXXXXXXXXX   
	(c) PDBR ltr dtd 20 Sep 16 ICO XXXXXXXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 26 Sep 16 ICO XXXXXXXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 19 Sep 16 ICO XXXXXXXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 16 Sep 16 ICO XXXXXXXXXXXXXXXXXXXX
	(g) PDBR ltr dtd 29 Jul 16 ICO XXXXXXXXXXXXXXXXXXXX
	(i) PDBR ltr dtd 20 Sep 16 ICO XXXXXXXXXXXXXXXXXXXX

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

2.  The official records of the following individuals are to be corrected to reflect the stated disposition:
     
     a. former USN: Retroactive placement on the Permanent Disability Retired List with a 40 percent disability rating (increased from 20 percent) effective date of discharge.  

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

     c. former USN: Entitlement to disability severance pay with a 10 percent disability rating (increased from 0 percent) effective date of discharge.  

     c. former USN: Entitlement to disability severance pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge. 

     d, former USN: Entitlement to disability severance pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge. 

     e. former USMC: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 10 percent) effective date of discharge.  

     f. former USN: Retroactive placement on the Permanent Disability Retired List with a 50 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.