RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-04324
BRANCH OF SERVICE:  Army 	SEPARATION DATE: 19980714
DATE PLACED ON TDRL:  19980715	DATE REMOVED FROM TDRL:  20030321

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Administrative Specialist, medically separated from the Temporary Disability Retired List (TDRL) for “major depressive disorder,” rated 10%, and “retinitis pigmentosa O.U.,” which was found to be non-compensable, with a combined 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 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 – 19980417/20030305	VARD - 19990217	
Condition	Code	Rating	Condition	Code	Rating
Proximate	
		TDRL
Placement	TDRL
Removal			TDRL
Placement	TDRL
Removal	
Major Depressive Disorder	9434	30%	10%	Major Depressive Disorder	9434	10%	10%	
Retinitis Pigmentosa O.U.	6099-6006	EPTS	Retinitis Pigmentosa	6006	NSC	NSC	
Fractured Right Leg, No Permanent Sequela	MEB Diagnosis	Fractured Right Leg	5010	0%	0%	
History of Heel Spurs, No Permanent Sequela	MEB Diagnosis	Spurs Plantar Surface Both Heels	5015	0%	0%	
COMBINED RATING:  30% → 10%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:  

Major Depressive Disorder (MDD).  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s MDD began in 1994 with exacerbation and formal diagnosis in October 1997 after suffering from depressed mood related to occupational difficulties and self-image distortions related to his diagnosis of retinitis pigmentosa.  Initial presentation to mental health was via a consultation from the physical examination section (during DES processing).  

The MEB NARSUM dated 8 April 1998, 3 months prior to TDRL entry, noted complaints of depression with associated symptoms that pre-dated diagnosis of retinitis pigmentosa and had occasional occupational difficulties over nearly 5 years.  On mental status examination (MSE) there was psychomotor retardation, affect was sad, thought content had recurrent suicidal ideations without a current plan, and there was some delayed speech and reported feelings of de-realization.  Memory, cognition, judgment and insight were intact.  The psychiatrist’s diagnosis was recurrent MDD “as evidenced by a depressed mood, anhedonia, insomnia, psychomotor retardation, fatigue, feelings of worthlessness, decreased concentration, recurrent suicidal ruminations resulting in significant distress and dysfunction.”  The degree of psychiatric impairment for social and industrial adaptability was “considerable” (DoDI 1332.39, 50% language).  The commander’s comments dated 2 December 1997, 7 months prior to TDRL entry, indicated the CI was performing his duties in a satisfactory manner, although due to his eye condition he had to spend additional time checking and reviewing his work and “40%-50% of his work has to be returned due to errors.”  The commander indicated the CI could continue serving in a garrison environment.  

The TDRL psychiatry NARSUM examination dated 6 December 2000 noted continued depressive symptoms, noting the CI had run out of medication and was unable to access VA care, and only being able to find part-time employment.  The diagnosis and “considerable” impairment were unchanged.  

The TDRL psychiatry NARSUM examination on 5 December 2002, 4 months prior to TDRL exit, noted complaints of being depressed, having low energy, poor motivation, feeling very frustrated, marital problems, and sudden moments of anxiety.  He reported inability to hold a job and had been employed for the last three months.  He was taking Prozac and had been seen by a VA provider 6 months prior.  On MSE his mood was reported as sad and his affect was tearful.  He had difficulty with serial sevens and serial threes without other difficulties related to concentration or memory.  There was no suicidal ideation, delusions, hallucinations or other symptoms suggestive of psychosis, speech disturbance, or other abnormality.  The psychiatrist’s diagnosis was “MDD, recurrent, as evident by multiple periods of depressed mood, feeling helpless and hopeless, anhedonia difficulty in sleeping, decrease in energy, and a feeling of being trapped in his current condition.  The degree of psychiatric' impairment for military duty:  Considerable.  Degree of psychiatric impairment for social and industrial adaptability:  Considerable” (DoDI 1332.39, 50% language).  

The VA Compensation and Pension (C&P) examination dated 13 June 2015, 12 years remote from TDRL exit, included historical information that the CI had worked full time for 15 years after separation from the military until he lost employment due to his worsening visual problems.  The diagnoses were MDD, recurrent moderate to severe; and a new diagnosis of generalized anxiety disorder with panic attacks.  There was total occupational and social impairment.  

The Board directed attention to its rating recommendation based on the above evidence.  Regarding rating at TDRL entry, the PEB assigned a 30% rating under the 9434 code (MDD), citing “rated as definite” (impairment); likely IAW AR 635-40 or DoDI 1332.39 (rescinded) in effect at the time.  The VA assigned a 10% rating using the 9434 code based on the STR, citing the CI failed to report for a scheduled (December 1998) VA examination and the 10% VASRD criteria.  

The Board considered whether the provisions of VASRD §4.129 (mental disorders due to traumatic stress) were applicable.  All Board members agreed that the evidence of the record did not support a traumatic stressor as the cause of the mental condition for which application of VASRD §4.129 would be appropriate.  The Board next considered the §4.130 rating at the time of TDRL entry.  The Board considered whether the evidence at the time of TDRL entry supported a rating higher than the 30% rating adjudicated by the PEB.  The higher rating of 50% requires evidence of “occupational and social impairment with reduced reliability and productivity.”  The Board considered the commander’s December 1997 statement indicating the CI was working in his MOS in a satisfactory manner without implicating any mental health symptoms or condition and the MEB psychiatrist’s April 1998 assessment reflected significant dysfunction and “considerable” impairment (DoDI 50% language) due to mental health symptoms related above.  The Board also considered that the MEB/PEB processing may have been considered a period of significant stress leading to worsening of the CI’s mental health symptoms.  

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 TDRL-entry 30% adjudication for the MDD condition.  

Regarding rating at TDRL exit, the PEB assigned a 10% rating under the 9434 code, citing the CI was currently employed without suicidal or homicidal ideations and was receiving treatment on an intermittent basis.  There was a remote VA evaluation (not considered probative by the Board) in 2015 with a VA rating of 100%, coded 9434, effective November 2014 citing total occupation and social impairment.  The higher rating of 30% requires evidence of “Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks” due to  such symptoms as:  depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events.”  The 50% rating requires evidence of “occupational and social impairment with reduced reliability and productivity, due to symptoms …..”  

The Board considered the TDRL NARSUM psychiatrist’s December 2002 assessment reflecting significant dysfunction and “considerable” impairment (DoDI 50% language) due to mental health symptoms related above.  The CI’s work history was intermittent with “not able to hold a job on a continuous basis,” although the CI had been employed for the three months prior to the evaluation.  The Board adjudged that there was sufficient reasonable doubt that the CI’s had at least occasional occupational and social impairment with decrease in work efficiency that was most closely aligned to the 30% rating criteria.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a TDRL-exit disability rating of 30% for the MDD condition, coded 9434.  

Retinitis Pigmentosa O.U.  According to STRs and the MEB NARSUM, the CI’s retinitis pigmentosa (both eyes) condition was diagnosed in April 1997 after the CI complained of blurred vision and a 10 year history of “flutters.”  The CI had over 12 years of active Service and entry evaluation was silent for any ocular history or problems.  The CI had been evaluated by retinal specialists to include visual field, electroretinogram and dilated fundus examinations and all were abnormal and consistent with retinitis pigmentosa.  

At the NARSUM examination in October 1997, performed 9 months before separation, the CI reported retinitis pigmentosa.  Physical examination showed best corrected visual acuity of 20/20- in the right and 20/20 in the left eye with retinal abnormalities in both eyes.  Testing revealed visual field constriction in all four quadrants of both eyes with 20 degrees of fixation inferiorly and 10 degrees of fixation superiorly.  Dark adaptation testing revealed elevated final thresholds in both eyes.  The ophthalmologist’s diagnosis was retinitis pigmentosa bilaterally that limited the CI's ability to adequately perform his job.  Restrictions included no military vehicle driving, no duty in dark environment (i.e. no night guard duty) or duty requiring full visual field.  

The commander’s comments dated 2 December 1997, 7 months prior to TDRL entry, indicated the CI was performing his duties in a satisfactory manner, although due to his eye condition he had to spend additional time checking and reviewing his work and “40%-50% of his work has to be returned due to errors.”  

The TDRL ophthalmology NARSUM examination dated 25 November 2002 noted near normal visual acuity (unchanged from TDRL-entry) with retinal pathology in both eyes and significant peripheral constriction in both eyes due to retinitis pigmentosa in both eyes.  

The remote VA C&P examination (not considered probative by the Board) dated 28 May 2015 included complaints or worsening visual acuity, lack of night vision, peripheral vision restriction and inability to drive.  Examination documented decreased visual acuity to 20/40 in each eye, and average bilateral concentric contraction of visual field with remaining field of 31-45 degrees (30% criteria was 45° but not to 30°).  The examiner indicated that there was incapacitating episodes of at least 6 weeks due to not seeing in darkness or at night.  

The Board directed attention to its rating recommendation based on the above evidence.  At TDRL entry the PEB assigned a ---% (not compensable) rating under an analogous 6006 code (Retinitis), citing retinitis pigmentosa was a genetic disorder and therefore was considered EPTS, not permanently service aggravated.  At TDRL exit, the PEB continued the ---% and coding without comment.  The VA adjudged the retinitis pigmentosa as not service connected (NSC) using the 6006 code, in 1999, citing the condition existed prior to service with no evidence that the condition permanently worsened as a result of service.  There was a remote VA evaluation in 2015 with a VA rating of 60%, coded 6006, effective November 2014 (citing incapacitations; versus 30% for visual fields and 10% for visual acuity ratings).  

Retinitis pigmentosa is a genetic recessive disease with variable expression.  Literature does not indicate that there are clear aggravators of the condition although other insults to the retina (such as bright sun exposure, etc.) may accelerate symptom progression.  Literature does indicate there are modifiers that may slow the onset or progression of the disease.  

The critical consideration in this case is if the retinitis pigmentosa is a compensable condition.  The CI had over eight years of active service at the time of TDRL entry.  The provisions of 10 U.S. Code § 1207a (members with over eight years of active service:  eligibility for disability retirement for pre-existing conditions [the “eight year rule”]) were not in effect at the time of TDRL entry (effective date October 1999), but were in effect at the time of TDRL exit.  

At TDRL entry, there was no basis for a compensable rating for retinitis pigmentosa absent “the eight year rule,” and the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the retinitis pigmentosa condition at TDRL entry.  However, the retinitis pigmentosa was considered an unfitting condition at TDRL entry and was PEB adjudicated as unfitting at TDRL exit.  The “eight year rule” was in effect at TDRL exit, and therefore, the retinitis pigmentosa condition is compensable under the provisions of 10 USC 1207a even though there is substantial evidence this condition existed prior to service.  

The Board adjudged that the TDRL evaluation had the highest probative value for rating at TDRL exit and that the remote VA evaluation was post-separation worsening.  Rating IAW VASRD §4.84 was based on visual field loss IAW §4.76a (computation of average concentric contraction of visual fields), as there was no double vision or significant decrease in corrected central visual acuity.  The CI’s visual field’s from 25 November 2002 were stated as “with significant peripheral constrictions” in both eyes.  Analysis of the source data indicated the right eye was worse than the left eye, and there was between a 60 degree and 45 degree calculated average constriction of both eyes.  Some analysis might have indicated up to a 15 degree constriction in the right eye, but that was not strongly supported.  The Board adjudged the CI’s average concentric contraction of visual fields was best represented by the bilateral 20% criteria under code 6080 (field vision, impairment).  

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’s TDRL entry adjudication and recommends a disability rating at TDRL exit of 20% for the retinitis pigmentosa condition, coded 6006-6080.  

Contended PEB Conditions:  Fractured Right Leg, No Permanent Sequela and History of Heel Spurs, No Permanent Sequela.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended conditions referred from the MEB were not unfitting.  Both conditions were referred by the MEB to the PEB, with no specific PEB determination, so there is a presumption that the PEB found them not unfitting.  Neither of the conditions were profiled nor implicated in the commander’s statement nor 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, 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 MDD condition, the Board unanimously recommends a disability rating of 30% at both TDRL entry and TDRL exit, coded 9434 IAW VASRD §4.130.  In the matter of the retinitis pigmentosa condition, the Board unanimously recommends no change in the PEB adjudication at TDRL entry; and a disability rating of 20% at TDRL exit, both coded 6006-6080 IAW VASRD §4.84a.  In the matter of the contended fractured right leg and history of heel spur 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	RATING	
		TDRL	PERMANENT	
Major Depressive Disorder	9434	30%	30%	
Retinitis Pigmentosa O.U.	6006-6080	---%	20%	
RATING	30%	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20141203, 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

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 
for AR20160018403 (PD201404324)

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 recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 40% effective the date of the individual’s original medical separation for disability with severance pay.  

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:

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

	b.  Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 40% effective the date of the original medical separation for disability with severance pay.

	d.  Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.

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:

			      
						      					
Enclosure
					
CF: 
(  ) DoD PDBR
(  ) DVA