RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-01282
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20050112

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

CI CONTENTION:  “Review all conditions.”  The CI’s complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The panel’s scope of review is defined in DoDI 6040.44.  It is limited to review of disability ratings assigned 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 or non-compensable.  Any conditions outside the panel’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 panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The panel’s assessment of the PEB rating determination is based on 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(s) at the time of separation.  The panel 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 panel 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 - 20041229	VARD - 20050721	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Major Depressive Disorder	9434	10%	Post-traumatic Stress Disorder (PTSD) with Major Depressive Disorder	9411	30%	20050211	
Vision Defect 	Not Unfitting	No VA Placement	
Reactive Airways		Asthma	6602	10%	20050211	
Recurrent Low Back Pain		Chronic Thoracic Back Muscle Strain with Scoliosis	5237	20%	20050211	
Acute Sinusitis		Sinusitis 	6513	0%	20050211	
Nasoseptal Deviation					20050211	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

Major Depressive Disorder.  According to service treatment records (STR) and the mental health (MH) Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s major depressive disorder (MDD) condition began in August to September 2003 while deployed to Iraq, with symptoms of depressed mood, decreased energy, insomnia, anxiety, and crying episodes.  During deployment the CI was involved in firefights and frequent mortar and rocket attacks.  After return from deployment he thought the symptoms were improving, but they increased with the discussions of another deployment as well as “Stop Loss” in his unit.  According to the Mental Health NARSUM, the CI uncharacteristically drank and got a DWI (driving while intoxicated), which was dropped, but he was given an Article 15.  At the 23 June 2004 Mental Health examination the CI endorsed all of the symptoms above along with anxiety, irritability, decreased concentration, and feelings of helplessness and hopelessness.  He was treated with psychotropic medications for anxiety, depression and sleep with “considerable improvement” in his symptoms.   

The Mental Health MEB NARSUM examination on 28 September 2004, 3 months prior to separation, noted continued symptoms, despite a positive response to treatment. Discussion of deployment increased the CI’s anxiety and depression with tearfulness, and tremulousness.  The CI denied alcohol or substance abuse.  Mental status examination showed the CI was oriented, alert, and cooperative.  His mood was depressed and anxious, with a full, appropriate affect.  Motor activity was normal.  There was no active suicidal ideation (SI), delusional or hallucinatory symptoms, or other symptoms suggestive of psychosis, speech disturbance, objective cognitive impairment, or other abnormality.  The Axis I diagnosis was Major Depressive Disorder, related to deployment, with a global assessment of functioning (GAF) assignment of 60, which is at the mild end of the moderate impairment range on this scale.  The Mental Health MEB NARSUM examiner indicated the CI was early in his treatment but that the prognosis for improvement was favorable with continued treatment.  However, re-exposure to deployment and combat was likely to cause an exacerbation of his symptoms.  

The14 December 2004 permanent profile listed depression.  The 21 October 2004 commander’s statement implicated the CI’s MH condition as impairing the CI’s duty performance.  The commander stated that the incident that immediately preceded the CI’s request for mental health treatment was the Article 15 incident noted above.  The CI continued to work in his MOS within the squad until he had a confrontation with an NCO and was given verbal counseling.  An Article 15 was not pursued because an early ETS to attend college had already been approved.  The CI was moved to working in the company orderly room due to his disruptive behavior.  While there his attitude and behavior greatly improved.  The commander indicated the CI had learned his new job “in record time” and was placed in charge over a school trained individual while the office supervisor was on leave.  The commander finally noted the CI did not have any duty limitations, but if incidents became stressful he requested to see the psychiatrist and noted that the CI’s MH issues may affect his ability to have a security clearance, which was a requirement for his MOS.  

At the 11 February 2005 VA Compensation and Pension (C&P) evaluation, performed 1 month after separation, the CI reported that he had wanted a career in the Army, but changed his mind after his deployment.  At the time of the VA examination the CI was planning on attending school and starting a part-time job.  He had a girlfriend of 10 months.  The CI was living with his parents and helping them financially.  He was participating in family issues with his brother and was close to his nephews and tried to help his sister-in-law.  He visited his sister and helped her and did family grocery shopping.  He reported that his girlfriend would get upset when he was hypervigilant out in public places.  The CI reported that while deployed he participated in at least 50 firefights.  While guarding a base he reported witnessing a suicide bomber blow himself up a short distance outside of a building they were in, as well as a few other highly stressful events.  While deployed he had three to four episodes a week of shortness of breath and wheezing and was diagnosed with asthma, but the examiner noted the CI may have had panic attacks.  The CI reported poor sleep despite medication.  He reported frequent nightmares and daily memories of combat that made him “sad.”  He reported “split second” flashbacks.  He avoided people, places and things that reminded him of war and felt emotionally distant from others.  He had an increased startle reflex and hypervigilance.  At the mental status examination (MSE) the CI was alert and oriented and reported his mood was “pretty good”.  His affect was serious.  He reported low energy and “all right” concentration.  He denied current loss of interest or pleasure in activities.  There was no evidence of suicidal/homicidal ideations (SI/HI), delusions or hallucinations (or other symptoms suggestive of psychosis), speech disturbance, cognitive impairment or other abnormalities.  The Axis I diagnoses were post-traumatic stress disorder (PTSD), chronic and MDD, single episode and a GAF assignment of 54, which is in the moderate range of impairment on this scale.  

In September 2005 outpatient VA Mental Health (Veterans Center) 8 months after separation, indicated the CI was receiving mental health treatment following military separation and moved the location of care.  The CI had been working part-time but quit while attending school.  He remained on multiple psychotropic medications.  He was enrolled in International studies and things were going well.  He reported difficulty sleeping with nightmares.  He reported increased episodes of anger and temper.  He avoided the news on television or war related triggers, but noted his international studies classes regularly caused these issues to be in front of him.  He did not like crowds.  He expressed that he did not fit in anymore with friends from before his military service.  He denied suicidal/homicidal tendencies.  On 26 September 2005 Mental Health noted the CI was in a “DUI/alcoholic class”.  On 3 October 2005, the mental health note indicated the CI reported scratching himself at night and waking up with lesions and his family doctor thought it may be related to anxiety.  He reported difficulty relating to family, friends, and teachers.  At the visit on 24 October 2005, the CI reported he had broken up with his girlfriend because she was pressing for greater commitment.  He reported he was sleeping better and getting good grades.  He was still having difficulty getting along with his mother and one sister because “they just don’t understand I’m different.”  There was a gap in treatment notes after that until 4 April 2006, 15 months after separation.  At the 4 April 2006 visit, the CI reported his schedule was hectic.  Medications were helping with sleep.  He reported doing better in school.  He spent a lot of time alone, most of his time working out and studying.  He felt he did not fit in, even with other Veterans and noted that he used to be outgoing but was not anymore.  At a visit on 18 April 2006 the CI reported difficulty sleeping and the examiner suggested that April was an anniversary date for him, because in the previous two years he drank a lot at this time of year.  On 2 May 2006 mental health indicated the CI was getting through finals at school.  He was getting his driver’s license back and planning to visit his family out of state.  

The panel 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 mild symptoms of irritability, sleep disturbance and anxiety episodes.  The VA rated the “PTSD with major depressive disorder” condition 30% coded 9411 (Post-traumatic stress disorder), based on the VA C&P examination 1 month after separation, citing moderate symptoms or moderate difficulty in social, occupational, or social functioning.  

Although a diagnosis of PTSD was established by the VA shortly after separation, there was no evidence in the service records that the CI was diagnosed with PTSD prior to separation.  Regardless of specific diagnosis, the panel considered whether the application of §4.129 was appropriate based on the evidence of a traumatic stressor in the service records.  The panel agreed that the stipulations of §4.129 were met in this case and therefore recommended a retroactive 6‐month period on the Temporary Disability Retired List (TDRL).  The panel turned to its rating recommendation at the time of placement on the TDRL and all members agreed there was no evidence to support a rating higher than 50% as required by §4.129 at the time of placement on the TDRL.  

The panel then turned to its permanent rating recommendation at the time of removal from the TDRL.  In this case the most proximate source of comprehensive evidence on which to base the permanent rating recommendation at the end of the 6 month TDRL period was VA outpatient treatment notes from MH care received at a Veterans Center which began in September 2005, 8 months after separation.  All panel members agreed that at the time of permanent separation, the §4.130 threshold for a 50% rating was not approached and the deliberation settled on arguments for a 10% versus a 30% permanent rating recommendation.  Although the CI reported continued waxing and waning of mental health symptoms particularly sleep impairment, nightmares, avoidance behaviors, hypervigilance, depressed mood and difficulty establishing relationships, the evidence proximate to TDRL removal indicates he continued to function satisfactorily.  He remained in school and despite reported discomfort with reminders of his combat experiences, he remained in international studies and did well.  He had been required to take classes after a DUI and was now getting his license back.  He had what he termed a “hectic” schedule which prevented him from attending mental health visits for five months, but was able to keep up with the apparently demanding schedule to finish the semester and was planning a trip to visit family.  All panel members agreed the CI’s condition at the time of permanent separation supported the 10% disability rating, and that his level of impairment was better described as occupational and social impairment due to mild or transient decrease in work efficiency and inability to perform occupational tasks only during periods of significant stress.  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” and there is no documentation of this in the records available proximate to TDRL removal.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a retroactive 6‐month period on the TDRL with the mandatory minimum 50% rating (IAW §4.129) for the MDD condition and a permanent (at TDRL removal) disability rating of 10% for the MDD condition, coded 9434.  

Contended PEB Conditions:  Vision Defect, Reactive Airways, Recurrent Low Back Pain, Acute Sinusitis, and Nasoseptal Deviation.  The panel’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 profiled, except the vision defect, which was given an E2 profile.  A “2” profile designation indicates a condition which requires some physical limitations but is not in all cases disqualifying for continued military service.  None of the conditions were implicated in the 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 panel 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 panel unanimously recommends an initial TDRL rating of 50% in retroactive compliance with VASRD §4.129 and a 10% permanent rating at 6 months IAW VASRD §4.130.  In the matter of the contended vision defect, reactive airways, recurrent low back pain, acute sinusitis and nasoseptal deviation conditions, the panel unanimously recommends no change from the PEB determinations as not unfitting.  There are no other conditions within the panel’s scope of review for consideration.  

The panel recommends that the CI’s prior separation be modified as follows: TDRL at 50% for a period of six months following the CI’s prior medical separation (minimum of 50% IAW 4.129) and then permanently separate with severance pay by reason of physical disability with a final 10% rating as indicated below:

CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
Major Depressive Disorder	9413	50%	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150615, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

	

AR20170007538, XXXXXXXXXXXXXXXXXX

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Dear XXXXXXXXXXXXXXXXXX

	I accept the recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) to constructively place you on the Temporary Disability Retired List (TDRL) at 50% disability for six months effective the date of your original medical separation for disability with severance pay and then following this six month period no recharacterization of your separation or modification of the permanent disability rating of 10%.  Enclosed is a copy of the Board’s recommendation and record of proceedings for your information.

The constructive TDRL period will result in an adjustment to your pay providing you 50% retired pay for six months from the date of your original medical separation and then no recharacterization of your separation or modification of the permanent disability rating of 10% following the constructive six month TDRL period.   I regret that the facts of the case did not provide you with the outcome you may have desired.
  
	This decision is final.  Recourse within the Department of Defense or the Department of the Army is exhausted; however, you have the option to seek relief by filing suit in a court of appropriate jurisdiction. 

	The accepted DoD PDBR recommendation has been forwarded to the 
Army Physical Disability Agency for required correction of records and then to the 
U.S. Defense Finance and Accounting Service to make the necessary adjustment to your pay and allowances.  These agencies will provide you with official notification by mail as soon as the directed corrections have been made.  Due to the large number of cases in process, please be advised that it may be several months before you receive notification that the corrections are completed and pay adjusted.  Inquiry concerning your correction of records should be addressed to the U.S. Army Physical Disability Agency, (AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557.

	A copy of this decision has also been provided to the Department of Veterans Affairs.