RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-02138
BRANCH OF SERVICE:  Air Force	SEPARATION DATE:  20021125

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Personnel Apprentice, medically separated for “major depressive disorder associated with pain disorder” with a disability rating of 30%, reduced by a deduction of 20% for contributing aggravating factors, for a combined disability rating of 10%.  

CI CONTENTION:  “Review all conditions.”  The 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 - 20020925	VARD - 20021216	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Major Depressive Disorder Associated with Pain Disorder	9434	30%
-20%	Pain Disorder	9434-9422	10%	20020719	
Paranoid Personality	Cat III					
Migraine Headaches	Cat II	Migraine Headaches	8100	50%	20020720	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  70%	

ANALYSIS SUMMARY:  

Major Depressive Disorder with associated Pain Disorder (Including “Paranoid Personality”).  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s mental health condition began in 1999 with a history of migraines and dysthymic mood with anxiety.  He was under treatment in 2000 and 2001, and presented to life skill on 10 June 2002 complaining of worsening depressed mood associated with acute family and work stressors that increased his migraine headaches and impaired his ability to work.  

At the 19 July 2002 VA Compensation and Pension (C&P) evaluation, 4 months before separation, the CI reported having a pain disorder and complained of anger and depression.  The mental status examination was unremarkable.  The psychiatrist examiner diagnosed pain disorder associated with both psychological factors and a general medical condition, noting criteria for major depression or dysthymia were not met.  Axis III included migraine headaches as a diagnosis.  The examiner indicated the Global Assessment of Functioning (GAF) for his psychiatric condition was 70, indicating mild symptomatology and no more than slight impairment in social and occupational functioning.”  

The 5 August 2002 MEB NARSUM examination, 3 months prior to separation, noted complaints of depressed mood worsening in the last month.  The CI reported neurovegetative symptoms of depression, worsening apathy and irritability, and anxiety attacks.  The CI was taking two psychoactive medications (Klonopin and Effexor).  On mental status examination his mood was irritable and sad and the affect was restricted.  There was no suicidal ideation, delusions, hallucinations or other symptoms suggestive of psychosis, speech disturbance, objective cognitive impairment, or other abnormality.  The psychiatrist examiner diagnosed “pain disorder associated with both psychological factors and general medical condition as manifested by recurrent migraine headaches which seem to be worsened by psychological stressors;” and “major depressive disorder, single episode, moderate as evidenced by dysthymic and irritable moods for the past 12 months that has acutely worsened with stressors to include significant neurovegetative signs and symptoms of depression.”  Axis II diagnosis was paranoid traits.  Axis III diagnosis was “headaches, migrainous.”  The examiner indicated that the CI’s depressive symptoms had responded to medication.  The examiner indicated there was considerable social and industrial impairment with a global assessment of functioning of 55 (at the middle of the moderate symptom range) from the MH conditions.  

At the 3 December 2003 VA C&P evaluation, performed 13 months after separation, the CI reported feeling hopeless, helpless and very depressed.  Mental status examination and review was notable only for a frequently depressed mood, fair memory, and interrupted sleep.  There was no active suicidal ideation, delusional or hallucinatory symptoms, or other symptoms suggestive of psychosis, speech disturbance, objective cognitive impairment, or other abnormality.  The clinical psychologist examiner diagnosed dysthymic disorder with an axis II diagnosis of depressive disorder.  The examiner indicated there was a GAF of 60 (the mild end of the moderate range) from the MH conditions.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the major depressive disorder associated with pain disorder condition 30%, coded 9434 (major depressive disorder), and deducted 20% (for a combined rating of 10%), citing definite social and industrial adaptability “less contributing aggravating factors.”  The VA rated the pain disorder condition 10%, coded 9434-9422 (major depressive disorder - pain disorder), based on the C&P examination 4 months before separation, citing slight impairment in social and occupational functioning.  The VA later added a 10% rating for major depressive disorder (effective July 2003), coded 9434, based on the C&P examination 12 months after separation.  The panel noted that there was no traumatic event causing the unfitting mental health condition and therefore concluded that application of VASRD §4.129 was not appropriate in this case.  Although the CI was diagnosed with major depressive disorder and pain disorder, a single §4.130 rating is applied based on the overall occupational and social impairment due to the symptoms from both conditions.  The CI’s “paranoid personality” (or MEB “paranoid traits”) is not a compensable condition.  The CI’s entry physical examination had no evidence of any mental health diagnosis or impairment, and there was therefore not a preponderance of objective medical evidence supporting a rating percentage at the time of entry into service.  The panel majority agreed that no deduction from the PEB’s 30% rating was supported.  The panel majority agreed that at the time of separation, the §4.130 threshold for a 50% rating was not approached, and no rating higher than the 30% awarded by the PEB (prior to, and without deduction) was warranted.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 30% (with no deduction) for the major depressive disorder with associated pain disorder condition, coded 9434.  

Contended PEB Conditions:  Migraine Headaches (See above for “Paranoid Personality”).  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  The STR shows the CI had two emergency room visits, missed work and was placed on quarters at least twice because of severe headaches.  However, this contended condition was profiled P2 and not specifically implicated by his commander’s or supervisor’s statements.  It did not appear that it was judged to fail retention standards, as the MEB listed the five axis condition, including axis III of “headaches, migrainous” as a single diagnosis not meeting retention standards.  The panel also considered that the CI’s primary unfitting mental disorder conditions, and that there was insufficient performance-based evidence from the record that the migraine headache condition (when separated from the mental health 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 the contended condition and so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the major depressive disorder with associated pain disorder condition, the panel majority recommends a disability rating of 30%, coded 9434 IAW VASRD §4.130.  The single voter for dissent submitted the appended minority opinion.  In the matter of the contended migraine headache condition, the panel unanimously recommends no change from the PEB determination as not unfitting.  In the matter of the contended paranoid personality condition, the panel unanimously agrees that it cannot recommend it for additional disability rating.  There are no other conditions within the panel’s scope of review for consideration.  

The panel 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…Pain Disorder	9434	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150801, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MINORITY OPINION:  The minority dissent with the majority recommendation was based on the totality of the evidence in the service treatment record.  The minority member concurs with the panel’s conclusion that the PEB deduction could not be supported, and the minority recommendation is premised entirely on criteria of VASRD §4.130.  

As reflected by the above proceedings, the panel settled on deliberation of a 10% rating (“occupational and social impairment due to mild or transient symptoms which decrease work efficiency…only during periods of significant stress”) versus a 30% rating (“occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks”).  The minority member asserts that the disability was more consistent with 10% criteria, as opposed to the majority conclusion favoring 30%.  The majority recommendation leaned heavily on evidence from the NARSUM, but it is the minority view that the totality of the evidence indicated that the CI was functioning at a significantly higher level than that portrayed by the NARSUM.  Rationales are as follows:

• The NARSUM stated that the CI “terminated treatment through the Mental Health Clinic in October 2000 and was apparently stable … until representing in June 2002.”  The latter STR entry referenced “family and work stressors.”  This is aligned with the above 10% language.

• The CI’s Enlisted Performance Evaluation in December 2001 (11 months before separation) documented excellent performance (“great performer”) with several high ratings and a recommendation for promotion. 

• The CI’s temporary profile on 1 June 2002, 6 months before separation, was designated S1 and he was considered worldwide qualified.

• The C&P examination, only 2 weeks before the NARSUM, referenced primarily occupational stressors with anxiety “related to psychological factors and the pain disorder.”  The VA psychiatrist documented a completely normal mental status examination with no cognitive impairment, opining that the CI was “employable” and assigning a GAF of 70 “indicating mild symptomatology and no more than slight impairment in social and occupational functioning.”  The VA rating based on the C&P findings was 10%.

• The 5 August 2002 NARSUM examination, without evidence of any intervening stressors or other exacerbating factors, recorded a GAF assignment of 55; although, the mental status examination did not display any acute features or cognitive impairment.  The NARSUM examiner acknowledged a “paranoid personality that resulted in difficulties with functioning in the workplace” and this was logically subsumed in the GAF assessment.  The NARSUM also documented a favorable response to treatment and a “good prognosis for full recovery from his depression,” opining that it was the CI’s vulnerability to stressors that was incompatible with continued military service.  

• The commander’s statement on 12 August 2002 did not address a mental health condition and reported that the CI’s current assignment and duties were within his Air Force Specialty.  There was no evidence from the commander that there was any specific mental health or cognitive impairment that impacted duty performance, and there was no documentation of any work loss. 

• The CI was cleared to return to full duty by mental health services on 20 September 2002 (2 months before separation), corroborating the impression from the commander’s statement.

Based on the above, and with due deference to reasonable doubt, the minority member asserts that the totality of evidence was better aligned with the §4.130 criteria for a 10% rating than with those for 30%.  There was corroboration from multiple sources that the only significant mental health impairment was confined to periods of stress, and there was no indication of any periods of inability to perform occupational tasks.

The Secretary is respectfully requested to consider the minority recommendation that there be no modification or re-characterization of the CI’s disability and separation determination.

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

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

Reference your application submitted under the provisions of DoDI 6040.44 (Section 1554, 10 USC), PDBR Case Number PD-2015-02138.

After careful consideration of your application and treatment records, the Physical Disability Board of Review determined that the rating assigned at the time of final disposition of your disability evaluation system processing was not appropriate under the guidelines of the Veterans Affairs Schedule for Rating Disabilities.  The Board recommended your separation be re-characterized to reflect disability retirement, rather than separation with severance pay.

I carefully reviewed the evidence of record and the recommendation of the Board.  I concur with that finding, accept their recommendation and determined that your records should be corrected.  The office responsible for making the correction will inform you when your records have been changed.

As a result of the aforementioned correction, you are entitled by law to elect coverage under the Survivor Benefit Plan (SBP).  Upon receipt of this letter, you must contact the Air Force Personnel Center at XXXXXXXXXXXXXXXXXX to make arrangements to obtain an SBP briefing prior to rendering an election.  If a valid election is not received within 30 days from the date of this letter, you will not be enrolled in the SBP program unless at the time of your separation, you were married or had an eligible dependent child, in such a case, failure to render an election will result in automatic enrollment.

Sincerely,

XXXXXXXXXXXXXXXXXX 
Director
Air Force Review Boards Agency

Attachment:
Record of Proceedings