RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-02526
BRANCH OF SERVICE:  Air Force	SEPARATION DATE:  20050601

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, F-15 Tactical Aircraft Maintenance (Journeyman), medically separated for “major depressive disorder with general anxiety disorder and social phobia” with a disability rating of 30%, but assigned a 10% rating after removal of the contribution from the personality disorders.

CI CONTENTION:  The CI has struggled with mental health since discharge.  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 - 20050418	VARD - 20080315	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Major Depressive Disorder…	9434	10%*	Major Depressive Disorder…	9434	NSC	STR**	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  NSC	
*After removal of the personality disorder contribution to the unfitting condition
** Failed to report to Initial C&P examination.  Rated 70% effective 3 march 2015

ANALYSIS SUMMARY:

Major Depressive Disorder with Dysthymic Disorder (Subsumes Generalized Anxiety Disorder, Social Phobia and Category III Alcohol Abuse, Avoidance Personality Disorder and Dependent Personality Disorder).  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI had multiple arrests for disorderly conduct prior to accession, the last of which was for disorderly conduct and public drunkenness 4 months prior to accession.  He did well initially after accession, but then began treatment for depression in 1998.  He initially did satisfactorily on medications, but was admitted on 25 November 2003 for depression and suicidal ideation.  He did well with treatment and was discharged to outpatient treatment for depression and alcohol abuse.  A performance assessment which closed out on 22 September 2004 noted rated him 5/5, ready for immediate promotion, the highest overall assessment.  In December of that year though, he reported an increase in his symptoms and was admitted, for suicidal ideation, from mental health via the emergency room (ER) on 28 December 2004.  He was discharged on 3 January 2005 with persistent, but improved symptoms.  

The MEB NARSUM examination was dated 19 January 2005, 4 months before separation.  The CI reported that his mood had last been normal (euthymic) in November 1997 following successful completion of basic and technical school.  He became more isolated and depressed over time and self-medicated with alcohol to feel more relaxed and euphoric.  He had not used alcohol since November 2003 though.  As noted, he eventually required inpatient care for his depression.  He reported one instance of non-judicial punishment for inappropriate use of a government credit card in 2003.  He reported that he had been a good performer until a recent decline.  He endorsed 6/7 diagnostic criteria for an avoidant personality disorder and 5/8 for a dependent personality disorder.  The mental status examination (MSE) showed poor eye contact with decreased volume in speech.  His mood was depressed and affect restricted to a severe extent.  Insight was fair.  The MSE was otherwise unremarkable.  He was diagnosed with a MDD which predated his alcohol dependence.  He also had a generalized anxiety disorder (GAD).  A social phobia predated service and was manifested by avoidance of social situations due to anxiety attacks.  The avoidant personality disorder was manifested by social inhibition, feeling inadequate, and hypersensitivity to negative evaluations (criticism) resulting in significant social and occupation dysfunction.  The dependent personality disorder was manifested by a chronic and pervasive need to be taken care of, submissive and indecisive behavior and also resulted in significant social and occupation dysfunction.  The personality disorders were thought to have predisposed him to the more severe psychiatric disorders.  

The commander noted on 31 January 2005 that the CI was limited to day shifts to accommodate his medical appointments and that he was restricted from his flight line duties.  It was also noted that he could not deploy or work shifts even if cross-trained.  No assessment was made of his current duty performance within the restrictions levied on him.  

He again experienced an aggravation in his symptoms and was re-admitted from 28 January 2005 to 2 February 2005.  He was noted to have a moderate major depressive disorder (MDD) and a dependent and avoidant personality disorder on discharge.  The CI again sought care in the ER on 22 March 2005, but this was due to medication side effects rather than an increase in his mental health symptoms.  His medications were adjusted.  He continued to be followed regularly and had persistent symptoms although these appeared to be improving.  The CI was noted to have a normal MSE when seen on 25 April 2005, 6 weeks prior to separation.  There were 4 additional encounters with mental health over the next 2 weeks and he remained asymptomatic with a normal MSE.  The last encounter was 26 days prior to separation.  

The record then falls silent until 30 April 2006 when he had an initial intake for out-patient treatment.  He reported that he had been hospitalized involuntarily in February 2006 following an altercation with his brother; no records of this were in evidence for review.  Alcohol was involved in this incident per the CI.  He was working and denied problems at work.  He was married and denied conflict, stating that his closest relationship was with his wife.  He continued to endorse symptoms of depression and anxiety.  He was again abstinent from alcohol.  He reported that he had been diagnosed with bipolar disorder.  

The CI failed to report to his 05 December 2007 VA Compensation and Pension examination.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the major depressive disorder 30% but deducted 20% for a personality disorder, coded 9434 (major depressive disorder).  The VA did not service connect the major depressive disorder, also coded 9434.  It cited the CI’s post-service treatment records from April through August 2006 that noted some mild symptoms or difficulty, but that he was general functioning pretty well.  It also noted that the CI failed to report for the scheduled VA C&P examination.  As noted by the CI, the VA did subsequently service connect the condition and rated him at 70% for a bipolar disorder, effective 3 March 2015, based on post-separation treatment and an examination dated 11 May 2015, almost 10 years after separation and too remote to be probative for rating at separation.  

The panel first considered if the provisions of VASRD §4.129, mental disorders due to traumatic stress, were applicable.  It found no evidence in the records that the underlying mental health disorder was due to a highly stressful event and determined that VASRD §4.129 is not applicable in this case.  The panel then considered the evidence and rating IAW VASRD §4.130, mental disorders.  The PEB rated the CI at 30% total impairment, but at 10% after removal of the contribution from the personality disorders to the impairment.  The panel observed that there is no 20% rating to be deducted and that the correct approach by the PEB would have been to determine the impairment after removal of the personality disorder factors and then rate the remaining disability.  This was not clearly stated by the PEB as addressed below.  The evidence showed that the CI was admitted 5 and 4 months prior to separation.  He was then treated on an outpatient basis and showed improvement over the next few months leading to separation.  The final mental health visits showed that he was asymptomatic on medications.  Following separation, he was employed and had no problems at work.  His marriage was intact and solid.  He had one admission over 8 months after separation following an altercation with his brother.  Alcohol was involved.  The evidence showed that at the time of separation, the CI was asymptomatic on medications and that the level of impairment was best described by the 10% level (prior to a deduction from the personality disorder contribution).  However, the panel majority observed that the deduction made by the PEB for the contribution from the personality disorders appeared to be for a 20% rating assigned to the personality disorders.  As there is no VASRD 20% rating for a mental health condition, the panel majority determined that the 30% rating for the total impairment assigned by the PEB must stand.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 30% for Major Depressive Disorder condition, coded 9343.  

BOARD FINDINGS:  In the matter of the Major Depressive Disorder condition, the panel majority recommends a disability rating of 30%, coded 9343 IAW VASRD §4.130.  The single voter for dissent submitted the appended minority opinion.  There were 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	9343	30%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150901, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

	

Minority Opinion

The issue in this case is whether or not the PEB improperly took a deduction from the 30% impairment to arrive at the 10% final rating adjudicated by the PEB.  The question arose due to way the PEB findings were recorded on the AF Form 356 dated 18 April 2005.  The panel majority determined that the deduction taken from the overall impairment represented a rating of 20% assigned to the personality disorder contribution which is not VASRD compliant.  The minority voter concurred that there is no 20% rating IAW the VASRD for a mental health condition.  However, the minority voter strongly disagreed with the majority that this is the only interpretation of the PEB Form 356 and opined that actually the PEB adjudicated 10% after removal of the aggravating factors from the impairment to be rated.  

The PEB recorded the rating as follows:
     Current Rating	30
     Less Aggravating Factors	20
          (Personality Disorders)
     Combined Compensable rating	10

The minority voter concedes that one can interpret the above as indicating that a 20% rating was assigned to the “aggravating factors.”  It is speculative, though, to assume that this was the action taken by the PEB.  The minority voter held that a more valid interpretation is that the PEB simply noted the contribution from the “aggravating factors” to the total impairment.  The panel unanimously agreed that a not-unfitting condition can contribute to the impairment from an unfitting condition as is seen in this case.  The panel also unanimously agreed that it is clearly within the purview of the PEB to remove from the total impairment the non-ratable factors which contribute to the total impairment.  In this case, it is simple math to determine that if one starts at 30% for the total impairment and, after removal of the aggravating factors from the total impairment, and ends at 10% impairment from the unfitting condition, the contribution from the aggravating factors is 20%.  It is entirely reasonable to assume that listing 20 under the 30 (as above) is simply noting the relative contribution of the “aggravating factors” to the final rating, a deduction, rather than assuming, as the panel majority did, that the PEB assigned a 20% rating to the “aggravating factors” and then deducted this 20% rating from the total impairment rating of 30%.  The minority voter observed that the PEB recorded in item 15 of the AF Form 356 that the it did adjudicate the case in compliance with DoD and VASRD guidelines.  While this does not prove that they actually did follow the VASRD, presumably the PEB was at least aware that the VASRD provides 10% and 30% ratings for mental health conditions and also knew that there is not a 20% rating for a mental health condition.  The position of the panel majority requires that either the PEB was unaware of the available ratings in the VASRD (even while stating that the VASRD was used for its adjudication) or chose to take deduction for a 20% rating which it knew did not exist.  The minority voter does not find either option credible.

The PDBR was formed to review contested PEB adjudications to determine, with application the VASRD, if the rating was fair.  In this case it was.  The panel unanimously agreed that the removal of the contribution from the personality disorders from the total impairment before rating was appropriate.  Moreover, the panel determined that a total of impairment of 10% at separation was supported by the evidence even without a deduction.  Regardless of the road traveled to make its adjudication, the PEB rating was fair.  

The minority voter respectfully requests that the PEB adjudication stand.  

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-2015-02526.

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 accordingly.  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