RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00109
BRANCH OF SERVICE:  navy 	SEPARATION DATE:  20070917

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E6, Fire Control Technician, medically separated for “MDD, single episode, severe” with a 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 - 20070510	VARD - 20080411	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Major Depressive Disorder	9434	10%	Major Depressive Disorder	9434	30%	20080110	
Anxiety Disorder	Cat II					
Left Ear Tinnitus	Cat III	Tinnitus	6260	10%	20080110	
Migraine Headaches	Cat III	Migraine Headaches	8100	0%	20080110	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Major Depressive Disorder (MDD).  According to the service treatment record and Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI reported a history of depression for several years without difficulty until the condition worsened in November 2004.  At that time, the CI presented to his command indicating that certain people did not like him.  He also reported a long history of excessive worry about many things, with resulting insomnia and irritability that affected his daytime functioning.  The January 2006 Mental Health (MH) mental status examination (MSE) revealed a dysthymic mood and blunted affect.  Eye contact was poor.  There were no psychomotor abnormalities and thought process was logical and linear.  There were no hallucinations or delusions noted and no current suicidal or homicidal ideation.  Insight and judgment were good.  The Axis I diagnosis was MDD versus dysthymic disorder.  Treatment with Cymbalta (duloxetine, an antidepressant) and Ambien (zolpidem, a sedative) was instituted on 16 February 2006.    

At the 15 January 2007 MEB NARSUM examination, 8 months prior to separation, the CI complained of feeling depressed for many years and excessive worry.  MSE showed the CI was alert, pleasant, cooperative and neatly groomed.  Speech was monotonal and psychomotor retardation was evident.  He denied current suicidal or homicidal ideation.  His thought process was logical, linear and goal directed.  His thought content was devoid of evidence of psychosis.  His insight, impulse control and social judgment were poor based on several suicide attempts by stepping in front of cars on several occasions.  His orientation, memory and concentration were deemed grossly intact, although not formally tested.  His Axis I diagnoses were major depressive, disorder, single episode, severe, without psychotic features and generalized anxiety disorder.  His Global Assessment of Functioning (GAF) was 41 (serious symptoms).  The degree of industrial and military impairment related to the diagnosis of MDD was deemed severe.  The NARSUM noted suicide was not currently attractive and that he would seek help before he would harm himself.  At the same time the NARSUM noted he remained at significant risk for suicide.  

A note from the head of the MH division dated 4 May 2007 requesting reconsideration from the PEB indicated the CI still manifested severe symptoms of depression and generalized anxiety disorder that rendered him psychiatrically unfit.  He continued to have insomnia, poor appetite, periodic crying episodes, periodic suicidal thoughts and excessive worry.  

At the 10 January 2008 VA Compensation and Pension (C&P) evaluation, 4 months after separation, the CI reported he had 2 years of treatment for major depression.  He stated he had a history of five suicide attempts from 2004 through 2007 by stepping in front of cars or running his car off the road.  He had a girlfriend and he worked full time, running a data center as an input manager.  The CI presented with symptoms of depressed mood throughout most of the day on a daily basis.  He had markedly diminished interest or pleasure in almost all activities and reported significant fatigue and low energy level on a daily basis.  He also had feelings of worthlessness and guilt with recurrent suicidal ideation.  He had also had difficulty concentrating.  The symptoms caused clinically significant distress and impairment in social and occupational functioning.  His Axis I diagnosis was MDD, chronic subtype.  His GAF was 55 (moderate symptoms and moderate difficulties in both social and occupational functioning).  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the MDD 10%, coded 9434 (MDD).  The PEB also listed generalized anxiety disorder as a related Category II condition (a condition that contributed to the primary unfitting condition but was not separately ratable).  The impairment from the generalized anxiety disorder was properly subsumed under the overall rating for the MDD IAW §4.14 (avoidance of pyramiding; more than one rating based on the same impairment is prohibited).  

The VA rated the MDD 30%, coded 9434, based on the C&P examination 4 months after separation, citing “occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment or mild memory loss (such as forgetting names, directions, recent events).”  

Panel members carried out a very detailed review of the record to determine the extent of the CI’s disability proximate to separation.  Salient points included the fact that the CI had only one mental visit in 8 months prior to separation , while the NARSUM, which indicated he had nearly completed a college degree in engineering with an excellent grade point average and he had no disciplinary or civilian legal problems.  The Non-Medical Assessment (NMA) indicated he was a good worker, displayed initiative and the ability to effectively direct the work of maintenance teams.  In his spare time, he slept, watched TV and went to an occasional movie with his girlfriend.  During a formal PEB (FPEB), the head of MH indicated the CI was fully competent, had not needed hospitalization, and had very little need for supervision beyond what would be expected of someone of his rank.  Furthermore, post-separation, he had a girlfriend and he worked full time 4 days a week, 12 hours a day, running a data center as an input manager less than 2 months after separation.  Although the panel majority noted the CI had symptoms of depressed mood, anxiety and chronic sleep impairment, they felt the CI’s MH condition more closely approximated a 10% rating, for “occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication.”  His symptoms did not seem to be severe enough to have affected his performance in his job or in the military.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel majority concluded there was insufficient cause to recommend a change in the PEB adjudication for the MDD. 

Contended Conditions:  Left Ear Tinnitus and Migraine Headaches.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended Category III conditions were not unfitting.  Neither of the conditions were profiled, implicated in the NMA or 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 panel concluded there was insufficient cause to recommend a change in the PEB fitness determination for either of the contended conditions and so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the MDD and IAW VASRD §4.130, the panel majority recommends no change in the PEB adjudication.  The single voter for dissent recommends re-characterization and submitted the appended minority opinion.  In the matter of the contended left ear tinnitus and migraine headaches 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.  Therefore, the panel recommends no modification or re-characterization of the CI’s disability and separation determination.  

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160305, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

	

Minority Opinion.  The minority voter recommends the chronic MDD be rated at 30%, which requires “occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), 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 majority voters agreed the CI possessed some of the symptoms like depressed mood, anxiety and chronic sleep impairment.  The minority voter not only agrees with those three of the six, but notes the CI also had suspiciousness as indicated in the NARSUM by his stating “he felt that certain people at his command disliked him.”  More importantly, the CI was reported in the NARSUM to have periodic suicidal thoughts for “about the last five or six years,” but he “actually made suicide attempts by stepping in front of cars, and the last such episode occurred several weeks ago.”  Furthermore, he was “now somewhat disappointed that he was not killed by being struck by that car.”  Of interest, suicidal ideation is one of the symptoms mentioned in the General Rating Formula for Mental Disorders 70% rating.   

While the CI’s symptoms appeared to be controlled by medication, he was not working in his original rate since he was disqualified as a first class machinist mate in the nuclear Navy as a result of his MH condition nor was he was working as a fire control technician and was limited by the LIMDU for handling or carrying weapons or munitions.  Although the NMA indicated the CI was a good worker, nevertheless, at the FPEB the CI reported that the office to which he was assigned had relatively little to do.  The NMA also indicated he did not have good potential for continued service due to his medical condition.  While it is not clear what the medical condition was, it more likely than not was the MH condition, rather than his not-unfitting conditions.  The very fact that the CI was employed shortly after separation is a credit to his outstanding education in the Navy as well as at a major university.  Nonetheless, he still had a long history of depression, multiple suicide events and did not work in either of his ratings due to his MH conditions.  While the majority favored a 10% rating, nevertheless, the NARSUM author based on the CI’s history of having made several suicide attempts related to his depression indicated the degree of industrial and military impairment related to the diagnosis of major disorder was deemed severe and moderate for the generalized anxiety disorder.  

Therefore, the minority voter feels that a 30% rating is reasonable and appropriate for the MDD with the generalized anxiety disorder contributing to the MDD.  The CI did not meet the requirements of a 50% rating, which requires “occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.” 

Therefore, the minority voter recommends the following modifications be incorporated in the ROP:  

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 the MDD, single episode severe condition, coded 9434.  The Navy PEB’s Category II diagnosis of generalized anxiety disorder is intrinsic to the rated condition and a separate rating cannot be supported without pyramiding (VASRD §4.14); thus, it is appropriately subsumed in the same rating.    

In the matter of the MDD, the panel recommends a disability rating of 30%, coded 9434 IAW VASRD §4.130.  

The panel recommends the CI’s prior determination be modified as follows; and, 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	
MDD, Single Episode Severe	9434	30%	

MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW
               BOARDS 

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS
 
Ref:   (a) DoDI 6040.44

      In accordance with reference (a), I have reviewed the cases listed below and approve the recommendations of the PDBR that the following individual’s records not be corrected to reflect a change in either characterization of separation or in the disability rating previously assigned by the Department of the Navy’s Physical Evaluation Board:

		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USN

		
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	     				                                Acting