RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00822
BRANCH OF SERVICE:  marine corps 	SEPARATION DATE:  20040229

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Motor Vehicle Operator, medically separated for “major depressive disorder” with a disability rating of 10%.   

CI CONTENTION:  Review lower back, foot and depression 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 - 20040114	VARD - 20040202	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Major Depressive Disorder	9434	10%	Major Depressive Disorder	9434	10%	20040202*	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  30% 	
* This was a general medical examination.  The CI failed to report for VA pre-discharge psychiatry examination on 20 February 2004.

ANALYSIS SUMMARY:  

Major Depressive Disorder (MDD).  According to the service treatment record (STR) and Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI had a pre-service history of depression that was not disclosed on his military entrance examination of 18 May 1994.  Details of his initial psychiatric presentation in the service were not available in the STR, but there was documentation of three psychiatric admissions: September 1999 (8 days), March 2000 (7 days), and October 2002 (9 days).  Each of these admissions was preceded by a crisis with suicidal ideation in the context of significant occupational stressors (specifically new duty assignments), compounded by domestic stressors (marital discord, divorce).  

A series of psychiatric treatment notes following the last admission documented an improving clinical course.  The last of these (6 February 2003, 12 months before separation) noted the CI “continues to do well” on a single anti-depressant (Zoloft).  The mental status examination (MSE) recorded a normal mood and affect, and was otherwise normal without suicidal ideation, psychosis, other acute features, or cognitive impairment.  The Axis I diagnosis was “[MDD], recurrent, moderate, improving with medication.”  The MEB psychiatrist opined that the CI was in “full remission” for this period.

In July 2003 (7 months before separation) the CI was seen for crisis intervention and “brief inpatient psychiatric treatment” with “new occupational difficulties” (transfer to new command) and separation from his second wife.  He remained on the same medication.  Psychiatry opined that he “demonstrated avoidant, dependent as well as borderline personality traits as well as some adjustment difficulties” and his command proposed an administrative separation for personality disorder.  Psychiatry responded that a diagnosis (i.e., Axis II) of personality disorder was not supported and MEB proceedings were initiated.

By the time of the 18 October 2003 MEB psychiatric NARSUM, 4 months prior to separation, the examiner opined that the CI was in “partial remission [with] improved ability to function both socially and occupationally.  However, due to ongoing occupational stressors, the patient continues to experience depression, anxiety, and mild to moderate occupational impairment.  His prior response to medications and crisis intervention indicates good prognosis.”  The MSE recorded a “dysphoric” mood and “constricted…mood congruent, nonlabile” affect, but was otherwise normal (no suicidal ideation, delusional or hallucinatory symptoms, speech disturbance, cognitive impairment, or other deficiency).  The Axis I diagnosis was “[MDD], moderate, recurrent” with the aforementioned personality traits but no Axis II diagnosis.  The Global Assessment of Functioning assignment was 65 (mild range of impairment), and the DoDI 1332.39-derived assessment of social and industrial impairment was “mild.”  The commander’s non-medical assessment noted that the CI “cannot perform all his military duties” and recommended separation “for a preexisting medical condition not military related with zero (0) disability.” 

The 2 February 2004 VA Compensation and Pension (C&P) General Medical evaluation, 1 month before separation, did not address MDD (was deferred) and was probative to mental health impairment only to the extent that it documented a grossly normal MSE with intact cognition.  The CI failed to report for a scheduled VA Mental Health examination.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the MDD condition 10%, coded 9434 (MDD), and did not cite a rationale.  The panel noted that the “mild” social and industrial impairment in the NARSUM was consistent with a 10% rating IAW DoDI 1332.39 (E2.A1.5) and SECNAVINST 1850.4E in effect at the time.  The VA rated the MDD condition 10%, coded 9434, based on the STR evidence, caveating that the failure to report for psychiatric examination compromised the outcome of the claim.  The rationale for its VASRD-based rating was not articulated.

The panel first considered whether the provisions of VASRD §4.129 for any “mental disorder that develops in service as a result of a highly stressful event” were applicable to this case.  Members agreed that, although there were contributory stressors from military service, the MDD in this case was an organic mental illness not caused by any service-connected event consistent with the meaning and purpose of §4.129.  The panel then turned to deliberation of a fair rating recommendation based on criteria of §4.130 applied to the severity of disability in evidence at separation.  Members first agreed that the evidence at separation would not support criteria for a 50% rating for “occupational and social impairment with reduced reliability and productivity,” referencing such symptoms as flat affect, stereotyped speech, frequent panic attacks, deficits in comprehension and memory, impaired judgment, mood disturbance, and difficulty with establishing relationships.  The CI’s functioning was relatively intact and his symptoms, which were resolving at separation.

Deliberations thus settled on recommendations for 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;” or a 30% rating for “occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.”  Member consensus was that the evidence indicated the CI’s only periods of significant psychiatric impairment were confined to periods of stress.  He was judged to be in full remission after the October 2002 decompensation due to stressors.  Per the NARSUM, his symptoms following the July 2003 stress-provoked decompensation were resolving, and the residual impairment still present was ascribed to “ongoing occupational stressors.”  Although the symptoms during these periods of periods of stress were not “mild” as specified in the 10% rating language, there was convincing evidence that they were manifest “only during periods of significant stress” as specified.  The 30% rating, conversely, denotes occupational impairment that arises independently of stressors.  Member consensus, therefore, was that the evidence in this case was more closely aligned with the 10% than with the 30% criteria of §4.130.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), panel consensus was that there was insufficient cause to recommend a change in the PEB adjudication of major depressive disorder.

BOARD FINDINGS:  In the matter of the major depressive disorder and IAW VASRD §4.130, the panel majority recommends no change in the PEB adjudication.  The single voter for dissent submitted the appended minority opinion.  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 20160912, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

MINORITY OPINION:  

The minority dissents with the majority conclusion that the evidence in this case was more closely aligned with the 10% than with the 30% criteria of §4.130, asserting that the 30% rating language is more applicable and recommending the higher rating.   

Although the evidence indicated that the CI’s psychiatric impairment escalated significantly during periods of stress, there was insufficient evidence from which to conclude that he was not subject to at least “occasional decrease in work efficiency” (30% language) independently of stressors.  It was also clear that that there were “intermittent periods of inability to perform occupational tasks” (30% language), albeit due to periods of stress.  The 10% rating language does not denote the presence of episodic inability to function, but rather specifies “mild or transient symptoms.”  The minority asserts that the history of multiple psychiatric decompensations requiring hospitalization unequivocally established the periodic loss of occupational capacity due to symptoms that were severe and not transient.  The minority is therefore of the opinion that the 30% criteria of §4.130 were convincingly satisfied by the evidence.  The imperative of reasonable doubt further strengthens that conclusion.  

The Secretary is respectfully requested to consider the minority recommendation that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Major Depressive Disorder	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 USN
		- XXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXX, former USN