RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-01649
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20070321

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E6, Motor Transport Operator, medically separated for “major depressive disorder (MDD)” with a disability rating of 10%.  

CI CONTENTION:  “I was discharged for major depressive disorder but was immediately diagnosed with PTSD from the VA.  I have been to inpatient programs and continue to deal with this daily.”  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 Medical Evaluation Board (MEB), but determined by the PEB 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.  The panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections when appropriate.  The panel’s assessment of the PEB rating determination is based on review of medical records and all available evidence relevant to application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards for 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, which operates 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 disability at the time of separation.  

RATING COMPARISON:  

SERVICE PEB -20061228	VARD - 20080611	
Condition	Code	Rating	Condition	Code	Rating	Exam	
MDD	9434	10%	Depression	9434	10%	20080319	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  30% 	

ANALYSIS SUMMARY:  

MDD. According to the service treatment record (STR) and the MEB narrative summary (NARSUM), the CI presented to mental health (MH) services in February 2006 with personal stress issues, although he was already being treated for depression.  He had just returned from his second 12-month deployment to Iraq (first was March 2003 – April 2004).  There was no evidence for suggestive symptoms or diagnosis of post-traumatic stress disorder (PTSD), and depression was the sole MH diagnosis that appeared in automated listings (AHLTA) throughout the STR.   The CI followed a labile course with a series of three hospitalizations: a 14-day admission (military) for suicidal ideation commencing 19 June 2006, a 2-day admission (military) for suicidal ideation commencing 24 July 2006, and a 21-day involuntary admission (civilian) for homicidal and suicidal ideation commencing 8 August 2006.  None of the admissions were associated with psychosis or suicide attempts, and the discharge diagnosis for all of them was depression.  During the last admission, the civilian psychiatrist made an additional Axis I diagnosis of bipolar disorder, but this was refuted in detail by the NARSUM psychiatrist.  Clinical entries documented treatment with various multi-drug regimens with limited success.  There was no evidence of alcohol or substance abuse or of disciplinary or legal issues.  

At the 26 September 2006 MEB NARSUM examination, 6 months prior to separation, the CI endorsed “depressed mood more days than not, poor sleep ... anhedonia, decreased appetite ... lost weight, decreased concentration, [and] decreased energy and motivation.”  He was prescribed four psychoactive medications (Cymbalta, Depakote, Remeron, and clonazepam).  He stated that his marriage was “great.”  The mental status examination (MSE) recorded “good eye contact [but] sullen facies” without directly characterizing mood and affect.  It was otherwise normal except for “poor” judgment and insight, without active suicidal/homicidal ideation or other acute features.  The Axis I diagnosis was “[MDD], recurrent episode” with an Axis II diagnosis of “Cluster B traits” (personality pathology without a clear diagnosis of personality disorder).  The examiner elaborated and directly addressed the lack of diagnostic criteria for PTSD.  The Global Assessment of Functioning (GAF) assignment was 65 (mild range of impairment), and the DoDI 1332.39-derived assessment of social and industrial impairment was “mild.”  The commander’s performance statement noted that the CI had previously performed at a high level, but was now “unable to lead ... due to his lack of rational thinking and problem solving abilities” and was assigned to “NCO escort” duties.  

The NARSUM psychiatrist elaborated specific temporal connections between the clinical course and personal gain motivations (new family unable to accompany CI on pending overseas assignment and a strong desire to leave the military) and opined, “I believe the primary difficulty that he is having is characterological rather than symptomatology from a psychiatric pathological condition.”  In a follow-up memorandum to the PEB (10 December 2006) the psychiatrist stated that “since the last hospitalization ... symptoms have improved and they appear to coincide with the decision to initiate the MEB.”  

The 19 March 2008 VA Compensation and Pension (C&P) examination, 12 months after separation, documented “depressive symptoms [that] range from mild to moderate, variable frequency” with sleep impairment, feeling ill at ease, and social withdrawal.   The CI was employed full time (store security) and there was no reported psychiatric treatment.  A subsequent VA record documented that he had discontinued his medications soon after separation.  The MSE recorded “a little tired and down” mood and “constricted” affect.  It was otherwise normal without suicidal or homicidal ideation or other acute features, intact cognition, and good judgment and insight.  The Axis I diagnosis was “MDD, recurrent, moderate” with no Axis II entry and the GAF assignment was 65.  The CI was diagnosed with PTSD by the VA two years after separation.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated MDD 10%, coded 9434 (MDD), citing the DoDI 1332.39 criterion of “mild” impairment.  The VA, based on the C&P evidence a year after separation, conferred the same rating under the same code for an equivalent diagnosis, quoting the 10% criteria of VASRD §4.130: “occupational and social impairment due to mild or transient symptoms which decrease work efficiency … only during periods of significant stress, or; symptoms controlled by continuous medication.”  

The panel first agreed that the provisions of VASRD §4.129 for any “mental disorder that develops in service as a result of a highly stressful event” were not applicable to this case.  Although Iraq deployment stressors may have played a role, the MDD was more exacerbated by personal stressors and was not a result of any service-connected event consistent with the meaning and intent of §4.129.  

The panel then turned to deliberation of a fair rating recommendation, first carefully considering whether it could justify a 10% rating based on the above §4.130 criteria applied to the severity of MH impairment in evidence at separation.  The repeated hospitalizations and the performance limitations reflected by the commander’s statement were compelling arguments against the 10% criteria; but the probative value mitigation raised by the issues credibly presented by the NARSUM psychiatrist was a significant factor considered by the panel.  The panel, however, must adhere to VASRD criteria and did not have the evidentiary foundation in this case, nor does it have the authority, to recommend a rating deduction based on such factors.  It was acknowledged that the personality and possible secondary gain issues may well have made a significant contribution to the psychiatric acuity, but members agreed that undue speculation would be required to significantly weigh that against ratable disability.  The relatively low psychiatric acuity reflected by the C&P evidence was also an argument in favor of a 10% rating, but members agreed that it was too temporally remote and disparate from the evidence at separation to carry the determinant probative weight for the panel’s recommendation.  The panel ultimately agreed, therefore, that the MH impairment at separation was not fairly characterized by the above §4.130 criteria for a 10% rating.   

Having so concluded, the panel turned to deliberation of the most appropriate rating.  Members first agreed that the evidence did not satisfy 70% criteria of §4.130: “occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood” referencing such symptoms as suicidal ideation, obsessional rituals, illogical speech, near continuous panic or depression, spatial disorientation, neglect of hygiene, and inability to establish relationships.  This degree of impairment may have been manifest during periods of decompensation, but did not accurately reflect the CI’s level of functioning at baseline; and, other than intermittent suicidal ideation, the acute symptoms cited as examples were not in evidence.  

The panel then deliberated whether the evidence was better aligned with §4.130 criteria for a 30% or 50% rating.  The criteria for 30% are “occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily)” referencing such symptoms as depression, anxiety, suspiciousness, panic attacks, sleep disturbance, and mild memory loss.  Those for 50% are “occupational and social impairment with reduced reliability and productivity” referencing such symptoms as flat affect, stereotyped speech, more frequent panic attacks, deficits in comprehension and memory, impaired judgment, mood disturbance, and difficulty with establishing relationships.  Although elements of both ratings were supported by the evidence, the CI was on a stable and improving trajectory at the time of separation.  The MEB psychiatrist’s memorandum to the PEB (3 months before separation) indicated that he was already significantly improved over the evidence reflected by the NARSUM and commander’s statement; and the C&P evidence corroborated a rapidly improving course.  With that factor and the above probative value mitigation in mind, members ultimately agreed that the overall impairment was more closely aligned with the 30% criteria than with those for 50%.  The “reduced reliability and productivity” requisite for a 50% rating was not consistently supported, and the symptoms were very similar to those cited as examples in the 30% language.  After due deliberation, considering all the evidence and conceding VASRD §4.3 (reasonable doubt), the panel recommends a 30% rating for MDD under code 9434.  

BOARD FINDINGS:  In the matter of the major depressive disorder, the panel recommends a disability rating of 30%, coded 9434 IAW VASRD §4.130.  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 	9434	30%	

AR20180013290, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear  XXXXXXXXXXXXXXXXXX

I accept the recommendation of the Department of Defense Physical Disability Board of
Review (DoD PDBR) to re-characterize your separation as a disability retirement with the
combined disability rating of 30% effective the date of your medical separation for disability with
severance pay. Enclosed is a copy of the Board’s recommendation and record of proceedings
for your information.
The re-characterization of your separation as a disability retirement will result in an
adjustment to your pay providing retirement pay from the date of your original medical
separation minus the amount of severance pay you were previously paid at separation.
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 and will provide information on your retirement benefits. 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.