RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-01968
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20080408

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Military Police, medically separated for “major depressive disorder” with a disability rating of 10%. 

CI CONTENTION:  His condition continues to worsen.  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 - 20080409	VARD - 20091014	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Major Depressive Disorder 	9434	10%	Posttraumatic Stress Disorder, Depressive Disorder, Not
Otherwise Specified	9411	50%	20090922	
Posttraumatic Stress Disorder	Not Unfitting 					
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

Major Depressive Disorder (MDD).  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s MDD began in April 2004 after a year-long deployment.  He reported nightmares and feelings of depression, and described traumatic stressors, which began in Iraq and were associated with investigating the murder of dead Iraqis and participating in a convoy hit by an IED, which injured a very close friend.  Post-deployment, he was seen by mental health where he reported anxiety attacks associated with heart palpitations, difficulty breathing, warm flashes and feeling lightheaded on a regular basis.  His nightmares eventually went away, but his anxiety and depressive symptoms were exacerbated when he was placed on a deployment list.  He was diagnosed with MDD and posttraumatic stress disorder (PTSD), and treated with anti-depression medication and a sleep agent.  

During his next assignment in 2007, the CI began experiencing a depressed mood, was diagnosed with PTSD, and treated with mediation and psychotherapy with short periods of quarters.  A Quick Inventory of Depressive Symptomatology (QIDS) test showed moderate to severe depression.  He transferred to a Warrior Transition Unit in December 2007 because he felt he could not perform his duties as a military policeman.  

The 2 January 2008 MEB NARSUM examination, 3 months prior to separation, noted CI complaints of depression and insomnia, although improved with medication.  A second QIDS test showed a decline in depressive symptoms.  He remained in therapy and had also recently started treatment with eye movement desensitization to target intrusive symptoms.  He took an anti-depressant and a sleep aide daily.  The mental status examination showed mild psychomotor slowing with noted lack of spontaneous gesturing, “okay” mood, and anxious and mildly restricted affect.  He denied hallucinations and his judgement was deemed good.  Diagnoses of MDD and PTSD were rendered with a Global Assessment of Functioning (GAF) score of 50 (serious bordering on moderate symptoms, impairment).  Social and industrial impairment was “marked.”  

The 11 January 2008 commander’s statement noted the CI maintained the “standard of appearance, timeliness, and presence at all times.”  Additionally, he followed instructions without distraction, did not have problems with communications, and was civil and respectful.  The commander indicated he did not take risky actions, never required supervision, and continued to “function on his own without verifying every decision.”

At a primary care visit on 8 February 2008, 2 months prior to separation, the CI reported he was doing well overall.  Recent stressors included separation from his wife and the death of cousin.  The STR showed no evidence of further treatment after February 2008.

At the 22 September 2009 VA Compensation and Pension (C&P) PTSD examination, 17 months after separation, the CI reported having nightmares of his duty in Iraq ranging from 1 to 4 times per week.  He had diminished sleep and short-term memory, intrusive thoughts, avoidance-exaggerated-startle response, hypervigilance, and guilt/flashbacks regarding Iraq about once a month.  He did not care to make friends and felt emotionally distant from his wife, but he did bike and hike as hobbies and still enjoyed family time.  He only took an over-the-counter sleep aide and performed all activities of daily living without assistance.  He denied legal difficulties and had no hospitalizations.  After being medical discharged from the service, the CI worked as a hearing test administrator for 9 months but left the job because the environment made him “extremely anxious.”  He then worked as a security guard for 45 days but left the job because carrying a gun was “too distressing.”  He next worked as a night time security guard by himself without a weapon guarding equipment.  The CI planned to attend college full time.  The mental status examination was unremarkable and documented an alternating mood from depression, irritability and euthymia (non-depressed, reasonably positive); affect was appropriate.  Short-term memory had a diminished capacity, and psychiatric and/or support therapy was not addressed.  The provider opined that his symptomatology could have a mild to moderate impact on employability.  The CI had described very explicitly the details of how he had to leave two previous positions due to his PTSD symptoms.  He found it difficult to be around large crowds of people, was easily agitated, on edge around certain work environments, and had an extreme dislike of carrying a firearm.  He was diagnosed with PTSD and depressive disorder, not otherwise specified (NOS), with a GAF of 50.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the major depressive disorder condition 10%, coded 9434 (MDD), citing symptoms controlled on continuous medication.  The VA rated PTSD and depressive disorder NOS at 50%, coded 9411 (PTSD), based on the STR or C&P examination, citing reduced reliability and productivity.

The panel first considered if application of VASRD §4.129 (mental disorders due to traumatic stress), which per DoD policy requires a 6-month (50% minimum) retroactive period of TDRL, was indicated in this case.  Members observed that the CI was diagnosed with mental disorders as a result of combat stress that he experienced during a deployment, and was subsequently medically discharged as a result of these conditions.  Thus, the panel agreed that the provisions of VASRD §4.129 were applicable.  Members then deliberated over whether there was evidence for a §4.130 rating higher than the §4.129 minimum 50% at time of TDRL placement.  The panel noted that disability associated with any psychiatric condition, regardless of the diagnosis or multiple diagnoses, is subsumed under a single rating using the same criteria IAW VASRD §4.130 general rating formula for mental health conditions.  The panel agreed that the §4.130 criteria for a rating higher than 50% were not met near the time of separation, and therefore the minimum 50% initial TDRL rating is applicable.

While the MEB NARSUM examination provided the most proximate source of comprehensive evidence on which to base the constructive TDRL removal rating, members noted that the C&P examination, though more remote from TDRL removal, also provided useful information.  The §4.130 criteria for a 10% rating is “symptoms controlled by continuous medication.” A 30% rating requires “occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks,” and criteria for a 50% rating requires “occupational and social impairment with reduced reliability and productivity.”  During the MEB NARSUM examination, the CI reported that depression had caused his greatest impairment at school and at work, but showed improvement with medication and therapy.  At the C&P examination, the CI reported some symptoms of PTSD, but had worked in several jobs and planned to attend college full time.  He was married, could perform activities of daily living, and had some hobbies and interests he enjoyed.  The panel majority agreed the evidence showed the CI‘s symptoms met criteria for 10% disability at the time of TDRL removal.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a 6-month constructive TDRL period with a 50% disability rating for the PTSD condition, coded 9434, and a 10% permanent disability at TDRL removal.

Contended PEB Condition:  PTSD.  The panel’s main charge is to assess the fairness of the PEB determination that the contended condition was not unfitting.  As addressed above, the panel noted that a disability associated with any psychiatric condition, regardless of diagnosis or multiple diagnoses, is subsumed under a single rating using the same criteria IAW VASRD §4.130 general rating formula for mental health conditions.  Therefore, after due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB fitness determination for the contended PTSD, so no additional disability rating is recommended.

BOARD FINDINGS:  In the matter of the major depressive disorder, the panel recommends a disability rating of 50%, coded 9434 IAW VASRD §4.129 for 6-month constructive TDRL period, and the panel majority recommends a permanent separation rating of 10% IAW VASRD §4.130.  In the matter of the contended PTSD condition, the panel recommends no change from the PEB determination as not unfitting.  The single voter for dissent recommends recharacterization and submitted the appended minority opinion.  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, effective as of the date of his prior medical separation:

CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
Major Depressive Disorder	9434	50%	10%	

MINORITY OPINION:  The minority disagrees with the majority’s recommended 10% rating at TDRL removal based on the following evidence:

The CI experienced occupational impairment with occasional decrease in work efficiency, and intermittent periods of inability to perform occupational tasks to support a 30% rating at the point 6 months after separation.  After separation the CI worked as a hearing test administrator, for 9 months, but left the job because the proposed new facility would be too crowded and would have caused him “extremely anxious.”  He then worked as an armed security guard, for 45 days, but left the job because carrying a gun was “too distressing.”  He then worked as a night time security guard working by himself without a weapon guarding equipment; when he was separated from his wife and two children and lived with his mother.  The VA C&P examiner opined that the CI “left his first two jobs due to his PTSD symptomology.”  The CI’s post-separation employment history reveals the CI’s inability to hold a job because he could not be around large crowds of people, was on edge around certain work environments, and had an extreme dislike of carrying a firearm.  Additionally, the MEB NARSUM and C&P examinations both diagnosed the CI with depressive disorder and PTSD, and both examinations rendered GAF scores of 50 (serious symptoms), which shows the CI lack of improvement during the TDRL placement to TDRL removal period.  The CI’s condition was not simply controlled by medication to warrant a 10% rating, but most approximates a 30% rating at TDRL removal due occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.

The Secretary is respectfully requested to consider the minority recommendation that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be re-characterized to reflect placement on the TDRL for 6 months, effective as of the date medical separation, followed by permanent disability retirement :

CONDITION	VASRD CODE	TDRL PLACEMENT	PERMANENT RATING	
Major Depressive Disorder and PTSD	9434	50%	30%	

AR20180011480, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear  XXXXXXXXXXXXXXXXXX

I accept the recommendation of the Department of Defense Physical Disability
Board of Review (DoD PDBR) to constructively place you on the Temporary Disability
Retired List (TDRL) at 50% disability for six months effective the date of your original
medical separation for disability with severance pay and then following this six month
period no recharacterization of your separation or modification of the permanent
disability rating of 10%. Enclosed is a copy of the Board’s recommendation and record
of proceedings for your information.
The constructive TDRL period will result in an adjustment to your pay providing
you 50% retired pay for six months from the date of your original medical separation
and then no recharacterization of your separation or modification of the permanent
disability rating of 10% following the constructive six month TDRL period.
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. 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