RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-02274
BRANCH OF SERVICE:  aRMY	SEPARATION DATE:  20030303

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Chemical Operations Specialist, medically separated for “major depressive disorder” and “right neck and shoulder pain status post papillary thyroid carcinoma,” rated 10% and 0%, respectively, with a combined disability rating of 10%.

CI CONTENTION:  The evidence supports a higher rating.  She was not evaluated for her exposure to chemicals.  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 - 20021223	VARD - 20030313	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Major Depressive Disorder	9434	10%	Major Depression	9434	30%	STR	
Right Neck and Shoulder Pain 	7914
5099-5003	0%	Right Shoulder Weakness 	5203-8411	10%	20020617	
			Papillary Thyroid Carcinoma 	7914-7903	10%	20020617	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:

Major Depressive Disorder (MDD).  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s mental health (MH) condition began in 1993 after the birth of her first child.  She first referred herself to MH on 30 November 2000 due to frustration caused by her ongoing thyroid cancer treatment since the birth of her last (fourth) child.  She was treated with medications and responded positively overall.  The CI was seen in the emergency room on 28 January 2002 for an anxiety attack.  She was treated with an anxiolytic and released to self-care.  This is the only clinical note regarding a MH condition found in evidence other than those specific to the MEB process or the VA evaluations.

The 11 June 2002 MEB NARSUM psychiatric addendum, 9 months prior to separation, noted complaints of increased anxiety with occasional anxiety attacks.  During the mental status examination (MSE) there was mild evidence of agitation, but she was able to remain seated and maintained good eye contact.  Speech was normal.  She reported her mood as sad and agitated.  She reported that she “rambled” when talking with friends, but her thought processes were intact.  Insight, judgement and cognition were intact.  The examiner noted the CI had improved over the past 2 years of treatment, but the level of improvement was not quantified.  There was a family history of bipolar disorder (which increased her risk of this condition).  She was thought to have MDD of moderate severity.

The commander noted on 9 July 2002, 8 months prior to separation, that the CI had been sent home “on numerous” occasions due to her mental state of mind and mood swings.  A U.S. Army Physical Disability Agency (USAPDA) Senior Medical Officer memorandum for record dated 6 August 2002, noted the CI reported that she was doing well “although she had experienced some depression following her pregnancy and during the difficult period of treatment for recurrent thyroid cancer.”  The CI also thought that her mood was within normal limits for her.  The medical officer spoke directly with the CI.  She was pleasant, cooperative and in good spirits, but was concerned about continuing on active duty due to the radiation aspect of her MOS. 

The 26 November 2002 MEB NARSUM psychiatric addendum, 3 months prior to separation, noted the CI was working half days.  Her current medication regime consisted of Celexa 40 mg daily, Valium 5 mg twice daily and Wellbutrin XR 100 mg (usage not specified).  The reason for not working full time was not recorded.  She reported fatigue, agitation, diminished activity and decreased ability to concentrate.  It is not clear if these were current or historical complaints.  However, her current MSE was normal with no significant change from 11 June 2002.  She was diagnosed with major depression, recurrent, moderate severity and given a Global Assessment of Function (GAF) of 70 (mild symptoms or impairment).  The CI was seen by VA endocrinology on 16 October 2003, 7 months after separation.  It was noted that she was in school and studying social work.  No other school or work details were addressed.  

At the 17 June 2003 VA Compensation and Pension (C&P) general examination, 9 months after separation, the CI reported continued anxiety, depression, paranoia and trouble sleeping since her cancer condition.  She reported hating to go outside due to her overweight status and disfiguring neck scar (from prior surgery).  She reported difficulty being around computers because she was afraid they could trigger her cancer.  She reported utilizing Celexa, Wellbutrin and Klonopin (a sedative to control seizures, pain disorder and anxiety).  There was no MSE performed, no MH diagnosis or GAF rendered, and current school and work evidence were not addressed.  

During the 10 March 2004 C&P mental disorder examination, just over 12 months after separation, the CI reported she had not worked since separation and was on Social Security Disability for the cancer and depression.  Her typical day was taking care of her four children ages three to ten, taking them to school, picking up the house and generally managing the home which she found increasingly overwhelming.  Educational pursuits were not addressed.  She derived joy from her children, but was irritable and anxious.  She reported being tearful lately and tended to cry frequently over little things.  She felt anxious about the future and concerned that her cancer had returned.  The MSE revealed the CI as slightly overweight, depressed and friendly, but somewhat needy (apparently a lifelong attribute) seeking approval and affirmation from the examiner.  Her mood was slightly depressed.  Cognition was intact.  She reported having depression but not bipolar illness.  The examiner opined that the CI’s symptoms were mild to moderate and had likely recently worsened with the recurrence of her cancer.  She was diagnosed with depression disorder not otherwise specified and her GAF score was 66 (mild symptoms or impairment).

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the MDD 10%, coded 9434 (MDD), citing mild social and industrial impairment.  The VA rated the MDD 30%, also coded 9434, based on the STR.  

The VA rater appeared to use both current and historical symptoms in determining the rating.  The examination closest to separation showed that the CI had a normal MSE and a GAF indicative of mild symptoms.  She was working half-time; the reason for not working full time was not recorded.  The examination prior to that noted the CI thought her mood was at her baseline.  She was pleasant and cooperative.  The panel majority determined that the evidence proximate to separation was most consistent with the level of impairment which describes a 10% rating, “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.”  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.

Right Neck and Shoulder Pain.  The PEB combined the neck and right shoulder conditions under a single disability rating of 0%, analogously dual coded 7914-5099-5003 (neoplasm, malignant, of the endocrine system-degenerative arthritis), citing the USAPDA pain policy.  The PEB noted the pain followed a neck dissection and total thyroidectomy with subsequent ablation by radioactive iodine.  The PEB did not determine there was a specific unfitting neck, right shoulder or thyroid cancer condition.  This approach by the PEB not uncommonly reflected its judgment that the constellation of conditions was unfitting, and there was no need for separate fitness adjudications.  The panel’s initial charge in this case was therefore directed at determining if combining conditions under a single rating was justified in lieu of separate ratings.  When considering a separate rating for each condition, the panel considers each bundled condition to be reasonably justified as separately unfitting unless a preponderance of evidence indicates the condition would not cause the member to be referred into the DES or be found unfit because of physical disability.  When the panel recommends separate fitness recommendations in this circumstance, its recommendations may not produce a lower combined rating than the PEB.

According to the STR and MEB NARSUM, the CI underwent a total thyroidectomy on 20 January 2000 due to metastatic thyroid cancer.  She was found to be pregnant during the staging evaluation.  While pregnant, she had a right functional neck dissection on 17 May 2000.  Following delivery of her child, she underwent radioactive iodine ablation or destruction of remaining thyroid tissue.  She was found to be in remission from the thyroid cancer, but had residual pain after the surgery which impaired function.

The 25 April 2001 MEB NARSUM examination revealed a tender right neck scar and limited neck motion as well as right shoulder weakness.  The PEB initially adjudicated at 0% for the right neck and right shoulder pain, but the Formal PEB (FPEB) discontinued the PEB to determine if she still had thyroid cancer.  As part of the overall evaluation the CI received an MEB physical therapy evaluation on 15 August 2001 which recorded right shoulder flexion to 120 degrees (normal 180) and abduction to 100 degrees (normal 180); painful motion was not addressed.  Flexion strength was 4/5.  Neck range of motion (ROM) was flexion to 45 degrees (normal) and combined ROM was 260 degrees (normal 340); painful motion was not addressed.  

During the 17 June 2002 C&P examination, 9 months before separation, the left-hand dominant CI reported a gradual return of strength of the right arm and could flex her arm to 85-90 degrees and accomplish three pushups.  She noted that the “tingling” in her right arm had improved.  Physical examination showed neck flexion to 45 degrees and combined ROM of 300 degrees; painful motion was not addressed.  Right shoulder flexion was 95 degrees and abduction was 170 degrees; painful motion was not addressed.  Flexion strength was 4/5.

The 20 June 2002 MEB NARSUM, 9 months prior to separation, noted complaints of right shoulder and right neck numbness and limited ROM.  Physical examination showed the right neck wound was well healed without evidence of masses or lymph node swelling.  She was thought to have no evidence of recurrent disease (thyroid cancer) based on current laboratory studies.  Neither right neck nor right shoulder ROM was addressed.  

The 27 August 2002 MEB NARSUM addendum, 6 months prior to separation, noted the presence of right neck fibrosis (internal scarring) after the neck dissection which could impair the CI’s ability to elevate the arm past shoulder level or perform push-ups.  Contributing to the neck and right shoulder pain conditions was the global weakness associated with her treatment (induced hyperthyroidism).  The CI was seen by VA endocrinology on 16 October 2003, 7 months after separation.  Her neck was noted to be supple, without masses and non-tender.  No specific comment was made on the shoulder ROM, but she was found to have 5/5 strength in all extremities.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the neck and right shoulder condition 0%, coded 7914-5099-5003 as noted above.  The VA rated the right shoulder condition 10%, analogously coded 5203-8411 (clavicle or scapula, impairment-neuralgia), based on the C&P evaluation, citing limitation of flexion.  The VA also rated the papillary thyroid carcinoma 10%, analogously coded 7914-7903 (neoplasm, malignant, any specified part of the endocrine system-hypothyroidism), citing benign with residual scar and laboratory findings.

The panel first considered if the neck and right shoulder conditions, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  Neither condition was permanently profiled, but the papillary thyroid carcinoma was profiled P3.  However the physical profile limited the CI from firing a weapon, performing pushups and sit-ups and swimming; these events are reasonably limited by neck and/or shoulder impairments.  The commander’s statement did not specifically implicate either condition but stated the CI could not perform the required push, pull, raise, lift or carry requirements of her MOS.  The MEB did not judge the neck or right shoulder conditions to fail retention standards.  The panel concluded there was not a preponderance of evidence in the STR which overcame the panel’s presumption that the bundled neck and right shoulder conditions were reasonably considered separately unfitting.  The panel then considered its rating recommendation for the unfitting neck and right shoulder conditions at the time of separation.

The panel determined the CI’s neck and right shoulder limitations were residuals of the right neck dissection in May 2000.  The panel first considered if limitation of motion of the neck or right shoulder supported a 10% rating.  Neither the STR nor VA evidence documented compensable limitation of motion for either condition.  Additionally there was no X-ray arthritis evidence or painful motion to support a 10% rating IAW VASRD §4.59 and/or §4.40.  The panel then considered a right shoulder rating based on code 5301 (muscle group I function, which includes elevation of the arm above the shoulder level and rotation of the scapula).  The CI had right shoulder limitation of motion and weakness, and was impaired from performing the required physical requirements of her MOS.  The panel agreed this disability was most consistent with a moderate code 5301 impairment to support a 10% rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the neck and right shoulder condition, coded 5301.

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 submitted the appended minority opinion.  In the matter of the neck and right shoulder condition, the panel recommends a disability rating of 10%, coded 5301 IAW VASRD §4.73.  There are no other conditions within the panel’s scope of review for consideration.

The panel recommends the CI’s prior determination be modified as follows, effective as of the date of the prior medical separation:

CONDITION	VASRD CODE	PERMANENT RATING	
Major Depressive Disorder	9434	10%	
Right Neck and Shoulder Pain	5301	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170411, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record

MINORITY OPINION:  The panel minority dissents with the majority conclusion that the CI’s MH condition was most consistent with a “moderate” impairment to support a 10% rating.  The minority finds the CI’s MH condition supports a 30% rating at separation based on the following.

IAW VASRD §4.130 a 50% rating requires occupational and social (O&S) impairment with reduced reliability and productivity.  A 30% requires O&S 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).  A 10% rating entails O&S 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.

The MEB NARSUM examiner diagnosed the CI with MDD of “moderate” severity and opined that the CI would require continued psychiatric follow up.  The CI received an S3 (mental health) profile 8 months prior to separation.  The commander’s statement documented the CI being sent home “on numerous occasions due to her mental state of mind and mood swings.”  The MEB NARSUM psychiatric addendum, most proximate to separation, also diagnosed recurrent MDD with a GAF score of 70 (mild).  However, the CI was only working half days, and continued to take a sedative (Valium) and two psychotropic medications.  The examiner opined the CI “must be followed for the possible and likely presentation of bipolar disorder in light of a strong family history and the occasional need to be managed carefully.”  Consequently, the CI’s MH disorder was not simply controlled by sedation or psychotropic medication, and she required ongoing psychiatric counseling and/or treatment.

The VA endocrinology note on 16 October 2003 noted the CI was in school studying social work, but no other detail was given.  The VA C&P general examination recorded the CI’s continued use of psychotropic medication and psychiatric counseling.  The CI reported continued anxiety, depression, experiencing paranoia and trouble sleeping since her cancer condition.  She hated to go outside due to her overweight status and disfiguring neck scar.  The VA C&P MH examination recorded the CI’s continued use of psychotropic medication.  The CI was psychologically tested (Beck Depression Inventory II) and scored a 43 indicative of “clinically significant depressive symptoms” which is objective evidence of her state of MH.  The CI reported not working since separation and was on Social Security disability for the cancer and depression.  Her family life was quite stressful; managing her home was increasingly overwhelming.  The CI reported being irritable, anxious and tearful and tended to cry frequently over little things.  

Based on the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel minority asserts the CI’s MH condition best aligns with a 30% rating.  The Secretary is respectfully requested to consider the panel minority’s recommendation 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 medical separation:

CONDITION	VASRD CODE	PERMANENT RATING	
Major Depressive Disorder	9434	30%	
Right Neck and Shoulder Pain	5301	10%	
COMBINED	40%	

AR20180008658, XXXXXXXXXXXXXXXXXX. 

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found that your disability rating should be modified but not to the degree that would justify changing your separation for disability with severance pay to a permanent retirement with disability.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed) and I accept its recommendation.  This will not result in any change to your separation document or the amount of severance pay.  A copy of this decision will be filed with your Physical Evaluation Board records.  I regret that the facts of the case did not provide you with the outcome you may have desired.
  
	This decision is final.  Recourse within the Department of Defense or the Department of the Army is exhausted; however, you have the option to seek relief by filing suit in a court of appropriate jurisdiction. 

	A copy of this decision has also been provided to the Department of Veterans Affairs and to the counsel you listed on your application, XXXXXXXXXXXXXXXXXX.

Sincerely,					      
						      					
Enclosure