RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-03823
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20050302

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

CI CONTENTION:  The CI stated he still had depression and requested review of additional conditions not identified by the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB).  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 PEB to be unfitting for continued military service, and when specifically requested by the CI, those conditions identified by the 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 - 20041220	VARD - 20050419	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Major Depressive Disorder	9434	10%	Major Depressive Disorder	9434	30%	20041029	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Major Depressive Disorder (MDD).  According to the service treatment record and the MEB narrative summary (NARSUM), the CI first manifested depressive symptoms in 1998 (5 years before TDRL placement).  His clinical course was cyclical and he required a hospital admission in 2003.  The diagnosis was MDD and there was no report of alcohol abuse.  He failed to respond adequately to treatment and was referred for MEB.  

The MEB NARSUM examination of 6 August 2003 documented “minimal improvement … [and] … day-to-day difficulty performing basic Army duties.”  The current medications were Depakote and Wellbutrin and the CI denied alcohol or substance abuse.  The mental status examination (MSE) recorded a “euthymic” mood and “congruent” affect without suicidal ideation, cognitive impairment, or other acute features.  The Axis I diagnosis was MDD and the Global Assessment of Functioning (GAF) assignment was 55 (moderate impairment).  The DoDI 1332.39-derived assessment of social and industrial impairment was “definite.” The PEB conferred a 30% rating (referencing the DoDI 1332.39 criterion) and the CI was placed on the TDRL on 5 November 2003.  

The CI failed to report for a scheduled VA Compensation and Pension (C&P) examination at the time of TDRL placement; and his initial VA rating for MDD of 10% reflected the absence of a VA examination.  He did undergo a C&P mental health examination on 29 October 2004 (4 months before TDRL removal, thus temporally probative to the panel’s rating recommendation).  Although the source records were not available, the C&P examination documented that the CI had been undergoing outpatient treatment at the VA during the period of TDRL.  His initial diagnosis had been confined to MDD, but his subsequent diagnosis was “[MDD] and alcohol abuse.”  He had not undergone any further hospital admissions and his medications remained unchanged from the above NARSUM.

The C&P psychiatrist documented continuing symptoms of depression to include isolation (divorced, living alone), sleep disturbance (exacerbated by concurrent medical conditions), and diminished energy with no other vegetative symptoms.  With regard to alcohol use, the CI reported that “he was drinking five or six beers once or twice a week until he stopped drinking in July of 2004…stopped drinking because he believed alcohol consumption was contributing to his overall level of depression.”  With regard to occupational functioning, the examiner noted that the CI had been a full time university student but dropped out because “studying was too much of a struggle…difficulty with concentration.”  He had just enrolled at a technical school to become a medical assistant.  He was working part-time as a security guard, having been reduced from full time because of friction with coworkers.  The MSE recorded a “depressed” mood and “restricted” affect without suicidal ideation, objective cognitive impairment, or other acute features.  The Axis I diagnosis was “[MDD], alcohol abuse, early full remission” with no Axis II diagnosis, and the GAF assignment was 55 (identical to the MEB NARSUM).  

The TDRL examination was conducted 18 November 2004 (3 weeks after the above C&P examination, 3 months before TDRL removal).  The examiner documented that the CI “continues to manifest many of the symptoms that led to his medical retirement, including feeling unable to participate in social activities, being irritable, unable to maintain full employment because of feelings of daytime fatigue, decreased energy, and poor concentration.”  With regard to alcohol use, the examiner stated that the CI “drinks periodically … will have two to five beers … denied having any life problems that he would attribute to alcohol use;” but, conversely added “He drinks up to a six-pack in one setting.”  The academic and occupational limitations detailed in the C&P evidence were reiterated in the TDRL examination.  There were two Axis I diagnoses: A) “MDD, moderate severity, chronic” and  B) “alcohol abuse, manifested by periodic use of alcoholic beverages despite the knowledge that he has a severe psychiatric disorder and is taking psychiatric medications, which contraindicates further use of alcohol.”  The GAF assignment was 60 (cusp of mild and moderate impairment), and the assessment of social and industrial impairment (DoDI 1332.39) was “definite.” 

The panel directed attention to its rating recommendation based on the above evidence.  The CI was removed from the TDRL with a disposition of separation with severance pay at 10%.  The PEB used code 9434 (MDD) and acknowledged that the CI “has been unable to maintain any significant employment;” but stated “Axis I-B indicates continued use of alcohol despite knowledge of its adverse effects on the depressive symptoms, therefore the rating granted will be apportioned downward one step to mild.”  The CI appealed, stating “I do not drink a six pack of beer per setting.”  The PEB denied an increase in rating, pointing out that the CI had previously concurred with the TDRL examiner’s report.  The VA, based on the new C&P evidence, raised the rating under code 9434 to 30%, quoting the applicable VASRD §4.130 criteria.   

It was first noted 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.  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 final separation.  Panel members first agreed that the evidence would not support the §4.130 criteria for a 50% rating, “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, his clinical course was stable without further need of hospitalization, and his symptoms were not nearly as severe as the referenced symptoms.  

Deliberations thus settled on recommendations for 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”) versus a 30% rating (“occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks”).  Members agreed that a significant degree of occupational impairment was well supported by the evidence, and in fact conceded by the PEB.  That degree of impairment could not be fairly characterized as “mild or transient;” there was no evidence that it was confined to “periods of significant stress;” and, symptoms were not fully controlled by medication.  All of the elements of a 10% rating were thus mitigated by the evidence, and members agreed the evidence was more fairly aligned with the above 30% criteria than with 10%.  

With regard to the PEB’s downward adjustment of its rating on the basis of alcohol abuse, panel members noted that this is not countenanced by the VASRD (on which the panel must base its recommendation).  Panel members furthermore agreed that, especially considering the prerogative of reasonable doubt, the evidence did not firmly establish that the contribution of alcohol abuse was so significant at the time of final TDRL removal.  The evidence for alcohol abuse from the TDRL examination was somewhat equivocal and contradictory, and the C&P evidence indicated that it was not significant only a few weeks earlier.  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 at TDRL removal.

BOARD FINDINGS:  In the matter of the major depressive disorder, the panel recommends a disability rating of 30%, coded 9434 IAW VASRD §4.130 at the time of TDRL removal.  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 the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Major Depressive Disorder	9434	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170327, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20180006245, 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), XXXXXXXXXXXXXXXXXX.

	A copy of this decision has also been provided to the Department of Veterans Affairs 

Sincerely,					      
Enclosure