RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-04272
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20060627

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Multiple Launch Rocket System Operator, medically separated from the Temporary Disability Retired List (TDRL) for “schizoaffective disorder” with a disability rating of 10%.  

CI CONTENTION:  Review all 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 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 - 20060608	VARD - NA	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Schizoaffective Disorder	9211	10%	There was no VA Examination Proximate to TDRL Removal in Evidence 	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  NA	

ANALYSIS SUMMARY:  

Schizoaffective Disorder.  According to the service treatment record and MEB narrative summary (NARSUM), the CI initially presented in February 2004 with reports of visual and auditory hallucinations for the previous 2 years.  This was associated with rapid mood cycling and he was treated as an outpatient without need for hospitalization.  The CI was placed on the TDRL on 12 October 2004.

The 12 April 2006 TDRL reevaluation (2 months prior to TDRL removal) documented that the CI had been treated as an outpatient by the VA during the period of TDRL.  There had been no interim hospital admissions.  There was no VA Compensation and Pension (C&P) examination in evidence that was temporally probative to the time of permanent separation off the TDRL.  

The TDRL psychiatrist documented that the CI had been employed since leaving active duty, although he had left a job as a corrections officer because he was unable to tolerate the stress.  He was currently employed as a psychiatric technician and was doing well in that position.  He remained on Geodon (antipsychotic), Depakote (mood stabilizing agent) and Zoloft (antidepressant).  Socially, he remained in a stable marriage with one child, but “describes a socially isolative and constrictive lifestyle.”  The examiner documented no reports of current psychotic features and adequate management of his psychotic symptoms.  The CI nevertheless continued to manifest rapid mood cycling with hypomanic episodes, decreased need for sleep and major depressive episodes with neuro-vegetative symptoms.  There was no note of suicidal ideation or attempts, serious disciplinary or legal issues, or alcohol/substance abuse.

The mental status examination (MSE) at the time of the TDRL reevaluation recorded an “okay” mood and euthymic but constricted affect, no suicidal or homicidal ideation and “fair” judgment with no additional psychotic features or cognitive impairment.  The Axis I diagnosis was “schizoaffective disorder, severe, in remission.”  The GAF assignment was 70 (mild impairment) and the DoDI 1332.39-derived assessment of social and industrial impairment was “definite.”  The examiner opined the CI “continues to function adequately but marginally due to his strict compliance with his medical regimen.”

Although there was no temporally probative C&P examination, there were VA outpatient MH treatment notes in evidence from the period soon after permanent separation.  An intake note of 21 November 2006, documented the CI had moved a month after separation and had taken a new job.  He was working as mall security, but complained that it was too stressful and he wanted to quit.  His hallucinations were returning (voices whispering in his ear, “shadows, demons coming from ground”) and he was paranoid.  The MSE noted an anxious and depressed mood, but there was no suicidal ideation or additional acute features.  The GAF assignment was 50 (cusp of moderate and serious impairment).  Subsequent VA records indicated a 4-day hospital admission for depression in April 2007 (10 months after permanent separation).  His medications were adjusted and later notes documented that he had improved and the psychotic symptoms had once again resolved.

The panel directed attention to its rating recommendation based on the above evidence.  The CI was removed from TDRL with a permanent disability disposition of separation with severance pay at 10%.  The PEB cited mild social and industrial impairment with resolution of psychotic symptoms and full-time employment.  It was first noted that there was no evidence of a “highly stressful event” related to military service that would justify application of the provisions of VASRD §4.129.  The panel then considered the rating recommendation based on criteria of §4.130 applied to the severity of disability in evidence at TDRL removal.   Members agreed that the evidence did not support the §4.130 criteria for a 70% rating for occupational and social impairment with deficiencies in most areas.  The CI’s occupational functioning, marital relationship and judgement were intact at that time.  The panel next considered if the §4.130 criteria for a 10% rating, for 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, were reasonably aligned with the evidence at permanent separation.  It was noted that the symptoms were stable at the time of TDRL removal and the CI remained fully employed with an intact marriage, but the panel majority however, noted that the CI’s symptoms were neither mild nor transient; they were not confined to periods of stress; and, they could not be fairly characterized as “controlled” even on three medications.  Therefore, the panel majority agreed that the evidence was not reasonably aligned with the §4.130 criteria for a 10% rating.

Deliberations thus settled on recommendations for a 30% versus a 50% rating.  The §4.130 criteria for a 30% rating include occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily) with such symptoms as depression, anxiety, suspiciousness, panic attacks, sleep disturbance and mild memory loss.  Those for a 50% rating include occupational and social impairment with reduced reliability and productivity with such symptoms as flat affect, stereotyped speech, more frequent panic attacks, deficits in comprehension and memory, impaired judgment, mood disturbance or difficulty with establishing relationships.  The VA outpatient evidence from the probative period soon after TDRL removal indicated that the psychiatric acuity was not stable, with a relapse of the psychotic symptoms and the need for the CI’s first psychiatric admission.  It was noted, however, that the psychotic overlay was confined to fleeting hallucinations that did not trigger any adverse behavioral response.  Judgment remained intact, as did reality testing and cognition.  None of the symptoms exampled for a 50% rating, or any comparable symptoms, were in evidence, and did not result in more than intermittent occupational incapacitation (a 30% criterion).  It was also relevant that the escalating symptoms for the period in question occurred in the setting of significant situational stress (relocation, employment change), and the significantly lower psychiatric acuity reflected in the TDRL examination was arguably more consistent with baseline acuity.  Therefore, panel consensus was that the evidence was more reasonably aligned with §4.130 criteria for a 30% rating than with those for 50% (or 10% as above).  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel majority recommends a disability rating of 30% for the MH disorder at the time of TDRL removal.

BOARD FINDINGS:  In the matter of the MH disorder, the panel majority recommends a disability rating of 30%, coded 9211 IAW VASRD §4.130.  The single voter for dissent submits 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; and, 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	
Schizoaffective Disorder	9211	30% 	

The following documentary evidence was considered:

MINORITY OPINION:  The minority dissents with the majority conclusion that the psychiatric disability in evidence at the time of separation justified a rating higher than the 10% conferred by the PEB.  In addition to the evidence from the TDRL reevaluation two months prior to separation, the majority recommendation was further based on VA clinical evidence from 5 – 10 months after separation in the setting of external stressors.  The minority asserts that the probative value of the TDRL examination, which was all that was available to the PEB, far outweighs that of the more remote VA evidence, none of which provided significant detail with respect to a §4.130 rating.  The minority recommendation rests almost exclusively, and rightfully so, on the definitive evidence from the TDRL examiner.

The TDRL examination documented that the CI was receiving care at the VA, and the lack of any treatment records from the VA file during the period of TDRL suggests that he had remained in stable remission without any significant clinical acuity or major issues.  As noted in these proceedings, he had not required any hospital admissions or change in his medications, and had not experienced any other complications suggestive of a relapse or psychiatric fragility.  

With regard to occupational functioning, the TDRL examination documented that the CI had been employed throughout the TDRL period since leaving active duty.  He had worked two earlier jobs in state government and as a corrections officer, both of which he voluntarily left after relative short periods due to stress and work environments.  At the time of the examination he was employed full time, and had been for about a year, as a mental health technician.  He reported a supportive environment and a high degree of job satisfaction.  There was no indication that he was suffering any occupational impairment or that he had experienced any work loss due to his psychiatric condition.  With regard to social functioning, it appeared that he had an inactive social life, but he did engage in personal recreational activities such as video games, art and writing.  His marriage and family life was stable and there was no evidence that he was having difficulty with relationships inside or outside the home.

The near normal MSE and GAF assignment at the time of the TDRL examination, by themselves, pose a significant challenge to a rating higher than 10%.  With regards to 30% rating criteria, an “occasional decrease in work efficiency” might be fairly conceded even in the absence of specific documentation to that effect; but, the minority member cannot identify any “periods of inability to perform occupational tasks.”  Although the TDRL examiner identified the presence of continuing symptoms posing a significant challenge to the CI, there was no evidence that these translated into a significant degree of objective psychiatric impairment.  It is the latter that constitutes disability, and the minority member asserts that the objective psychiatric impairment was more reasonably aligned with the §4.130 criteria for a 10% rating than with those for 30%.

Consistent with the DoDI 6040.44 standard of recommendations that are fair and equitable to both the Service and the CI, the Secretary is respectfully requested to consider the minority recommendation that there be no modification or re-characterization of the CI’s service disability determination. 

AR20190004352, 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.