RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXX		CASE: PD-2016-00401-2 BRANCH OF SERVICE: NAVY	SEPARATION DATE: 20080817

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E6, Aviation Electronic Warfare Operator, medically separated for “major depressive disorder [MDD] single episode” with a disability rating of 10%. The case was previously evaluated by the PDBR and the panel recommended no modification or re-characterization of the Physical Evaluation Board (PEB) adjudication. The CI disagreed with the determination and appealed to the United States District Court of the appropriate jurisdiction. The Court granted the parties’ joint motion for remand and stay of proceedings. The case was remanded to the Navy Review Boards Agency, which referred the case back to the PDBR for reconsideration of the disability rating. The complete case file, to include additional documentation provided by counsel representing the CI, was evaluated by a new PDBR panel comprised of different members. These proceedings reflect a de novo review and analysis confined to the unfitting PEB condition.

ANALYSIS SUMMARY:

MDD (with Cat II PTSD). According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s mental health (MH) condition began in September 2006 following his deployment. At the post-deployment MH appointment on 11 September 2006, the CI reported a few weeks’ history of increasing irritability, quick temper, and repetitive thoughts of enemy combatants being killed (which he had witnessed during his deployment). He had a brief trial of anti-depressant medication, but this was discontinued due to undesirable side effects. There was no history of emergency room (ER) treatment or inpatient psychiatric admissions, and no reports of suicidal or homicidal ideations or attempts.

During the 8 April 2008 MEB NARSUM examination, 4 months prior to separation, the CI complained of changes in his level of functioning since returning from combat deployment. He reported recurrent memories and images, nightmares, anger and irritability, poor sleep and other symptoms consistent with trauma that began after witnessing “over 180 combatants die on one bombing raid.” He also reportedly had symptoms of depression, such as lack of motivation and energy, disturbed sleep, and crying spells. He received group, marital, and individual therapy, with good response to his individual sessions. The mental status examination (MSE) documented a cooperative and normal examination. His mood was “OK” with normal affect and no symptoms of distress. Thought process and content were unremarkable, cognitive function was intact, and insight and judgment were “adequate.” The examiner opined that continued military service would exacerbate the CI’s MH conditions of PTSD and depression, and assessed occupational and social functioning impairment as moderate. There were no military treatment records in evidence after separation.

At the 12 November 2008 VA Compensation and Pension (C&P) evaluation, 3 months after separation, the CI stated that he was recently employed as an information technology systems administrator and doing well at work, although he experienced some mild anxiety related to “wanting to perform well;” he got along with his co-workers and bosses. His relationship with his wife had improved with continued marital counseling and he had no history of aggression or legal problems. The examiner noted the CI continued to report symptoms consistent with PTSD, and that he was “engaged” in PTSD treatment at a base but would have to “transition treatment

to the VA.” The MSE was unremarkable and while sleep impairment was annotated “yes,” the provider did not address the nature of the impairment (difficulty initiating, maintaining, early morning awakenings, etc.) or that sleep had affected functioning. The examiner opined that the CI experienced mild social and occupational impairment “due to anger, impaired concentration and detachment symptoms,” and that he was improving with treatment. The provider also noted “occasional decrease in work efficiency or intermittent periods of inability to perform occupational tasks due to signs and symptoms but generally satisfactory functioning.”

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the MDD 10%, coded 9434 (MDD), and listed PTSD as a related Category II diagnosis that contributed to the disability in this case. The VA rated the PTSD 30%, coded 9411 (PTSD), based on the C&P examination, 3 months after separation. In accordance with the VA Schedule for Rating Disabilities (VASRD), §4.130 (mental disorders) ratings are based on symptoms independent of diagnosis, and therefore, all MH symptoms (MDD and PTSD) are considered in the rating and reflected in the panel’s recommendation. The panel first considered whether the provisions of VASRD §4.129 for a “mental disorder that develops in service as a result of a highly stressful event” were applicable, noting that a minimum 50% rating for a retroactive 6-month period on the Temporary Disability Retired List (TDRL) must be recommended if §4.129 is applied.

The PEB determined that the CI’s condition was not the result of a combat related injury, and not incurred in a combat zone or during the performance of duty in combat-related operations as designated by Title 26, US Code Section 104 (b) (3). The NARSUM examiner did not identify a single traumatic event, but did make a direct link between the CI’s condition and combat trauma. The commander’s statement was silent regarding combat activity or exposure to traumatic events, but noted the CI was unavailable for work one day a week due to MH appointments. The commander also noted he was “only capable of fulfilling the administrative aspects of his duties as long as stress levels [were] kept to a minimum.” Due to the requirement to keep him in a stress-free environment, he was “not recommended for continued service.” Panel members noted that the CI was removed from flight status (with no waiver recommended) due to “prolonged posttraumatic stress disorder,” and concluded that although the commander made no mention of a specific trauma related stressor during combat, the CI likely had significant combat exposure while deployed to a war zone. Therefore, the panel conceded a traumatic stressor and agreed that the requisite §4.129 link between the Service stressor to the psychiatric condition was met and thus applicable for a retroactive 6-month period of constructive TDRL.

The panel next turned to its VARSD §4.130 rating recommendation based on the evidence at constructive TDRL placement. The STR showed that the CI was stable, had not received any treatment in the 4 months before separation, and had not been on medication for his condition. The NARSUM MSE was unremarkable with no evidence of impaired judgment or suicidal ideation. While the CI complained of depressed mood, sleep disturbance, concentration problems, and nightmares, among other PTSD-type symptoms, he was generally stable and did not require ER or inpatient treatment. Additionally, his depression did not require psychotropic medication. Panel members agreed that criteria for a §4.130a rating higher than 50% were not met near the time of separation, and therefore the minimum 50% initial TDRL placement rating is applicable.

The panel then turned to its permanent rating recommendation at the time of constructive TDRL removal. The VA C&P evaluation was the only source of evidence most proximate to separation. Panel members noted that the CI had started a new job and did not mention any MH symptoms significantly interfering with his work performance. There was no report of workplace anger or arguments which interfered with occupational functioning, and no mention that an inability to concentrate led to any impairments on the job. The CI did not indicate that his MH symptoms led to negative performance feedback, missed work, or an inability to complete occupational tasks. Although he had experienced some marital difficulties related to anger, there was no report of domestic violence, and his marriage had improved with counseling. He was able to

engage in leisure activities and his condition had not required medication. The panel acknowledged the CI’s symptoms were chronic, having been present for 2 years before separation; however, his clinical condition remained stable throughout. Although the examiner noted the CI was receiving treatment at a military facility, any associated treatment records were not in evidence; the last documented MH session was on 7 April 2008, one day prior to the MEB NARSUM, and 4 months prior to constructive TDRL placement. There was no evidence that the CI participated in any form of MH treatment during the constructive TDRL period. Panel members thus agreed that at the time of permanent separation, the CI’s disability reflected a 10% level for “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.” After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a retroactive 6-month period of TDRL with a rating of 50% (in accordance with §4.129), and a permanent rating of 10% for the MDD, coded 9434.

BOARD FINDINGS: In the matter of the major depressive disorder, the panel recommends an initial TDRL rating of 50%, coded 9434, in retroactive compliance with VASRD §4.129 as DoD directed; and a 10% permanent rating at 6 months 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, effective as of the date of the prior medical separation:

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

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20160329, w/atchs Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans Affairs Record Exhibit D. Counsel’s Brief, dated 29 December, 2021
Exhibit E. U.S. District Court Order, dated 24 January 2022 Exhibit F. Counsel’s Brief, dated 28 January 28, 2022

3/3/2022

DEPARTMENT OF THE NAVY
SECRETARY OF THE NAVY COUNCIL OF REVIEW BOARDS 720 KENNON STREET SE STE 309
WASHINGTON NAVY YARD, DC 20374-5023

IN REPLY REFER TO
6040
CORB:  001
4 Apr 2022

From: Director, Secretary of the Navy Council of Review Boards To:	XXXXXXXXXXXX

Subj:	Physical Disability Board of Review Determination Ref:	(a) 6040.44(Series)
1.	The Physical Disability Board of Review (PBDR) reviewed your case in accordance with reference
(a) and forwarded their recommendation for action.

2.	On 1 April 2022, the Assistant Secretary of the Navy (Manpower and Reserve Affairs) accepted the PDBR’s recommendation of placement on the Temporary Disability Retired List with a 50 percent disability rating for six months, effective date of discharge, followed by placement on the Permanent Disability Retired List with a 10 percent permanent rating. This decision was then sent to Navy Personnel Command for appropriate action.

3.	The PDBR determination is final and not subject to appeal or review.