RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXX		CASE:  PD-2014-00153
BRANCH OF SERVICE: MARINE CORPS 	 SEPARATION DATE:  20060430

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Armor Crew Member) medically separated for Posttraumatic Stress Disorder (PTSD).  The PTSD condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS). He was placed on limited duty (LIMDU) and referred for a Medical Evaluation Board (MEB).  The “prolonged PTSD,” was the only condition forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  The Informal PEB adjudicated “PTSD” as unfitting, rated 10%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The PEB also identified “occupational problem,” as a Category II condition (one that contributes the unfitting condition) and “chronic lower back pain,” as a Category III condition (one that is not separately unfitting and does not contribute to the unfitting condition).  The CI made no appeals and was medically separated.  

CI CONTENTION:  The CI submitted a continuation sheet asking for an increase to his PTSD rating.  The applicant’s complete submission, with attachments, is at Exhibit A.  

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e. (2).  It is limited 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 PEB, but determined to be not unfitting.  Any conditions outside the Board’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 Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the VASRD standards to the unfitting medical condition at the time of separation.  The Board 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, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation. 

RATING COMPARISON:  

IPEB - Dated 20060203	VA* - (~16 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
PTSD	9411	10%	PTSD	9411	30%	20070809	
OCCUPATIONAL PROBLEM	Category II	No VA Placement	
Other MEB/PEB Conditions x 1 (Not in Scope)	Other x 5	
RATING:  10%	RATING:  40%	
*Derived from VA Rating Decision (VARD) dated 20070827 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:  

PTSD.  According to service treatment records (STR), the CI was deployed to Iraq twice; January 2003-May 2003 as a tank driver and July 2003-February 2004 a tank gunner.  At a Post Deployment Health Assessment (PDHA) in May 2003, he reported he saw someone wounded, killed, or dead, discharge a weapon while engaged in direct combat, and felt in great danger of being killed.  He denied symptoms of anxiety and depression, except for some loss of interest in doing things.  He was not interested in seeking counseling or care for mental health issues. After the second combat tour he reported he drank heavily for 2-3 months to self-medicate his anxiety and depression.  He reported one non-judicial punishment (NJP) for hazing of trainees at this current command.  He felt that trouble with confrontation since deployment and being faced with stressful situations may have been contributory.  He was fined and lost rank.  He was diagnosed with PTSD and treated with a medicine for depression/anxiety and sleep to treat PTSD, placed in a PTSD group, and received individual cognitive behavioral therapy.  He was placed on limited duty board (LIMDU) in November 2005 to limit duty to daytime shifts to normalize sleep-wake cycle and assign him to administrative duties away from the firing range.  Despite increases in medication, the NJP, ongoing work stressors, and reminders of combat resulted in short-term periods of minimal symptom improvement.  The refractory nature of his symptoms to treatment, their severity and his feelings of a lack of support after the NJP, a decision was made to refer him to the MEB.

At the narrative summary (NARSUM), dated 12 December 2005, the CI reported increasing recurrent nightmares, flashbacks of combat, intrusive thoughts of traumas, intense anxiety, reaction to loud noises, avoidance, and detachment that included his wife and step children.  He also reported insomnia, increased irritability, and anger outbursts.  Attention and concentration were decreased.  He had reduced his drinking to only weekends with a maximum of six beers or mixed drinks episodically.  He lived with his wife of 8 months and stepchildren.  Mental status exam (MSE) showed a mood that ranged from neutral to anxious with restricted affect. He denied suicidal/homicidal ideation.  A diagnosis of PTSD, severe, chronic and an occupational problem was rendered with a Global Assessment of Functioning (GAF) of 55 (moderate impairment, symptoms.)  Civilian performance impairment was rated as moderate while military impairment was rated severe.  

The NARSUM examiner noted in a separate note that the command was considering returning him to a duty position that could exacerbate his condition.  The examiner opined his prognosis for return to full duty was poor.  The CI was taking one medicine for depression/anxiety and a new medicine for sleep.  A non-medical assessment (NMA) noted he was not working in his MOS but was working as a Training Clerk.  His PTSD condition significantly limited his abilities to function to the fullest extent possible in his MOS.  

At a VA psychosocial assessment, performed in September 2006, the CI continued to endorse symptoms of PTSD and described weekend binge drinking but reported he had not sought outpatient services since his discharge.  He had been working construction without problems, but did not like it because of pressures associated with it.  He had a girlfriend in another state and had a good relationship with his mom and stepdad.  He appeared depressed, anxious, guarded and teary throughout the interview.  The psychologist examiner rendered a diagnosis of PTSD, dysthymic disorder, and alcohol abuse with a GAF of 38 (serious impairment, symptoms.)  The CI attended one psychotherapy session and had a consultation with a staff psychiatrist during which he was prescribed a medication for anxiety and a medication for depression.  In December 2006, the therapist noted he did not appear for four scheduled follow up visits, his car had been repossessed and he was under a great deal of stress.  There were no further treatment notes in evidence.

He did not report for the VA Compensation and Pension (C&P) exam February 2007.  At the VA C&P exam performed 16 months after separation, the CI reported current symptoms included daily sleep impairment, nightmares, and flashbacks.  Severity was 6 on 1-10 scale.  He was not receiving any MH treatment and was not taking psychiatric medications.  He was living in his current city for a month where he had enrolled as a full-time student to become a commercial airline pilot.  He was looking for a part-time job.  He had worked with his dad installing windows from December 2006-June 2007.  He had not missed work due to MH problems although he said he had anxiety, and did not get enough sleep.  He divorced in 2006 and had been living with his girlfriend for about a year.  He said he was not socially active.  During the MSE, the CI reported his short-term memory “sucked.”  He did report anxiety and panic attacks but said he if he gets stressed out, he may have an anxiety attack.  A diagnosis of PTSD was rendered with a GAF of 61-65 (mild impairment, symptoms.)

The Board directed attention to its rating recommendation based on the above evidence.  Both the PEB and the VA adjudicated the condition as PTSD but the PEB rated it at 10% and the VA rated it at 30%, coded 9411.  The PEB also listed occupational problem, as a related Category II diagnosis.  The Board first considered if application of VASRD §4.129 with a constructional 6-month (50% minimum) period on the Temporary Disability Retirement List (TDRL) was indicated in this case (per directive from DoD).  Board members agreed that the provisions of VASRD §4.129 were applicable in this case, noting the disability was the direct result of a combat-related injury.  The Board then considered if there was evidence for a §4.130 rating higher than the 4.129 minimum mandated 50% at time of TDRL placement.  The Board unanimously 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.  

In regards to a recommendation at the time of removal from the constructional TDRL period, the most proximate source of comprehensive evidence in this case was the VA MH assessment and treatment notes September 2006-December 2006.  The C&P examination also reflects the stress of transition to civilian life, which is a core intent of §4.129, it carries the preponderance of probative value in the Board’s assessment of a fair permanent rating recommendation.  Both the VA outpatient MH team and the C&P examiners noted the CI had persisting PTSD symptoms.  He did not follow up with MH treatment post discharge but did work and maintain relationships with a girlfriend and his parents.  He had enrolled as a full-time student to become a commercial airline pilot, but given his report of persisting PTSD and refusal to accept MH treatment, one might reasonably question his judgment and mental stability.  The Board considered if a rating higher than the 10% adjudicated by the PEB was justified.  The 10% rating specifies “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.” The §4.130 criteria for the 30% rating are “occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.”   

The MEB as well as MH treatment notes more proximal to separation, repeatedly document symptoms of depression, anxiety, and sleep impairment.  Therefore, the PEB’s conclusion that the CI’s condition met the criterion for the 10% rating, “symptoms controlled by continuous medications,” does not appear accurate.  The psychosocial assessment revealed a MSE that showed depression and anxiety.  The C&P exam revealed sleep impairment, nightmares and flashbacks.  Given rating of the CI’s MH condition, at the time of the MEB and separation as being closer to the 30% criteria, as well as persisting symptoms by the 6-month timeframe for rating at the end of the constructive TDRL period and 16 months post-separation, the Board adjudged that the CI met the 30% criteria at TDRL removal.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a retroactive 6-month constructive TDRL rating of 50% and a permanent rating of 30% for the PTSD condition.
BOARD FINDINGS:  IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication.  The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised.  In the matter of the PTSD condition, the Board unanimously recommends a disability rating of 50% for a prescribed 6-month period of TDRL IAW VASRD §4.129; followed by a 30% permanent rating, coded 9411, IAW VASRD §4.130.  In the matter of the contended occupational problem condition, the Board agrees that it cannot recommend it for additional disability rating.  There were no other conditions within the Board’s scope of review for consideration.  

RECOMMENDATION:  The Board, therefore, recommends that the CI’s prior determination be modified to reflect a 6-month period on TDRL with a disability rating of 50% (IAW 4.129), and then permanently retired with a disability rating of 30%.

UNFITTING CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
PTSD Condition	9411	50%	30%	
COMBINED	50%	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131229, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MEMORANDUM FOR COMMANDER, NAVY PERSONNEL COMMAND DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS	
	                          
Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS          

Ref:  (a) DoDI 6040.44
	(b) PDBR ltr dtd 31 Dec 15 ICO XXXXXXXXXXXXXXXXXXXX
	(c) PDBR ltr dtd 15 Jan 16 ICO XXXXXXXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 11 Jan 16 ICO XXXXXXXXXXXXXXXXXXXX  
	(e) PDBR ltr dtd 31 Dec 15 ICO XXXXXXXXXXXXXXXXXXXX 
	(f) PDBR ltr dtd 21 Dec 15 ICO XXXXXXXXXXXXXXXXXXXX 
	(g) PDBR ltr dtd 11 Jan 16 ICO XXXXXXXXXXXXXXXXXXXX
	(h) PDBR ltr dtd 22 Jan 16 ICO XXXXXXXXXXXXXXXXXXXX
	(i) PDBR ltr dtd 29 Dec 15 ICO XXXXXXXXXXXXXXXXXXXX

1.  Pursuant to reference (a), the recommendations of the Physical Disability Board of Review set forth in references (b) through (i) are approved.

2.  The official records of the following individuals are to be corrected to reflect the stated disposition:

     a. XXXXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability retirement pay with a 30 percent disability rating (increased from 10 percent) and placement on the Permanent Disability Retired List effective date of discharge.

     b.  XXXXXXXXXXXXXXXXXXXX, former USN: Assignment to the Temporary Disability Retired List on date of discharge for a period of six months with a 50 percent disability rating followed by transfer to the Permanent Disability Retired List with a final rating of 50 percent  

     c.  XXXXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability retirement pay with a 30 percent disability rating (increased from 10 percent) and placement on the Permanent Disability Retired List effective date of discharge.

     d.  XXXXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability retirement pay with a 30 percent disability rating (increased from 10 percent) and placement on the Permanent Disability Retired List effective date of discharge.

     e. XXXXXXXXXXXXXXXXXXXX, former USMC: Assignment to the Temporary Disability Retired List on date of discharge for a period of six months with a 50 percent disability rating followed by transfer to the Permanent Disability Retired List with a rating of 30 percent. 

     f.  XXXXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.

     g.  XXXXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability retirement pay with a 30 percent disability rating (increased from 0 percent) and placement on the Permanent Disability Retired List effective date of discharge.

     h.  XXXXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability retirement pay with a 30 percent disability rating (increased from 10 percent) and placement on the Permanent Disability Retired List effective date of discharge.
     3.  Please ensure all necessary actions are taken to implement these decisions, including the recoupment of disability severance pay, if warranted, and notification to the subject members once those actions are complete.