RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXX 	CASE: PD-2014-01220  
BRANCH OF SERVICE:  NAVY	SEparation date: 20080929  

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a traditional Reserve E-5 (Advanced Construction Mechanic) medically separated for posttraumatic stress disorder (PTSD), rated at 10%.  

CI CONTENTION:  He was given a higher rating for his conditions by the VA.  His complete submission 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 Veterans Affairs Schedule for Rating Disabilities 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 20080611	VA* - (~2 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Post-Traumatic Stress Disorder	9411	10%	Post-Traumatic Stress Disorder	9411	30%	20081113	
Tinnitus Bilaterally	Cat III	Tinnitus	6260	10%	20081113	
Persistent Carpal Tunnel Syndrome	Cat III	Carpal Tunnel Syndrome	8699-8615	10%	20081113	
DJD L-Spine	Cat III	Degenerative Disc Disease of the Lumbosacral Spine	5242	10%	20080808	
DJD C-Spine	Cat III	Degenerative Joint Disease, Cervical Spine	5242	20%	20080808	
Sensorineural Hearing Loss	Cat III	Hearing Loss	6100	0%	20081113	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 1	
RATING:  10%	RATING:  60%	
*Derived from VA Rating Decision (VARD) dated 20080918 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:   

Posttraumatic Stress Disorder.  The narrative summary (NARSUM) dated 21 January 2008, 9 months before separation, documented the CI was deployed to Iraq from February 2005 to January 2006 as a team mechanic with the Navy Construction Battalion tactical movement team.  The CI reported that his vehicle was hit by an improvised explosive device (IED), and he witnessed friends and civilians being hit by enemy fire.  He had nightmares most nights, intrusive thoughts daily.  He avoided reminders, and had difficulty with crowds.  The NARSUM indicated the CI first sought mental health care in December 2007, and attended weekly group sessions.  He also was taking psychotropic medications.  At the time of the NARSUM, the CI reported symptoms of verbal outbursts, hypervigilance, nightly nightmares, daily panic attacks, and daily intrusive memories.  He enjoyed fishing and his girlfriend was “very supportive.”  He was taking Celexa for anxiety symptoms, Seroquel for sleep and Depakote for mood stability with noted minimal improvement.  The NARSUM recorded the diagnosis of PTSD, moderate to severe, and noted that the CI has continued to work with the Department of Transportation and was working full-time.  Mental status examination (MSE) and Global Assessment of Functioning (GAF) score were not documented; however, the psychologist opined, “Level of impairment for social interaction is estimated to be at the fifty percent level.”  

The VA Compensation and Pension (C&P) mental exam was accomplished 2 months after separation.  The examiner noted there had not been any psychiatric hospitalizations and no suicidal attempts.  The CI reported his physical problems have increased and he is becoming more depressed because of the chronic pain and physical limitations including inability to work that are caused by his physical conditions.  The CI reported daily panic attacks, and he noted that he was not working because of his physical and mental condition.  He lived with his girlfriend and rarely socialized outside the home.  MSE was unremarkable, although the CI reported some difficulty with attention and concentration, and the examiner opined that his insight and judgment was limited.  The diagnoses of PTSD, depressive disorder NOS, and panic disorder with agoraphobia were rendered, and a GAF of 40 (major impairment in several areas) was assessed.  The psychiatrist wrote, “The main reason he is not working is physical but it would appear that he would be having moderate to severe impairment in his occupational reliability and productivity because of his anxiety, depression, irritability, anger problems, flashbacks, nightmares, panic attacks, fatigue, etc.”

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the condition of PTSD at 10%, and indicated that his condition required psychotropic medication.  The 2009 VARD rated the condition of PTSD at 70%, coded 9411, and noted the rating was increased from 30%.  The PEB rating, as described above, was derived from DoDI 1332.39 and preceded the promulgation of the National Defense Authorization Act (NDAA) 2008 mandate for DoD adherence to VASRD §4.129.  The Board, IAW DoDI 6040.44 and DoD guidance (which applies current VASRD §4.129 to all Board cases as appropriate), must consider if the definition of §4.129 is met for any psychiatric condition resulting in medical separation; i.e., “a mental disorder that develops in service as a result of a highly stressful event.”  If the Board judges that application of §4.129 is appropriate, it will recommend a minimum 50% rating for a retroactive 6-month period on the Temporary Disability Retired List (TDRL).  The Board must then determine the most appropriate fit with VASRD 4.130 criteria at 6 months for its permanent rating recommendation, based on the facts in evidence which are most probative for that interval.  All Board members agreed the provisions of §4.129 were applicable in this case.  The Board next considered the evidence for the higher rating of 70%.  The higher 70% rating criteria requires evidence of “Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.  Available treatment records prior to constructive TDRL period demonstrated some impairment in occupational and social functioning; however, clear documented evidence of impairment in most areas of functioning in the year prior to separation was absent.   There were no psychiatric hospitalizations, no recorded visit to the emergency room (ER) for mental health issues, and MSE at the NARSUM and VA both documented findings that do not approach the 70% disability criteria.  The Board considered the record in evidence did not support a higher than 50% rating for TDRL placement.  

The Board next directed its attention to the appropriate rating at TDRL removal.  The sole examination in evidence for consideration was the C&P exam, that exam recorded daily panic attacks, demonstrated no evidence of impairment in thinking or judgment, and noted that daily panic attacks which did not require urgent treatment.  However, the examiner opined that the CI would have reduced reliability and productivity due to his mental health condition if he was working a job.  The Board also considered the report of panic attacks daily or on most days documented in the NARSUM and the C&P exam.  Both examiner recorded chronic sleep impairment and significant anxiety, anger, and irritability.  All Board members agreed, the CI met the 30% disability criteria under 4.130.  The Board next deliberated the criteria for the 50% and the 70% disability rating.  The NARSUM and C&P examinations both opined that his condition resulted in reduced reliability and productivity due to mental health symptoms.  The Board considered the record in evidence did not support a higher than 50% rating at TDRL removal.  After due deliberation, and in consideration of all the evidence and VASRD §4.3 (reasonable doubt), the Board recommends a 50% permanent disability rating for the PTSD condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the conditions of bilateral tinnitus, persistent carpal tunnel, sensorineural hearing loss, and degenerative joint disease (DJD) of C-spine and L-spines were not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The Board reviewed the available evidence and noted the CI underwent right carpel tunnel release surgery in 2006 with secondary complaints of numbness and tingling.  He was also found to have DJD of the C-spine that may have been responsible in part for his secondary complaints.  The addendum to the MEB documented his condition of carpal tunnel syndrome does not preclude him from continuing in active duty status.  The available record demonstrated full thoracolumbar range-of-motion.  The above noted conditions were not implicated in the commander’s statement and were not judged to fail retention standards. All were reviewed and considered by the Board.  There was no performance based evidence from the record that any of these conditions significantly interfered with satisfactory duty performance.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the bilateral tinnitus, persistent carpal tunnel, sensorineural hearing loss, and DJD of C-spine and L-spine conditions and so no additional disability ratings are recommended.

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%, coded 9411 at TDRL placement and 50% permanent rating IAW VASRD §4.130.  In the matter of the contended bilateral tinnitus, persistent carpal tunnel, sensorineural hearing loss, and DJD of cervical and lumbar spines conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.  There were no other conditions within the Board’s scope of review for consideration.  
The Board therefore 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	RATING	
		TDRL	PERMANENT	
Post-Traumatic Stress Disorder	9411	50%	50%	
COMBINED	50%	50%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140228, 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.

                                      	 XXXXXXXXXXXXXXXXXXXX
	Assistant General Counsel
                                      	(Manpower & Reserve Affairs)