RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01326
BRANCH OF SERVICE:  Marine Corps 	SEPARATION DATE:  20050515

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E3, Motor Vehicle Operator, medically separated for “post-traumatic stress disorder,” with a disability rating of 10%.

CI CONTENTION:  The CI made no specific contention in the application.  The CI’s complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  It is limited 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 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 Military 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 based on review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (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:  

SERVICE PEB - 20050303	VARD - 20050520	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Post- Traumatic Stress Disorder 	9411	10%	Post- Traumatic Stress Disorder w/ Depression …	9499-9411	50%	20050315	
Major Depressive Disorder 	Cat II					
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  70%	

ANALYSIS SUMMARY:  

PTSD.  According to the service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), CI developed depressive symptoms during his first deployment to Iraq in 2003 and was diagnosed and treated for major depressive disorder (MDD) during a second deployment in 2004.  The Post-Deployment Health Assessment (PDHA) dated 11 August 2004, recorded decreased appetite, energy and sleep, and fleeting suicidal ideation.  The health care provider made a referral for “combat/operational stress reaction.”  Treatment records for this condition were largely silent until after separation.

The MEB NARSUM examination, dated 7 January 2005 (4 months before separation), documented the CI’s account of events during his deployments.  He reportedly was exposed to indirect fire and dead bodies during numerous convoys.  He had nightmares, difficulty with sleep and concentration, as well as decreased appetite, social isolation, loss of pleasure and difficulty with decision making.  He also reported intrusive thoughts, flashbacks, hypervigilance, irritability and startled responses to gunfire and loud noises.  The psychiatrist noted that the CI was diagnosed with MDD while in Iraq and was started on an antidepressant medication that was discontinued 3 days later due to side effects.  He was instructed to follow up with mental health when he returned from deployment.  The CI began drinking alcohol to treat his symptoms and was admitted to the hospital in November 2004 secondary to PTSD and MDD symptoms; he was started on an antidepressant and a sleep medication.  He was discharged from the hospital with “some mild improvement” but reported significant symptoms upon follow-up.  Mental status examination (MSE) revealed depressed mood and constricted and blunted affect with “minimal reactivity.”  All other aspects were normal.  The examiner assessed that the CI met diagnostic criteria for both PTSD and MDD, and that although he had self-medicated with alcohol, the alcohol abuse was in remission.  His PTSD was recorded as “moderate to severe,” manifested by periods of dissociation, social withdrawal, frequent nightmares, flashbacks, increased startled reflex, increased paranoid ideation, and feelings of detachment and estrangement from others.  A Global Assessment of Functioning (GAF) score of 50-60 (moderate impairment/symptoms) was recorded.  The examiner documented that the CI’s military impairment was considered “severe” and his civilian occupational impairment was considered “significant.”  It was further noted that his mental health condition was incurred in a combat environment.

During the VA Compensation and Pension (C&P) mental examination dated 15 March 2005 (2 months before separation), the CI reported that his psychiatric symptoms included anxiousness, nervousness, hypervigilance, and depression.  He also stated that he had difficult relationships with co-workers, work-related stress, and was distracted at work.  The CI had never married, had no children, and was living in the barracks; he tended to isolate himself and was irritable.  He took his meals in the mess hall, however, there was no indication that he engaged in any social activities involving other people.  There was no report of panic attacks but he continued to have problems with sleep despite medication.  The examiner noted that the CI spent 2 weeks in the hospital in November 2004 and had not drank alcohol since then.  The CI’s medical board (March 2005) findings of PTSD were also referenced and the psychiatrist opined that he “probably had PTSD after his first tour but had not gotten treatment.”  No additional hospitalizations were documented and the CI had continued taking psychotropic medication.  The MSE was normal with the exception of mild depression, mild psychomotor retardation, and mild to moderate anxiety.  The examiner diagnosed PTSD, and noted that the CI’s depression was part of the PTSD.  A GAF score of 55 (moderate) was recorded.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating coded 9411 (PTSD), and characterized the MDD as a Category II (contributing to the unfitting diagnosis) condition.  The VA assigned a 50% rating under the analogous code 9499-9411 for PTSD with depression.  Regardless of the diagnosis, 4.130 rating is based on symptoms independent of diagnosis, therefore, all mental health symptoms were considered in the rating.  Also, IAW VASRD §4.129, when a mental disorder that develops in service as a result of a highly stressful event is severe enough to bring about the CI’s release from active military service, the rating agency should assign an evaluation of not less than 50% and schedule an examination within the 6-month period following the Veteran’s discharge to determine whether a change in evaluation is warranted.  The evidence demonstrated that the CI was deployed to a combat zone and developed symptoms diagnosed as MDD which were treated during deployment.  The CI also related symptoms he suffered during deployment that were consistent with PTSD.  All Board members agreed that the provisions of §4.129 were applicable in this case. 

The Board first directed attention to the §4.130 rating at the time of constructive Temporary Disability Retired List (TDRL) placement. 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.“  The NARSUM and C&P examinations both recorded one psychiatric hospitalization for PTSD and mood symptoms.  There was no evidence of active suicidal or homicidal ideation or visits to the emergency room (ER) for mental health issues.  There was no evidence of impairment in judgment or a legal history at the time of constructive TDRL.  The NARSUM examiner noted that the CI’s continued depressive and PTSD symptoms had caused severe impairment in military functioning and significant impairment for civilian industrial capacity.  Both C&P and NARSUM psychiatrists assessed GAF scores indicative of moderate impairment and or symptoms.  The Board also reviewed the commander’s statement that indicated the CI had lost on average 2 full days from work due to his condition, but questioned the validity of his illness.  There was no mention of workplace violence or aggression.  The Board concluded that there was insufficient reasonable doubt (IAW VASRD §4.3) to support a rating higher than 50% at TDRL placement.  

The Board next considered the most appropriate fit with VASRD §4.130 criteria at permanent separation.  Mental health records after the constructive TDRL period demonstrated that the CI’s condition was somewhat stable but that he continued to report symptoms.  There were no additional hospitalizations, no treatment rendered in the ER, and no panic attacks. A treatment entry, dated 4 October 2005, noted that the CI had threatened to kill his mother’s dog and struck it with a gun (without shooting).  The following month, he was arrested and kept overnight at the state hospital for observation and evaluation after his mother called the police about another incident with her dog.  The CI had reportedly been drinking beer while watching a football game when the dog became aggressive and attacked him; he ended up injuring the dog with a machete.  After this altercation, the CI moved in with his father who related that his son had done fairly well prior to the incident (which he believed had been instigated by the mother).  The CI had not worked since leaving the military; he was not in school but was looking for employment.  He was taking his medications although he had continued to use alcohol.  A treatment entry in October 2005 noted that he still had recurrent nightmares, intrusive thoughts, and sleep and concentration problems.  The last available treatment entry, dated 27 December 2005, noted that the CI continued to live with his father, was drinking alcohol less, and was managing his anger better.  His affect was characterized as depressed and blunted, and he reported continued difficulty in getting along with others.  There was no mention of any other psychiatric disturbances. 

Board members agreed that the CI’s overall condition had slightly improved since TDRL placement and that the 70% rating was not approached.  The deliberation settled, therefore, on arguments for a 30% versus a 50% permanent rating recommendation.  The 30% rating requires evidence of “occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal) due to symptoms such as depressed mood, anxiety, panic attacks, chronic sleep impairment, and mild memory loss.”  A 50% rating IAW §4.130 would rely on an inference that the acuity of reported symptoms could reasonably be expected to result in impaired occupational reliability and productivity, without objective confirmation that this was indeed the case, and without an employment history.  The Board concluded that a 30% rating better reflected the CI’s condition, since the evidence clearly demonstrated his symptoms were not mild or transient and were not controlled by medication.  After due deliberation, and in consideration of all the evidence and VASRD §4.3 (reasonable doubt), the Board recommends a 30% permanent disability rating for PTSD condition, coded 9411.  

BOARD FINDINGS:  In the matter of the PTSD condition, the Board unanimously recommends an initial TDRL rating of 50% in retroactive compliance with VASRD §4.129 as DOD directed; and a 30% permanent rating IAW VASRD §4.130.  There were no other conditions within the Board’s scope of review for consideration.  The Board 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 the prior medical separation:  

CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
Post-Traumatic Stress Disorder	9411	50%	30%	
COMBINED	50%	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140306, 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 15 Apr 16 ICO XXXXXXXXXXXXXXXXXX
	(c) PDBR ltr dtd 23 May 16 ICO XXXXXXXXXXXXXXXXXX  
	(d) PDBR ltr dtd 27 May 16 ICO XXXXXXXXXXXXXXXXXX 
	(e) PDBR ltr dtd 23 May 16 ICO XXXXXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 23 May 16 ICO XXXXXXXXXXXXXXXXXX
	(g) PDBR ltr dtd 09 May 16 ICO XXXXXXXXXXXXXXXXXX 
	(g) PDBR ltr dtd 27 May 16 ICO XXXXXXXXXXXXXXXXXX
	(i) PDBR ltr dtd 22 Jan 16 ICO XXXXXXXXXXXXXXXXXX
	(h) PDBR ltr dtd 29 Apr 16 ICO XXXXXXXXXXXXXXXXXX 
	(i) PDBR ltr dtd 14 Apr 16 ICO XXXXXXXXXXXXXXXXXX

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. XXXXXXXXXXXXXXXXXX, former USMC: Retroactive placement on the Temporary Disability Retired List for six months with a 50 percent disability rating effective date of discharge followed by transfer to the Permanent Disability Retired List with a final rating of 30 percent (increased from 10 percent).

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

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

     d. XXXXXXXXXXXXXXXXXX, former USMC: Retroactive placement on the Temporary Disability Retired List for six months with a 50 percent disability rating effective date of discharge followed by transfer to the Permanent Disability Retired List with a final rating of 30 percent (increased from 10 percent).

     e. XXXXXXXXXXXXXXXXXX, former USN: Retroactive placement on the Permanent Disability Retired List with a 40 percent disability rating (increased from 10 percent) effect date of discharge. 

     f. XXXXXXXXXXXXXXXXXX, former USMC: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 20 percent) effect date of discharge.

     g. XXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.

     h. XXXXXXXXXXXXXXXXXX, former USN: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 10 percent) effect date of discharge. 
     
     i. XXXXXXXXXXXXXXXXXX, former USMC: Retroactive placement on the Permanent Disability Retired List with a 70 percent disability rating (increased from 10 percent) effect date of discharge.
 
     j. XXXXXXXXXXXXXXXXXX, former USN: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 20 percent) effect 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.

						XXXXXXXXXXXXXXXXXX
						Assistant General Counsel
						(Manpower & Reserve Affairs)