RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03478
BRANCH OF SERVICE:  MARINE CORPS 	SEPARATION DATE:  20080815

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4, Mortar Man, medically separated for posttraumatic stress disorder (PTSD), with a disability rating of 20%.

CI CONTENTION:  His conditions continue to worsen and negatively impact his daily activities.  Additionally, he was not evaluated for his back, or neck conditions.  His 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 confined to 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 – 20080626	VARD - 20080827	
Condition	Code	Rating	Condition	Code	Rating	Exam	
PTSD	9411	10%	PTSD	9411	50%	20080827	
Disturbed Sleep	Category II					
TBI	Category II	TBI with Residual…Headaches	8045-8100	0%	20090403	
Headaches…	Category II					
Grade 2 Concussion	Category II	No VA Placement	
Cognitive Disorder NOS	Category II	No VA Placement	
[Bilateral] Hearing Loss	Category III	Bilateral Hearing Loss	6100	0%	20080902	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:

PTSD.  The psychiatry addendum to the MEB documented a history of two deployments to Iraq.  During his second deployment (July 2006-February 2007), he served as an infantryman and machine gunner, and reportedly noted that neither deployments were stressful, and he had no stress that resulted in mental health symptoms.  However, he noted several stressful incidents during the second deployment.  One incident of a blast explosion caused him transient problems with confusion, disorientation, and headaches.  Not long after that exposure, he reported while sitting in a vehicle helping to supervise at a checkpoint, a suicide truck bomb exploded, and he was knocked unconscious.  The CI woke up to a smoke filled vehicle and a firefight that he participated in for “more than 7 hours.”  He reportedly was medically evacuated after that incident.  The CI described other traumatic events involving exposure to gruesome conditions of bodies he recovered of dead Marines.  As the result of his traumatic exposures, the CI developed sleep problems, nightmares, irritability, mood swings, weight loss due to poor appetite, and persistent anxiety.  He was referred by his Command to mental health (MH) and was prescribed an antidepressant while in Iraq.  Upon redeployment, the CI was again referred to MH and was prescribed various trials of medications from different drug classes (anti-psychotic, antidepressant, anti-anxiety, alpha blocking agent (Prazocin for nightmares), and Ambien for sleep.  He reported minimal benefit, as he continued to have irregular sleep pattern, irritability, anger outburst, signs of paranoia, and “black out rages” (he becomes extremely angry, not always provoked, and has no recall of what happened).  He did report good response with the anti-anxiety medication (Klonopin) prescribed for insomnia.  Service treatment record (STR) indicated the CI was diagnosed with PTSD around July 2007, and that he initially presented to MH in June and was evaluated by a physician assistant who diagnosed alcohol abuse and probable PTSD.  He was prescribed Seroquel (anti-psychotic) for sleep.  The CI also participated in regular therapy session.  In addition to mood and anxiety symptoms, he had problems with memory, attention and concentration, and was referred to neuropsychology for evaluation.  The neuropsychological results were inconclusive regarding a cognitive disorder diagnosis; however, did conclude that the CI suffers from PTSD.  The psychiatry addendum dated 4 months prior to separation, documented the CI was taking Celexa (antidepressant), prazocin and klonopin for sleep.  It was noted that a diagnosis of TBI was recorded by the neurologist.  The mental status examination noted that the CI wore dark sunglasses due to reported problems with photophobia, and he also stated he wears them “to keep others out.”  Both mood and affect were noted to be ‘anxious’ and he demonstrated evidence of hypervigilance without paranoia.  There was no evidence of psychosis, formal thought disorder, suicidal or homicidal ideation, or impairment in gross cognitive functioning or judgment.  The diagnosis of PTSD was recorded with a Global Assessment of Functioning (GAF) score of 40 (borderline major impairment in most areas, or impairment in reality testing or communication or serious symptoms).  The examiner opined that the CI should engage in talk therapy and continue his psychotropic medications, and noted that this could be achieved during active duty, but “would do better following up with medical resources and psychotherapy once discharged from the marines.”  The VA Compensation and Pension (C&P) mental examination was accomplished 12 days post-separation.  The CI reported similar symptoms of PTSD of the same or worsening frequency, and noted he had panic attacks documented by the examiner as weekly or less often.  The CI was not yet employed and was not in a relationship.  A mental status examination (MSE) documented a flattened affect, absence of delusions, hallucination, impaired judgment or impairment in thought processes, and no evidence or suicidal or homicidal ideation.  The examiner also noted mild degree of impairment in memory.  The diagnoses of PTSD, major depression and alcohol abuse were recorded with a GAF of 55 (moderate).  The psychiatrist opined that the CI’s current condition causes “occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks” due to his symptoms of depressed mood suspiciousness, panic attacks, mild memory loss, and chronic sleep impairment.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB adjudicated the condition of PTSD, coded 9411, and assigned a rating of 10%.  The VA coded the condition of PTSD with major depression and alcohol abuse, analogously 9434-9411 and assigned a 50% rating.  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 Veterans’ Administration Schedule for Rating Disabilities (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.  The Board noted the PEB documented that the condition was the “direct result of a combat related injury,” therefore, all members agreed the provisions of §4.129 were applicable in this case.  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 separation documented impairment in occupational and social functioning; however, documented evidence to support impairment in judgment, disorientation, suicidal ideation, violence, personal neglect, panic attacks, emergency room visits, and psychiatric hospitalization was absent.  Board members agreed the disability did not approach the 70% criteria.  The Board concluded there was insufficient reasonable doubt (IAW VASRD §4.3) for recommending a 70% TDRL placement rating.  

The Board next determined the most appropriate fit with VASRD §4.130 criteria at the end of TDRL for its permanent rating recommendation.  The VA C&P examination was the sole source document for rating at TDRL removal.  That examination noted that the CI continued with the same symptoms he had at TDRL placement, and he reported new onset panic attacks, alcohol abuse and symptoms opined to be consistent with the diagnosis of major depression.  Although, he had not continued in treatment, there was no documented evidence of clinically significant deterioration.  He was not hospitalized, and had not presented to the emergency room for mental health care.  His MSE was essentially normal except for mild memory impairment, and flattened affect.  His reported symptoms of suspiciousness and hypervigilance did not produce legal issues.  The Board considered the 30% disability criteria for “Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks…” The C&P examiner clearly documented that the CI’s condition was consistent with the 30% disability criteria.  The psychiatrist wrote, “Occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks” due to his symptoms of depressed mood suspiciousness, panic attacks, mild memory loss, and chronic sleep impairment.  All Board members agreed that the condition at TDRL removal was consistent with the 30% disability criteria.  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 the condition of PTSD.

Contended PEB Conditions.  

TBI (subsumes Grade 2 Concussion, Cognitive DO NOS, Disturbed sleep and Headaches).  As indicated above, the PEB associated these conditions with the condition of PTSD, and determined that each condition was not separately unfitting for military service.  The Board undertook a careful review of the evidence in hand and noted the CI underwent polysomnogram, and multi-sleep latency test for evaluation of his complaint of disturbed sleep.  The result of the examinations documented mild primary snoring, bruxism (teeth grinding) and poor sleep hygiene.  The record also demonstrated the report of disrupted sleep secondary to his PTSD symptoms.  

The Board next considered the conditions of cognitive disorder NOS, TBI, concussion, and headache.  The NARSUM documented the CI’s report of being exposed to an exploded IED that left him feeling “dazed” with amnesia and confusion for about 24 hours after the event.  Since the event he has headaches at times accompanied by photophobia.  He also report having “bad” recent memory and people have told him that he is “different.”  The neurological exam was normal and the physician diagnosed Grade 2 concussion, headaches with mixed features, disturbed sleep, mood disorder, possible TBI and cognitive disorder NOS.  The physician opined, “These symptoms are so severe as to prevent the member from remaining on active duty.”  The neuropsychological evaluation noted inconsistent performance across tests which may have been due to PTSD, and documented that his “performance pattern with regard to attention and concentration was not consistent with that typically seen following TBI.”  A cognitive disorder diagnosis was not rendered.  The recommendation made was that the CI continue follow-up with his psychiatrist and psychologist.  Test effort was considered poor.  The MRI examination of the brain was read as normal. 

There was no documented evidence in the STR that demonstrated a history of dizziness, vertigo, seizures, balance and coordination problems, and no evidence of treatment related to TBI, or cognitive disorder.  Regardless of diagnosis, VARSD §4.130 rates conditions based on symptoms, and therefore, all symptoms related to mental health are considered in the rating scheme.  Therefore, the Board concluded the diagnoses of cognitive disorder NOS and disturbed sleep were appropriately subsumed under the PTSD and was included in the rating of the PTSD.  An overwhelming majority of the STR only documented the condition of PTSD and treatment of PTSD, with only a few entries that recorded a diagnosis of TBI, a few that recorded “rule out” TBI, and with the exception of the NARSUM, the diagnosis of headaches was not documented in the STR.  The commander’s statement noted the CI has been a good performer but “Presently has desires to exit the Marine Corps and work for the government.”  There was no documentation that the CI had problems with memory that required the use of electronic devices (GPS, notepads), headaches, or behaviors that contributed to his unfitting condition.  There was no performance based evidence from the record that any of these conditions significantly interfered with satisfactory duty performance. The Board noted the conditions of PTSD and TBI were profiled; however, the profile did not list any limitations that could not be ascribed to the PEB rated condition of PTSD.  Therefore, Board members agreed, the conditions of TBI with its associated residuals of headaches, although not ideally subsumed under the PTSD diagnosis (if unfitting should be evaluated under 8045 and 8100), could be adjudicated as CAT II conditions.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend that any of these conditions were separately unfitting, and so no additional disability ratings are recommended.

Bilateral Hearing Loss.  The Board’s main charge is to assess the fairness of the PEB’s determination that the bilateral hearing loss condition was not unfitting.  The profile did not list any limitations that could not be ascribed to the PEB rated condition, and the hearing loss conditions was not specified as failing retention standards.  There was no performance based evidence from the record that this condition 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 hearing loss condition and so no additional disability rating are recommended.

BOARD FINDINGS:  I In the matter of the PTSD, the Board unanimously recommends an initial TDRL rating of 50% in retroactive compliance with VASRD §4.129; and a 30% permanent rating IAW VASRD §4.130.  In the matter of the contended TBI, cognitive disorder NOS, headaches with mixed features, Grade 2 concussion, and disturbed sleep, and determination as conditions contributing to the PTSD condition.  In the matter of the contended hearing loss conditions, the Board unanimously recommends no change from the PEB fitness determination and so no additional disability rating is recommended.  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 recharacterized 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%	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140709, 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 XXXXXXXXXXXXXXXXXXXX
	(c) PDBR ltr dtd 23 May 16 ICO XXXXXXXXXXXXXXXXXXXX  
	(d) PDBR ltr dtd 27 May 16 ICO XXXXXXXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 23 May 16 ICO XXXXXXXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 23 May 16 ICO XXXXXXXXXXXXXXXXXXXX
	(g) PDBR ltr dtd 09 May 16 ICO XXXXXXXXXXXXXXXXXXXX 
	(g) PDBR ltr dtd 27 May 16 ICO XXXXXXXXXXXXXXXXXXXX
	(i) PDBR ltr dtd 22 Jan 16 ICO XXXXXXXXXXXXXXXXXXXX
	(h) PDBR ltr dtd 29 Apr 16 ICO XXXXXXXXXXXXXXXXXXXX 
	(i) PDBR ltr dtd 14 Apr 16 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 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. XXXXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.

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

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

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS

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

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

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

	XXXXXXXXXXXXXXXXXXXX
	Assistant General Counsel
	(Manpower & Reserve Affairs)