RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00084
BRANCH OF SERVICE:  Marine Corps 	SEPARATION DATE:  20080515

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E4, Mortarman, medically separated for “Post-Traumatic Stress Disorder, Severe” rated 20%.

CI CONTENTION:  The CI contends, via a brief by legal counsel, that he should have been placed on the Temporary Disability Retirement List (TDRL) and also should have received a higher permanent disability rating.  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 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 – 20080219	VARD - 20080527	
Condition	Code	Rating	Condition	Code	Rating	Exam	
PTSD, Severe	9411	30%
  -10%
20%
	Post-Traumatic Stress Disorder…	9411	50%	20071217	
Insomnia	Cat II					
Problems w/ Recent Memory						
MDD, Moderate…						
Changes in Mood		No VA Placement	
Headaches…			
Traumatic Brain Injury			
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS: 60%	

ANALYSIS SUMMARY:  

Post-Traumatic Stress Disorder.  According to the service treatment records (STR) and the MEB narrative summary (NARSUM), the CI was referred to Deployment Health Services in May 2007 where he was evaluated for the complaints of problems with memory, focus, attention, increasing isolation, paranoia, hypervigilance, nightmares, depressed mood, irritability, and other symptoms consistent with PTSD and major depressive disorder (MDD).  He was diagnosed with an adjustment disorder.  The CI deployed twice to Iraq and once to Haiti with his last deployment in 2006 to Iraq.  He witnessed an IED explode 10 meters from him causing a loss of consciousness for 1-2 minutes.  He witnessed several engagements ranging from IED’s, gunfire and having his roommate killed in the last deployment.  The CI continued with symptoms and was referred to psychiatry in July 2007 where he was diagnosed with PTSD and major depressive disorder.  He was concurrently being followed by neurology for TBI.  His condition did not improve sufficient enough to allow for continued service, therefore, he was referred to the MEB.

The CI underwent neuropsychological testing (NP) in July 2007.  He reported that in 2005 he was involved in a blast explosion with brief loss of consciousness (LOC).  Since then, he has had tinnitus, worsening short-term memory function, and slurred speech.  He also forgets details of the conversations.  Psychological tests identified average intellectual ability, and no evidence of any major areas of cognitive decline.  A cognitive disorder was not assessed.

At the MEB NARSUM dated 15 November 2007, 6 months prior to separation, the CI reported he has continued to experience depressed mood, lack of pleasure, hypervigilance, hyper-arousal, weight loss, startled response to loud noises, social isolation, difficulty with focus and concentration, and marital problems.  He indicated his response to treatment has been modest.  He denied any problems with alcohol or drugs.  The mental status examination (MSE) noted he made poor eye contact, has decreased psychomotor activity, and a depressed mood.  His affect was depressed.  Evidence of a formal thought disorder or psychosis was absent, and suicidal or homicidal content was not present.  Judgment was not addressed.  The diagnoses of PTSD, MDD, and insomnia were recorded as Axis I conditions and TBI was assessed on Axis III.  The Global Assessment of Functioning (GAF) scorer of 45 for serious symptoms and or impairment was assessed.

The VA Compensation and Pension (C&P) mental examination was accomplished in December 2007, approximately 5 months prior to separation.  The CI reported ongoing problems with sleep, nightmares twice a week, anxiety, hypervigilance, depression, concentration, and intrusive memories.  He did not have panic attacks.  He also reported significant irritability.  He did not have a legal history and his wife and daughter were living out of State while he lived in the Barracks.  He had no social activities except he worked out occasionally.  MSE unremarkable with the exception of depressed mood and affect and psychomotor slowing.  His judgment was recorded as “good.”  The examiner assessed PTSD as the sole diagnosis and recorded a GAF score of 55 for moderate symptoms and or impairment.   A psychiatric addendum to the NARSUM dated 3 months prior to separation documented that the CI continued to report poor sleep, nightmares, memory loss, weight loss, anxiety, low energy, depressed mood and lack of pleasure, despite aggressive medication treatment.  The psychiatrist opined that his symptoms significantly impacted social and occupational functioning.  The CI was currently on limited duty and was given minimal work to do because of his symptoms.  His relationship with his wife was impaired.  The CI had not been hospitalized or treated in the emergency room (ER), and had never been suicidal or homicidal.

The Board directed attention to its rating recommendation based on the above evidence.  The FPEB rated the condition at 30% coded 9411 with a 10% deduction for non-compliance, resulting in a final rating of 20%.  Likewise, the VA coded the condition 9411; however, granted a 50% rating.  In accordance with 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 Board next considered the rating deduction.  The Board noted that DoDI 1332.38, enclosure 4.A1.1.2.10.6, and E4.A1.1.2.11.3 references the need to address member’s non-compliance, including a statement to indicate whether the non-compliance is reasonable.  The Board noted in the psychiatric addendum to the NARSUM, the psychiatrist specifically stated “His [CI] symptoms have not resolved despite compliance with outpatient treatment including psychotherapy and psychopharmacology.”  That statement was made 1 month prior to the Informal PEB.  The PEB did not indicate their rationale for the deduction.  There was no evidence in the STR to support the PEB’s deduction decision. Board members concluded, there was no evidence that the CI was not compliant with treatment, and therefore, a deduction could not be upheld for application to the Board’s recommendation.  .

The Board noted the PEB determined that the insomnia, problems with recent memory, changes in mood, MDD, moderate, with weight loss, headaches with mixed features, including migraine and tension, and TBI were Category II diagnoses related to the Category I condition of PTSD.  The Board agreed, the conditions could not be recommended for additional rating IAW VASRD 4.14 (avoidance of pyramiding).  The record demonstrated all of the above noted conditions were associated with the PTSD with the exception of headaches.   The neurology addendum, October 2007, did not clearly associate the headaches with the PTSD, but rather with the TBI.  However, the headaches were mild, lasted 2-3 minutes, and did not require medication.  There are headaches secondary to stress, but the neurologist did not associate the CI’s headache to his MH condition.  In addition, there is significant overlap of MH symptoms and symptoms related to TBI, thus, including them as CAT II conditions was the best way to capture the extent of his pathology. 

 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.  The Board next considered the §4.130 rating at the time of constructive TDRL placement (date of separation).  Available treatment records demonstrated some impairment in occupational and social functioning; however, there was no documented evidence to support impairment in judgment or thinking.  The MEB NARSUM recorded some abnormalities in relations to mood and cognitive symptoms; however, there was no evidence of impaired judgment or thinking.  The C&P MSE was essentially normal.  The non-medical assessment (NMA) statement noted he had problems with memory and focus and could not be depended on to accomplish any task due to his inability to focus mentally.  This statement clearly reflects 4.130 criteria for the 50% level of disability (reduced reliability and productivity).  The CI was never treated inpatient and had no history of treatment in the emergency room (ER) for MH issues.  There was no evidence of suicidal or homicidal ideation, or a legal history at the time of constructive TDRL.  The Board considered the record in evidence did not support a higher than 50% rating for TDRL placement. 

The Board next determined the most appropriate fit with VASRD §4.130 criteria at the end of TDRL for its permanent rating recommendation.  The Board considered the C&P examination as the only clinical examination closest to separation containing a MSE.  However, the addendum was closest to separation, and that examination documented several clinical symptoms.  The Board considered the addendum, C&P examination, and the NMA dated 3 months prior to separation as most reflective of the CI’s condition at TDRL removal.  The addendum 3 months prior to separation, recorded evidence supporting the C&P examination.  The NMA recorded the CI’s struggle consistent with those recorded in the C&P and addendum.  Board members concluded, based on the evidence, the CI’s condition was most reflective of the 50% level for “Occupational and social impairment with reduced reliability and productivity.”

After due deliberation, and in consideration of all the evidence and VASRD §4.3 (reasonable doubt), the Board recommends a 50% disability rating at TDRL placement and a permanent 50% disability (with no deduction) for the condition of PTSD.

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 50% 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, Severe	9411	50%	50%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150112, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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

Ref:  (a) DoDI 6040.44
	(b) PDBR ltr dtd 03 Nov 16 ICO XXXXXXXXXXXXXXXXXX    
	(c) PDBR ltr dtd 03 Nov 16 ICO XXXXXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 24 Oct 16 ICO XXXXXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 21 Oct 16 ICO XXXXXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 21 Oct 16 ICO XXXXXXXXXXXXXXXXXX
	(g) PDBR ltr dtd 28 Oct 16 ICO XXXXXXXXXXXXXXXXXX
	(i) PDBR ltr dtd 21 Oct 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 USN: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 10 percent) effective date of discharge.  

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

     c. XXXXXXXXXXXXXXXXXX, former USMC: Retroactive placement on the Permanent Disability Retired List with a 50 percent disability rating (increased from 20 percent) effective date of discharge.  

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

     d. XXXXXXXXXXXXXXXXXX, former USN: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 10 percent) effective date of discharge.   

     e. XXXXXXXXXXXXXXXXXX, former USN: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 10 percent) effective date of discharge.  

     f. XXXXXXXXXXXXXXXXXX, former USMC: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 0 percent) 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.

	XXXXXXXXXXXXXXXXXX
	Assistant General Counsel
	(Manpower & Reserve Affairs)