RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00440
BRANCH OF SERVICE:  MARINE CORPS	SEPARATION DATE:  20070715

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Combat Engineer, medically separated for “major depressive disorder” with a disability rating of 10%.  

CI CONTENTION:  “Still experiencing daily PTSD symptoms, unemployable due to symptoms, VA rated at 100% service connected for his PTSD in 2007, and request review.”  The complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The panel’s scope of review is defined in DoDI 6040.44.  It is limited to review of disability ratings assigned 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 or non-compensable.  Any conditions outside the panel’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 panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The panel’s assessment of the PEB rating determination 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 panel has neither the role nor the authority to compensate for progression or complications of service-connected conditions after separation.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The panel 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 - 20070531	VARD - YYYYMMDD or NA	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Major Depressive Disorder	9434	10%	Major Depressive Disorder	9434	NSC	20070723	
Posttraumatic Stress Disorder	Cat II	Posttraumatic Stress Disorder with Depression	9411	100%		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  100%	

ANALYSIS SUMMARY:  

Major Depressive Disorder.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s mental health condition began in December 2004 after experiencing increased anger, decreased socializing, increasing isolation from wife and fellow Marines, confusion, and other behavioral health symptoms.  

The 18 April 2007 MEB NARSUM examination, 3 months prior to separation, noted complaints of anger, loss of interest, decreased energy, and depression.  The CI also reported he had frequent outburst of anger, and had problems with sleep, appetite, concentration and suicidal thoughts.  He related a history of nightmares, flashbacks, and increased startle response and isolation of emotion, which had responded to medication.  However, he discontinued his medication in January 2006 and his depressive symptoms worsened.  At the time of the NARSUM he was taking psychotropic medications.  He had no history of treatment in the emergency room (ER) or inpatient treatment.  The examiner recorded the CI had witnessed several traumatic events while deployed to Iraq, including physical injury to himself and injuries to other service members as well as the deaths of friends.  The mental status examination (MSE) was unremarkable with the exception of depressed, anxious and irritable mood and mood congruent affect, and poor insight.

At the 23 July 2007 VA Compensation and Pension (C&P) evaluation, 1 week after separation, the CI reported his symptoms had improved with medication and therapy.  He reported depressed mood and occasional hopelessness.  He noted he had some problems with sleep.  He was working in construction since discharge, and had not lost anytime in the 1 week of employment.  The CI noted that he had divorced his wife, but had good relationships with her and their children.  He reported he spent most of his time working and taking care of his two children, and he had a few friends.  He enjoyed his children and enjoyed spending time on the lake on a boat.  He denied history of suicide attempts.  He denied a legal history.  The CI had no history of treatment in the ER or treatment in the hospital.  The MSE was unremarkable with the exception of “dysphoric mood” and constricted affect.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the mental health condition 10%, coded 9434 (major depressive disorder).  The PEB listed the PTSD condition as a related diagnosis (Category II) that contributed to the disability.  The panel agreed that the PTSD was a diagnosis related to the MDD and was not a separate condition which could be separately rated IAW §4.14 (avoidance of pyramiding; more than one rating based on the same impairment is prohibited).  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, inclusive of Category II mental health condition.  The VA rated the mental health condition 100%, coded 9411, (posttraumatic stress disorder), citing a persistent danger that he may hurt others due to impaired impulse control.  

The panel, 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 panel 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 panel 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 panel noted that the PEB acknowledged that the CI’s condition was the direct result of a combat related injury.  The NARSUM recorded several combat related incidents that preceded the onset of his diagnoses.  Therefore, panel members concluded that application of §4.129 was appropriate in this case.

The panel noted the CI was never hospitalized or treated in the emergency room.  Suicidal ideation was reported; however, there was no indication that he was placed on a safety plan, or seen emergently.  There was no evidence of a legal or substance abuse history, no domestic violence, and no impairment in judgment or thinking.  Panel members agreed at the time of TDRL placement, there was insufficient evidence to support a rating higher than 50%.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 50% for the PTSD condition at TDRL placement. 

The panel next considered whether the evidence at the time of removal from TDRL and permanent disability disposition supported a rating higher than the 10% rating adjudicated by the PEB.  The panel considered the absence of psychiatric hospitalization, absence of legal history despite the CI’s report of poor impulse control and violence, absence of suicidal attempts or gestures, and the CI’s report of symptom improvement with treatment.  The C&P examination was the sole evaluation in evidence, and that examination recorded a MSE that was essentially normal.  The CI had good social support, had begun working and had not lost anytime from work, albeit, 1 week.  There was no evidence of chronic sleep impairment, impairment in cognitive functioning, or that he was a serious threat to others.  He noted he spent time with his children and had a good relationship with his ex-spouse.  Domestic abuse was not reported.

Panel members considered the following: absence of documented treatment or evaluation in the TDRL period, absence of psychiatric hospitalizations, no visits to ER, good response to treatment, and absence of legal or substance abuse history.  The commander's statement noted he had performed “impeccably” as a Combat Instructor prior to his mental health diagnoses, but was on limited duty and his duty was maintaining facilities and assisting in daily operations of the logistics section.  The commander made no mention of time away from work due to mental health treatment, and no report of interpersonal difficulties.  

All panel members agreed, that his condition at the time of permanent separation did not justify a rating higher than the 10% level of disability for “Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication.”  After due deliberation, considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a retroactive 6-month period of TDRL with a rating of 50% (in accordance with §4.129), and a permanent rating of 10% for MDD. 

BOARD FINDINGS:  In the matter of the major depressive disorder condition, the panel recommends an initial TDRL rating of 50% in retroactive compliance with VASRD §4.129 as DOD directed; and a 10% permanent rating at 6 months IAW VASRD §4.130.  There are no other conditions within the panel’s scope of review for consideration.  

The panel recommends that the CI’s prior determination be modified as follows, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
Major Depressive Disorder	9434	50%	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160705, w/attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

MEMORANDUM FOR DEPUTY COMMANDANT (Manpower and Reserve Affairs)
		   COMMANDER, NAVY PERSONNEL COMMAND	
	                          
Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS          

Ref:  (a) DoDI 6040.44
	(b) PDBR ltr dtd 13 Oct 17 ICO XXXXXXXXXXXXXXXXXXX
	(c) PDBR ltr dtd 20 Sep 17 ICO XXXXXXXXXXXXXXXXXXX  
	(d) PDBR ltr dtd 28 Sep 17 ICO XXXXXXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 28 Sep 17 ICO XXXXXXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 11 Apr 17 ICO XXXXXXXXXXXXXXXXXXX
	(g) PDBR ltr dtd 16 Jun 17 ICO XXXXXXXXXXXXXXXXXXX
	(h) PDBR ltr dtd 25 Sep 17 ICO XXXXXXXXXXXXXXXXXXX
	(i) PDBR ltr dtd 20 Sep 17 ICO XXXXXXXXXXXXXXXXXXX 

1.  Pursuant to reference (a), the recommendations of the Physical Disability Board of Review set forth in references (b) through (i) are approved.  The official records of the following individuals are to be corrected as follows:

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

     b. XXXXXXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a 30 percent rating (increased from 10 percent) effective date of discharge.

     c. XXXXXXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a 30 percent rating (increased from 20 percent) effective date of discharge.

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

     e. XXXXXXXXXXXXXXXXXXX, former USN: Placement on Temporary Disability Retired List with a 60 percent disability rating for six months at time of separation followed by a permanent disability rating of 20 percent.

     f. XXXXXXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a 30 percent rating (increased from 0 percent) effective date of discharge.

     g. XXXXXXXXXXXXXXXXXXX, former USMC: Placement on Temporary Disability Retired List with a 50 percent disability rating for six months at time of separation followed by a permanent disability rating of 10 percent.

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS

     h. XXXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge. 
     
3.  Please take action to implement these decisions and provide notification to the above individuals once those actions are complete.