DEPARTMENT  OF THE NAVY
SECRETARY OF THE NAVY COUNCIL OF REVIEW BOARDS 720 KENNON STREET SE STE 309
WASHINGTON NAVY YARD DC 20374-5023

IN REPLY REFER TO

1850
CORB:003
12 Feb 20

From: To:

Director, Secretary of the Navy Council of Review Boards 
PD-2017-01070 

Subj:	PHYSICAL DISABILITY BOARD OF REVIEW (PDBR)

Ref:	(a) DoDI 6040.44
(b) PDBR ltr of 4 Feb 19

1.	Pursuant to reference {a), the PDBR reviewed your case and forwarded its recommendation (reference (b)) to the Department of the Navy for appropriate
·	action.

2.	On 31 January 2020, the Assistant Secretary of the Navy took action in your case by accepting the correct recommendation of the PDBR.	Accordingly, your records will be corrected to reflect your assignment to the Temporary Disability Retired List with a 60 percent disability rating for six months after your date of discharge followed by transfer to the Permanent Disability Retired List with a final rating of 30 percent.

3.	

The Assistant Secretary's determination,	hich represents final action in your case by the Department of the Navy, was sent to the office of the Deputy Commandant, Manpower and Reserve Affairs, for correction of your records as stated above.	You will be notified once those changes are complete.

RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXX		CASE: PD-2017-01070 BRANCH OF SERVICE: MARINE CORPS	SEPARATION DATE: 20080630

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Infantry Mortarman, medically separated for “PTSD” and “acromioclavicular joint arthritis,” rated 10% and 0%, respectively, with a combined disability rating of 10%.

CI CONTENTION:  Review all conditions.  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 Medical Evaluation Board (MEB), but determined by the PEB 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. The panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections when appropriate. The panel’s assessment of the PEB rating determination is based on review of medical records and all available evidence relevant to application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards for the unfitting medical condition(s) at the time of separation. The panel 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, which operates 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 disability at the time of separation.

RATING COMPARISON:

SERVICE PEB - 20080319	VARD - 20081126	
Condition	Code	Rating	Condition	Code	Rating	Exam	
PTSD	9411	10%	PTSD	9411	30%	20080917	
Acromioclavicular Joint Arthritis	5003	0%	DJD, Right Shoulder	5201	20%	20080911	
Cervical Foraminal Stenosis	Cat II	Cervical Spine Stenosis	5238	10%	20080911	
COMBINED RATING: 10%	COMBINED RATING OF ALL VA CONDITIONS: 80%	
	
ANALYSIS SUMMARY:

PTSD. According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI expressed symptoms of paranoia, insomnia and irritability with decreased energy in October 2006 and was diagnosed with delayed PTSD and treated weekly with outpatient psychotherapy to deal with his PTSD symptoms. He was referred to weekly group therapy as well as psychiatric medication management. Treatment did not allow return to duty. He was awarded the Combat Action Ribbon.

The 19 July 2007 MEB NARSUM examination, 11 months prior to separation, noted complaints of anger, impulse control, acute rage and anxiety. He was treated with medications for depression, mood and anxiety and remained in psychiatric care. He was noted to have moderate impairment for military service and minimal impairment for a civilian occupation. Mental status examination (MSE) was not recorded. The 19 March 2008 Formal PEB noted the CI had been found “Fit for Full Duty” in October 2006 and April 2007. The examiner for the MEB addendum noted the CI had minimal impairment from PTSD for work in civilian industry.

On 25 March 2008, the deployment health clinic noted nine visits since 12 February 2008. Symptoms included dissociative state, disturbing dreams, anxiety attacks and an inability to drive at night due to hypersensitivity to stimuli. He also reported sleep disturbance, numbness to feelings and irritable and angry outbursts. He was receiving treatment with various psychotherapies. Neuropsychological testing on 27 March 2008, showed significant psychiatric impairment and diagnostic impressions included PTSD, due to combat stress, and post- concussion syndrome with a Global Assessment of Functioning (GAF) score of 55 (moderate impairment).

At the 17 September 2008 VA Compensation and Pension (C&P) PTSD examination, 3 months after separation, the CI reported no symptoms during the past year and no treatment for a mental disorder. He later stated he had a lot of trouble due to nightmares, intrusive thoughts, anxiety, irritability, flashbacks and sleep problems. He reported sustaining combat wounds. He got along well with his children but argued with his wife a great deal. He was very active in his church and attended all youth events. He denied suicide attempts, violence, alcohol abuse or legal problems. He stated he had childhood traumas but could not recall them. His PTSD symptoms were due to both events. He was employed as a full-time maintenance worker and enjoyed his job but was looking for a job in law enforcement to have a better salary. Stressors included sexual trauma during childhood and combat related trauma. Symptoms had not interfered with his ability to work. The MSE showed an anxious mood. He reported difficulty with sleep and frequent panic attacks. A diagnosis of PTSD was rendered with a GAF score of 50.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the PTSD 10%, coded 9411 (PTSD). The VA rated the PTSD condition 30%, coded 9411, based on the C&P examination, citing moderate impairment of social and occupational functioning, occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.

The panel agreed the provisions of VASRD section §4.129 (mental disorders due to traumatic stress) applied since PTSD was an unfitting condition. Therefore, as a matter of policy, the PDBR must recommend placement of the CI on a period of constructive TDRL with a minimum rating of 50% IAW §4.129 with reassessment after six months. Disability associated with any psychiatric condition, regardless of the diagnosis or multiple diagnoses, is subsumed under a single rating using the same criteria IAW VASRD §4.130 general rating formula for mental health (MH) conditions. The panel next considered the §4.130 rating at TDLR placement. The §4.130 criteria for a 70% rating requires evidence of occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The panel agreed that the §4.130 criteria for a 70% rating were not met near the time of separation, and therefore the minimum 50% initial TDRL rating applies.

The most probative source of comprehensive evidence on which to base the permanent rating is the 3-month post-separation C&P examination. The §4.130 criteria for a 10% rating requires evidence of symptom control by continuous medication. A 30% rating requires evidence of occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks.       The CI reported  working full-time, attending church

regularly and getting along well with his children. He had marital difficulties but no legal problems, emergency room visits or hospitalizations. He enjoyed his work but was looking for a greater opportunity. Panel members concluded the CI’s MH disorder most closely met the criteria for a 10% disability rating at TDRL removal. After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a TDRL placement rating of 50% and permanent disability rating after TDRL removal of 10% for the PTSD.

Acromioclavicular (AC) Joint Arthritis. According to the STR and MEB NARSUM, the CI underwent right shoulder arthroscopy surgery in October 2005 with sub acromial bursectomy and distal clavicular excision. Persistent right shoulder pain following surgery prompted a return to the operating room in June 2006 for an open distal clavicle excision. He reported persistent pain from the base of his neck into his right axilla and arm, but electrodiagnostic studies showed no problems in those areas. However, an MRI showed mild cervical foramina stenosis at C5-6 and C6-7.  The CI noted he was ambidextrous.

The 19 July 2007 MEB NARSUM examination, 11 months prior to separation, noted complaints of right anterior shoulder pain. He reported pain along the inferior aspect of his right clavicle and along the right trapezius and took Neurontin and Arthrotec daily. Numbness and tingling in the right upper extremity had diminished. Physical examination showed normal range of motion (ROM) of the neck with significant tenderness on the right side of the neck, along the scalene muscles. There was tenderness anteriorly between the axilla and the acromioclavicular joint and swelling over his operative sites, but no redness and minimal tenderness at the site of the distal clavicle excision. Right shoulder ROM testing showed abduction of 120 degrees (normal 180) and flexion of 160 degrees (normal 180). Muscle strength was 5/5 in the right upper extremity, but there was pain with resisted abduction and forward flexion.

The 11 January 2008 MEB orthopedics examination, 6 months prior to separation, noted complaints of right shoulder pain that worsened with activities above the head. The pain radiated to his neck. Physical examination showed right shoulder strength of 4/5, but grip strength was normal. Flexion was 160 degrees and abduction was 150 degrees. Neer’s and Hawkins’ tests were positive for impingement. There was a positive Speeds test (indicating biceps instability or tendonitis) and positive tenderness in the groove. The apprehension test was negative and there was no tenderness in the AC joint.

At the 11 September 2008 C&P examination, 2 months after separation, the CI reported constant right shoulder burning, aching and tingling pain which varied from moderate to severe. He had flare-ups, depending on activities. He reported joint instability, stiffness, weakness and swelling at times. Endurance was poor and there was deformity. The CI reported that, although employed full time for over a month, he had lost at least 100 days from work in the past year due to MH issues and joint problems. X-ray of the right shoulder showed narrowing of the sub acromial space, related to the rotator cuff. Effects on daily activities was moderate to severe, except for grooming which was mild. He performed activities of daily living with his left upper extremity. Physical examination showed right shoulder flexion to 70 degrees with pain and additional loss of motion (LOM) upon repetition to 60 degrees. Abduction was 72 degrees, but there was no additional LOM on repetitive use.  There was no evidence of current instability.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the right shoulder condition 0%, coded 5003 (degenerative arthritis). The PEB listed cervical stenosis as a related diagnosis (Category II) contributing to the disability in this case. The VA rated the right shoulder condition 20%, analogously coded 5201 (motion midway between side and shoulder level or limitation of arm motion at shoulder level), based on the C&P examination, citing limitation of right arm movement to shoulder level.

As per the requirement for TDRL placement IAW VASRD §4.129, the panel must also determine a rating recommendation for the right shoulder condition at TDRL placement and removal. Although there was insufficient LOM to support a rating under the 5201 code, panel members agreed that a 10% rating was justified with application of VASRD §4.59 (painful motion). There was no mal-union or recurrent dislocation of the humerus to justify a rating under the 5202 code (humerus, other impairment of); and no nonunion with loose movement of the clavicle to warrant the next higher 20% rating under the 5203 code (clavicle or scapula, impairment of). After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the right shoulder condition, coded 5003 at TDRL placement.

The panel then determined the rating recommendation for the right shoulder condition at TDRL removal (6 months after TDRL placement). The panel determined the most proximate source of comprehensive evidence to evaluate the CI at TDLR removal, was the 2-month post-separation C&P examination. Panel members agreed there was evidence of LOM to meet the criteria for a 20% disability rating under the 5201 code. After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel majority recommends a TDRL placement rating of 10% coded 5003 and permanent disability rating after removal from TDRL of 20% for the right shoulder condition. The minority member recommends a 10% rating at both TDRL placement and removal under code 5003.

Contended PEB Condition: Cervical Stenosis. The panel’s main charge is to assess the fairness of the PEB determination that the neck condition contributed to the unfitting right shoulder condition. In this circumstance the neck condition is reasonably considered not unfitting. There were no limited duty (LIMDU) forms in the record and the non-medical assessment did not specifically identify a problematic neck condition. A note on the JDETS indicated the only disabling condition was the AC joint arthritis. There was no performance-based evidence from the record that the Category II condition significantly interfered with satisfactory duty performance at separation. After due deliberation, the panel majority concluded there was insufficient cause to recommend a change in the PEB fitness determination for the neck condition. The panel minority recommends the neck condition be considered unfitting and rated at 10% under code 5237 (cervical strain).

BOARD FINDINGS: In the matter of the PTSD, the panel recommends a disability rating of 50%, coded 9411 IAW VASRD §4.129 for 6 months from the time of discharge consistent with a constructive period of TDRL and then a permanent separation rating of 10% IAW VASRD §4.130. In the matter of the right shoulder condition, the panel majority recommends a disability rating of 10%, coded 5003 IAW VASRD §4.59 and §4.71 for 6 months from the time of discharge consistent with a constructive period of TDRL and then a permanent separation rating of 20% coded 5201 IAW VASRD §4.71. The single voter for dissent recommends no change but does not elect to submit a minority opinion. In the matter of the contended Category II neck condition, the panel majority agrees it cannot recommend it for additional disability rating. The single voter for dissent recommends modification to 10%, but does not elect to submit a minority opinion. There are no other conditions within the panel’s scope of review for consideration.

The panel recommends 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 the date of medical separation:

CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
Post-Traumatic Stress Disorder	9411	50%	10%	
Acromioclavicular Joint Arthritis	5003/5201	10%	20%	
	COMBINED	60%	30%