RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX		CASE: PD-2019-00185 BRANCH OF SERVICE: MARINE CORPS	SEPARATION DATE: 20070331

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Military Policeman, medically separated for “post-traumatic stress disorder (PTSD)” and “hearing loss in the left ear with tinnitus,” rated 10% and 0%, respectively, with a combined disability rating of 10%.

CI CONTENTION: Review of all conditions requested. 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 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 - 20070201	VARD - 20070927	
Condition	Code	Rating	Condition	Code	Rating	Exam	
PTSD	9411	10%	PTSD	9411	50%	
20070726	
MDD Moderate	Cat II					
Left Ear Hearing Loss with Tinnitus	6100	0%	Severe Sensorineural Hearing Loss
Left Ear	6100	0%		
			Tinnitus Left Ear	6260	10%		
COMBINED RATING: 10%	COMBINED RATING OF ALL VA CONDITIONS: 60%	

ANALYSIS SUMMARY:

PTSD. According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s mental health (MH) condition began during his second Iraqi deployment from August 2005 to March 2006 after an IED blast killed his best friend. The CI received the Combat Action Badge. The 12 November 2006 MEB NARSUM examination, 4 months prior to separation, noted complaints of a recurrent nightmare of the day his friend was killed, and anxiety and depression over what the CI could have done to prevent his friend from dying. The CI also reported intrusive thoughts, severe flashbacks, inadequate sleep, anger, overactive startle response, hypervigilance, and social withdrawal except from family. He was treated with Zoloft (anti- depression) and Seroquel (sleep), received eye movement desensitization reprocessing therapy, and weekly counseling. The mental status examination (MSE) documented a “full” affect and a congruent mood. His impulse control was good except during severe flashbacks. He denied

suicidal ideation. PTSD and major depressive disorder (MDD) were diagnosed with a Global Assessment of Functioning (GAF) score of 56-60 (moderate symptoms, impairment).

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the MH condition 10%, coded 9411 (PTSD). The Category II diagnosis of moderate major depressive disorder (MDD), is intrinsic to the rated PTSD condition, and a separate rating cannot be supported without pyramiding (VASRD §4.14); therefore, it is appropriately subsumed under a single MH rating. Using the same code, the VA rated the PTSD condition 50%, based on the C&P examination, citing moderate MH symptoms resulting in considerable impairment, without evidence of sustained improvement. The panel considered the provisions of VASRD
§4.129 (mental disorders due to traumatic stress), and determined the CI’s PTSD diagnosis warrants a retroactive 6-month period on the Temporary Disability Retired List (TDRL) with a rating no lower than 50%. There was no evidence to support a rating higher than 50% at the time of TDRL placement.

The panel then considered a PTSD permanent rating recommendation at TDRL removal which is assigned 6 months after TDRL placement. The most proximate source of comprehensive evidence on which to base the rating recommendation in this case is the 26 July 2007 C&P PTSD examination performed 2 months before TDRL removal. During this examination, the CI reported daily nightmares and night terrors for which he had no memory 2-3 times per week. He was hypervigilant and easily startled. His overall level of stress was rated as high. He was married for 3 years, had a 3-month old daughter, maintained friendships with the Marines he had served with, enjoyed activities and leisure pursuits, and secured a full-time police officer position with the Department of Energy. He took an antidepressant medication and was attending psychotherapy. He had not been assaultive since discharge, but others noticed his temper was worse. He denied thinking about suicide. During the MSE the CI did not reveal abnormal thinking or impaired thought processes. Eye contact was very good and the CI was capable of maintaining minimal person hygiene and basic activities of daily living. In fact, during the examination the CI cared for his infant daughter. He was oriented to person, place and time, and showed normal recall. The CI did not endorse the presence of obsessive-compulsive behavior and overall speech was normal. He denied the presence of anxiety/panic attacks but felt an overall sadness. He described his sleep as bad, only 2 hours per night, which was marked by nightmares. PTSD and MDD were diagnosed with a GAF score of 51 (moderate symptoms, impairment.)

The panel noted that the CI reported continued nightmares, poor sleep, hypervigilance, and was easily startled. Despite these MH symptoms, the CI remained married, cared for his infant daughter, maintained a relationship with his service friends, and enjoyed activities and leisure pursuits. Additionally, VA records showed the CI was a full-time policeman from 2007 (after separation) until 2011 when he was laid off due to downsizing. There was no disparaging VA evidence of the CI’s police officer performance. Panel members agreed that the CI’s MH condition, at the time of TDRL removal, best reflected a 10% rating 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.” After due deliberation, considering all 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 the PTSD condition, coded 9411.

Left Ear Hearing Loss with Tinnitus. According to the STR and MEB NARSUM, the CI’s left ear condition began in August 2005 after an IED blast while deployed to Iraq. The CI’s service entry audiogram was normal but the August 2005 audiogram showed noticeable decrease in left ear hearing loss and intermittent tinnitus (ring in the ear). The MEB NARSUM examination noted complaints of left ear hearing loss with tinnitus. During the 20 December 2006 MEB examination (recorded on DD Forms 2807-1 and 2808), 3 months prior to separation, the CI reported left ear hearing loss. Physical examination showed a healing left ear perforation (hole in the eardrum)

and the presence of fluid. The audiology examination showed a right ear pure tone average of 5 (normal) and a left ear average of 77.5 (severe hearing loss). At the audiology clinic visit, dated 29 January 2007, 2 months prior to TDRL placement, the CI reported his military police duties subjected him to a high level of environmental noise exposure, and he experienced about six IED/Mine blasts during his second Iraq deployment. His tinnitus was intermittent. The audiogram noted right ear hearing was normal and the left ear hearing loss was mild to moderate.

The panel directed attention to its rating recommendation based on the above evidence. The PEB and VA both rated the left ear condition 0%, coded 6100 (hearing loss). The VA based the rating on the C&P examination, citing objective testing. The VA also rated the left ear tinnitus condition 10%, coded 6260 (tinnitus, recurrent), citing tinnitus with a maximum evaluation at 10%.

The panel then considered the left ear rating recommendation at TDRL placement as outlined above. In accordance with the VASRD rating system for hearing loss under code 6100, panel members agreed that the left ear hearing loss met criteria for 0% disability, as reported during the 20 December 2006 MEB audiogram and 29 January 2007 audiogram. Panel members also determined that the CI’s tinnitus was more likely than not caused by the same noise exposure that caused the left ear hearing loss, and more likely than not contributed to his hearing loss. Therefore, the panel agreed that the “recurrent” tinnitus condition was ratable under VASRD
§4.7 (higher of two evaluations) and warrants the maximum 10% rating at the time of TDRL placement, as reported on the MEB NARSUM and 29 January 2007 audiology examinations.

The panel then considered the left ear rating recommendation at TDRL removal which is assigned 6 months after TDRL placement. The panel noted the most proximate source of comprehensive evidence to evaluate the left ear condition was the 26 July 2007 C&P audiology examination performed 2 months before TDRL removal. During this examination, the CI reported constant left ear tinnitus which caused headaches. Physical examination showed intact external canals and drums. The audiogram showed pure tone right ear testing at 1.25 (normal) and left ear testing was 63.75 (moderate-severe to severe hearing loss) due to severe sensorineural hearing loss. Word discrimination ability was excellent in the right ear and good in the left ear.

In accordance with the VASRD rating system for hearing loss under code 6100, panel members also agreed that the left ear hearing loss met criteria for 0% disability. However, as noted above, the panel agreed that the left ear tinnitus was “recurrent” and warrants the maximum 10% rating at the time of TDRL removal, as reported on the 26 July 2007 C&P audiology examination. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the left ear condition at the time of TDRL placement; and a disability rating of 10% for the left ear condition at the time of TDRL removal; both coded 6100-6260.

BOARD FINDINGS: In the matter of the PTSD condition, the panel recommends an initial TDRL rating of 50%, coded 9411 in retroactive compliance with VASRD §4.129 as DoD directed; and a 10% permanent rating at 6 months IAW VASRD §4.130. In the matter of the left ear condition, the panel recommends an initial TDRL rating of 10%, coded 6100-6260 in retroactive compliance; and a 10% permanent rating at 6 months; IAW VASRD §4.87. 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, effective the date of medical separation:

CONDITION	
VASRD CODE	RATING	
		TDRL	PERMANENT	
Post-Traumatic Stress Disorder	9415	50%	10%	
Left Ear Hearing Loss with Tinnitus	6100-6260	10%	10%	
	COMBINED	60%	20%	

The following documentary evidence was considered:

DEPARTMENT OF THE NAVY
SECRETARY OF TIIE 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 Oct 20

From: To:

Subj:

Ref:

Director, Secretary of the Navy Council of Review Boards 

PHYSICAL DISABILITY BOARD OF REVIEW (PDBR)
(a) DoDI 6040.44
(b)	PDBR ltr of 19 Mar 20
(b)	

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 7 October 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 for six months with a 60 percent disability rating and thereafter entitlement to disability severance pay with a final disability rating of 20 percent.

3.	The Assistant Secretary's determination, which 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.