RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW
NAME: XXXXXXX	CASE: PD-2021-00018
BRANCH OF SERVICE: MARINE CORPS	SEPARATION DATE: 20060115

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E3, Assistant Gunner, medically separated for “reflex sympathetic dystrophy [RSD], lower right leg,” and “posttraumatic stress disorder [PTSD],” rated 10% each, with a combined disability rating of 20%.

CI CONTENTION: “I had a number of pending disability ratings that were approved [to] bring my [VA rating] up to 80% only shortly after my official discharge date.” He also requested review of additional conditions not identified by the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB). 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 PEB to be unfitting for continued military service, and when specifically requested by the CI, those conditions identified by the 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 – 20051115	VARD - 20060511	
Condition	Code	Rating	Condition	Code	Rating	Exam	
RSD, Lower Right Leg	8799-8720	10%	Residual RSD S/P Crush Injury, Right Lower Extremity (RLE)	8720	20%	20051116	
Status-Post (S/P) Crush Injury, Right Lower Leg	Cat II					
PTSD	9411	10%	PTSD	9411	50%	20051128	
Major Depressive Disorder	Cat II					
S/P Closed Fracture of Right Clavicle	Cat III	S/P Fracture Right Clavicle	5299-
5203	10%	20051119	
COMBINED RATING: 20%	COMBINED RATING OF ALL VA CONDITIONS: 80%	

ANALYSIS SUMMARY:

RSD. According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI suffered a RLE crush injury in a tactical vehicle rollover in May 2004. In April 2005, a bone scan showed mild increased uptake in the mid-tibia region consistent with a stress response; and an EMG (nerve conduction study) was within normal limits. The CI was diagnosed with RLE RSD in May 2005.

The 13 September 2005 MEB NARSUM examination, 4 months prior to separation, noted complaints of severe RLE pain, constant throbbing pain to the foot, and occasional numbness and

tingling. Physical examination showed healed scars without deformity or swelling. There was distal tibia and medial malleolus tenderness as well as hypersensitivity about the medial malleolus. Deep tendon reflexes and sensation were intact and there was full range of motion (ROM) in the right knee, ankle, and foot. During the 28 September 2005 MEB examination (recorded on DD Forms 2807-1 and 2808), the CI reported tingling in the right foot and orthotics use due to low arches. The examiner documented right lower leg, status-post crush injury and RSD as current diagnoses.

At the 16 November 2005 VA Compensation and Pension (C&P) general medical examination, 2 months before separation, the CI was told that a bone scan showed increased uptake in the RLE, consistent with RSD. Physical examination showed normal gait, motor strength, and sensation; there was no evidence of RLE muscle atrophy or deformity, and no signs of poor circulation. The CI had mild difficulty getting on and off the examining table and changing positions due to RLE pain, and there was hypersensitivity to touch in the distal portion of the RLE, however, there was no evidence of weakness or lack of endurance after repetitive use. Right knee flexion was to 110 degrees (normal 140) with pain, and the ankle had mildly decreased plantar flexion of 35 degrees (normal 45), with painful motion.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the RSD 10%, analogously coded 8799-8720 (sciatic nerve neuralgia) and listed the RLE crush injury as a Category II condition; the panel agreed this related diagnosis was part of the unfitting RSD. The VA rated the RSD 20%, based on the C&P examination, citing chronic RLE pain. Both the NARSUM and C&P examinations showed normal reflexes and sensory function with no evidence of muscle atrophy, although there was hypersensitivity noted over the malleolus. Right knee and ankle ROM was full during the NARSUM examination, but there was painful motion with mildly decreased ROM at the C&P examination. The C&P examination showed normal motor strength, and no evidence of weakness, fatigue, or lack of endurance after repetitive use. Thus, panel members agreed that a 10% rating, but no higher, was justified for mild impairment under code 8720. After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded there was insufficient cause to recommend a change in the PEB adjudication for the RLE RSD.

PTSD. According to the STR and MEB NARSUM, the CI’s PTSD symptoms of mood, insomnia and concentration problems began after his return from a 4-month deployment to Iraq. There were no visits to the emergency room (ER) or inpatient treatment of his PTSD symptoms, and no history of suicidal or homicidal ideation.

The 5 October 2005 MEB NARSUM psychiatric addendum, 4 months prior to separation, noted complaints of nightmares, flashbacks, and irritability that improved with medication. The CI occasionally used alcohol but had no history of abuse. The mental status examination (MSE) was unremarkable with cognition and judgment intact.

At the 28 November 2005 VA C&P examination, 2 months before separation, the CI reported avoiding crowds and people. He had difficulty with sleep (nightmares), mood, and anxiety, and had thoughts of harming himself (not recorded before). He reported benefit from medication and talk therapy, and stated that he had not been to the ER or psychiatrically hospitalized. He reported good relationships with his parents and siblings, and although his girlfriend complained about his sleep issues, there were no problems in the relationship. The CI reportedly had impaired impulse control and outbursts of anger, but the MSE was unremarkable with the exception of anxious mood and affect.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the PTSD 10%, coded 9411 (PTSD) and listed a diagnosis of major depressive disorder as a Category II condition; however, the panel agreed any disability from this associated disorder

was accounted for under the primary unfitting PTSD diagnosis. The VA rated the PTSD 50%, coded 9411, based on the C&P examination. The rating was not considered to be permanent and a future review examination was scheduled.

The PEB rating preceded the promulgation of the NDAA 2008 mandate for DoD adherence to VASRD section §4.129 (mental disorders due to traumatic stress) when PTSD is 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 6 months. Panel members considered a higher §4.130 rating at TDRL placement, but agreed that the §4.130 criteria for a rating higher than 50% were not met near the time of separation, and therefore the minimum 50% initial TDRL rating is applicable.

The panel considered whether the evidence at the time of removal from constructive TDRL supported a rating higher than the 10% rating adjudicated by the PEB. There was no mental health (MH) record during the 6-12 months after the constructive TDRL period. At the time of separation, the CI was taking medication for mood symptoms and had a prescription for sleep medication, as needed. There were no reports of panic attacks and he never received ER or inpatient psychiatric treatment. The MSE during the NARSUM examination, 4 months prior to separation, was normal. Panel members noted the absence of objective evidence to support the C&P examiner’s opinion that he had memory and judgment impairment as well as poor impulse control. There was no history of violence in the home or in the community, no report of memory impairment interfering with duty performance, and no report of problems with impulse control during military service. Furthermore, there was no documentation in the STR of anger outbursts, chronic insomnia irritability interfering with daily functioning, panic attacks, memory issues due to PTSD, or thoughts of self-harm or suicidal ideation. At the time of constructive TDRL removal, panel members agreed that the CI’s symptoms were stable and most reflective of a 10% level of occupational and social impairment due to mild or transient symptoms. 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, coded 9411.

Contended PEB Condition: Right Clavicle Closed Fracture. The panel’s main charge is to assess the fairness of the PEB determination that the contended condition was not unfitting. The contended condition was not noted on limited duty forms and did not fail retention standards. Although the CI had some rotator cuff symptoms due to the fracture, the NARSUM examiner noted those symptoms improved after the clavicle healed. On physical examination, the CI had full shoulder ROM and X-rays showed a healed right clavicle. There was no performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at separation. After due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition, so no additional disability rating is recommended.

BOARD FINDINGS: In the matter of the RSD and IAW VASRD §4.124a, the panel recommends no change in the PEB adjudication. In the matter of the PTSD, 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 contended right clavicle fracture, the panel recommends no change from the PEB determination as not unfitting. 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	
Reflex Sympathetic Dystrophy, Right Lower Extremity	8799-8720	10%	10%	
PTSD	9411	50%	10%	
	COMBINED	60%	20%	

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20210104, w/atchs Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans Affairs Record

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
6040
CORB:  001
7 March 2022

From: Director, Secretary of the Navy Council of Review Boards To:	XXXXXX

Subj:	Physical Disability Board of Review Determination Ref:	(a) 6040.44(Series)
1.	The Physical Disability Board of Review (PBDR) reviewed your case in accordance with reference
(a) and forwarded their recommendation for action.

2.	

On 3 March 2022, the Assistant Secretary of the Navy (Manpower and Reserve Affairs) accepted the of no change to your characterization of separation or disability rating
assigned.

3.	The PDBR determination is final and not subject to appeal or review.