RECORD OF PROCEEDINGS

PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXX BRANCH OF SERVICE: Marine corps

CASE NUMBER: PD0900548 BOARD DATE: 20101001

SEPARATION DATE: 20060131

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SUMMARY OF CASE: This covered individual (CI) was a USMC LCpl/E-3 Infantry Mortarman (MOS 0341), medically separated in January 2006 after approximately 4 years of military service. The medical basis for separation was Post-traumatic Stress Disorder (PTSD). In September 2004, following his second combat tour in Iraq, the CI developed symptoms of PTSD, and was unable to perform in his Military Occupational Specialty (MOS). After 12 months of outpatient treatment, his symptoms had improved little and he underwent a Medical Evaluation Board (MEB). The MEB recommended referral to the Physical Evaluation Board (PEB). The PEB found him unfit for continued military service due to PTSD. Four other conditions (Vertigo, Basilar migraines, Right ulnar neuropathy, and Degenerative disc disease of thoraco-lumbar spine) were determined to be not separately unfitting, and not contributing to unfitness. The CI accepted the findings of the PEB, and was separated from the Marine Corps with 10% disability, using the Veterans Administration Schedule for Rating Disabilities (VASRD) and applicable USN/USMC and DoD regulations.

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CI’s CONTENTION (20090901): The CI states “Service member has received 90% with 100% individual un-employable status rating from the VA for PTSD/TBI/Vertigo/Migraine Headaches due to blast exposure while on deployment in Iraq 2003 & 2005.”

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RATING COMPARISON:

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Analysis Summary:

Mental Condition (PTSD) – The CI was deployed to Iraq Feb-May 2003, and again Feb-July 2004. While in Iraq, he was involved in active combat. He shot and killed enemy combatants. He also witnessed the death and wounding of fellow Marines. In September 2004, shortly after his return from the second combat tour to Iraq, he began to experience symptoms of PTSD. His symptoms included irritability, anger, anxiety, nightmares, insomnia, lack of motivation, lack of pleasure, suspiciousness, increased startle response, memory problems, reckless driving, and road rage. The CI was treated with medication and psychotherapy, and the treatment helped. His symptoms improved, but they persisted and did not disappear. When it became clear that he was not able to perform the duties of his MOS, he underwent MEB/PEB action. The PEB found him unfit for continued military service, and he was separated with a disability rating of 10%. After separation, the CI received a Rating Decision from VA (26 Apr 2006) and was assigned an initial PTSD rating of 50%.

The Board carefully reviewed all evidentiary information available. IAW 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 veteran’s release from active military service, the rating agency shall assign an evaluation of not less than 50 percent. Based on the 22 December 2005 exam by Dr. E. (40 days prior to Separation), the CI’s symptoms at that time included depression, paranoia, irritability, anxiety, panic attacks, and alcohol abuse. He had trouble sleeping, and was having conflict with his wife. He avoided socialization, and had frequent confrontations at his unit. The psychiatrist found him to have abnormal affect and mood, but no hallucinations or delusions. Judgment was impaired, but thought processes were normal. Suicidal/homicidal ideation was absent. The Global Assessment of Functioning (GAF) was 60. The Board unanimously recommends an initial 50% rating for PTSD in retroactive compliance with VASRD §4.129.

The permanent PTSD rating should be based on the CI’s level of functioning six months (26 weeks) following separation. An exam was not performed right at the 26 week point; therefore the Board must use the best evidence available. Treatment records show that the CI had a Veterans Affairs (VA) outpatient psychiatric consult by Dr. B. on 17 October 2006 (37 weeks after separation). At that exam, the CI complained of being fearful, always on guard, really nervous, and ready to fight. He reported that he did not see others as people; he saw them as hostile enemy. He was having nocturnal sleep disturbances, including nightmares and twitching. He reported inappropriate behavior, such as laughing when he saw people hurt or shot or dying. The CI’s wife also spoke to Dr. B. She reported that the CI was nervous, hyper alert, and vigilant. His memory had progressively worsened over the preceding 30 months. She reported that the CI did not remember to perform daily activities, like personal hygiene. He would forget to bathe, so she would tell him to take a shower. The mental status exam revealed that the CI’s affect was blunted and his mood was initially tense, but calmed somewhat during the session. The CI reported that he had trouble focusing, and would stare off into space. The psychiatrist (Dr. B.) decided that the GAF was 45. In determining the CI’s permanent PTSD rating, the Board carefully considered the results of the 17 October 2006 Psychiatric assessment, as well as the other evidence. The Board determined that the CI was exhibiting significant occupational and social impairment with reduced reliability and productivity. He had blunted affect, impairment of memory (forgetting to complete certain tasks), impaired impulse control, and disturbances of judgment and thinking. After lengthy deliberation, the Board unanimously recommends a permanent PTSD separation rating of 50% (IAW VASRD §4.130).

Basilar Migraine with Vertigo – Review of the treatment record shows multiple emergency visits for episodes of headache, vertigo and abnormal gait. A Magnetic Resonance Imaging (MRI) of brain was normal. An Electronystagmogram (ENG) was done, and was consistent with vestibulopathy. Treatment with medication was initiated to control symptoms. The PEB (December 2005) found Vertigo and Basilar migraines to be Category III (not separately unfitting, and not contributory to any unfitting condition). The Board deliberated on the functional impairment caused by these episodes of Headache and Vertigo. The discussion included the frequency and severity of the episodes, as well as the medications used for control of symptoms. Based on all available evidence, the Board determined that Basilar migraine with vertigo was not unfitting at the time of separation.

History of Other Conditions (documented in Disability Evaluation System (DES) package) – Right ulnar neuropathy, Degenerative disc disease (DDD) of the spine, and Tinnitus were all discussed and considered by the Board. There is no clearly documented evidence that any of these conditions caused a significant adverse effect on the performance of required military duties. These other conditions are all judged by the Board to be not unfitting at the time of separation from service, and are not relevant for disability rating. The Board therefore has no reasonable basis for recommending any additional unfitting conditions for separation rating.

History of Other Conditions (not documented in DES package) – Traumatic brain injury (TBI) was also considered by the Board. There is no clearly documented evidence that this condition was a matter of record in the DES package. Therefore, this condition is judged to be outside the scope of this Board.

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BOARD FINDINGS:

IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication. Furthermore, PEB reliance on DoDI 1332.39 and SecNavInst 1850.4e may have been operant in this case, and the CI’s condition was adjudicated independently of those instructions by the Board.

In the matter of the PTSD condition (coded 9411), the Board unanimously recommends an initial Temporary Disability Retired List (TDRL) rating of 50%, in retroactive compliance with VASRD §4.129, as directed by DoD. The Board unanimously recommends a permanent rating of 50% at six months following separation, IAW VASRD §4.130.

In the matter of the Vertigo, Basilar migraines, Right ulnar neuropathy, DDD of spine, Tinnitus, or any other medical conditions eligible for Board consideration; the Board unanimously agrees that it cannot recommend any findings of unfit for additional rating at separation.

TBI was not a matter of record in the DES package and is therefore outside the scope of the Board. The CI retains the right to request his service Board of Correction for Naval Records (BCNR) to consider adding this condition as unfitting.

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RECOMMENDATION:

The Board recommends that the CI’s prior separation be re-characterized to reflect that, rather than discharge with severance pay, the CI was placed on the TDRL at 50% for a period of 6 months (PTSD at 50% IAW §4.129 and DoD direction) and then permanently retired by reason of physical disability with a final 50% rating as indicated below.

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The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20090901, w/atchs.

Exhibit B. Service Treatment Record.

Exhibit C. Department of Veterans' Affairs Treatment Record.

Deputy Director

Physical Disability Board of Review

MEMORANDUM FOR DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS

Subj: PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATION

ICO xxxxx, FORMER USMC, XXX XX XXXXX

Ref: (a) DoDI 6040.44

Encl: (1) PDBR ltr dtd 15 Oct 10

1. I have reviewed the subject case pursuant to reference (a). The subject member’s official records are to be corrected to reflect the following disposition:

a. Separation from the naval service due to physical disability with placement on the Temporary Disability Retired List with a disability rating of 50 percent for the period 31 January 2006 thru 31 July 2006.

b. Final separation from naval service due to physical disability effective 1 August 2006 with a disability rating of 50 percent and placement on the Permanent Disability Retired List.

2. Please ensure all necessary actions are taken to implement this decision, including the recoupment of previously paid funds if appropriate, and notification to the subject member once those actions are completed.

Principal Deputy

Assistant Secretary of the Navy

(Manpower & Reserve Affairs)