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AF | PDBR | CY2010 | PD2010 01131
Original file (PD2010 01131.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

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SUMMARY OF CASE : Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty Capt/0 - 3 ( 0302 , Infantry Officer ) medically separated for recurrent deep ve i n thrombosis (DVT) w ith chronic thrombophlebitis (CTP) . He was treated , but did not respond adequately to fully perform his military duties or meet physical fitness standards. He was placed on limited duty (LIMDU) and underwent a Medical Evaluation Board (MEB). Three conditions ( thrombophlebitis , hypercoagulable state , and posttraumatic stress disorder (PTSD) ) were forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW SECNAVINST 1850.4E. No other conditions appeared on the MEB’s submission. The PEB found him unfit for military service due to deep venous thrombosis x3 , with chronic thrombophlebitis . They assigned a disability rating of 20%. Factor V L eiden heterozygosity was adjudicated as c ategory II ( related to the unfitting condition ). PTSD was adjudicated as c ategory III (not s eparately unfitting, and not contributing to the unfitting DVT condition). The CI made no appeals, and was thus medically separated with a 20 % disability rating.


 CI ’s CONTENTION : On DD Form 294 t he CI states , “ Veterans A ffairs ( VA) rating: 100%, Department of Defense ( DoD) rating: 20% . DoD, in keeping with the recommendation of the PEB, rated XXXXXXXXXX at 20% f or the f ollowing condition: ( 1 ) "DVT x3 with chronic thro m bophl ebitis . " VA rated XXXXXXXXXX at 1 00% f or the following conditions .” The CI then lists all eight of the compensable ratings that he received from the VA (see Rating Comparison chart below). After listing his VA conditions and ratings, the CI concludes by stating, “ I respectfully request that all the corr es ponding injuries be re-evaluated by the PDBR for an assessment and n e w rating from the DoD . Of the eight injuries rated for by VA, only one was rated by DoD. F ur ther, I resp ec tfully r eq uest that the PDBR include in their assessment an e valuation of all ratable conditions found by the VA . ” Additionally, the CI’s attorney has submitted a memo to the Board. It was reviewed and considered by all Board members.
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Navy PEB – dated 20080513
 VA (1 mo. Pre-Separation) – All Effective 20080506
Condition
 Code Rating Condition Code Rating Exam
DVT w/ Thrombophlebitis 7199-7121 20% Varicose Veins and DVT, R Leg 7121 40% 20080414
Factor V Heterozygosity Category II
PTSD Category III PTSD and Anxiety Disorder 9400-9411 50% 20080415
Infra-Renal IVC Filter 6817 60% 20080414
↓No Additional MEB/PEB Entries↓
 Lumbar Degen. Disc Disease 5242 20% 20080414
Right Thumb Fracture 5010-5228 10% 20080414
Osteochondral Defect, R Knee 5299-5260 10% 20080414
Right Foot Pain 5010-5284 10% 20080414
Varicose Veins, Left Leg 7120 10% 20080414
0% x 3 / Not Service Connected x 1 20080414
Combined: 20%
 Combined: 100%
invalid font number 31506 ANALYSIS SUMMARY invalid font number 31506 : invalid font number 31506
The Board acknowledges the CI’s contention that s ervice ratings should be considered for other conditions . While the D isability E valuation System (DE S ) considers all of the CI's medical conditions, compensation can only be offered for those conditions that cut short a service member’s career, and then only to the degree of severity present at the time of separation . However, t he Department of V eterans’ A ffairs ( D VA) is empowered to compensate service- connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time.
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Recurrent deep ve in thrombosis ( DVT ) & C hronic thrombophlebitis (CTP) . Th e CI developed a right leg DVT in September 2005. Hematology evaluation revealed an underlying Factor V Leiden mutation (FVLM) causing a hypercoagulable state. He also had a small pulmonary embolism. One year later, he had knee surgery and developed a second DVT. In September 2007, i n spite of therapeutic Coumadin levels, t he CI experienced a third DVT. A venous filter was placed in his inferior vena cava (IVC) , and an MEB was initiated. At his March 2008 MEB examination, his weight was 240 lb. and his BMI was over 31. He had significant varicosities in the left calf region, but no palpable cords. Minimal edema was present (right greater than left), with a large bruise over the posterior aspect of the left upper leg. Ultrasound had shown a diffuse pattern of venous reflux (superficial and deep) in both legs. As noted above, the May 2008 Navy PEB found him unfit for military service due to recurrent DVT, with CTP. His FVLM was adjudicated as category II (related to the unfitting DVT condition).

The Board carefully examined all evidentiary information available. After due deliberation, considering all of the evidence, and mindful of the Veterans’ Administration Schedule for Rating Disabilities (VASRD) §4.3 ( r easonable doubt), the Board unanimously recommends a rating of 2 0% for the unfitting DVT (with CTP) condition . It is appropriately c o ded 7199-7121 and IAW VASRD §4. 104, meets criteria for the 20% rating. The Board then considered the issue of the Factor V Leiden mutation . The h ematologist had described the F VLM as existing prior to service (EPTS) , and service- aggravated. As noted above, the Na vy PEB adjudicated the FVLM as c ategory II (related to the unfitting DVT condition). The Board determined that the FVLM was indeed related to the DVT and CTP. The Board unanimously agree d with the PEB adjudication of the FVLM condition as c ategory II .

Mental condition . The CI went on three combat deployments and witnessed some horrific events, including the violent death of fellow Marines and the killing o f young children. Additionally, his brother was killed in Iraq and this was a very painful emotional blow . T he CI began to have anxiety, depression, insomnia, nightmares, poor concentration, hyper - vigilan ce, easy startle , scanning behavior , and extreme anger . On 10 March 2008 , he had an MEB mental health (MH) examination . H e was alert, cooperative, and had good eye contact. His mood was moderately anxious and depressed, with an irritable affect. His thought processes were linear, logical, and goal - directed. He showed no thought disorder, no psychosis, and no suicidal or homicidal ideation. The examiner opined that the CI suffered from PTSD that preclude d him from remaining on active duty , and his “ pervasive anxiety reactions make him incapable of performing as an active duty Marine, particularly due to his 0302 Infantry Officer and the continuous cyclical demands to deploy to combat zones.” Global A ssessment of F unctioning (GAF) score was 51-60. T he opinion section of the MH narrative summary (NARSUM) says , “ s ervice m ember is unable to perform full duty. ” Five weeks later, the CI had his MH C ompensation and P ension (C&P) evaluation. At that exam , he reported having recurrent distressing dreams. He avoided activities, places, and people that evoked recollection of combat. He also reported markedly diminished interest in significant activities , and feelings of detachment and estrangement from others. H is appearance, hygiene, behavior, affect, mood, communications, and speech were all normal. There was no history of panic attacks, hallucinations, delusions, obsessions, or suicidal/homicidal ideation. Judgment and abstract thinking were unimpaired. The diagnosis was PTSD and g eneralized anxiety disorder (GAD). GAF score was 40-45. With regard to PTSD, the Board carefully reviewed all available evidence , and determined that there was sufficient evidence to support the conclusion that the CI’s mental condition was in fact unfitting at the time of separation. The MH provider who evaluated him on 10 March 2008 (Dr. B.) made it very clear that the CI’s PTSD precluded him from remaining on active duty. Dr. B. went on to say that the CI’s pervasive anxiety reactions made him incapable of performing as an active duty Marine. Therefore, the Board unanimously recommends a reversal of the PEB’s fitness adjudicat ion for the PTSD .

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 CI’s release from active military service, the rating agency should assign an evaluation of not less than 50 percent. This CI was exposed to direct combat, and he witnessed some highly stressful events. Based on his psychological condition at the time of separation, the Board unanimously recommends an initial 50% rating for the mental condition in retroactive compliance with VASRD §4.129. The permanent rating should be based on the CI’s level of functioning six months following separation. The treatment record does not show evidence that a comprehensive psychological evaluation was performed at the six month point (5 Feb 2009), so the Board must use the best evidence available. The best source of evidence upon which to base the permanent rating recommendation in this case is the VA psychiatric C&P exam on 15 April 2008. At that exam, the CI reported insomnia, irritability, anger, increased startle, and hyper-vigilance. He had a good relationship with his wife and two children. At work, he had a good relationship with his supervisor and his coworkers. On mental status exam (MSE) ; he was oriented to time, place, and person. His appearance, hygiene, behavior, affect, mood, communications, and speech were all normal. There was no evidence of hallucinations, panic attacks, delusions, obsessional rituals, or impairment of judgment. He reported not missing any work due to mental health (MH) issues. The examiner (Dr. R.) felt that the CI ’s psychiatric symptoms caused occasional occupational and social impairment, with occasional decrease in work efficiency and intermittent inability to perform certain tasks, although generally functioning satisfactorily with routine behavior, self-care, and normal conversation. Dr. R. opined that the CI had anxiety , suspiciousness, chronic sleep impairment, and mild memory loss, but no difficulty understanding simple or complex commands. The diagnosis was PTSD and GAD. The G AF score was 40 to 45 .

The Board directed its attention to its rating recommendations based on the evidence just described. As noted above, all members agreed that the §4.130 criteria for a rating higher than 50% were not met at the time of separation, and therefore the minimum 50% temporary disability retirement list (TDRL) rating is applicable. In regards to the permanent rating recommendation, the April 2008 VA psychiatric C&P exam, as elaborated above, is the source of evidence which has greatest probative value. The Board noted that the words used by Dr. R. were very similar to the descriptive language in the VASRD for the 30% level of impairment. After due deliberation, all Board members agreed that based on the evidence, 30% was an appropriate permanent rating recommendation. The Board determined that although he was generally functioning satisfactorily with routine behavior, self-care, and conversation normal, the CI’s symptoms could cause occasional occupational and social impairment, with a decrease in work efficiency and intermittent inability to perform certain tasks . C onsidering all the evidence, the Board unanimously recommends a permanent disability rating of 3 0% for the mental condition ( PTSD and GAD ). IAW VASRD §4.1 30, it is appropriately coded 9411 -9400 and meets criteria for the 3 0% rating level.

Remaining Conditions . IVC filter , lumbar disc disease, thumb fracture , right knee pain, right foot pain, s hortness of breath (SOB) , pulmonary embolism , headaches , insomnia, depression, radiculopathy of right leg , blood in stool , and several other conditions were also noted in the treatment record . None of these conditions were clinically significant during the MEB /PEB period, none were the basis for LIMDU and none w ere implicated in the commander’s statement. T hese conditions were reviewed by the action officer and considered by the Board. It was determined that none could be argued as unfitting and subject to separation rating. Additionally , several other conditions were noted in the VA rating decision proximal to separation, but were not documented in the DES file. The Board does not have t he authority to render fitness or rating recommendations for any conditions not considered by the DES. The Board, therefore, has no reasonable basis for recommending any additional unfitting conditions for separation rating.


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. In the matter of the mental condition (PTSD and GAD), the Board unanimously recommends an initial TDRL rating of 50% in retroactive compliance with VASRD §4.129. The Board unanimously recommends a permanent rating of 30% at six months following separation, IAW VASRD §4.130. In the matter of the vascular condition (recurrent DVT, with CTP) and IAW VASRD §4.104, the Board unanimously recommends an initial TDRL rating of 20%, and a permanent rating of 20% at six months following separation. In the matter of the hereditary hematologic condition (FVLM), the Board unanimously recommends no change in the PEB adjudication . In the matter of the IVC filter , lumbar disc disease, thumb fracture , knee pain, foot pain, SOB , pulmonary embolism, headaches, insomnia, depression, right leg radiculopathy, blood in stool, or any other conditions eligible for consideration; the Board unanimously agrees that it cannot recommend any findings of unfit for additional rating at separation.


RECOMMENDATION : The Board recommends that the CI’s prior separation be recharacterized to reflect that, rather than discharge with severance pay, the CI was placed on the TDRL at 60% for a period of six months (IAW VASRD §4.129) and then permanently retired by reason of ph ysical disability with a final 4 0% rating as indicated below.

UNFITTING CONDITION VASRD CODE TDRL RATING PERMANENT
RATING
P TSD and GAD 9411 -9400 50% 3 0%
Recurrent DVT , w ith CTP 7199-7121 2 0% 2 0%
COMBINED 60% 4 0%
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______________________________________________________________________________

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20 100923 , w/atchs
Exhib it B. Service Treatment Record
Exhibit C. Department of Veterans' Affairs Treatment Record

         President
                                                     Physical Disability Board of Review
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invalid font number 31506 MEMORANDUM FOR DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS
         COMMANDER, NAVY PERSONNEL COMMAND
        
Subj: PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS

Ref: (a) DoDI 6040.44
(b) PDBR ltr dtd 19 Mar 12
(c) PDBR ltr dtd 15 Mar 12
(d) PDBR ltr dtd 22 Mar 12
(e) PDBR ltr dtd 22 Mar 12

1. Pursuant to reference (a) I approve the recommendations of the Physical Disability Board of Review set forth in references (b) through (e).

2. The official records of the following individuals are to be corrected to reflect the stated disposition:

a. invalid font number 31506 invalid font number 31506 Placement on the Temporary Disability Retired List with a 70 percent disability rating for the period 31 August 2005 through 27 February 2006 followed by placement on the Permanent Disability Retired List with a final rating of 50 percent effective 28 February 2006.
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invalid font number 31506 b. invalid font number 31506 invalid font number 31506 Placement on the Temporary Disability Retired List with 60 percent disability rating for the period 5 August 2008 through 4 February 2009 followed by assignment to the Permanent Disability Retired List with a 40 percent disability rating effective 5 February 2009.
        
c. invalid font number 31506 invalid font number 31506 Disability separation with entitlement to disability severance pay with a rating of 20 percent (increased from 10 percent) effective 30 April 2002.

d. invalid font number 31506 invalid font number 31506 Disability separation with entitlement to disability severance pay with a rating of 10 percent (increased from zero percent) effective 18 January 2002.

3. Please ensure all necessary actions are taken to implement these decisions, including the recoupment of disability severance pay, if warranted, and notification to the subject members once those actions are completed.



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         Assistant General Counsel
         (Manpower & Reserve Affairs)


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