RECORD OF PROCEEDINGS
                     PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXX                BRANCH OF SERVICE:  marine CORPS
CASE NUMBER:  PD201000168               SEPARATION DATE:  20080215
BOARD DATE:  20110211
___________________________________________________________________________

SUMMARY OF CASE:  Data extracted  from  the  available  evidence  of  record
reflects that this covered individual  (CI)  was  an  active  duty  Sergeant
(0311, Rifleman) medically separated from the Marines  in  2008  after  more
than nine years of service.  The  medical  bases  for  the  separation  were
Posttraumatic Stress Disorder (PTSD), chronic, severe, combat  related  with
cognitive impairment, and chronic right scrotal and testicular pain  without
evidence of urologic surgical pathology.  The CI had deployments  to  Kosovo
and Iraq.  He was diagnosed with PTSD  in  February  2007  during  the  Iraq
deployment.  The CI also complained of chronic right scrotal pain which  was
unrelieved with treatments available in theater.  The CI was evacuated  from
theater early due to PTSD and right scrotal pain and was placed  on  limited
duty (LIMDU) in April 2007.  Despite treatment  for  the  PTSD  and  chronic
right scrotal and testicular pain, the CI  did  not  respond  adequately  to
perform within his  military  occupational  specialty  and  he  underwent  a
Medical Evaluation Board (MEB).   The  PTSD  and  right  scrotal  pain  were
forwarded to the Physical Evaluation Board (PEB) as medically  unacceptable.
  Additional  conditions  included  in  the   narrative   summary   (NARSUM)
Disability Evaluation System (DES) packet are discussed below, but were  not
forwarded for PEB adjudication.  An  informal  PEB  (IPEB)  adjudicated  the
PTSD and the right scrotal pain as unfitting conditions, rated each at  10%,
with likely application of the SECNAVINST 1850.4e  and  DoDI  1332.39.   The
PEB also  identified  the  conditions  of  gastroesophageal  reflux  disease
(GERD), headaches and hypertension from the DES packet and  adjudicated  all
three   as   not   separately   unfitting.    The   CI   requested    formal
reconsideration, requesting that Traumatic Brain Injury (TBI)  be  added  as
an unfitting condition.  The PEB  reconsideration  added  the  condition  of
cognitive impairment as a related Category  2  diagnosis  to  PTSD,  without
change to the original adjudication.  The CI made  no  further  appeals  and
was medically separated with a combined 20% disability rating.
____________________________________________________________________________
__

CI CONTENTION:  The CI states, “I was  assigned  less  than  50%  disability
rating by the military for my unfitting  PTSD  upon  discharge  from  active
duty.   The  PDBR  should  assign  the  highest  final   disability   rating
applicable consistent  with  38  CFR  4.129  and  DOD  policy.   Change  the
rating(s) for these conditions to  the  highest  rating  possible:   Chronic
right scrotal and testicular pain  without  evidence  of  urologic  surgical
pathology.  Change these conditions for which  I  was  found  “fit”  by  the
military to ‘unfitting’ and  assign  the  highest  rating  possible:   GERD,
headaches,  hypertension.”   In  additional  correspondence,  the  CI   also
specifies TBI for contention.  Although not specifically  noted  on  his  DD
Form 294 Application, contention is implied for the highest rating  possible
for all other conditions supported in his DES file and  VA  rating  decision
(VARD).  This case is court remanded under the Sabo et al v.  Unites  States
class action suit.
____________________________________________________________________________
__

RATING COMPARISON:

|Service Reconsideration PEB    |VA (Pre-Separation) – All Effective     |
|–20071010                      |20080216                                |
|Condition                      |Code                      |Ratin|Conditi|
|                               |                          |g    |on     |
|                               |0% X5 /  NSC X3                         |
|TOTAL Combined:  20%           |TOTAL Combined (Includes Non-PEB        |
|                               |Conditions):  90%*                      |


*PTSD increased to 70% effective 20080823 (combined 100%)
___________________________________________________________________________

ANALYSIS SUMMARY:

The Board acknowledges the  sentiment  expressed  in  the  CI’s  application
regarding the significant impact that his service-incurred  conditions  have
had on his current quality of life.  It is a fact,  however,  that  the  DES
has neither the role nor the authority to  compensate  service  members  for
anticipated  future  severity  or  potential  complications  of   conditions
resulting in medical separation. This  role  and  authority  is  granted  by
Congress to the Veterans Administration.  The Board  evaluates  VA  evidence
proximal  to  separation  in  arriving  at  its  recommendations,  but   its
authority resides in evaluating the fairness of DES  fitness  decisions  and
rating determinations for disability at the time of separation.

PTSD.  The PEB rating, as noted above, was derived from  SECNAVINST  1450.4E
and DoDI 1332.39 and preceded the promulgation of the NDAA 2008 mandate  for
DOD  adherence  to  the  Veterans   Administration   Schedule   for   Rating
Disabilities (VASRD) §4.129.  IAW  DoDI  6040.44  and  DOD  guidance  (which
applies current VASRD §4.129 to all Board cases), the Board is obligated  to
recommend a minimum 50% PTSD rating for a retroactive six  month  period  of
TDRL.  The MEB and pre-separation VA exams would be independently  rated  no
higher than 50%; therefore, the minimum 50% TDRL rating is applicable.   The
Board must then  determine  the  most  appropriate  fit  with  VASRD  §4.130
criteria at six months for its permanent rating  recommendation.   The  most
proximate source of comprehensive evidence on which to  base  the  permanent
rating recommendation in this case is the VA psychiatric  rating  evaluation
six months after separation.  Since the VA psychiatric exam  took  place  at
the six month mark after separation it will carry very high probative  value
in the Board’s efforts to arrive at a fair permanent rating  recommendation.
 At the VA exam six months after separation, the CI’s symptoms had  worsened
and were considered severe.  He was no longer on  medication;  had  not  had
any treatment for PTSD since separation, and was living with  his  wife  and
child.  The CI was on social security disability and reported  that  he  was
working ten hours or  less  a  week  at  a  massage  clinic.   He  told  the
examiner, “It’s a  good  job  because  I  have  very  limited  contact  with
people.”  The CI reported significant difficulty  with  anger  control  that
was affecting his marriage, being fearful  of  crowds,  had  no  friends  or
associates, and endorsed generalized anxiety most  of  the  day,  dysphoria,
guilt,  hypervigilance,  increased  startle,   suspiciousness,   nightmares,
impaired sleep, depression, anhedonia,  distractedness,  and  forgetfulness.
He reported that he was  capable  of  performing  his  activities  of  daily
living and did so routinely and independently.   The  CI  denied  any  legal
charges or arrests and he denied using drugs or alcohol.   The  CI’s  mental
status  exam  was  remarkable  for  a  blunted  and  tearful   affect   with
demonstrated psychomotor agitation.  He was  fully  oriented,  had  adequate
insight and attention span and was not distractible.  Objective  testing  of
memory and concentration were normal.  He displayed no evidence of  disorder
in thought process or content and he was logical and goal directed.  The  CI
denied suicidal or homicidal ideation.   His  speech  was  fluent  and  non-
pressured.  The examiner concluded that the CI  was  experiencing  a  severe
degree of social and occupational impairment and  stated  that  his  overall
level of disability was severe.  The diagnosis was PTSD, severe, and  global
assessment functioning (GAF) was assessed in the range of  major  impairment
in several areas (GAF=40 -- MEB  GAF=50;  VA  pre-separation  GAF=55).   The
Board directs its attention to  its  rating  recommendations  based  on  the
evidence just described.

All members agreed the §4.130 criteria for a rating higher than 50% was  not
met at the time of separation; therefore, the minimum 50%  TDRL  rating  (as
explained above) is applicable.  With regard  to  the  permanent  separation
rating, all members agreed that the 10%  threshold  was  well  exceeded  and
that the 100% threshold was not approached.  The  deliberation  was  focused
on a 30% vs. 50% vs. 70% permanent rating  recommendation.   There  were  no
deductions made for the CI’s post-separation discontinuing PTSD  medications
and treatments.  The Board acknowledges that the VA conferred a  70%  rating
on the basis of their six month post-separation  C&P  examination;  however,
there  were  no  deficiencies   in   judgment   or   thinking,   and   prior
neuropsychiatric  testing  had  indicated  test  results   consistent   with
exaggeration of symptoms.  A recommendation for a 70% permanent  rating  was
considered; however, there was little objective evidence on the C&P exam  to
support such a rating.  The deliberation settled,  therefore,  on  arguments
for a 30% vs. 50% permanent rating recommendation.  The general  description
in §4.130 for a 50% rating  is  “occupational  and  social  impairment  with
reduced reliability and productivity.”  The  majority  of  the  Board  found
that the C&P examination did not cite  evidence  which  would  confirm  that
either reliability or productivity on  the  job  was  suffering  because  of
psychiatric  symptoms,  and  both  speculation  and  liberal   reliance   on
reasonable doubt would  be  required  to  draw  that  conclusion.   The  30%
description (“occupational and social impairment  with  occasional  decrease
in  work  efficiency  and  intermittent  periods  of  inability  to  perform
occupational tasks”) is a  better  fit  with  the  occupational  and  social
functioning in evidence since the CI was employed and  was  maintaining  his
marriage.  After due deliberation considering the totality of the  evidence,
the Board recommends a permanent PTSD  disability  rating  of  30%  in  this
case.

Chronic Right Scrotal and  Testicular  Pain  without  evidence  of  Urologic
Surgical Pathology.  The MEB and VA histories and exams  were  substantially
similar describing persistent scrotal pain and  tenderness.   There  was  no
evidence of erectile dysfunction or voiding dysfunction.   The  PEB  and  VA
chose different coding options for the condition but this did  not  bear  on
rating.  The PEB chose  8700-8730  (analogous  to  neuralgia,  ilio-inguinal
nerve), and the VA chose 7804 (one scar, painful or  unstable)  for  rating;
however, this has no bearing on the rating level  as  each  coded  for  10%.
The Board noted the PEB  used  an  analogous  coding  for  8730  “severe  to
complete” for rating at 10% and that the VASRD  would  otherwise  limit  the
ilio-inguinal nerve neuritis to 0% (mild or moderate)  IAW  §4.124  “maximum
equal to moderate incomplete paralysis” (similar restriction  for  neuralgia
IAW  §4.124).   The  VA  coding  for  painful   scar,   therefore,   appears
predominate.  All evidence considered, there is not reasonable doubt in  the
CI’s favor supporting recharacterization of the  PEB  10%  adjudication  for
the chronic right scrotal and testicular pain.  However, the  Board  prefers
coding as 7804-8730 at 10% due solely to the  coding  schema  rules  of  the
VASRD.

Other PEB  Conditions  (Cognitive  Impairment  [TBI],  GERD,  Headaches  and
Hypertension).  The CI incurred a TBI with  loss  of  consciousness  from  a
mortar blast in November 2006.  The CI underwent neuropsychological  testing
in August 2007  for  complaints  of  memory  problems,  speech  disturbance,
concentration  problems  and  irritability  since  his  head  injury.    The
clinical portion of the testing suggested moderate levels of depression  and
anxiety.  The testing  was  unable  to  ascertain  whether  there  were  any
neurocognitive  deficits  because  psychiatric  overlay  appeared  to   have
contributed significantly  to  the  CI’s  test  performance.   The  examiner
stated:

  “The  extent  to  which   psychiatric   factors   are   contributing   to
  neurocognitive functioning was examined… suggest that … were  similar  to
  those of individuals simulating symptoms … on performance on Word  Memory
  Test yielded what the makers of the test label an  ‘Extreme  Exaggeration
  or Response Bias’  profile.  Makers  of  this  test  indicate  that  this
  individual has responded in a fashion which is consistent with a  pattern
  obtained by individuals attempting to simulate  cognitive  deficits.   In
  addition, clinical experience has indicated that many  individuals  known
  or suspected to be malingering respond in this  fashion.   It  is  highly
  unlikely that even an individual who has sustained  severe  brain  damage
  would perform this poorly in  the  absence  of  symptom  exaggeration  or
  malingering issues."

The TBI did not result in a LIMDU and the Non Medical Assessment  (NMA)  did
not mention any fitness limitations due to the effects of the TBI.   In  the
absence  of  any  conclusive  evidence   of   duty-limiting   neurocognitive
deficits, the PEB had no basis to determine  TBI  as  separately  unfitting.
All evidence considered, the Board  agrees  that  there  is  not  reasonable
doubt in the CI’s favor supporting recharacterization  of  the  PEB  fitness
adjudication for the cognitive impairment [TBI] condition as not  separately
unfitting.  Any neurocognitive  deficits  were  considered  under  the  CI’s
unfitting PTSD condition.

Headaches.  The CI reported  a  history  of  headaches  requiring  treatment
since 2002 (prior to the TBI event or diagnosis of PTSD).   He  stated  that
the headaches worsened in frequency and severity after his TBI.  The CI  was
followed by neurology for this condition and an MRI of the brain and an  EEG
were reported as normal.  The headaches did not result in a LIMDU.   The  CI
reported that his headaches were well  treated  with  medication  and  there
were few visits noted in the service treatment records for  headaches.   The
headache history from the pre-separation VA exam noted:

  “The veteran has migraine headaches.  The headache  starts  on  the  left
  side of the head, it is rather steady.  It  is  sensitive  to  light  and
  noise and it can really bad some days.  When headache is bad, he  has  to
  stay in bed, unable to do anything.  Headache comes about seven times per
  week, last for  about  three  hours  and  the  veteran  is  treated  with
  Topamax.”

The NMA noted significant time lost  from  duty  but  did  not  specify  any
particulars  for  the  lost  duty  time  aside  from  “extensive   treatment
requiring much time away from the unit.”  As this is in the  same  statement
regarding the CI’s evacuation from theater (for PTSD and scrotal  pain),  it
is unlikely to be attributable to headaches.  The Board noted the  disparate
military and VA histories for the severity and frequency of headaches.   The
Board  considered  that  this  condition  was  specifically  evaluated   and
adjudicated  for  the  PEB.   The  headache  history  in  multiple  detailed
psychiatric evaluations did not indicate the same severity as  the  VA  exam
history, and the stresses of separation and  overlay  of  the  CI’s  primary
unfitting PTSD may have transiently increased the  CI’s  headache  symptoms.
All evidence considered, the Board  agrees  that  there  is  not  reasonable
doubt in the CI’s favor supporting recharacterization  of  the  PEB  fitness
adjudication for the headache condition.

GERD.  The CI was under  active  treatment  for  GERD,  well  controlled  on
medication.  In addition, he was  diagnosed  and  treated  for  helicobacter
pylori  gastritis  (bacteria  linked  to  GERD  and  ulcers)  in  2006.   An
endoscopy done at that time found no evidence of Barrett’s esophagus.   This
condition was not mentioned in the  CI  letter  or  the  NMA.   No  link  to
fitness is in evidence.

Hypertension.   The  CI  had  a  history  of  hypertension  which  was  well
controlled on medication.  There is no link to fitness in evidence.

These conditions were judged to be  within  Navy  standards,  were  not  the
cause of any LIMDU, and were not identified as causing  impairments  in  the
NMA statement.  All evidence considered, there is not  reasonable  doubt  in
the  CI’s  favor  supporting   recharacterization   of   the   PEB   fitness
adjudication for these four conditions.

Remaining Conditions.   The  medical  conditions  of  lumbar  strain,  right
shoulder strain, left  shoulder  strain,  right  ankle  strain,  left  ankle
strain, right knee patellofemoral syndrome (PFS) and left knee PFS noted  in
the VA rating decision were identified in the DES package and  NARSUM.   The
CI did seek treatment for lumbar back pain while he was in the service.   He
was diagnosed with facet arthrosis in 1999.  In 2003,  he  underwent  lumbar
nerve blocks for chronic  back  pain  and  was  placed  on  temporary  LIMDU
following the procedures.  The back pain  condition  was  not  under  active
treatment at the  time  of  his  separation.   No  link  to  fitness  is  in
evidence.  The right  and  left  shoulder  strains,  right  and  left  ankle
strains and right and left knee conditions were not under  active  treatment
at the time of separation.  No link to fitness is in  evidence.   The  NMA’s
statement did not identify any of these  conditions.   The  only  documented
physical limitations were those attributed to  the  adjudicated  conditions.
All evidence considered, there is not reasonable doubt  in  the  CI’s  favor
supporting addition of lumbar strain, right shoulder strain,  left  shoulder
strain, right ankle strain, left ankle strain, right knee PFS and left  knee
PFS as unfitting conditions for separation rating.

Other Conditions.  The only additional conditions rated by the VA at 10%  or
higher were right elbow strain, left elbow  strain,  cervical  spine  strain
and tinnitus.  However, they were not identified in the DES documents.   The
Board does not have the authority under DoDI 6040.44 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.   As  discussed  above,  PEB  reliance  on
SECNAVINST 1850.4e and DoDI  1332.39  for  rating  the  PTSD  condition  was
operant in this case and the  condition  was  rated  independently  of  that
policy and regulation by the Board.  In the matter of  the  PTSD  condition,
the  Board  unanimously  recommends  an  initial  TDRL  rating  of  50%   in
retroactive compliance with VASRD §4.129 as DOD directed, and, by a vote  of
2:1, a 30% permanent rating at six months  IAW  VASRD  §4.130.   The  single
voter for dissent (who recommended a 50% permanent  rating  at  six  months)
submitted the addended  minority  opinion.   In  the  matter  of  the  right
scrotal condition and IAW VASRD §4.118, the Board unanimously recommends  no
change in the PEB rating of 10%, but a change in VASRD  code  to  7804-8730.
In  the  matter  of  the  cognitive  impairment/TBI,  GERD,  headaches   and
hypertension   conditions,   the    Board    unanimously    recommends    no
recharacterization of the  PEB  adjudications  as  not  unfitting.   In  the
matter of the lumbar strain, right shoulder,  left  shoulder,  right  ankle,
left ankle, right knee  and  left  knee  conditions  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.
____________________________________________________________________________
_

RECOMMENDATION:   The Board recommends that the CI’s prior determination  be
modified as follows; TDRL  at  60%  for  six  months  following  CI’s  prior
medical separation (PTSD at minimum of 50% IAW  §4.129  and  DoD  direction)
and then a permanent combined 40% disability retirement as below.

|UNFITTING CONDITION                     |VASRD CODE |TDRL   |PERMANENT  |
|                                        |           |RATING |RATING     |
|Posttraumatic Stress Disorder           |9411       |50%    |30%        |
|Chronic Right Scrotal and Testicular    |7804-8730  |10%    |10%        |
|Pain                                    |           |       |           |
|COMBINED   |60%    |40%        |

____________________________________________________________________________
__

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20100229, w/atchs.
Exhibit B.  Service Treatment Record.
Exhibit C.  Department of Veterans' Affairs Treatment Record.



                                        Deputy Director
                                                                    Physical
Disability Board of Review


Minority Opinion:

As Action Officer (AO) my recommendation to the Board was  for  a  permanent
PTSD rating of 50% in this case.   The VA PTSD exam was  at  the  six  month
rating period, the VA rated  the  exam  at  70%,  and  there  was  no  Board
extrapolation needed for rating at the end of the constructive TDRL  period.
 The VA examiner clearly opined  that  the  CI  was  experiencing  a  severe
degree of social and  occupational  impairment  and  stated  that  the  CI’s
overall level of disability was severe and coincided  with  the  GAF  of  40
(range of major impairment in  several  areas).   The  CI’s  performance  on
formal testing for TBI (as  noted  in  the  above  ROP)  was  considered  in
considering  that  reasonable  doubt  was  not  in  the   CI’s   favor   for
recommending a permanent 70% rating.

There was a slight  disparity  between  the  number  of  symptoms  including
mental status  exam  findings  and  the  examiner’s  overall  assessment  of
severity.  However, rating under  the  General  Rating  Formula  for  Mental
Disorders (IAW §4.130) is not based on the number of symptoms “due  to  such
symptoms as: …”, but on their  severity  and  impact  on  “occupational  and
social impairment.”

It is  unreasonable  speculation  for  the  Board  to  have  so  drastically
discounted the examiner’s statements of symptom severity  and  “occupational
and social impairment” and to consider the CI’s “working ten hours  or  less
a week at a massage clinic” as only “occasional decrease in work  efficiency
and intermittent periods of inability to perform …” (30%).

Given the work history of at most 25% of a full 40 hour work-week, the  GAF,
and exam findings there was compelling evidence for a  permanent  rating  of
50% for “occupational and social impairment  with  reduced  reliability  and
productivity”.

A permanent separation rating of 50% is strongly recommended as below:

|UNFITTING CONDITION                     |VASRD CODE |TDRL   |PERMANENT  |
|                                        |           |RATING |RATING     |
|Post-Traumatic Stress Disorder          |9411       |50%    |50%        |
|Chronic Right Scrotal and Testicular    |7804-8730  |10%    |10%        |
|Pain                                    |           |       |           |
|COMBINED   |60%    |60%        |

The applicant should be assured that his service is gratefully  acknowledged
by the Board and it recognizes that his acquired disabilities were no  small
price to pay.

MEMORANDUM FOR DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATION
            ICO XXXXXX, FORMER USMC, XXX XX XXXX

Ref:   (a) DoDI 6040.44

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 retroactive disposition:

      a. Separation from the naval service due to physical disability with
placement on the Temporary Disability Retired List with a disability rating
of 60 percent for the period 15 February 2008 thru 14 August 2008.

      b. Final separation from naval service due to physical disability
effective 15 August 2008 with a disability rating of 40 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)