RECORD OF PROCEEDINGS
                     PHYSICAL DISABILITY BOARD OF REVIEW

NAME:                  BRANCH OF SERVICE:  NAVY
CASE NUMBER:  PD1000198                 SEPARATION DATE:  20080815
BOARD DATE:  20101208
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SUMMARY OF CASE:  This covered individual (CI) was an active duty E-4  (HM3,
Hospital Corpsman Third Class) medically separated from  the  Navy  in  2008
after 4 years 11 months of service.  The medical basis  for  the  separation
was Post Traumatic Stress Disorder (PTSD).  The  CI  was  initially  treated
for  Depression  and  Attention  Deficit  Hyperactivity   Disorder   (ADHD),
inattentive type in 2006, with medication  and  individual  counseling  with
good response.  The CI cross rated from  an  MOS  of  MA  (Master  at  Arms-
security police) to a Hospital Corpsman.  The CI was subsequently  diagnosed
with PTSD, from a reported sexual assault in 2005  involving  alcohol.   The
CI was  placed  on  Limited  Duty  status  (LIMDU  20071127)  for  PTSD  and
underwent additional medication and  intensive  counseling  therapy.   Sleep
disturbance,  hyper  vigilance,  and  depressed  mood  persisted  with   the
“military environment” exacerbating the CI’s PTSD symptoms.  The CI did  not
respond adequately to therapy for continued MOS performance and underwent  a
Medical Evaluation Board (MEB).   The  MEB  listed  PTSD,  Major  Depressive
Disorder (MDD) and ADHD without hyperactivity on  the  NAVMED  Form  6100/1.
The  additional  condition  of  Lower  Back  Pain  /   Strain   (LBP)   with
Degenerative Disc Disease (DDD) was discussed in the  Disability  Evaluation
System (DES) package, but was  not  forwarded  to  the  Physical  Evaluation
Board (PEB)  for  adjudication.   The  informal  PEB  adjudicated  the  PTSD
condition as unfitting coded 9411 at 10%.  MDD was adjudicated as a  related
Category 2 condition and ADHD as a Category IV  condition  (not  a  physical
disability).  The CI made no appeals and  was  medically  separated  with  a
rating of 10%.
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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.’’   This  case  is
court remanded under the Sabo et al v.  United  States  class  action  suit.
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RATING COMPARISON:

|Service IPEB – Dated 20080626  |VA (9 Mo. after Separation) – All       |
|                               |Effective 20080816                      |
|Condition          |Code       |Rating                                  |
|ADHD               |NOT        |Not Rated by VA                         |
|                   |UNFITTING  |                                        |
|↓No Additional MEB/PEB Entries↓|Lower Back Strain w/ DDD                |


________________________________________________________________

ANALYSIS SUMMARY:  The CI’s MDD was adjudicated  as  a  related  Category  2
condition.   There  was  no  indication  that  any  examiner  separated  the
contributions of MDD separately from PTSD on the CI’s overall mental  health
disability.  MDD was not diagnosed (specifically  excluded)  by  the  VA  at
their post-separation examination.  All of the CI’s mental  health  symptoms
are therefore rated under the CI’s primary unfitting PTSD.

PTSD Condition (and MDD):   As  discussed  above,  the  PEB  did  not  apply
Veterans Administration Schedule for Rating Disabilities (VASRD)  §4.129  to
the CI’s PTSD adjudication as mandated by NDAA 2008 in effect  at  the  time
(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 Temporary Disability Retired List  (TDRL).  The  Board  must
then determine the most appropriate fit with VASRD §4.130  criteria  at  six
months for its permanent rating recommendation.  Independent rating  of  the
MEB exam IAW §4.130 criteria would be no  higher  than  50%,  therefore  the
TDRL of 50%  is  applicable  IAW  §4.129.   The  most  proximate  source  of
comprehensive evidence on which to base the permanent rating  recommendation
in this case is the VA  psychiatric  rating  evaluation  nine  months  after
separation.  At the time of the VA exam, the  CI  was  enrolled  in  school,
living with her mother, and was taking medication.  She was  being  followed
and treated by the VA outpatient clinics since Dec 2008 (four  months  post-
separation).  The VA exam indicated no history of remissions or  significant
stressors since separation from service and  an  exam  that  indicated  much
more  severe  disability  from  PTSD.   The  CI  reported   that   she   was
experiencing recurrent and intrusive thoughts about  the  rape;  nightmares;
insomnia; flashback episodes; that she  cannot  tolerate  being  touched  by
anyone; increase arousal; hyper vigilant; “feels that she may be  harmed  at
any moment and no one would come to her aide”; avoidant;  has  very  limited
social interaction and that she always feels anxious and continues  to  have
problem with concentration.  The CI stated that any  exposure  to  a  visual
representation or even a conversation about the issue/rape, that she  became
hot, sweaty  and  anxious.   The  Mental  Status  Exam  demonstrated  normal
memory, no suicidal  or  homicidal  ideation,  and  no  indications  of  any
psychotic symptoms.  The examiner observed physiological  reactions  of  the
CI becoming anxious and sweaty during the “evaluation as (the  CI)  reported
the specifics of the rape.”  Affect was noted  to  be  restricted  and  mood
anxious.  The CI had depressive symptoms (problems  with  appetite,  feeling
like a  failure,  sadness,  sleep  difficulties,  etc.)  with  the  examiner
stating “Any depressive symptoms at present are likely secondary  to  PTSD.”
The examiner stated:

  “She experiences these (PTSD) symptoms every day and she  has  nightmares
  every night. Her social activities are  severely  limited  due  to  these
  symptoms of PTSD. Her academic life is affected in  that  she  is  always
  anxious and continues to have problems with concentration.  The  duration
  of these symptoms is  chronic  and  the  level  of  severity  is  severe,
  resulting in clinically significant impairment in this veteran's  social,
  occupational and emotional functioning.”  CI “has  experienced  disrupted
  functioning in essentially all areas of her life.”

The examiner noted that the CI did not meet criteria for  Major  Depression.
Diagnosis  was  PTSD,  Chronic,   Severe;   with   Axis   III:    “Insomnia,
concentration problems.”  The CI’s global functioning (GAF) was assessed  in
the range of severe symptoms (GAF=45; MEB GAF=60) and the examiner  endorsed
“She has experienced disrupted functioning in essentially all areas  of  her
life.”  The VA rated this evaluation at 70%.  The Board noted  a  difference
between the severity of the GAF and the  bulk  of  the  exam  contents  with
other  school,  family,  and  social  functioning  indicators.   The   Board
deliberation was  focused  on  a  30%  vs.  50%  vs.  70%  permanent  rating
recommendation.   All  members  agreed  that  the  10%  threshold  was  well
exceeded and  that  the  100%  threshold  was  not  approached.   The  Board
considered that independent rating of the MEB  exam  (2.5  months  prior  to
separation) under §4.130 criteria was between 10% to 30%  and  that  the  VA
evaluation at 9 months post separation indicated worsening of the CI’s  PTSD
condition.  After due deliberation, considering all  of  the  evidence,  the
Board recommends a permanent disability rating of 30% for PTSD  under  VASRD
Code 9411.

Attention Deficit Disorder (ADD)  without  Mention  of  Hyperactivity:   IAW
DoDI 1332.38, ADD is a  condition  which  does  not  constitute  a  physical
disability.  The Board, therefore, cannot add ADD or  ADHD  as  a  condition
for separation rating.  A recommendation of no  re-characterization  of  the
PEB’s adjudication for the ADD condition is indicated.

Other Conditions (Lower Back Strain with Degenerative Disc  Disease  [LBP]):
This condition was mentioned in the  DES  package.   The  service  treatment
records indicated treatment of LBP with left leg  pain  radiculopathy  as  a
chronic recurring condition since 2005 and part  of  the  CI’s  noted  prior
cross rating.  The CI had exacerbations with increased load  bearing  duties
as a security policeman with light duty in 2005.  There  was  no  indication
in the record that the LBP interfered with the CI’s  duties  as  a  Hospital
Corpsman.  There was no indication for surgery and the  CI  was  not  taking
narcotic medications.  LBP  was  not  mentioned  in  the  Narrative  Summary
(NARSUM) or indicated as duty limiting in the Non Medical Assessment  (NMA).
 The CI was able to take her fitness testing (PRT/PFT) and  had  passed  her
2008 PRT/PFT.  The VA rating examination indicated minimal  restricted  non-
painful motion of the back diagnosed as Lower Back Strain with  Degenerative
Disc Disease.  All evidence considered, there is  not  reasonable  doubt  in
the CI’s favor supporting addition of LBP  as  an  unfitting  condition  for
separation rating.  There were no other conditions  contended  or  rated  by
the VA within 12  months  of  separation.   The  Board,  therefore,  has  no
reasonable basis for recommending any additional  unfitting  conditions  for
separation rating.
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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.  The PEB also did not apply  VASRD  §4.129  to
the CI’s PTSD adjudication as required by NDAA 2008 in effect at  the  time,
for which the Board also provides  remedy.   In  the  matter  of  the  Post-
Traumatic Stress Disorder, 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 6 months IAW  VASRD  §4.130.
The singled voter for dissent (who recommended a 50% permanent  rating)  did
not elect to submit a minority opinion.  In the matter of the LBP  condition
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 50% for 6 months following CI’s  prior  medical
separation (PTSD at minimum of 50% IAW §4.129 and DoD direction) and then  a
permanent combined 30% disability retirement as below.

|UNFITTING CONDITION                     |VASRD CODE |TDRL   |PERMANENT  |
|                                        |           |RATING |RATING     |
|Post-Traumatic Stress Disorder          |9411       |50%    |30%        |
|COMBINED   |50%    |30%        |


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The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20100225, w/atchs.
Exhibit B.  Service Treatment Record.
Exhibit C.  Department of Veterans' Affairs Treatment Record.


                                        Deputy Director
                                                                    Physical
Disability Board of Review
MEMORANDUM FOR COMMANDER, NAVY PERSONNEL COMMAND

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATION

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 50 percent for the period 15 August 2008 thru 14 February 2009.

      b. Final separation from naval  service  due  to  physical  disability
effective 15 February 2009 with  a  disability  rating  of  30  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)