RECORD OF PROCEEDINGS
                     PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXX               BRANCH OF SERVICE: NAVY
CASE NUMBER: PD1000423            SEPARATION DATE: 20041028
BOARD DATE: 20100929
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SUMMARY OF CASE:  This covered  individual  (CI)  was  a  Reservist,  HM3/E4
(8404, Field Medical Service Technician) medically separated from  the  Navy
in 2004 after over 4 years active service and  over  11  years  of  combined
service.  The medical basis for the  separation  was  Post-Traumatic  Stress
Disorder (PTSD).  The CI was diagnosed and  being  treated  for  PTSD  since
1997.  The  stressor  was  the  CI  being  a  medical  responder  to  a  two
helicopter collision, in which several of his friends died.  The  CI  had  a
single psychiatric hospitalization in 2003 for suicidal  ideation.   He  was
being treated for PTSD by the VA, and  was  apparently  well  controlled  on
medication until he was recalled to active duty in  2004.   While  on  field
training, an  incident  occurred  to  trigger  a  “flashback”  to  the  PTSD
stressor event.  The CI stated, “I lost it, I froze. I  couldn’t  cope  with
helping my  Marines.   I’m  scared  that  I’ll  do  that  in  the  field  on
deployment and someone will get killed.”  The  CI  had  depressive  symptoms
related to his PTSD and his medication was being adjusted.  The CI  did  not
respond adequately to perform within  his  military  occupational  specialty
and  underwent  a  Medical  Evaluation  Board  (MEB).   PTSD  was  the  only
condition addressed in  the  Medical  Board  Report  and  forwarded  to  the
Physical Evaluation Board (PEB).  The  informal  PEB  adjudicated  the  PTSD
condition as unfitting, rated 10%; with probable application  of  SECNAVINST
1850.4E and DoDI 1332.39 (E2.A1.5)  as  inferred  from  the  PEB  Work  Card
(JDETS).  The PEB adjudicated history  of  hamstring  injury  condition,  as
identified in the rating chart below, as “Category IV: Conditions  which  do
not constitute a physical disability.”   The CI made  no  appeals,  and  was
thus medically separated with a 10% disability rating.
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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.’  He  elaborates  no
other contended conditions, but all service conditions are reviewed  by  the
Board as a matter of 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 20040930  |VA (3 Mo. after Separation) – All       |
|                               |Effective 20041029                      |
|Condition                      |Code                                    |


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ANALYSIS SUMMARY:

PTSD Rating Recommendation.  The PEB rating, as  noted  above,  was  derived
from DoDI 1332.39 and preceded the promulgation of  the  NDAA  2008  mandate
for  DOD  adherence  to  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
Temporary Disability Retired List (TDRL).  The  Board  must  then  determine
the most appropriate fit with VASRD §4.130 criteria at three months for  its
permanent rating recommendation.   The  MEB  psychiatric  evaluation,  under
§4.130 criteria, would rate no higher than 50% and the minimum  TDRL  rating
of 50% applies.  The most proximate  source  of  comprehensive  evidence  on
which to base the permanent rating recommendation in this  case  is  the  VA
psychiatric rating evaluation three months after separation.  There  was  no
more recent treatment or rating notes or exams in  the  record.   The  Board
considered that the MEB exam would be independently rated  30%  under  VASRD
§4.130 criteria alone.  The CI  was  being  treated  with  psychotherapeutic
medications at the time of the  VA  rating  exam.   The  CI  also  had  been
diagnosed with Major Depressive Disorder by the VA in 2002 and was under  VA
treatment  for  PTSD  since  1997,  in  apparent  remission  on   medication
following his 2003 hospitalization until his military  activation  in  2004.
The CI was employed and had a fiancé.  The CI reported  intrusive  memories;
irritability; anxiety; increased startle  response;  hypervigiliance;  sleep
impairment and nightmares; diminished interest  and  social  isolation;  and
diminished  short-term  memory  and  concentration.   Psychological  testing
(Minnesota  Multiphasic  Personality  Inventory  II  and   Millon   Clinical
Multiaxial Inventory III) was performed and endorsed “that the  veteran  may
feel overwhelmed …may experience a  mix  of  feeling  including  depression,
anxiety, stress, and anger …may have negative thoughts about himself  and  a
low  self-esteem”.   Mental  status  examination  documented  a  normal  and
appropriate affect.  Attention, judgment, and thought processes were  intact
with no  evidence  of  psychotic  features.    The  CI  met  the  diagnostic
criteria for alcohol abuse, and the examiner stated “It is as likely as  not
that his alcohol use is  related  to  his  military  experience  and  recent
deployment… His symptoms appeared to be less frequent  and  less  bothersome
before his recent active duty service,” and  his  prognosis  was  considered
good.  Global functioning  (GAF)  was  assessed  in  the  range  of  serious
impairment (GAF=50), which was similar to the MEB GAF evaluation of “AXIS  V
(CURRENT): 45-50”.  The VA had not rated the CI for  PTSD  as  a  disability
until this examination.  The VA rated this exam as 9411 at  30%  IAW  §4.130
criteria without application of §4.129.  All Board members agreed  that  the
record was insufficient to support a 50% rating under §4.130 based  on  this
evaluation and  that  the  CI  was  on  continuous  medication  without  all
symptoms under control  (0%  exceeded).   The  Board  deliberated  therefore
primarily between 30% vs. 10% as the  permanent  rating  recommendation  IAW
§4.130.  In addition to the general description of occupational  and  social
impairment, the §4.130 general formula flushes out each  rating  description
with a  list  of  features  of  symptoms  as  examples  for  this  level  of
impairment. This  helps  to  determine  a  potential  level  of  psychiatric
impairment regardless of how well or poorly the veteran is  actually  faring
with work and social activities at the time.  Of the  six  such  descriptors
under the 30% rating, three were likely manifest  at  six  months.   The  VA
exam narrative, supported by testing and assessment of  global  functioning,
was closer to the general description for the 30% rating (‘occupational  and
social  impairment  with  occasional  decrease  in   work   efficiency   and
intermittent periods of inability to perform occupational  tasks’)  than  to
the 10% criteria of mild symptoms  or  only  under  periods  of  significant
stress.  Although the preponderance of the evidence appears to favor  a  30%
rating IAW VASRD §4.130, an argument remains  for  a  10%  rating  based  on
speculation  of  the  CI’s  good  prognosis  and   pre-military   activation
functioning with chronic PTSD on medication.  The Board  made  no  deduction
for alcohol abuse, as  it  was  adjudged  proximate  to  his  mental  health
diagnosis, could not be quantified, and is a frequent finding in PTSD.   The
MEB exam was two months prior to separation, but was  not  competitive  with
the VA examination for probative value since it was prior  to  the  stresses
of separation from the service.  The Board adjudged that it would  be  “mere
speculation” to project the CI’s functioning at six months as equivalent  to
his pre-activation level of functioning (adjudged to be  10%  as  controlled
on chronic medications).   After  due  deliberation,  and  IAW  VASRD  §4.3;
reasonable doubt is resolved in favor of the CI in the Board recommending  a
separation rating of 30% for PTSD.

Other conditions.   No  other  conditions  were  service  connected  with  a
compensable rating by the VA within twelve months of  separation.   The  PEB
adjudicated history of hamstring injury  condition  as  “not  …  a  physical
disability.”  Review of the treatment records and  DES  file  including  the
Non-Medical Assessment (NMA) comments,  indicated  that  the  condition  was
chronic and stable and there were  no  musculoskeletal  limitations  to  the
CI’s continued service.    No  link  to  fitness  is  in  evidence  for  the
history  of  hamstring  injury.   All  evidence  considered,  there  is  not
reasonable doubt in  the  CI’s  favor  supporting  addition  of  history  of
hamstring injury as an unfitting condition  for  separation  rating.   There
are therefore no additional conditions in this case  appropriate  for  Board
recommendation as additionally unfitting 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.   As  discussed  above,  PEB  reliance  on
SECNAVINST 1850.4E and DoDI 1332.39 for rating PTSD was  likely  operant  in
this  case  and  the  condition  was  adjudicated  independently   of   that
instruction by the Board.   In  the  matter  of  the  Post-Traumatic  Stress
Disorder 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 6  months  IAW  VASRD  §4.130.   The
single voter for dissent (who recommended a permanent 9411  rating  at  10%)
did not elect to submit a minority opinion.  In the matter  of  the  history
of  hamstring  injury  condition,  the  Board  unanimously   recommends   no
recharacterization  of  the  PEB  adjudication  of  the   hamstring   injury
condition as not unfitting.  The Board unanimously agrees  that  there  were
no  other  conditions  eligible  for  Board  consideration  which  could  be
recommended as additionally unfitting for rating at separation.
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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 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 20100408, 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 ICO XXXXX, FORMER USN,
          XXX-XX-XXXX

Ref:   (a) DoDI 6040.44

Encl:  (1) PDBR ltr dtd 5 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 28 October 2004 thru 30 April 2005.

      b. Final separation from naval service due to physical disability
effective 1 May 2005 with a disability rating of 10 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)