RECORD OF PROCEEDINGS
                     PHYSICAL DISABILITY BOARD OF REVIEW

NAME:                      BRANCH OF SERVICE: marine corps
CASE NUMBER:   PD1000623                                   SEPARATION  DATE:
20071031
BOARD                            DATE:                              20111214



SUMMARY OF CASE:  Data extracted  from  the  available  evidence  of  record
reflects that this covered individual  (CI)  was  an  active  duty  LCpl/E-4
(0341, Mortarman)  medically  separated  for  patellofemoral  pain  syndrome
(PFPS) and traumatic brain injury (TBI).  In March 2005, the CI was  injured
by a mortar round.  He was treated, but did not respond adequately to  fully
perform  his  military  duties  or  meet  physical  fitness  standards.   He
underwent  a  Medical  Evaluation  Board  (MEB).   Chronic  knee  pain   was
forwarded to the Physical Evaluation Board (PEB) as  medically  unacceptable
IAW SECNAVINST 1850.4E.  The PEB found him unfit due to PFPS and TBI,  rated
10% each.  Four other conditions, identified in the rating comparison  chart
below, were adjudicated  as  Category  II  (related  to  the  unfitting  TBI
condition).  Three additional conditions (varicocele,  low  back  pain,  and
tinnitus) were found to be Category III (not separately  unfitting  and  not
contributing to the unfitting conditions).  The CI made no appeals, and  was
thus separated with a 20% combined disability rating.


CI CONTENTION:  “After separation from  the  Marine  Corps,  I  enrolled  in
college with intentions to land fulltime employment as a  deputy  or  police
officer with the Kenosha County Police or Sheriff Dept.  I am 11 units  away
from obtaining an associate’s  degree  but  was  recently  informed  that  I
cannot become a deputy or police because I struggle  with  PTSD.   Currently
I'm participating in ongoing therapy  for  PTSD  and  therapy  for  my  knee
injury.  Also, I have been diagnosed with traumatic brain injury  (TBI)  due
to the concussion I experienced when I was injured in Iraq.  As a result  of
the  TBI,  I  am  having  problems  concentrating  and  suffer  from  severe
migraines to the point to where I cannot tolerate direct sunlight.   When  I
learned I couldn't work as an officer my condition has worsened.  I  am  now
severely depressed and the nightmares of  what  I  witnessed  in  Iraq  have
increased.  The migraines have worsened and I have trouble sleeping.  I  was
a healthy young man prior to joining the Marine Corps  and  served  my  unit
and my country with pride.  Today I am having problems finding  and  keeping
a job and have become a recluse to my friends and family.   I  received  the
Purple Heart while serving my country, but I cannot use my purple  heart  to
help me find and keep a job.  Please accept this information and  reconsider
my separation rating.”


RATING COMPARISON:

|Navy IPEB – dated 20070705     |VA (3 mo. Pre Separation) – All Effective|
|                               |20071101                                 |
|Condition                      |Code                                     |
|Combined:  20%                 |Combined:  70%                           |


ANALYSIS SUMMARY:  The Board acknowledges the sentiment expressed by the CI
regarding the significant impairment with which his service-incurred
conditions continue to burden him.  The Board is subject to the same laws
for Service disability entitlements as those under which the Disability
Evaluation System (DES) operates.  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.
That role and authority is granted by Congress to the Department of
Veterans’ Affairs.  The Board’s authority resides in evaluating the
fairness of DES fitness decisions and rating determinations at the time of
separation from service.

Traumatic Brain Injury (TBI).  The Board’s rating recommendation for TBI  is
directly impacted in this case by the following policy (established by  firm
precedent and prior legal opinion).  As an implied  extension  of  the  DoDI
6040.44 and NDAA 2008 mandates, the Board must  comply  with  applicable  VA
disability rating policy changes issued via training  letters  effective  at
the time of separation.  The VA  training  letter  07-05  (dated  31  August
2007) specifically addressed the need for a more comprehensive  approach  to
TBI,  pending  the  promulgation  of  the  current  VASRD  rating   formula.
Training letter 07-05 provided for rating  TBI  with  separate  ratings  for
each component of the symptom complex.   In  this  case  that  could  entail
separate    ratings    for    the    mental     condition     (posttraumatic
stress/depression), the post-concussion  cognitive  deficit,  the  tinnitus,
and the posttraumatic headaches.  Each of these will be discussed below.

TBI – Mental condition.  In March 2005 while deployed to Iraq,  this  Marine
was injured when a mortar round exploded near him.  He remembers  hearing  a
loud noise, and being carried  away  from  the  scene.   He  thinks  he  was
unconscious for 5-10 minutes.  He was  aeromedically  evacuated  to  Germany
and then back to the United States.  In the service treatment  record  (STR)
the first documented care for psychiatric symptoms was in October 2006.   He
presented with complaints of anxiety,  hyper-arousal,  and  difficulty  with
crowds.   The  CI  was  diagnosed  with  mild  PTSD,  and  was  referred  to
psychiatry.  In May 2007, he  reported  nightmares,  trouble  sleeping,  and
feeling depressed at times.  He was started on medication (Celexa)  and  was
told to follow-up with the VA.  At his May 2007 MEB neuropsychological  (NP)
exam,  five  months  prior  to  separation,  he  complained   of   insomnia,
irritability,  nightmares,  self-isolation,  decreased   energy,   increased
startle response, avoidance behaviors and feelings of  detachment.   The  NP
testing   showed   no   marked   abnormalities   suggestive   of    clinical
psychopathology, but there was some evidence  of  subclinical  posttraumatic
anxiety  and  mild  depressive  symptomatology.   The  psychiatric  Axis   I
diagnosis was depressive disorder, not otherwise specified (NOS).

At his VA Compensation and Pension (C&P) psychiatric exam (13 August  2007),
two  and         one-half  months  prior  to  separation,  the  CI  reported
nightmares,  night   sweats,   easy   startle,   insomnia,   self-isolation,
irritability, angry outbursts, and hypervigilance.   He  got  depressed  and
anxious  when  he  thought  about  his  experiences  in  Iraq.   He   denied
psychiatric hospitalization or emergency room visits, and had  not  had  any
psychiatric counseling.  He  had  been  married  for  seven  months  but  he
reported that the relationship was deteriorating.  On  mental  status  exam,
the CI was anxious and depressed.   He  had  no  delusions,  panic  attacks,
ritualistic obsessions, hallucinations or suicidal ideation.   Judgment  was
intact but his  memory  was  mildly  abnormal.   The  Global  Assessment  of
Functioning (GAF) was 60-65.  The examiner felt that the symptoms were  mild
to   moderate,   with   some   difficulty   establishing   and   maintaining
relationships and  some  decrease  in  work  efficiency,  especially  during
periods of significant stress.

The Board carefully examined  all  evidentiary  information  available.   As
noted above, the        July 2007 Navy PEB adjudicated posttraumatic  stress
and depression as Category II (related  to  the  unfitting  TBI  condition).
The Board determined that the CI’s mental condition was  indeed  related  to
the unfitting TBI condition, since the psychiatric  symptoms  were  part  of
the overall TBI  symptom  complex.   IAW  Training  Letter  07-05,  separate
ratings should be considered for each  component  of  the  symptom  complex.
The Board also determined that the  Veterans’  Administration  Schedule  for
Rating Disabilities (VASRD) §4.129 was applicable in  this  case.   IAW  DoD
guidance, the Board is obligated to recommend a minimum  50%  rating  for  a
retroactive six-month  period  on  the  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.

A full, comprehensive psychological evaluation was not performed at the  six
month point       (30 April 2008), so the Board must use the  best  evidence
available.  The August 2007 VA PTSD C&P exam was completed  11  weeks  prior
to separation.   At  that  exam,  the  psychiatric  symptoms  were  mild  to
moderate, with some difficulty establishing  and  maintaining  relationships
and  some  decrease  in  work  efficiency,  especially  during  periods   of
significant stress.  The Board determined that this level of impairment  was
consistent  with  the  VASRD  §4.130  criteria  for  a  10%  rating.   After
considerable  discussion  and  due  deliberation,  the   Board   unanimously
recommends that the mental  condition  (PTSD/depression)  be  given  a  TDRL
rating of 50% for six months IAW VASRD §4.129, and  a  permanent  separation
rating of 10% IAW VASRD §4.130.

TBI – Post-concussion Cognitive  Deficit.   At  his  MEB  neuropsychological
(NP)  exam                     (23  May  2007),   five   months   prior   to
separation, the CI complained of decreased memory, and inability  to  focus.
He was having difficulty with retention of  highly  learned  materials,  and
completion of tasks.  The NP testing revealed moderate  deficits  in  visual
memory.  His attention, problem solving,  language,  verbal  memory  skills,
and general intellectual functioning were all  normal.   The  examiner  felt
that his cognitive (memory) deficit was consistent with the history of  head
trauma.  After careful review of the evidence,  the  Board  determined  that
the CI was generally functioning  satisfactorily,  but  his  post-concussion
cognitive deficit caused  a  mild  degree  of  impairment  which  tended  to
decrease his efficiency and ability to perform certain tasks, mainly  during
periods  of  significant  stress.   After  due   deliberation,   the   Board
unanimously recommends that the cognitive deficit be given a TDRL rating  of
10% for six months, and a permanent separation  rating  of  10%,  IAW  VASRD
§4.124a and §4.130.

TBI – Posttraumatic tinnitus.  The  CI  reported  that  his  tinnitus  began
after the mortar explosion.  During his  MEB  evaluation  the  tinnitus  was
reported as intermittent and persistent.  At his C&P exam (16 August  2007),
11 weeks prior to separation, the CI reported  ringing  in  both  ears.   No
hearing loss was noted in either ear,  and  speech  recognition  was  normal
bilaterally.  The diagnosis was bilateral tinnitus, and it was rated by  the
VA at 10%.  After careful review of  the  evidence,  the  Board  unanimously
recommends that the tinnitus be given a TDRL rating of 10% for  six  months,
and a permanent separation rating of 10%, IAW VASRD §4.124a and §4.87.

TBI – Posttraumatic Headaches.  Prior to May 2007, there were no entries  in
the STR concerning headaches.   At  his  evaluations  in  January  2006  and
December 2006, the  CI  denied  headaches.   Then  on  1  May  2007  at  his
concussion clinic evaluation, he reported that headaches were occurring  2-3
times per week.  He would take an occasional Motrin,  without  full  relief.
At  his    May  2007  MEB  evaluation,  he  reported  minor  headaches  that
occasionally were bad enough to cause phonophobia and photophobia.  The  MEB
physician diagnosed him with migraines, and started him on  medication.   At
his August 2007 general medical C&P exam, 11 weeks prior to separation,  the
CI reported headaches occurring two to  three  times  daily,  and  sometimes
associated with photophobia, phonophobia, nausea and  dizziness.   During  a
flare-up, he sometimes had to stay in bed.  Other times he was able to  take
medication and go to  work.   On  exam,  the  mental  status  exam  and  the
neurological evaluation were both normal.  The examiner concluded  that  the
head  pain  was  due  to  posttraumatic  headaches  with  migraine  variant.
Neurologically, there were no focal deficits associated with the headaches.

Once again, the Board examined all the available evidence.  The Board  found
insufficient  evidence  of  characteristic  prostrating  attacks  which  are
required for a compensable rating under VASRD code 8100  (migraine).   After
due deliberation, the Board unanimously recommends  that  the  posttraumatic
headaches be given a TDRL rating of 0%  for  six  months,  and  a  permanent
separation rating of 0%, IAW VASRD §4.124a.

Chronic Knee Pain.  The CI’s right knee was injured during  the  March  2005
mortar attack.  He suffered a right patella fracture, and  a  torn  anterior
cruciate ligament (ACL).  The CI underwent three  knee  surgeries  in  2005,
followed  by  extensive  physical  therapy.   In  spite  of  treatment,   he
continued to have persistent right knee pain.  A diagnostic arthroscopy  was
done in   September 2005 and was normal.  Due to the chronic knee  pain  and
inability to return to  his  rating,  MEB  action  was  initiated.   At  his
orthopedic MEB exam (20 April 2007), six months prior to separation, the  CI
reported persistent right knee pain.  No complaints  of  pain  in  the  left
knee.  On exam of the right knee he had full range of motion (ROM)  with  no
swelling, joint  line  tenderness,  or  instability.   Scars  from  previous
surgeries were  well  healed.   X-rays  showed  a  bipartite  patella.   The
diagnosis was patellofemoral pain syndrome (PFPS) of the right knee.

At the VA C&P exam (14 August 2007), 11 weeks prior to  separation,  the  CI
complained of bilateral knee pain, right worse than left.  He reported  that
the right knee pain was constant, and radiated down his  leg.   Other  right
knee complaints included weakness, stiffness, swelling, giving way,  locking
and  dislocating.   The  CI  felt  that  his  left  knee  pain  was  due  to
compensating for his right knee, and the left knee  pain  was  intermittent.
The CI reported  he  was  unable  to  run  or  perform  prolonged  standing,
walking, kneeling, squatting or climbing.  On exam it was noted that the  CI
walked with a slight limp.  His right knee scars were well healed  and  non-
tender.   The  knees  had  no  evidence  of  effusion,  abnormal   movement,
subluxation or guarding.  There was mild tenderness to  palpation  (TTP)  of
the right knee.  Patellofemoral compression test was  positive  bilaterally,
and crepitus was noted  on  the  right.   Ligament  testing  of  both  knees
revealed no instability.  There was slight TTP  on  the  lateral  aspect  of
left knee, but ROM was normal and without pain.  X-rays of  his  knees  were
normal.  ROM for the right knee is summarized in the chart below.





|Goniometric ROM of Right |VA C&P exam – 2½ mo.    |
|Knee                     |Pre-Sep                 |
|Flexion (140⁰ is normal) |135⁰                    |
|Extension (0⁰ is normal) |0⁰                      |
|Comment                  |ROM limited by pain     |
|§4.71a Rating            |10% (painful motion)    |

The Board carefully reviewed all  evidentiary  information  available.   The
right knee limitation of motion was  essentially  non-compensable  based  on
the VASRD §4.71a diagnostic codes for loss of knee motion (5260  and  5261).
However, IAW VASRD §4.40, §4.45, and §4.59, a 10% rating is  warranted  when
there is satisfactory evidence  of  functional  limitation  due  to  painful
motion of a major joint.  There was no path to a rating higher than 10%  for
the right knee since there  was  no  evidence  in  the  STR  of  ligamentous
instability,  or   other   significant   joint   abnormality.    After   due
deliberation, the Board unanimously recommends that the right knee be  given
a TDRL rating of 10% for six months, and a permanent  separation  rating  of
10% IAW VASRD §4.71a, §4.40, §4.45, and §4.59.

Other PEB  Conditions.  Varicocele and low back pain (LBP) were  adjudicated
by the PEB as Category III (not separately unfitting  and  not  contributing
to the unfitting conditions).  Neither of these  conditions  was  the  basis
for limited duty or implicated in  the  commander’s  non-medical  assessment
(NMA).  They were reviewed by the  action  officer  and  considered  by  the
Board.  There was no  indication  from  the  record  that  either  of  these
conditions  significantly  interfered  with  satisfactory   performance   of
required military duties.  All evidence considered, there is not  reasonable
doubt in the CI’s favor supporting reversal of the PEB fitness  adjudication
for either of the stated conditions.

Remaining Conditions.  Several other conditions were also noted in  the  DES
file.  These 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, certain other  conditions  were
mentioned in the VA Rating Decision proximal to separation,  but  not  noted
in the DES file.  The Board does not have the 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.    As   discussed   above,   some   Board
recommendations in this case are IAW application of VA Training  Letter  07-
05.  In the matter of the TBI-related  mental  condition  (PTSD/depression),
the  Board  unanimously  recommends  an  initial  TDRL  rating  of  50%,  in
retroactive compliance with VASRD §4.129, as directed  by  DoD.   The  Board
unanimously recommends a permanent rating of 10%  at  six  months  following
separation, IAW VASRD §4.124a and §4.130.  In the matter of the  TBI-related
post-concussion cognitive  deficit,  the  Board  unanimously  recommends  an
initial TDRL rating of 10%,  and  a  permanent  rating  of  10%,  IAW  VASRD
§4.124a and §4.130.  In the matter of the TBI-related  tinnitus,  the  Board
unanimously recommends an initial  TDRL  rating  of  10%,  and  a  permanent
rating of 10%, IAW VASRD §4.87 and §4.124a.   In  the  matter  of  the  TBI-
related  posttraumatic  headaches,  the  Board  unanimously  recommends   an
initial TDRL rating of 0%, and a permanent rating of 0%, IAW VASRD  §4.124a.
  In  the  matter  of  the  right  knee  condition,  the  Board  unanimously
recommends an initial TDRL rating of 10%, and a  permanent  rating  of  10%,
IAW  VASRD  §4.71a,  §4.40,  §4.45,  and  §4.59.   In  the  matter  of   the
varicocele, LBP, left knee  pain,  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  determination  be
modified as follows: TDRL  at  60%  for  six  months  following  CI’s  prior
medical separation, and then a permanent combined 30% disability  retirement
as indicated below.

|UNFITTING CONDITION                |VASRD CODE  |TDRL    |PERMANENT  |
|                                   |            |RATING  |RATING     |
|TBI – PTSD/Depression              |8045-9411   |50%     |10%        |
|TBI – Post-concussion Cognitive    |8045-9304   |10%     |10%        |
|Deficit                            |            |        |           |
|TBI – Tinnitus                     |8045-6260   |10%     |10%        |
|TBI – Posttraumatic Headaches      |8045-8100   |0%      |0%         |
|Chronic Pain, Right Knee           |5299-5260   |10%     |10%        |
|COMBINED    |60%     |30%        |


The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20100527, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans' Affairs Treatment Record


                                       President
                                       Physical Disability Board of Review
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 12 Jan 12 ICO xxxxxxxxxxxxxxx
           (c) PDBR ltr dtd 4 Jan 12 ICO xxxxxxxxxxxxxxx
           (d) PDBR ltr dtd 22 Dec 11 ICO xxxxxxxxxxxxxxx
           (e) PDBR ltr dtd 19 Jan 12 ICO xxxxxxxxxxxxxxx
           (f) PDBR ltr dtd 12 Jan 12 ICO xxxxxxxxxxxxxxx

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

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

     a.    XXX XX 3238:  Assignment to the Temporary Disability Retired
List with a 60 percent disability rating for the period 31 October 2007
through 30 April 2008 and placement on the Permanent Disability Retired
List with a 30 percent rating effective 1 May 2008.

      b.   XXX-XX-0919:  Placement on the Permanent Disability Retired List
with a 30 percent disability rating 5 January 2006.

      c.   XXX XX 3246:  Placement on the Permanent Disability Retired List
at 30 percent effective 15 October 2006.

      d.   XXX XX 1973:  Placement on the Permanent Disability Retired List
with a 50 percent disability rating effective 31 Aug 2011.

      e.    XXX XX 2573:  Separation from the Naval service due to physical
disability rated at 20 percent (increased from 10 percent) effective 1
August 2005.

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.




      Assistant General Counsel
        (Manpower & Reserve Affairs)