RECORD OF PROCEEDINGS
                     PHYSICAL DISABILITY BOARD OF REVIEW

NAME:                                                               XXXXXXXX
      BRANCH OF SERVICE:   marine corps
CASE NUMBER:  PD1000957                     ENTRY TO TDRL:  20040815
BOARD                            DATE:                              20111110
EXIT FROM TDRL:  20060501


SUMMARY OF CASE:  Data extracted  from  the  available  evidence  of  record
reflects that this covered individual (CI) was  a  Reserve  CPL/E-4,  (0311,
Rifleman) medically separated for posttraumatic stress disorder (PTSD).   He
was diagnosed with PTSD consequent to an Iraq deployment  from  February  to
May 2003.  Criterion A combat stressors were documented and  the  Diagnostic
and Statistical Manual of Mental Disorders (DSM IV) criteria for an  Axis  I
diagnosis of PTSD were met.  He did not respond adequately to treatment  and
was  unable  to  drill  with  his  unit  or  perform  within  his   military
occupational specialty.  The CI subsequently underwent a Medical  Evaluation
Board (MEB).  PTSD was forwarded to the Physical Evaluation Board  (PEB)  as
medically  unacceptable  IAW  SECNAVINST  1850.4E.   No   other   conditions
appeared on the DES packet.  The PEB  adjudicated  the  PTSD  as  unfitting.
The  CI  was  placed  on  the  Temporary  Disability  Retired  List  (TDRL),
effective 15 August 2004 with a 30% disability rating.  On re-evaluation  in
February 2006, the CI was believed  to  be  sufficiently  stable  for  final
adjudication.  The PTSD condition rating was finalized at 10%,  with  likely
application of the SECNAVINST 1850.4E and DoDI  1332.39.   The  CI  made  no
appeals and was finalized from TDRL with a 10% disability rating.


CI CONTENTION:  “I was assigned less  than  50%  disability  rating  by  the
military for  my  unfitting  PTSD  upon  discharge  from  active  duty.   In
accordance  with  the  class  action  notice,  assign  the   highest   final
disability rating applicable consistent with 38 CFR 4.129  and  DoD  policy,
to  the  extent  such  increase  will  not   adversely   affect   my   total
compensation, including but not limited to compensation pursuant  10  CRSC.”



RATING COMPARISON:

|Final Service IPEB – Dated        |VA – All Effective Date 20030714     |
|20060322                          |                                     |
|Condition                         |Code                  |Rating        |
|Combined:  10%                    |Combined:  30%                       |


*VARD 20060426 based on the Service TDRL re-evaluation exam20060209

ANALYSIS SUMMARY:

Posttraumatic Stress Disorder.  The PEB  rating,  as  described  above,  was
derived from DoDI 1332.39 and preceded  the  promulgation  of  the  National
Defense  Authorization  Act  (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 the TDRL period.  The Board must then  determine  the  most  appropriate
final  rating  IAW  VASRD  §4.130  criteria.   Since  the  service  was   in
compliance with the §4.129 TDRL requirement, the  Board  need  not  apply  a
constructive TDRL interval in this case.   A  minimum  TDRL  rating  of  50%
remains applicable IAW DoD direction, and as held by Federal  court  in  the
Sabo v. United States class action settlement.  The  most  proximate  source
of  comprehensive  evidence  on  which  to   base   the   permanent   rating
recommendation in this case is the MEB TDRL re-evaluation  exam  which  took
place 18 months after entry into and 3  months  prior  to  exit  from  TDRL.
There was no relevant VA outpatient or civilian provider evidence during  or
following the TDRL period.

The CI received his initial diagnosis and treatment  for  PTSD  at  the  VA,
prior to the MEB period.  At the VA  compensation  and  pension  (C&P)  exam
(nine months pre-TDRL), the  CI  noted  improvement  in  many  of  his  PTSD
symptoms after  starting  treatment  with  anti-depressant  medication.   He
endorsed ongoing problems with anger, difficulty concentrating  and  marital
difficulties.   The  CI  was  working  full  time  for  his   father-in-law,
repairing electric motors, but he  had  not  been  able  to  finish  college
course work due to problems  with  concentration.   On  mental  status  exam
(MSE), the examiner commented  that  the  CI  appeared  sad,  withdrawn  and
expressionless,  with  a  depressed  mood  and  constricted  affect.    When
questioned about  his  war  experiences,  he  became  anxious,  tearful  and
avoidant.  There was no suicidal or homicidal  intent,  and  there  were  no
hallucinations  or  paranoid  ideation.   The  examiner   noted   the   CI’s
“persistent symptoms of  increased  arousal  manifested  by  hypervigilance,
startle  response,   irritability,   outbursts   of   anger,   and   reduced
concentration,” and concluded that “the disturbance has caused distress  and
impairment in his social functioning and his  marriage  relationship…”   The
Axis I diagnoses were PTSD (acute  onset,  moderate  severity  with  partial
remission on  medication)  and  major  depressive  disorder  (MDD  -  single
episode, moderate in  remission).   The  global  assessment  of  functioning
(GAF) for PTSD was assigned at 70, in the range of mild symptoms.   The  GAF
for MDD was 75, in the range  of  slight  impairment.   The  VA  assigned  a
rating of 30% on the basis of this exam.

In March 2004, the CI required treatment for significant  suicidal  ideation
due to symptoms of PTSD.  At that time, the CI  presented  with  nightmares,
irritability, heightened startle response, intrusive thoughts  and  suicidal
ideation secondary to traumatic combat exposure.  One month  later,  at  the
MEB exam, the CI reported that  treatment  with  Zoloft  had  decreased  the
intensity of his symptoms and he denied  suicidal  ideation.   On  MSE,  his
mood  was  euthymic  and  his  affect  was  full   range,   non-labile   and
appropriate.  There was no homicidal ideation and no evidence  of  psychotic
symptoms or formal thought disorder.  The examiner  concluded  that  the  CI
had  marked  military  impairment  and  moderate   social   and   industrial
impairment.  The Axis I diagnosis was PTSD and the GAF was assigned at 65  –
75, in the range of slight to mild impairment.  The PEB  considered  the  VA
C&P exam findings, as well as the VA rating of  30%,  and  assigned  a  TDRL
rating of 30%.

The service re-evaluation exam took  place  approximately  18  months  after
placement on the TDRL and 3 months prior to exit from TDRL.  At  that  time,
the CI had stopped his medications due to side effects and  he  had  stopped
attending counseling because it made him feel worse.  He  reported  that  he
was  performing  well  in  his  work  as  a  truck  driver  and  noted  mild
improvement in the frequency of his symptoms  since  leaving  the  military.
He continued to  have  marital  problems,  nightmares,  intrusive  thoughts,
chronic irritability, increased startle response,  poor  concentration,  and
depressed mood  with  anhedonia.   The  examiner  also  noted  that  the  CI
continued to experience  significant  anxiety  and  somatic  reactions  when
faced with reminders of Iraq.  On MSE, the CI became  tearful,  anxious  and
began sweating when questioned about his  PTSD  experiences.   The  examiner
documented that “[CI] continued to demonstrate significant  difficulty  with
PTSD,” and  added  that  “although  the  frequency  of  these  re-experience
symptoms had reduced, the intensity of his psychological  and  physiological
reactions to these reminders remained intense.”  The  examiner  additionally
addressed the CI’s avoidance of PTSD counseling, commenting:

  “It was evident during the evaluation that his symptoms quickly  rekindle
  with  minimal  exposure  to  thoughts  or  conversation  about  his  past
  experience.   These  symptoms  are  difficult  for  [CI]  and  he  avoids
  psychotherapeutic treatment as a result.  This avoidance of treatment  is
  common for many people  with  PTSD  and  reflects  the  severity  of  the
  condition and not a volitional non-compliance with treatment.”

The CI’s prognosis for complete resolution of  symptoms  was  poor  and  his
impairment for civilian social and  industrial  adaptability  was  definite.
The Axis I diagnosis was PTSD, not in remission, and the  GAF  was  assessed
at 60 (TDRL entry GAF=65-75), in the range of moderate  symptoms.   The  PEB
noted that the CI was working full-time and had not been hospitalized or  on
medication.  They additionally cited “borderline  non-compliance”  based  on
the CI’s failure to take medication or attend counseling, and rated PTSD  at
10%, with likely application of the SECNAVINST 1850.4E.   The  VA  performed
another review and rating determination of the  CI’s  condition  based  upon
the service TDRL re-evaluation, and continued the PTSD rating at 30%.

The Board directs its attention to its rating recommendations based  on  the
evidence just described.  All members agreed that the §4.130 criteria for  a
rating higher than 50% were not met at the time  of  entry  into  TDRL,  and
therefore the minimum 50% TDRL rating (as explained  above)  is  applicable.
The VA assigned a  30%  rating  for  the  PTSD  condition  based  on  §4.130
criteria without relying on the provisions of §4.129,  as  the  CI  had  not
been separated  from  service  for  PTSD  by  the  time  of  the  VA  rating
determination.  As regards the permanent rating recommendation at exit  from
TDRL, all members agreed that the §4.130 threshold for a 70% rating was  not
approached and that the criteria for a 10% rating were  well-exceeded.   The
deliberation settled on arguments for a 30% versus a  50%  permanent  rating
recommendation.   The  “definite  impairment   for   civilian   social   and
industrial adaptability” documented at the narrative summary  (NARSUM)  TDRL
re-evaluation best fits the criteria for the 30%  description  (occupational
and social impairment  with  occasional  decrease  in  work  efficiency  and
intermittent periods  of  inability  to  perform  occupational  tasks).   In
discussion for the  50%  rating,  the  Board  considered  the  CI’s  marital
discord and the presence of severe  symptoms  which  provoked  avoidance  of
treatment.  The Board also acknowledged that although he  was  “doing  well”
at his employment as a truck driver, the CI  had  not  resumed  his  college
course work and had  continued  difficulty  with  concentration  and  had  a
worsened GAF and overall assessment of impairment for social and  industrial
adaptability.  After due  deliberation,  considering  the  totality  of  the
evidence and with deference to VASRD  §4.3  (reasonable  doubt),  the  Board
recommends 30% as the fair and equitable permanent rating for PTSD  in  this
case.

Remaining Conditions.  Several  relatively  minor  medical  conditions  were
identified in the NARSUM and MEB  physical.   These  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.   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  PTSD  was  operant  in  this
case and the condition was adjudicated independently of that instruction  by
the Board.  In the matter of  the  PTSD  condition,  the  Board  unanimously
recommends a 30% permanent rating at exit from TDRL IAW VASRD  §4.130.   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.


RECOMMENDATION:  The Board recommends that the CI’s prior  determination  be
modified as to reflect permanent  30%  disability  retirement  as  indicated
below.

|UNFITTING CONDITION                   |VASRD CODE  |PERMANENT  |
|                                      |            |RATING     |
|Posttraumatic Stress Disorder         |9411        |30%        |
|COMBINED    |30%        |


____________________________________________________________________________
__

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20100808, w/atchs.
Exhibit B.  Service Treatment Record.
Exhibit C.  Department of Veterans' Affairs Treatment Record.







              President,

              Physical Disability Board of Review

MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW
                                        BOARDS

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

Ref:   (a) DoDI 6040.44
          (b) PDBR ltr dtd 23 Nov 11

      I have reviewed subject case pursuant to reference (a) and non-concur
with the recommendation of the Physical Disability Board of Review as set
forth in reference (b).  Therefore, Mr. XXXX’s records will not be
corrected to reflect a change in either his characterization of separation
or in the disability rating previously assigned by the Department of the
Navy’s Physical Evaluation Board.




                                    Principal Deputy
                                    Assistant Secretary of the Navy
                                    (Manpower & Reserve Affairs)