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AF | PDBR | CY2013 | PD-2013-00146
Original file (PD-2013-00146.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXX      CASE: PD-2013-00146
BRANCH OF SERVICE: MARINE CORPS         BOARD DATE: 20131122
SEPARATION DATE: 20081030


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty Sgt/E-5(1833/Assault Amphibious Vehicle Crewman) medically separated for the “overall effect” of the 12 conditions listed in the chart below. The “overall effect” of the conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was placed on limited duty (LIMDU) twice and referred for a Medical Evaluation Board (MEB). The 12 conditions were characterized as 6 conditions by the MEB, and identified as “other closed fractures of upper end of humerus, unspecified orthopedic aftercare, closed fracture of medial malleolus, intracranial injury of other and unspecified nature, without mention of open intracranial wound, unspecified state of consciousness, PTSD and other specified forms of hearing loss.” They were forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E; and no other conditions were submitted by the MEB. The PEB adjudicated the CI as fit to continue on active duty. The CI non-concurred and requested an Informal Reconsideration. The Informal Reconsideration PEB listed all 12 conditions (see chart below) as Category I, contributing to the unfit finding, stating “the overall effect of the following diagnoses contribute to the unfit condition.” The 12 conditions were rated 0% with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The CI made no appeals and was medically separated.


CI CONTENTION: The CI states: “My VA rating is 80%. I have incurred medical conditions from being combat wounded that have affected my daily living. These conditions were overlooked by the board. The VA found additional issues with my wounds received in combat. I was never given the opportunity to have the board review my conditions rated by the VA.”


SCOPE OF REVIEW: The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2). It is limited to those conditions determined by the PEB to be unfitting for continued military service and those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI. The ratings for the unfitting 12 conditions are addressed below; and, no additional conditions are within the DoDI 6040.44 defined purview of the Board. Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Board for Correction of Naval Records (BCNR).

The PEB combined the 12 conditions under a single disability rating for “overall effect” as permitted by DoDI 1332.38 (E3.P3.4.4). This approach by the PEB reflects its judgment that the constellation of conditions was unfitting, but that each condition was not individually unfitting. Since this is an intrinsic prerogative outside the scope of the VASRD, the Board does not recommend separate codes and ratings in this circumstance unless members agree that one or more conditions were separately unfitting independently of overall effect. In support of a recommendation for two or more separate ratings derived from a PEB overall effect adjudication, members must be satisfied based on a preponderance of the evidence, that each condition recommended for separate rating would have independently resulted in MEB referral and a PEB finding that the member was unfit due to physical disability. The Board’s initial charge in this case was therefore directed at determining if the PEB’s single overall effect rating was justified in lieu of separate unfit determinations and ratings. To that end, the evidence for the twelve conditions are presented separately; with attendant recommendations regarding separate unfitness and separate rating if indicated. The Board acknowledges the CI’s assertions that his disability disposition was not properly addressed in the MEB/PEB process. It is noted for the record that the Board has no jurisdiction to investigate or render opinions in reference to such allegations; and, redress in excess of the Board’s scope of recommendations (as noted above) must be addressed by the BCNR and/or the United States judiciary system.


 RATING COMPARISON :

Informal Reconsideration PEB
20080911 ( 6 weeks Pre-Sep)
 VA - (9, 10 & 12 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
L MEDIAL MALLEOLUS FX S/P OPEN REDUCTION INTERNAL FIXATION Overall Effect 0% RESIDUALS OF L ANKLE FX 5271 0% 20090715
MILD TBI, ORTHOPEDIC INJURIES TO L LEG Overall Effect 0% RESIDUALS, TBI 8045 10% 20090729
MILD PTSD, CHRONIC, MODERATE
Overall Effect
0%		 PTSD & MAJOR DEPRESSION* 9434-9411 70% 20091015
PTSD, CHRONIC, MODERATE
MDD, MODERATE
HEARING LOSS Overall Effect 0% TINNITUS 6260 10% 20090715
CONCUSSION, GRADE II OR III W/PROBABLE TBI Overall Effect 0% No VA Entry
HEADACHES Overall Effect 0% TENSION & MIGRAINE HEADACHES ASSOC W/TBI 8199-8100 0% 20090729
SLEEP DISORDER Overall Effect 0% No VA Entry
MOOD DISORDER Overall Effect 0% No VA Entry
COGNITIVE CHANGES, NOS Overall Effect 0% No VA Entry
L HUMERAL FX S/P OPEN REDUCTION INTERNAL FIXATION Overall Effect 0% RESIDUALS OF L SHOULDER INJURY 5299-5201 20% 20090715
No Additional MEB/PEB Entries
 Other x 2 20090715
Combined Rating: 0%
 Combined Rating: 80%
Derived from VA Rating Decision (VA RD ) dated 200 90910 ( most proximate to date of separation [ DOS ] ). Initial VARD of 20090511 NCS’d all conditions as CI failed to report for initial C&P Exams. VARD of 20090910 backdated ratings to day after separation based on VA exams 9 and 10 months after separation. * PTSD and Major Depression added by VARD 20091105, backdating rating and combined to day after separation.


ANALYSIS SUMMARY : The Board agreed to first evaluate the posttraumatic stress disorder ( P TSD ) condition because if Board consensus is that it was unfitting, the Board is obligated to recommend a minimum 50% PTSD rating for a retroactive 6- month period o n the Temporary Disability Retired List (TDRL) IAW DoDI 6040.44 and DOD guidance which applies current VA SRD §4.129 ( m ental disorders due to a highly stressful event ) to all Board cases with an unfitting PTSD condition at separation . The Board must then determine the most appropriate fit with VASRD § 4.130 ( s chedule of ratings-mental disorders) criteria at 6 months for its permanent rating recommendation, based on the facts in evidence which are most probative for that interval. The PEB listed 12 conditions as Categ or y I: “The overall effect of the following diagnoses contribute to the unfit finding . ” The Board noted that there we re multiple conditions the PEB redundantly listed and agreed that there were six distinct conditions , which for purposes of clarity , will be addressed below as follows: l eft a nkle f racture (includes orthoped ic injuries to left leg) , l eft h umeral f racture , t raumatic b rain i njury (TBI) (includes concussion, headaches [ HA ] , cognitive changes) , PTSD (includes mild PTSD and PTSD chronic, moderate , and sleep disorder ) , m ajor d epressive d isorder (includes m ood d isorder) and h earing d isorder.

The narrative summary (NARSUM) notes the CI was in a vehicle hit by an improvised explosive device (IED) on 15 February 2007. The CI sustained fractures of his left upper arm and left ankle and a head injury, with loss of consciousness (LOC). The CI had surgery on 1 March 2007 for open reduction and internal fixation of both fractures. Two previous Medical Boards (May 2007 and November 2007) recommended consecutive 6-month periods of LIMDU. At the time of the MEB the CI was followed in the Internal Medicine, Orthopedic, Neurology and MH clinics. The CI’s listed medications included two medications for headaches, two for pain and two for sleep/anxiety

PTSD, Major Depressive Disorder (MDD) and TBI: The CI’s MH conditions of PTSD and MDD are reviewed together as only one rating for MH can be given (despite the two MH diagnoses) based on occupational and social impairment IAW VASRD §4.130 and the conditions were intertwined in the scant MH notes. The Board also reviewed notes in the service treatment records (STRs) that address the closely related condition of TBI along with the PTSD and MDD conditions for a holistic understanding of the course of the CI’s complex overlapping symptomology of the three diagnoses and checked to see if separate ratings for the PTSD and TBI conditions could be achieved IAW VASRD §4.130, 4.124a ( s chedule of ratings - neurological conditions and convulsive disorders) , and 4.14 ( a voidance of pyramiding). The history of the CI’s injury varies in the record with LOC of about 20 minutes with the initial explosion, and a second IED blast during evacuation, which caused a second LOC of approximately an hour, followed by a period of hours during which the CI had amnesia/mental confusion. At the initial neurology evaluation on 10 July 2007, approximately 16 months prior to separation, the CI reported memory problems, headaches and irritability. A magnetic resonance imaging of the brain performed on 24 August 2007 was normal. The neurological assessment was mild TBI and/or PTSD. At a speech pathology assessment, the CI was found to have problems with attention, concentration, mild to moderate difficulty with short term memory and information recall and retention, especially auditory memory and recall. He had twelve therapy visits and was discharged in November 2007 having “met goals” with improvement, but still had decreased auditory recall and required external and internal memory aids such as writing notes and repeating things to remember them. At an MH evaluation on 31 October 2007, the CI reported headaches, nightmares, sleeping problems, irritability, decreased concentration, decreased interest in activities, increased agitation, but no thoughts of suicide. The CI reported concern about transition to civilian employment; he had always wanted to be a firefighter. He was able to pass EMT exams, but only with great effort. On mental status examination (MSE), the CI had an anxious affect and irritable mood. There were no suicidal or homicidal ideations, no delusions, hallucinations, speech disturbance, cognitive impairment or other abnormalities. The diagnosis was: Axis 1- PTSD and depression, not otherwise specified (NOS) with a Global Assessment of Functioning (GAF) of 65. (GAF 70-61 – some mild symptoms OR some difficulty in social, occupational, or school functioning, but generally functioning well, has some meaningful interpersonal relationships.) The examiner noted mild to moderate PTSD symptoms were likely to be well treated with therapy and medication. The CI was deemed fit for duty, noting no concerns for harm to self or others.

The NARSUM notes that following return from convalescent leave, the CI was on LIMDU continuously to the time of the MEB. At the MEB exam on 13 December 2007, the CI reported mild to moderate symptoms of PTSD with memory problems, decreased concentration, repeated disturbing thoughts and dreams, sleep difficulties, irritability, hyper-alertness and “feeling his future will be cut short,” though he denied depression. The MEB physical exam did not include an MSE, but noted a normal neurological exam. The diagnoses included mild PTSD and mild TBI. The examiner noted the CI was doing very well after his treatment for orthopedic injuries, TBI and PTSD, with some persistent sleep difficulty, but “very happy” looking for a new job, and adapting to his psychological difficulties well with the aid of medications, though he continued in therapy for PTSD.

The 22 June 2008 MEB psychological addendum, approximately 4 months prior to separation, reviewed the CI’s history of irritability, sleep problems, lack of enjoyment of things he used to enjoy, decreased energy and concentration and social withdrawal. The examiner noted that the CI reported continued symptoms of moderate PTSD, depression and TBI but did not specify current reported symptoms. On MSE, the CI was well groomed and cooperative with a normal mood and affect. There were no suicidal or homicidal ideations, no delusions, hallucinations, speech disturbance, cognitive impairment or other abnormalities. The diagnosis was: Axis I –PTSD-moderate, MDD-moderate (GAF of 65-70). The examiner noted that although symptoms of PTSD and TBI did affect the CI’s quality of life, he was able to manage levels of responsibility at the Wounded Warrior Barracks consistent with good military leadership. The CI was on an antidepressant with a good prognosis for full recovery, although relapse of PTSD symptoms might occur. The examiner opined that the CI “would mentally and emotionally be capable of continued military service” if not for his physical injuries, but that he was unlikely to be able to return to full duty in the foreseeable future; and recommended that he should not be deployed, he should remain where full psychiatric services are available, he should be placed in a minimal stress job and monitored by a MH professional. On neuropsychological (NP) testing dated 8 July 2008, the CI reported difficulties with attention and concentration, increased distraction, short term memory, stuttering, decreased word finding, decreased hearing and ringing in his ears, HAs, sleep difficulties and nightmares, (which were improved). The impression was decreased attention and concentration, slightly decreased short term memory and this overall pattern was noted to be often seen following TBI and “in the process of resolving.” The examiner noted no clinical evidence of emotional or affective problems.

The CI sought emergent MH treatment on 18 August 2008, for PTSD symptoms. On evaluation, the CI appeared anxious, stuttering and had pressured speech. He appeared to have difficulty concentrating and comprehending the examiner. He stated that he had not been honest about his symptoms and reported seeing and talking to friends who had died. He reported not sleeping in 2 days and being inappropriately irritable with family. He reported recent panic symptoms and feeling hopeless, but denied any suicidal ideation. He relayed specific traumatic incidents. The MSE showed a distressed affect, anxious mood, with intact reality testing and cognition, fair insight and good judgment and no suicidal ideation. The assessment was that the CI was not fit for full duty and that he was not deployable. A neurology follow up for TBI dated 8 September 2008 indicated the CI was experiencing HAs about three times per week, and still had sleep issues, but reported his mood was good.

At the VA Compensation and Pension (C&P) general examination on 15 July 2009, the CI was currently unemployed and attending school for criminal justice. The VA C&P orthopedic exam on the same day noted that the CI could “do his normal job.” The C&P Spine exam, also on the same day, noted that the CI was working part time. At the C&P neurology exam on 29 July 2009 the CI reported that HAs and memory problems were slightly worse. He reported an antalgic gait and balance problems with veering to the left, decreased attention, concentration and occasional stuttering. The CI reported mood swings of moderate severity involving anxiety and depression and irritability. On exam the CI was noted to be well groomed, articulate and cooperative. Cranial nerves, motor, sensory, reflexes, and cerebellar function were normal. The CI had a normal gait and station. Memory, attention, concentration, executive functions, judgment, social interaction, orientation and communication were judged to be normal. The examiner’s assessment was that the CI had multiple subjective complaints and neurobehavioral issues which interfered with home or work duties; the CI’s headaches were thought to be a direct consequence of his TBI.

The C&P PTSD exam performed on 15 October 2009 indicated that the CI reported occasional suicidal ideation, but no intent, no homicidal ideation. He reported seeing his dead fellow soldiers and talking to them. The examiner added “However, his reality testing appears to be intact.” He reported decreased enjoyment of activities, decreased energy, poor sleep and being uncomfortable in crowds. As previously noted, combined C&P exams the same day support that the CI was working part time with his father as a rigger and going to school. On MSE the CI was well dressed and made good eye contact. His mood was depressed and anxious and he was occasionally tearful. Psychomotor agitation was present. Speech, thought, judgment and insight were normal. The CI described mild paranoia, thinking others were talking about him and planning to harm him, but that he was able to recognize it was not really the case. As noted above, reality testing appeared intact. According to the VA examiner, testing indicated severe depression, with a moderate to severe risk of suicide and severe PTSD symptoms. The examiner noted all PTSD criteria were met. The diagnosis was Axis I – PTSD severe, major depression, severe and GAF of 35. (GAF 40-31 - some impairment in reality testing or communication OR major impairment in several areas such as work or school, family relations, judgment, thinking or mood.)

The Board first reviewed to see if the PTSD condition was in itself unfitting. The 22 June 2008 MEB psych addendum said the CI would be “mentally and emotionally capable” of continued military service “were it not for his physical injuries.” Evidence cited for this was that the CI was able to manage responsibilities at the Wounded Warrior Battalion in a way that exhibited “good military leadership.” However, the recommendations were that the CI was not deployable; occasional resurfacing of his symptoms may occur in the foreseeable future, he needed to be near full psychiatric services and “he should be placed in a minimal stress job and be monitored by MH professionals pending discharge from the military.” The Board opined the CI’s good function in the Wounded Warrior Battalion, though important in assessing his functioning, could not be extrapolated to mean that the CI was capable of return to his MOS as an amphibious assault vehicle crewman. The Board also found comments by the MEB psychological examiner contradictory – how could the CI have been mentally and emotionally capable of military service, but yet not deployable due to needing a low stress job and ongoing MH monitoring and access? The MH evaluation performed on 18 August 2008 also found the CI not fit for full duty and not deployable due to his MH condition. In the 25 August 2008 non-medical assessment (NMA), the commander mentioned the PTSD symptoms stating that when the CI spoke about “combat memories that bother him” and sleep problems due to nightmares, “I truly believe him.” The commander notes that injuries that hinder the CI’s return to his MOS include symptoms attributable to either PTSD or cognitive impairment due to TBI (discussed further below) such as losing his train of thought when speaking and needing to write everything down (such as orders) in order to remember. The Board noted that the cognitive deficits of memory, concentration, attention problems and the emotional/behavioral problems of irritability and mood swings could not be apportioned between the PTSD and TBI conditions and are subsumed in the §4.130 rating. Therefore, members agreed that the preponderance of the evidence with regard to the functional impairment of the PTSD condition (including decreased memory, attention and concentration) favors its recommendation as an unfitting condition at the time of separation and that the TBI condition, minus the aforementioned symptoms was not able to achieve a separately unfitting determination. There is no evidence in the record that the CI’s headaches were separately unfitting.

The Board directs attention to its rating recommendation for the PTSD with cognitive impairment condition IAW §4.129 at TDRL entry based on the above evidence. The PEB combined the left ankle fracture with eleven other conditions as unfitting due to overall effect, rated at 0%. All members agreed the §4.130 criteria for a rating higher than 50% were not met at the time of separation, and therefore the minimum 50% IAW §4.129 (as explained above) is applicable. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 50% for the PTSD with cognitive impairment condition at TDRL entry coded 8045-9411 (analogous PTSD with TBI). The Board next deliberated the rating of the PTSD with cognitive impairment condition at permanent separation. For the purposes of the permanent rating recommendation it was judged that the C&P PTSD evaluation performed on 15 October 2009, approximately 12 months after separation combined with the C&P neurology examination for TBI on 29 July 2009, approximately 9 months after separation, were close to the 6-month post-separation rating benchmark and reflected the stress of transition to civilian life, which is a core content of §4.129 and intrinsic to the recommendation. Information related to occupational and social function taken from multiple C&P general, orthopedic and spine exams on 15 July 2009, is also judged to have significant probative value for the permanent disability rating. The VA rated the PTSD condition at 70%, coded 9434-9411 ( analogous to PTSD with depression ) . The C&P exams in July 2009 indicated that the CI was working part-time and going to school. At the C&P neurology exam the CI continued with the same list of PTSD symptoms. On exam he was well-groomed, articulate and cooperative and exam components were normal. At the C&P PTSD exam, the CI reported worsened symptomology including occasional passive thoughts of suicide; seeing dead fellow soldiers and talking to them although reality testing was intact. His symptoms of depression, anxiety, being uncomfortable in crowds, and sleep issues continued. On exam he appeared well groomed and made good eye contact. His mood was depressed and anxious, he was occasionally tearful but the MSE was otherwise within normal limits. The VA examiner concluded the CI had severe social and emotional impairment, mild to moderate cognitive impairment and moderate occupational impairment. The Board considered the CI’s report of seeing dead fellow soldiers and talking to them at the VA exam. The CI had reported this once before at the last MH evaluation in the STR. At both exams the examiners noted reality testing was intact. A few weeks after that report, the CI had an NP evaluation for TBI and cognitive difficulties appeared to be resolving and the examiner noted no evidence of emotional or affective difficulties by observation or self-report by the CI. At the noted MH evaluation the CI also stated that he sometimes talks to himself for “working through things.”

The Board opined that the evidence in the record supports that these were disturbing memories, which was a consistent report by the CI in the record, and not psychotic symptoms of visual and auditory hallucinations. Members agreed that the CI’s MH condition met the §4.130 criteria for a 10% disability rating specified as “occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication” and exceeded it. Therefore, the deliberation settled on arguments for a 30% versus a 50% permanent rating recommendation. The general description in §4.130 for a 30% rating is “occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily)”; and that for 50% is “occupational and social impairment with reduced reliability and productivity”. The C&P examinations 9 to 12 months after separation indicate that the CI was and had been working (albeit working part-time with his father) and/or going to school since separation. The combined C&P examinations provide direct and indirect mental status information: the CI was oriented, reality testing was intact, thought processes, judgment and insight were good. His concentration and memory at times was decreased, other times appeared normal, his mood at times was agitated and/or depressed and at other times appeared normal. Panic attacks which had been present close to separation, were no longer reported, there were no delusions, or hallucinations (as discussed above). The CI reported worsened symptoms at the C&P exam (12 months after separation) and this together with the 18 August 2008 MH evaluation (2 months prior to separation) are judged to support the 30% criteria of “intermittent inability to perform occupational tasks.” There is no evidence in the record which would confirm that either reliability or productivity on the job was suffering consistently because of psychiatric symptoms. Based on the evidence available in the record, the CI had ongoing mild but persistent symptoms of PTSD and depression with exacerbations. The Board agreed that the preponderance of evidence more closely supports the 30% criteria. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a permanent disability rating of 30% for the PTSD with cognitive impairment.

S/P LEFT HUMERAL FX. At the MEB exam on 13 December 2007, the CI reported “pain localized to his injuries” and rated the pain three out of ten. The MEB physical exam noted only a normal gait and neurologic exam. The MEB examiner noted that the CI was doing well, he had started physical training with sports medicine and his pain was greatly improved. At an orthopedic addendum to the MEB on 29 February 2008, approximately 8 months prior to separation, the CI reported pain of the left arm, but was noted to be doing physical therapy with sports medicine without difficulty. The exam showed full ROM of the left upper extremity (LUE) with normal strength and sensation. The orthopedic examiner cleared the CI for activity at his own pace and tolerance, noting that he may experience some pain which could limit his activity, otherwise there was no activity restriction, however, limited duty was recommended that included no fitness testing or heavy lifting until referral to the PEB.

At the C&P exam on 15 July 2009, the CI reported injury to his LUE with retained hardware following surgery. He reported shoulder pain, stiffness and weakness of the arm and elbow. He reported having difficulty with overhead or heavy work with the left arm, but being able to do normal daily activities. The CI was noted to be right hand dominant. Left shoulder range-of-motion (ROM) was abduction and flexion of 160 degrees (normal 180 degrees). Elbow ROM was full. There was aching and stiffness of the shoulder and elbow, with increased pain with ROM repetition, but no flare-ups noted. X-rays of the left humerus showed a healed post-surgical fracture.

The Board first reviewed to see if the left arm fracture residual of pain with decreased shoulder ROM was in itself unfitting. The MEB examination, the orthopedic addendum to the MEB, and the VA exam all noted LUE pain and the VA exam indicated pain of the shoulder and the elbow that increased with use, with slight decreased shoulder ROM. The NMA mentions the left arm and notes that orthopedic injuries were the main reason that the CI could not perform the duties of his primary MOS, with the left arm contributing to difficulty getting into and out of vehicles, operating weapons and impairing the performance of other physically demanding tasks. The CI was on LIMDU from the time of his injury until his permanent separation. Members agreed that there was a preponderance of evidence in the record to support the residual LUE pain with mildly limited ROM status post (s/p) left humeral fracture was separately unfitting.

The Board directs attention to its rating recommendation at TDRL entry based on the above evidence. The PEB combined the left humeral fracture with eleven other conditions as unfitting due to overall effect and rated at 0%. The VA rated the residuals of the left shoulder injury as 5299-5201 (analogous to limited arm motion) rated 20% and elbow strain as 5206-5207 (limited forearm flexion and extension), rated 0%. The Board found there was no ratable decreased arm ROM under code 5201 (limited arm motion), or evidence of any ratable impairment under 5202 (impairment of the humerus). The CI’s arm pain s/p humeral fracture was ratable for pain IAW §4.59 (painful motion). After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the left humeral fracture condition, coded 5299-5201 at TDRL entry. The Board next deliberated the permanent disability rating of the s/p left humeral fracture condition. The C&P exam again found painful motion of the LUE without compensable limitation of ROM at the shoulder or elbow, without improvement or worsening since separation. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a permanent disability rating of 10% for the s/p left humeral fracture condition, coded 5299-5201.

Status Post Left Ankle Fracture: Notes in the STR document that the CI had left ankle pain in November 2007 with full ROM and intact sensation noted. At the MEB exam on 13 December 2007 the CI reported “pain localized to his injuries” and rated the pain 3 out of 10. The MEB physical exam noted only a normal gait and neurologic exam. The MEB examiner noted that the CI was doing well; he had started physical training with sports medicine and his pain was greatly improved. The orthopedic addendum to the MEB on 29 February 2008, noted left ankle pain with a normal exam. The orthopedic examiner cleared the CI for activity at his own pace and tolerance, noting that he may experience some pain which could limit his activity, otherwise there was no activity restriction but limited duty was recommended that included no fitness testing, running, prolonged walking/standing, or entering an area where his gait may pose a danger until referral to the PEB. At the C&P exam performed 9 months after separation, the CI reported pain in both ankles. On exam there was normal ankle ROM, with stiffness and pain that increased with ROM repetition, but no flare-ups.

The Board first reviewed to see if the s/p left ankle fracture condition was in itself unfitting. The MEB examination, the orthopedic addendum to the MEB and the VA exam all noted that the CI continued with pain with left ankle use. The NMA said the leg injury impaired the CI’s duty performance and noted that he was unable to run or perform other physically demanding activities. From the time of the CI’s injuries he was on consecutive LIMDUs that limited marching and fitness testing. The Board agreed that the preponderance of evidence supports that at the time of separation the left ankle condition was in itself unfitting.

The Board directs attention to its rating recommendation based on the above evidence. The PEB combined the left ankle fracture with eleven other conditions as unfitting due to overall effect and rated at 0%. The VA rated the left ankle fracture condition as 5271 (limited ankle motion) at 0%. The Board deliberated the rating of the left ankle condition at TDRL entry based on the evidence above. At the MEB, orthopedic addendum to the MEB the left ankle exam was normal, but the CI had persistent pain, increased with use. X-rays showed a healed fracture of the medical malleolus with anatomic alignment. There was no evidence in the record of decreased ankle ROM or deformity, malunion or ankylosis to support a compensable disability rating coded as 5271 (limited motion of the ankle), 5273 (malunion of the os calcis), 5262 (impairment of the tibia/fibula), 5270 (ankylosis of the ankle) or 5272 (ankylosis of the tarsal joint). The Board agreed that the left ankle could only be rated IAW §4.59 for painful motion at 10% coded 5271 and there was no path to a higher evaluation. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the left ankle condition at TDRL entry. The Board next deliberated the permanent disability rating of the left ankle condition. At the C&P exam the left ankle exam was normal with aching and stiffness; the pain increased with repetitive use, with no change in the X-rays. There was no evidence that the left ankle condition improved or worsened following separation. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a permanent disability rating of 10% coded 5271 for the left ankle condition.

Hearing Loss (HL). At an ear, nose and throat (ENT) evaluation on 14 November 2007, the CI reported left ear hearing loss and ringing in his ears that was episodic and did not interfere with sleep or activities of daily living. Ear and neurological exam were normal. It was noted he was being fitted for a hearing aid. No treatment was recommended for the ringing in his ears. At the MEB exam on 13 December 2007, the CI did not report any ear problems but did report that he received a hearing aid. The MEB physical exam noted a normal ear exam. An audiogram on 25 April 2008 showed diffuse mild to moderate hearing loss across all testing frequencies, worse in the speech frequencies. At the C&P exam on 15 July 2009 approximately, the CI reported bilateral decreased hearing with tinnitus. On examination there was some scarring of the tympanic membrane, otherwise normal exam. Whisper test (hearing screening) was normal without his hearing aid. Audiogram performed on 20 August 2009 showed normal hearing on the right and mild decreased hearing on the left (with hearing aid in place) and noted mild speech discrimination difficulty on the left without the hearing aid.

The Board first considered if the HL was in itself unfitting. The HL condition was not mentioned in the NMA, was not profiled, and there was no performance based evidence from the record that HL significantly interfered with satisfactory duty performance. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB’s adjudication of the HL condition as not unfitting and therefore could not be recommended for additional disability rating.

Headaches and Cognitive Changes: The Board judged that the headaches with mixed features and the cognitive changes NOS were part and parcel of the not unfitting TBI condition discussed above with the PTSD condition.

Sleep and Mood Disorder. There was no evidence in the record of a sleep or a mood disorder separate from the symptoms of the PTSD with cognitive impairment condition and therefore, the Board adjudged that the ratings of those conditions are also subsumed in the §4.130 PTSD rating. The Board concluded therefore that these conditions could not be recommended for additional disability ratings.


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. In the matter of the PTSD with cognitive impairment condition, the Board unanimously recommends a rating of 50% for the TDRL interval and by a 2:1 vote a permanent disability rating of 30%, coded 8045-9411 IAW VASRD §4.130 and §4.129. The single voter for dissent (who recommended a 10% permanent disability rating) did not elect to submit a minority opinion. In the matter of the s/p left humeral fracture condition, the Board unanimously recommends a rating of 10% for the TDRL interval and a permanent disability rating of 10%, coded 5299-5201 IAW VASRD §4.71a. In the matter of the s/p left ankle fracture condition, the Board unanimously recommends a rating of 10% for the TDRL interval and a permanent disability rating of 10%, coded 5271 IAW VASRD §4.71a. In the matter of the TBI, concussion, cognitive changes, HA, MDD, HL, sleep disorder and mood disorder conditions, the Board unanimously agrees that it cannot recommend them for additional disability ratings. There were no other conditions within the Board’s scope of review for consideration.


RECOMMENDATION: The Board recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

UNFITTING CONDITION VASRD CODE RATING
TDRL PERMANENT
PTSD with Cognitive Impairment 8045-9411 50% 30%
S/P Left Humeral Fracture 5299-5201 10% 10%
S/P Left Ankle Fracture 5271 10% 10%
COMBINED 60% 40%

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20130430, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record





XXXXXXXXXXXXXXXXXXXX
President
Physical Disability Board of Review




 invalid font number 31506 MEMORANDUM FOR COMMANDER, NAVY PERSONNEL COMMAND
 DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS
         
Subj: PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS

Ref:     (a) DoDI 6040.44
 (b) PDBR ltr dtd 10 Feb 14 ICO XXXXXXXXXXXXXXXXXX
(c) PDBR ltr dtd 10 Mar 14 ICO XXXXXXXXXXXXXXXXXX
(d) PDBR ltr dtd 28 Feb 14 ICO XXXXXXXXXXXXXXXXXX
1. Pursuant to reference (a) I approve the recommendations of the Physical Disability Board of Review set forth in references (b) through (d).

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

a.       XXXXXXXXXXXXXXXXXXXX, former USN: Retroactive placement on the Permanent Disability Retired List with a rating of 30% effective 28 June 2002.
b. XXXXXXXXXXXXXXXXXXXX, former USMC: Placement on the Temporary
Disability Retired List from 30 October 2008 through 30 April 2009 with a disability rating of
60% with transfer to the Permanent Disability Retired List effective 1 May 2009 with a final
disability rating of 40%.

c. XXXXXXXXXXXXXXXXXXXX, former USN: Disability separation with a final disability rating of 20% (increased from 0%) effective 4 June 2008.


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 complete.



 XXXXXXXXXXXXXXXXXXXX
Assistant General Counsel
(Manpower & Reserve Affairs)

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