DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
JRE
Docket No. 07024-10
29 April 2011
From: Chairman, Board for Correction of Naval Records
TO: Secretary of the Navy
Subj: ~ ;
REVIEW OF NAVAL RECORD
Ref: (a) £0: U.S.€. 1552
(b) SECNAVINST 1850.4]
GJ
Encl: (1) DD Form 149
(2) Subject's naval record
1. Pursuant to the provisions of reference (a), Subject,
hereinafter referred to as Petitioner, filed enclosure (1) with this
Board requesting, in effect, that his naval record be corrected to
show that his name was not removed from the Temporary Disability
Retired List and that he was not discharged from the Marine Corps.
2. The Board, consisting of Messrs. Clemmons, Neuschafer and
Silberman, reviewed Petitioner's allegations of error and injustice
on 28 April 2011 and, pursuant to its regulations, determined that
the corrective action indicated below should be taken on the
available evidence of record. Documentary material considered by the
Board consisted of the enclosures, naval records, and applicable
statutes, regulations and policies.
3. The Board, having reviewed all the facts of record pertaining
to Petitioner's allegations of error and injustice finds as follows:
a. Before applying to this Board, Petitioner exhausted all
administrative remedies available under existing law and regulations
within the Department of the Navy.
b. Enclosure (1) was filed in a timely manner.
c. Petitioner was released from active duty on 26 February 2006
and transferred to the TDRL with a disability rating of 30% for
residuals of a combat-incurred gunshot wound of the left thigh.
Effective 27 February 2006, the Department of Veterans Affairs (VA)
awarded him disability ratings of 50% for posttraumatic stress
disorder, 30% for residuals of the gunshot wound, and separate
ratings of 10% for tinnitus and two scars. He was reevaluated by the
Physical Evaluation Board on 24 September 2007 and found fit for duty
with regard to the residuals of his wound. As the other conditions
rated by the VA were not considered unfitting or contributing to an
unfitting condition at the time of his placement on the TDRL, those
conditions were not formally evaluated or rated by the PEB.
d. Reference (b), paragraph 3618, TDRL Reevaluation With Regard
to Compensability of New Diagnoses/Reevaluation of Category III
Conditions, provides, in effect, that conditions newly diagnosed
during a TDRL periodic physical examination shall be compensable when
the condition is unfitting and it was caused by the condition for
which the member was placed on the TDRL or directly related to its
treatment or the condition was an unfitting disability at the time
the member was placed on the TDRL.
CONCLUSION:
Upon review and consideration of all the evidence of record, and
especially in light of the provisions of reference (b), the Board
concludes that Petitioner should be restored to the TDRL so that the
PEB can determine whether or not his condition of posttraumatic
stress disorder is compensable, either as a condition that was
unfitting albeit undiagnosed at the time of his transfer to the TDRL,
or as a condition caused by the condition for which he was transferred
to the TDRL. Accordingly, the Board finds the existence of an
injustice warranting the following corrective action.
RECOMMENDATION :
a. That Petitioner's naval record be corrected to show that
he was not found fit for duty by the PEB on 24 September 2007, his
name was not removed from the TDRL, and he was not discharged from
the Marine Corps.
c. That Petitioner be afforded a periodic physical examination
as soon as practicable; that the examination include an assessment
of his condition of posttraumatic stress disorder; and that the
results of the examination be reviewed by the PEB to determine whether
or not the posttraumatic stress disorder is ratable in accordance
with the provisions of SECNAVINST 1850.4E, paragraph 3618.
c. That a copy of this Report of Proceedings be filed in
Petitioner's naval record.
4. Pursuant to Section 6(c) of the revised Procedures of the Board
for Correction of Naval Records (32 Code of Federal Regulations,
Section 723.6(c)) it is certified that a quorum was present at the
Board's review and deliberations, and that the foregoing is a true
and complete record of the Board's proceedings in the above entitled
macbterx..
ROBERT D. 4SALMAN
Recorder
5. Pursuant to the delegation of authority set out in Section 6(e)
of the revised Procedures of the Board for correction of Naval Records
(32 Code of Federal Regulations, Section 723.6(e)) and having assured
compliance with its provisions, it is hereby announced that the
foregoing corrective action, taken under the authority of reference
(a), has been approved by the Board on behalf of the Secretary of
the Navy.
W. DEAN PFEIAF
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AF | PDBR | CY2009 | PD2009-00582
The CI was referred to the Physical Evaluation Board (PEB), determined unfit for continued Naval service, and separated at 10% disability using the Veterans Affairs Schedule for Ratings Disabilities (VASRD) and applicable Naval and Department of Defense regulations. The VA did not find limited or painful motion on examinations. The VA rated his PTSD at 30%.
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DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 2 NAVY ANNEX WASHINGTON DC 20370-5100 JRE Docket No. 10491-07 21 November 2008 From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: FORMER
AF | PDBR | CY2010 | PD2010-00709
SUMMARY OF CASE : Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-3/LCpl (0311, Rifleman) medically separated from the Marine Corp in 2007 after 2 years of service. These conditions are noted on the MEB exam only without significant mention in treatment notes, medical therapy, or as adversely impacting duty performance. Exhibit C. Department of Veterans' Affairs Treatment Record.
AF | PDBR | CY2010 | PD2010-00029
While he was being treated for these injuries he reported panic attacks, nightmares, and difficulty sleeping and was referred to mental health for evaluation. No evidence this condition was unfitting at the time of separation from service. The Board also considered the condition of Traumatic Brain Injury (TBI) and unanimously determined that this condition was not unfitting at the time of separation from service and therefore no disability rating is applied.
AF | PDBR | CY2010 | PD2010-00946
However, the CI’s PTSD symptoms are very clearly documented by the MEB examiner. The examiner opined that, “although the veteran is exhibiting signs and symptoms of PTSD, he is also and probably more predominantly focused on his physical problems.” The examiner noted generally mild PTSD symptoms except for “significant irritability and/or sleep disturbance. Exhibit C. Department of Veterans' Affairs Treatment Record.
AF | PDBR | CY2010 | PD2010-00163
The CI was placed on Limited Duty (LIMDU) on 20050908 for the GSW to the chest and RUE. Chest Condition . In light of the evidence of impairment indicated by the numerous treatment notes for chest pain (also see the PTSD condition with chest pain as a contributor), the NMA statement, and the post-separation continued disability due to the chest condition, the CI’s chest condition should be recharacterized as a separate unfitting and ratable disability at the time of separation.
AF | PDBR | CY2010 | PD2010-00016
Headache Condition Due to TBI . In the matter of the headache condition due to TBI, the Board unanimously recommends that this condition be considered separately as a residual of TBI (code 8045-8100, headache condition due to TBI) with a rating of 0%. Service Treatment Record.
AF | PDBR | CY2010 | PD2010-01103
There was also significantly limited ROM and PIP ankylosis of the right long finger as a residual of trauma, rather than a consequence of CRPS. There were no VA psychiatric evaluations or treatment during the TDRL period. As regards the permanent rating recommendation, the evidence suggests that there was no psychiatric impairment to civilian occupational functioning at the time of medical separation.