RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD1300673
BRANCH OF SERVICE:  Army	BOARD DATE:  20140207
SEPARATION DATE:  20060914

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an Army National Guard SGT/E-5 (91W/Healthcare Specialist/13B artilleryman) medically separated for cognitive disorder, not otherwise specified (NOS).  The CI was deployed to Iraq in 2004 and suffered injuries from two separate explosion incidents over 2 months and was medically evacuated from theater immediately after the second attack.  Subsequently, the CI experienced cognitive difficulties.  He could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty (MOS), was issued a P3/S2 profile and referred for a Medical Evaluation Board (MEB).  The MEB, IAW AR 40-501, forwarded the following conditions to the Physical Evaluation Board (PEB) as medically unacceptable:  traumatic brain injury (TBI); post-traumatic headaches and incomplete ulnar nerve palsy.  The MEB also forwarded the following conditions to the PEB as medically acceptable:  anxiety disorder, NOS; and cognitive disorder, NOS.  The PEB adjudicated “cognitive disorder, NOS” (encompassing the MEB referred conditions of cognitive disorder, TBI and posttraumatic headaches) as unfitting, rated 10% with likely application of the VA Schedule for Rating Disabilities (VASRD).  The PEB adjudicated the CI’s anxiety disorder and ulnar nerve palsy as not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Not fairly done.  I have no strength in my (r) hand.  My headache are bad.  My PTSD was not fairly evaluated and I have schrap metal in my body that was never found.  Also my lungs are damaged due to the fumes inhaled while in Iraq.  The TBI the hand injurie the PTSD an the Schrap metal in my (L) hip would have put me over 30% if I was evaluated correctly.”  [sic] 

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 rating for the unfitting cognitive disorder (including TBI, and post-traumatic headaches) is addressed below.  In addition the board will address the CI’s contended right hand condition.  The CI contended for posttraumatic stress disorder (PTSD) which is a type of anxiety disorder and the MEB and PEB did identify anxiety disorder; therefore the board will consider the PTSD as within its scope of review.  The CI’s contended lung and left hip condition were not considered during the disability evaluation process and therefore are not within the 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 Military Records.  

RATING COMPARISON:

Service IPEB – Dated 20060728	VA - (2 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Cognitive Disorder, NOS	8045-9304	10%	Cognitive Disorder, with PTSD, PT Headaches, Residuals of TBI	9304-9411	50%	20061023
20061024
20061120	
Anxiety Disorder, NOS	Not Unfitting					
Incomplete Ulnar Nerve Palsy	Not Unfitting	Residuals, Blast Injury, Right Hand	8599-8516	20%	20061023
20061120	
No Additional MEB/PEB Entries	Other x 10	20061120	
Combined:  10%	Combined:  80%	
Derived from VA Rating Decision (VARD) dated 20070308 (most proximate to date of separation [DOS]).
* VA rating for code 9304-9411 increased to 100% from 20070528 (post hospitalization); decreased to 50% from 20070801; increased to 70% from 20080620; increased to 100% from 20120118 (post hospitalization); then decreased to 70% from 20120401.  VARD 20091116 broke out VA rating code 8045 (TBI) and 8100 (headaches) as residuals of TBI and rated these conditions separately at 70% and 30%, respectively, from 20081023.  VARD 20100922 increased code 8100 to 50% from 20100614

ANALYSIS SUMMARY:  The Board utilizes VA evidence proximal to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence.  The Board’s authority as defined in DoDI 6044.40, however, resides in evaluating the fairness of Disability Evaluation System fitness determinations and rating decisions for disability at the time of separation.  Post-separation evidence therefore is probative only to the extent that it reasonably reflects the disability and fitness implications at the time of separation.

The histories for the cognitive disorder and mental health (MH) condition overlap sufficiently that these are presented together under the unfitting cognitive disorder condition.  However, the adjudication is discussed separately.

Cognitive Disorder, NOS. The clinical notes from the evaluation for the cognitive disorder and TBI are not in evidence.  However, the neurological narrative summary (NARSUM), dated 25 May 2005 and 16 months prior to separation, noted that the CI was the passenger in a vehicle struck by a rocket propelled grenade (RPG) in May 2004.  He had ringing in the ears afterwards, but denied any physical injuries, loss of consciousness (LOC) or cognitive changes.  Several weeks later on 4 June 2004, another vehicle in which he was traveling was stuck by an RPG.  He reported a LOC of approximately 30 seconds and that he was “dazed and disoriented for a period of time afterwards while he was being pulled from the vehicle.”  During the evacuation, he was exposed to another blast injury from an improvised explosive device and felt dazed, but denied blunt head trauma.  He denied “frank posttraumatic amnesia” and noted that he was awake and recalled his transport to the hospital.  He was treated overnight and then evacuated out of theater.  He reported mild cognitive difficulties in the areas of attention and memory.  He also endorsed headaches two to three times a week which were associated with sensitivity to light.  These required that he stop working and return to his apartment to take medications and sleep for 2 to 3 hours.  The NARSUM noted that he had not needed care in the emergency room, but was frequently seen by the neurologist for the headaches.  It was noted that he was able to complete most portions of his job as a supply tech, but missed work frequently due to his headaches.  He believed that it was not safe for him to return to his civilian job as a guard in a super maximum security facility due to his cognitive impairment.  On examination, he was noted to be mildly distractible with diminished affective range.  His neurological examination was normal including normal speech other than decreased range-of-motion of his right hand (which is separately addressed below).  He was thought to be medically unacceptable for the TBI with secondary cognitive disorder and post-traumatic headaches.  A psychiatric addendum dated 13 April 2006, 5 months prior to separation, noted that he had also sustained injuries to his left hand and right thigh from the RPG attack in June 2004.  The examiner noted that the CI began having sleep issues during his first hospital stay after the attack.  Over the next few months, he reported irritability, flashbacks several times a week, initial insomnia, frequently disrupted sleep (without nightmares), daytime sleepiness, depressed mood and some avoidance behavior.  He was prescribed a stimulant with improvement in the sleepiness and in his concentration.  The examiner noted that the initial neuropsychiatric testing in November 2004 showed mild impairments in multiple areas.  Subsequent testing in August and November 2005, showed improvement, attributed to the medication and time, but persistent moderate impairment in sustained attention.  On examination, it was observed that the CI had fallen asleep in the hallway while waiting for his appointment.  His speech, thinking, and memory seemed to be intact.  His affect was reactive, but dull.  The mental status examination (MSE) was otherwise unremarkable.  He was thought to have an anxiety disorder, NOS and a cognitive disorder, NOS and given an S2 psychiatric profile.  The commander’s letter dated 23 June 2006 only noted that he could not perform his duties due to his medical condition.  At the VA Compensation and Pension (C&P) neurology examination performed on 23 October 2006, a month after separation, the CI reported that he had headaches which lasted 1 to 2 hours and responded to narcotic medications.  He was able to work with the help of the medications.  No frequency was assessed.  The examiner wrote “There is no cognitive impairment.”  The diagnosis was non-prostrating post-traumatic headaches.  No frequency was documented.  The next day, the psychiatric C&P examination was accomplished.  It noted that he was not able to return to his job as a prison guard due to his finger and hand injuries, but that his PTSD symptoms also would interfere with his job.  He reported that he “remains pretty much at home,” but that he had a girlfriend and maintained contact with some old friends and had several close friends.  However, the examiner noted that the CI did not socialize as much as he had before.  He reported insomnia and agitated sleep patterns, nightmares, mood disturbance, irritability, flashbacks several times a week, depression and intermittent avoidance.  He stated that he thought of Iraq and the traumatic experience in which his vehicle was blown up.  A post-separation summary by the Army National Guard dated 9 December 2006 noted that he was unable to perform his duty secondary to constant headaches and orthopedic problems.

The Board directs attention to its rating recommendation based on the above evidence.  The VA Training Letter 06-03 was in effect at the time of separation which addressed the rating of post-concussive findings.  The PEB combined the MEB diagnoses of cognitive disorder, TBI and post-traumatic headaches into one condition which was rated at 10% and coded 8045 (TBI) and 9304 (dementia secondary to head trauma).  The anxiety disorder was noted to be medically acceptable by the MEB and not unfitting by the PEB.  The VA combined the cognitive disorder with PTSD and post-traumatic headaches coded as 9304-9411 (dementia secondary to trauma and PTSD) and rated them at 50%.  The Board first considered the headache condition.  It noted that the PEB determined that headaches were unfitting, but based on the NARSUM which was dated over 15 months prior to separation.  At the VA C&P examination, the examiner noted that the CI was able to continue to work with the aid of medications.  The Board did note that the CI reported the use of narcotic medications, but that the frequency of use was not documented nor was the frequency of the headaches.  Regardless, the examiner determined that the CI did not have prostrating headaches in this examination only one month after separation.  This would correspond to a 0% rating if the headache condition was rated separately from the underlying TBI condition.  The Board then considered the cognitive disorder.  The CI was noted to be improving on sequential neuropsychological testing while still on active duty.  This is the expected clinical course for a mild TBI which he had.  The VA C&P neurologist noted that there was no cognitive disorder present at the examination one month after separation.  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 adjudication for the cognitive disorder condition or to rate the headache condition separately.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended MH and right hand conditions were not unfitting.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The Board considered if there was an unfitting MH diagnosis at separation, regardless of whether it was diagnosed as anxiety disorder or PTSD.  It noted that the MEB psychiatrist, who evaluated the CI 5 months prior to separation, determined that the CI had both an anxiety disorder and a cognitive disorder, but was thought to have a mild degree of military, social, and occupation impairment.  He was assigned a profile of S2.  The MEB determined that this was medically acceptable and the PEB did not find it unfitting.  The Board noted that the profile requirements for initial award of the MOS 13B includes an S1 profile, but that it is in the purview of the PEB to determine fitness in a trained service member.  It also noted that the CI had spent the majority of his career as a health care specialist.  After careful consideration of the evidence before it, the Board did not find that a preponderance of the evidence supported the addition of an unfitting MH condition at separation regardless of diagnosis.  The CI also contended for his right hand noting that he had no strength in it.  An email dated 1 March 2006, from an orthopedist, noted that the CI had a longstanding incomplete ulnar nerve palsy which did not require further treatment or evaluation and was medically acceptable.  It was not cited on the final profile and he had an U1 at separation.  The commander’s letter was non-specific regarding the medical conditions which impaired his duty performance.  The MEB determined that the condition was medically acceptable and the PEB that it was not unfitting.  This was reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that the hand condition significantly interfered with satisfactory duty performance.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended right hand condition and so no additional disability rating are recommended.

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.  The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised.  In the matter of the cognitive disorder condition and IAW VASRD §4.124a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended MH and right hand conditions, the Board unanimously agrees that it cannot recommend either for additional disability rating.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows:

UNFITTING CONDITION	VASRD CODE	RATING	
Cognitive Disorder, NOS, Secondary to Traumatic Brain Injury… 	8045-9304	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130514, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

			

SFMR-RB								
MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXX, AR20140009336 (PD201300673)

I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual.  Under the authority of Title 10, United States Code, section 1554a,   I accept the Board’s recommendation and hereby deny the individual’s application.  
This decision is final.  The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

 BY ORDER OF THE SECRETARY OF THE ARMY:

Encl						     

CF: 
(  ) DoD PDBR
(  ) DVA