RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX                                                         	CASE:  PD-2013-01444
BRANCH OF SERVICE:  Army 	PLACEMENT ONTO TDRL:  19990610
                                                                                                          	REMOVAL FROM TDRL:  20040114

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-3 (Indirect Fire Infantryman) medically separated for cognitive disorder due to heat injury.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  He was issued a permanent P3 profile and referred for a Medical Evaluation Board (MEB).  The condition, characterized as “status post (s/p) acute heat injury,” “cognitive disorder not otherwise specified,” and “mild global encephalopathy,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded three other conditions (single episode of myoclonic seizure, probable exertional rhabdomyolysis, and possible acquired metabolic myopathy with persistently elevated CPKs) for PEB adjudication.  In March 1999, the Informal PEB (IPEB) adjudicated his cognitive disorder as unfitting and temporarily rated it at 30% because the condition was not stable enough for final rating purposes and he was placed on the Temporary Disability Retired List (TDRL).  The remaining conditions were determined to be not unfitting.  In July 2001, a second IPEB subsequently adjudicated his condition and determined that it was still not stable enough for final rating purposes.  Finally in December 2003 (after almost 5 years from the time of his initial PEB adjudication), the Final IPEB adjudicated the condition as unfitting and rated it at 10%.  The CI made no appeals and was medically separated.  

CI CONTENTION:  The CI contends that his service-connected condition makes him unable to secure and maintain gainful employment and that the VA rated him at 100%.  The complete submission is at Exhibit A.  

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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation. 

RATING COMPARISON:

Final PEB – 20031222	VA Rating Decision1 - 20010606	
TDRL Placement – 19990610	Code	Rating	Condition	Code	Rating
Proximate	
Condition		TDRL
Placement	TDRL Removal			TDRL2
Placement	TDRL3 Removal	
History of Cognitive Disorder, Post-Heat Injury	7799-7700-9326	30%	10%	Cognitive Disorder…	9326	30%	20060523	
				Residuals, Acute Heat Injury…	8099-8000	10%	20060530	
Other MEB/PEB Conditions x 3 (Not in Scope)	Other x 0	
RATING:  30% → 10%	RATING:  40%	
1. Most proximate to TDRL Placement
2. Rating derived from C&P exam dated 20010501 and 20010516, ~23 mos. post-TDRL placement 
3. Rating derived from C&P exam dated 20060523 – 20060530,  ~29 mos. post-TDRL removal 

ANALYSIS SUMMARY:  

Cognitive Disorder.  Service treatment records showed that the CI fell during an extended road march in Korea 31 July 1998.  Mental status changes were noted and he had a generalized tonic-clonic seizure for 5 minutes.  Rectal temperature was 107 degrees.  He was treated with cooling fans and wet towels and air-evacuated to the Army hospital in Korea.  Temperature returned to normal about 2 hours after the onset of symptoms and his mental status normalized 3-4 hours after onset of symptoms.  Muscle enzymes were initially elevated but returned to normal.  He received supportive care for a heat injury and was discharged 2 August 1998 and referred for medical board.

At the narrative summary (NARSUM) dated December 1998, the CI reported generalized weakness of all muscle groups, lower extremity greater than upper extremity, mild occasional nausea when walking in the hot sun, and decreased mental acuity; “does not feel as smart as I used to.”  There was no history of previous heat injury.  Physical exam showed temperature 97.5, pulse 97, and blood pressure 136/85.  Cardiovascular, ocular, and abdominal exams were normal.  Neurological exam was normal except for a lack of memory for events immediately surrounding time of injury and motor strength 4/5 with give-way.  Magnetic resonance imaging of the head, pelvis, hips, and proximal thighs was normal with no evidence of myositis.  Neuropsychological testing showed that scores on measures of learning and recent memory for unstructured information were in the moderate to severe range of impairment.  There were abnormalities on tasks assessing motor strength and speed with poorer performance on the right side.  Muscle enzymes remained elevated.  The electroencephalogram was consistent with mild encephalopathy (brain damage).  Neuropsychiatric testing and evaluation revealed the CI suffered neurological injury due to the episode of hyperthermia and an associated prolonged seizure.  Neurology prognosis was predicted at 90% recovery over 6-9 months with unlikely complete recovery.  He was assigned to the Medical Hold Company at Walter Reed.  He had to refrain from physical exertion and undergo no physical training.  The examiner noted he was not fully recovered from the heat injury and may never recover complete cognitive ability.  Diagnoses of:  1) s/p acute heat injury;  2) s/p single episode of myoclonic seizure due to #1; 3) cognitive disorder not otherwise specified (NOS) due to #1 and #2; 4) mild global encephalopathy due to #1 and #2; 5) probable exertional rhabdomyolysis, due to #1; and 6) possible acquired metabolic myopathy was rendered.

He received a P3 profile for heat injury with residual cognitive deficits.  The commander’s statement indicated that information on the CI’s ability to perform the duties of his MOS was not forwarded from his previous unit of assignment.  The PEB found the s/p acute heat injury with cognitive disorder NOS and mild global encephalopathy with feeling of weakness unfitting with a disability rating of 30%.  CI was placed on TDRL on March 1999.  The first TDRL evaluation was conducted September 2000 by a neurologist.  The CI reported mild cognitive improvement, and lightheadedness and nausea in high temperatures.  He was taking classes in a community college and having to read and study longer hours than expected prior to his injury.  His ability to work was mildly impaired.  Neuropsychological testing 24 January 2001 showed a drop in overall intellectual function from premorbid levels with most prominent impairment in executive functioning, motor speed, and motor coordination.  A psychiatrist conducted a TDRL evaluation April 2001.  The CI reported he was attending school full time at a community college where he attended four classes.  He was not taking medication or receiving other medical treatment.  He lived with his family and enjoyed several activities.  He reported difficulty remembering questions and names.  He lost his driver’s license at least six times and was constantly misplacing his keys.  He wrote everything down.  Schoolwork was harder for him than for his classmates and he had sought extra instruction from the teacher.  He was not as social as he was but denied fights, legal problems or other impairment in daily function.  A diagnosis of cognitive disorder NOS was rendered.

A second TDRL Neurology evaluation was conducted in January 2003.  The CI reported he had transferred to college and was studying Business.  Grades had gone down.  He reported problems with focus and concentration but denied seizures, weakness, numbness, or tingling.  Neurologic exam was normal.  His ability to work was mildly impaired by his cognitive problems but his condition was stable and not likely to progress.  Neuropsychological (NP) testing in August 2003 indicated that full and consistent effort was not forthcoming.  The CI showed a high degree of readiness to admit to psychological symptoms as well as inconsistencies in his responses, thus making test results invalid and interpretable.  The etiology of the invalid responses was not clear.

At the second TDRL Psychiatric evaluation October 2003, the CI reported difficulty comprehending material and answering questions appropriately.  Every day was a battle due to his memory problems and he had to work harder than others to achieve the same goals.  Focus and concentration remained difficult.  He had worked as a computer action specialist and was a “top seller” but was fired after revealing his medical condition and TDRL evaluation.  He was living with his family and had joined a civilian recruiting agency and enjoyed the job.  He had received an associate’s degree in secondary education, wanted to take more college classes and in his spare time enjoyed watching sports.  Mental status exam (MSE) was essentially normal with only evidence of mild anxiety.  Diagnosis was cognitive disorder with slight impairment for social and industrial adaptability with a Global Assessment of Functioning (GAF) score of 75 (transient symptoms, slight impairment.)

VA notes dated December 2005 indicated that the CI had a successful job as a recruiter, “absolutely no sequellae” and would like re-evaluation since he would like to re-enlist.  At the VA Compensation and Pension (C&P) exam for Mental Disorders, dated 30 May 2006, the CI reported memory difficulties and inability to perform his job efficiently.  He was anxious about not being able to remember visual and verbal information.  A diagnosis of cognitive disorder NOS due to heat injury and brain syndrome was rendered with a GAF score of 48 (serious symptoms, impairment). 

The Board directed attention to its rating recommendation based on the above evidence.  The PEB found the s/p heat injury condition with cognitive disorder NOS and mild global encephalopathy with feeling of weakness condition unfitting and rated the condition at 10%, coded analogously to hyperthyroidism (7999-7900) with cognitive disorder, coded analogously to dementia due to other neurologic conditions (9326).  The VA also identified the condition as cognitive disorder NOS and rated it at 30%, coded 9326, and additionally identified residuals, acute head injury and rated it at 10%, coded 8099-8000, analogous to encephalitis, epidemic,
 chronic, minimum residuals.  In accordance with VASRD 4.126, delirium, dementia, amnestic and other cognitive disorders shall be evaluated under the general rating formula for mental disorders.  The Board considered whether there was evidence for a higher than 30% rating at the time of placement on TDRL.  A 50% rating requires occupational and social impairment with reduced reliability and productivity.  The NP testing showed deficits in the moderate to severe range for memory and learning.  He had limited duty restrictions to refrain from physical exertion and undergo no physical training.  The Board agreed that these limitations likely resulted in reduced productivity and reliability, thereby meeting criteria for a 50% disability rating. 

The Board next considered if a rating higher than the 10% adjudicated by the PEB at the time of permanent separation was justified.  The 10% rating specifies “occupational and social impairment due to mild or transient symptoms which decrease work efficiency only during periods of significant stress, or; symptoms controlled by continuous medication.”  In this case, the final TDRL NARSUM examiner described a normal MSE with mild anxiety.  He had been able to work and had a job he enjoyed.  Impairment was noted to be slight and symptoms were transient.  Board members agreed that the 10% rating most accurately depicted the clinical condition at the time of TDRL removal.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a TDRL placement rating of 50% and permanent disability rating after removal from TDRL of 10% for the cognitive disorder NOS.

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 NOS, the Board unanimously recommends a TDRL placement rating of 50% in compliance with VASRD §4.130; and a 10% rating at TDRL removal.  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, effective as of the date of his prior medical separation:  

CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
History of Cognitive Disorder NOS	7799-7700-9326	50%	10%	
COMBINED	50%	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130917, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAMR-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, AR20160000159 (PD201301444)

1.  Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to  constructively place the individual on the Temporary Disability Retired List (TDRL) at 
50% disability rather than 30% for the period 10 June, 1999 to 13 January, 2004 and then following this period no recharacterization of the individual’s separation or modification of the permanent disability rating of 10%.

2.  I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum as follows:

	a.  Providing a correction to the individual’s separation document showing that the individual was separated by reason of temporary disability effective the date of the original medical separation for disability with severance pay.

	b.  Providing orders showing that the individual was separated with a permanent combined rating of 10% effective the day following the TDRL period with no recharacterization of the individual’s separation.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will provide 50% retired pay for the temporary disability retired period effective the date of the individual’s original medical separation and adjusting severance pay as necessary to account for the additional TDRL time in service.

3.  I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures.
	
BY ORDER OF THE SECRETARY OF THE ARMY:

CF: 
(  ) DoD PDBR
(  ) DVA