RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2013-01988
BRANCH OF SERVICE:  Army	BOARD DATE:  20150805
SEPARATION DATE:  20050129

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve O-2 (Field Artillery Officer) medically separated for headaches and a skull injury.  The conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  He was issued a permanent P3 profile and referred for a Medical Evaluation Board (MEB).  The conditions “penetrating head injury with loss of substance of skull” and “incapacitating headaches secondary to #1” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB adjudicated “chronic headaches secondary to penetrating head injury” and “loss of part of skull secondary to a penetrating head injury” as separately unfitting conditions, rated 10% each, with presumptive application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.  

CI CONTENTION:  The CI elaborated no specific contention in his application.  

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 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:  

IPEB – Dated 20041210	VA* (Based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Headaches…	9304	10%	Brain Injury with Occasional Headaches…  	8045-9304	10%	STR	
Loss of Part of Skull…	5296	10%	Status Post Craniotomy and Plate ...	5296	30%	STR	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 0 (Not In Scope)	
RATING:  20%	RATING:  40%	
*Derived from VA Rating Decision (VARD) dated 20040910 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:  

Headaches/Head Injury.   There is a paucity of evidence in the service treatment record (STR), although that which is available corroborates the history in the narrative summary (NARSUM).  The CI sustained penetrating head trauma from a gunshot wound in Iraq in on 7 April 2004 (9 months prior to separation); described in the NARSUM as “underneath a Kevlar, grazed his skull and exited superiorly.”  The CI underwent surgical intervention in Baghdad (right frontal craniotomy and debridement of fragments); was further stabilized in Landstuhl; and, evacuated to CONUS.  Imaging (non-contrast CT) at the time of arrival demonstrated a “non-hemorrhagic contusion [bruising of the brain without bleeding or elevated pressure] underlying the area of the skull fracture.”  Neurology entries in the STR reflect a stable course without deficits.  Neuropsychological testing was interpreted as “largely intact cognitive functioning, with some mild residual cognitive deficits ... likely to demonstrate significant recovery in his cognitive functioning over time.”  The CI suffered from significant post-traumatic headaches; described in the NARSUM as “severe headaches, which occur at least weekly ... [rated 5-6/10] ... persisting for several hours ... require the patient to cease any physical activity and lie down.  Following the self-administration of Tylenol or Advil and a period of several hours rest and/or sleep, the headaches resolve.”  There is no STR evidence which contradicts this assessment.  There was no temporally probative VA or other post-separation evidence in this case.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s 10% rating under 9304 (dementia due to head trauma) was presumably based on the same VASRD criteria as the 10% conferred by the VA under 8045 (brain disease due to trauma) -9304.  The applicable VASRD §4.124a rating language in effect at the time of separation is excerpted below.
Purely neurological disabilities, such as hemiplegia, epileptiform seizures, facial nerve paralysis,etc., following trauma to the brain, will be rated under the diagnostic codes specifically dealing with such disabilities, with citation of a hyphenated diagnostic code (e.g., 8045– 8207).
Purely subjective complaints such as headache, dizziness, insomnia, etc., recognized as symptomatic of brain trauma, will be rated 10 percent and no more under diagnostic code 9304.  This 10 percent rating will not be combined with any other rating for a disability due to brain trauma. Ratings in excess of 10 percent for brain disease due to trauma under diagnostic code 9304 are not assignable in the absence of a diagnosis of multi-infarct dementia associated with brain trauma.
The Board is obligated by DoDI 6040.44 to apply the VASRD in effect to its recommendations.  Although the evidence would support a 30% rating for the CI’s headaches under code 8100, it must be recognized that the above rating language specifically subsumes headaches due to brain injury.  That was clearly the nature of the headaches in this case, and the VASRD in effect did not permit a rating higher than 10%.  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 of the headache condition.

Skull Injury.   The NARSUM documents “coverage of a 2 X 4 cm [centimeter] skull defect with titanium mesh.”  There is no evidence in the available records which addresses the defect size, either corroborating or contradicting the NARSUM evidence (no operative note from Baghdad, not documented in available Landstuhl records, no details in available imaging reports).  As noted above, the VA relied on Service evidence for its rating.

The Board directed attention to its rating recommendation based on the above evidence.  The unequivocal code for rating applied by the PEB and the VA, was 5296 (skull, loss of part of, both inner and outer tables).  The VASRD §4.71a rating language for code 5296 (without brain hernia) is as follows: for 10%, “area smaller than the size of a 25-cent piece or 0.716 in² (4.619 cm²);” for 30%, “area intermediate;” and for 50%, “area larger than size of a 50-cent piece or 1.140 in² (7.355 cm²).”  Relying solely on the 2 X 4 centimeter evidence from the NARSUM, the area of the defect was 8.0 centimeters, satisfying the 50% criterion.  It is unclear how either the PEB or the VA (relying on service evidence) derived their respective 10% and 30% determinations.  After due deliberation, considering all available evidence and with deference to reasonable doubt, the Board recommends a 50% rating for the skull injury under code 5296.  

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 post-traumatic headache condition and IAW VASRD §4.124a (in effect), the Board unanimously recommends no change in the PEB adjudication (correcting a presumed technical error of coding to 8045-9304).  In the matter of the skull injury, the Board unanimously recommends a rating of 50%, coded 5296, IAW VASRD §4.71a.  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 re-characterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:  

CONDITION	VASRD CODE	RATING	
Chronic Headaches due to Penetrating Head Injury 	8045-9304	10%	
Skull Defect due to Penetrating Head Injury	5296	50%	
COMBINED	60%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131021, 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, AR20150018456 (PD201301988)

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 recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 60% effective the date of the individual’s original medical separation for disability with severance pay.  

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:

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

	b.  Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will account for recoupment of severance pay,] and payment of permanent retired pay at 60% effective the date of the original medical separation for disability with severance pay.

	d.  Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.

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:

			      
						      					
Enclosure
					
CF: 
(  ) DoD PDBR
(  ) DVA