RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2013-02016
BRANCH OF SERVICE:  Army	BOARD DATE:  20150610
DATE OF PLACEMENT ONTO TDRL:  20000718 
DATE OF REMOVAL FROM TDRL:  20050509 

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-3 (Automated Logistical Specialist) medically separated for a cognitive disorder condition.  The condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty (MOS) or satisfy physical fitness standards.  She was issued a permanent P4S4 profile and referred for a Medical Evaluation Board (MEB).  The “posttraumatic encephalopathy” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “post traumatic encephalopathy with residual dementia” as unfitting, rated 70%.  The CI made no appeals and was placed on Temporary Disability Retired List (TDRL).  Approximately 30 months later, the IPEB adjudicated the posttraumatic encephalopathy with residual dementia condition, finding that the CI’s impairment had not sufficiently stabilized to permit final adjudication, retaining the CI on TDRL.  Approximately 28 months later, the IPEB adjudicated the cognitive disorder condition as unfitting, rated 10% with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI appealed to the PEB, which affirmed the IPEB findings and rating, and was medically separated, rated 10%. 

CI CONTENTION:  The CI elaborated no specific contention in her 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 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 – 20050415	VA Rating Decision1 - 20010711	
TDRL Placement – 20000718	Code	Rating	Condition	Code	Rating
Proximate	
Condition		TDRL
Placement	TDRL Removal			TDRL2
Placement	TDRL3 Removal	
Cognitive Disorder	9304, onto TDRL
8045-9304, off TDRL	70%	10%	Post-Traumatic Stress Disorder	9411	30%	30%	
Other MEB/PEB Conditions x 0 (Not in Scope)	Other x 7	
RATING:  70% → 10%	RATING:  100%	
1. Most proximate to TDRL Placement; 2. Rating derived from C&P exam dated 20000927, ~3 mos. post-TDRL placement.
3. Rating derived from C&P exam dated 20041117, ~6 mos. pre-TDRL removal.

ANALYSIS SUMMARY:  

Cognitive Disorder.  The service treatment records documented that the CI fell onto a concrete sidewalk from a three story barrack window following a sexual assault in December 1999.  She was transported to the hospital where she had a normal brain CT scan, but had respiratory difficulty diagnosed as left pleural effusion with associated atelectasis and a left 8th posterior rib fracture.  The CI was hospitalized for 13 days and due to her slow progress, she underwent evaluations with neuropsychology, physical medicine and rehab.  After making progress she was discharged (24 December 1999) returned home on a 30-day convalescent leave with the diagnosis of traumatic brain injury.  Magnetic resonance imaging of the brain on 24 January 2000 was normal. The CI was seen in follow-up with psychology on 8 February 2000 where she reported difficulty with memory and concentration, headaches, feelings of guilt and anger, and sadness and anxiety.  She was diagnosed with cognitive disorder not otherwise specified (NOS) (provisional) with a rule out of PTSD and referred to counseling.  The psychologist prepared a memorandum to the medical boards that stated the CI was mentally competent to proceed with the MEB.  Although the records recorded several visits to providers for neck, back, and head pain, there were no recorded mental health (MH) treatment entries prior to TDRL placement.  The narrative summary (NARSUM) dated 22 February 2000 documented a normal physical examination; however, noted there was some mild dystonic posturing of the right upper extremity with no other neurological finding.  The physician reported the results of neuropsychological testing that demonstrated “marked impairment, specifically a moderate to severe antegrade memory deficit, a significant attentional deficit, and at least mild impairment in higher level reasoning ability.”  The examiner opined that the CI was experiencing moderate to severe residual of her head injury manifested by global cognitive dysfunction that rendered her unable to perform any task related to duty.  It was recommended that she be treated in a cognitive rehabilitation facility.  The diagnosis of post-traumatic encephalopathy was rendered.

The VA Compensation and Pension (C&P) neurological examination recorded a normal neurological examination and documented post-traumatic headaches.  The CI reported headache frequency of at least two times a month that lasted for 3 hours, and noted she experienced lightheadedness with her headaches but no photo or phonophobia.  She took pain medication as needed.  The C&P mental evaluation dated 27 September 2000 noted the CI was placed on the TDRL in July 2000, and continued to have problems with short term memory, headaches, irritability, and anger.  She said she is nervous around males and felt that people are looking at her.  She denied suicidal and homicidal thoughts, and panic attacks.  The mental status examination documented “severely depressed” mood and the examiner opined that the CI met DSM-IV diagnostic criteria for PTSD; however, there did not appear to be sufficient documentation to warrant the PTSD diagnosis.

There were three initial TDRL examinations conducted in July 2002.  The psychiatric examination dated 29 July 2002, noted the evaluation occurred on 16 July 2002, documented the diagnoses of cognitive disorder NOS, manifested by “variability in attention and concentration; possible deficits in verbal and visual short and long term memory, and abstract problem solving,” and PTSD.  The examiner noted that the CI had attempted college classes for two semesters but had problems with concentration and memory.  Her day to day functioning was compromised and she had to depend on her sisters for routine household chores.  The examiner noted that the CI was placed in a 3-week residential program for PTSD.  The examiner opined that her condition required ongoing treatment with anti-depressant and anti-anxiety medication and had caused job instability and borderline social adjustment.  The psychiatrist recommended the CI be retained on the TDRL for another 18 months.  The neuropsychological exam dated 17 July 2002 documented that the CI had received MH care from the local VA since TDRL placement, noted she did not have many friends and since her father died she had taken over the care of her mother who was suffering from a chronic mental illness.  The CI reportedly noted that she took care of the majority of household tasks and that she pays the bills.  The CI reportedly stated she missed a lot of college classes because of her medication and back pain, but also reported memory issues.  The examiner noted inconsistencies in her report of memory challenges, and cognitive ability, and noted that the CI’s performance on specific cognitive measures suggested “extreme exaggeration,” in the range of persons attempting to simulate cognitive deficits.  The examiner cautioned that while the testing results indicated low scores, the results are an underestimate of the CI’s true cognitive abilities.  The diagnosis of cognitive disorder was recorded with “mild” impairment for social and industrial adaptability, and dysthymic disorder.  The examiner opined that the difficulty the CI was having with attention, concentration, memory and abstract problem solving was more likely due to her depressed mood and stresses of everyday life rather than her head injury.  

The neurosurgery examination on 18 July 2002 and signed 5 November 2002, documented that the head injury was stable and that the CI did have worsening paresthesias that was being evaluated by her primary care provider, but otherwise her symptoms had remained stable since the injury.  The PEB retained the CI on the TDRL.  At the TDRL removal examination, nearly 5 years after TDRL placement, the CI was living in her own home with her son and older sister, and was managing her own financial affairs and completing all activities of daily living without assistance.  She reported she was still in college working on criminal justice degree and had continued to have difficulty with concentration and memory, but was receiving tutoring assistance from the student assistance center.  She was in a relationship with a boyfriend of 2 years and they were having some issues, but they went to movies and dinner and she attended church regularly.  The MSE was unremarkable, and there was no evidence of issues with memory or judgment.  The examiner diagnosed cognitive disorder NOS and noted there was mild impairment for social and industrial adaptability.  It was noted that the CI did not meet retention standards based on the cognitive disorder.  A GAF score was not documented.

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB rated the condition of cognitive disorder NOS at 70% coded 9304 (dementia due to head trauma), and placed the CI on the TDRL.  The VASRD rates this condition under the general mental disorders category 4.130.  The higher rating of 100% requires evidence of “Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.”  This rating was not supported by the evidence.  The Board considered the record in evidence did not support a higher than 70% rating for TDRL placement. 

The Board next determined the most appropriate fit with VASRD §4.130 criteria at the end of TDRL for its permanent rating recommendation.  The Board noted there was a change in diagnosis and code at TDRL removal; however, this did not affect the approach to rating or the rating decision since VASRD 4.130 was still applicable.  The CI was separated with the diagnosis of cognitive disorder NOS secondary to post-traumatic encephalopathy, coded analogously 9304.  The Board thus deliberated a recommendation in support of the PEB 10% rating, “occupational and social impairment due to mild or transient symptoms which decrease work efficiency … [or] ... symptoms controlled by continuous medication”; versus, a 30% rating, “Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events).”   The TDRL exit examination, a month prior to TDRL removal, documented the CI was still in a community college working on a 2-year degree for over 5 years.  However, the examiner noted that recent psychological testing demonstrated average range of intelligence, and noted improvement in the areas of mental processing speed and attention, verbal fluency, and cognitive flexibility and mild to moderate deficits in attention, verbal memory, and left hand motor speed.  The examiner noted that her mood and personality functioning continued to be a problem and depression was likely to have exacerbated some of the noted cognitive deficits; however, it was noted that effort doing testing of memory was not optimal.  Social and industrial impairment was recorded as definite “based upon her neuropsychological deficits.  The Board noted that the psychologist also documented that the CI was a full-time student and had completed about 44 credit hours since 2001 and had a GPA of 2.7; however, in the same document also stated the CI was a part-time student.  The Board also noted that although her cognitive functioning had improved over the years, she continued to have difficulty with memory, concentration, sleep and mood.  She reported improvement in mood and sleep with medication, but was unable to complete a 2-year college program while participating for more than 5 years.  The Board reviewed the VA November 2006 mental evaluation that noted the CI was hospitalized psychiatrically in November 2004 but had remained stable with medication.  The CI reported she had graduated from a 1-year business training technical school program and had applied for some jobs, but because she has physical limitations and some memory deficits, finding a suitable job was difficult.  The Board considered the results of the psychological testing that demonstrated average range of intellectual functioning, and mild objective finding of memory impairment opined to be secondary to inconsistent motivation levels and no report of forgetting names or recent events or getting lost, the essentially normal MSE at TDRL removal, absence of documented psychiatric hospitalization at any time prior to the 2006 VA exam, absence of recorded panic attacks, and the endorsement that both mood and sleep disturbance was responsive to medication.  After careful deliberation, Board consensus was that the totality of evidence best reflected the 10% level of disability.  After due deliberation, and in consideration of all the evidence and VASRD §4.3 (reasonable doubt), the Board recommends no change in the PEB adjudication for the condition diagnosed as cognitive disorder NOS secondary to post-traumatic encephalopathy.  

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 secondary to post-traumatic encephalopathy condition and IAW VASRD §4.130, the Board recommends no change in the PEB adjudication.  There were no other conditions within the Board’s scope of review for consideration.  
RECOMMENDATION:  The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131029, 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 XXXXXXXXXXXXXXXXXXXX, AR20150018488 (PD201302016)

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:

Enclosure

CF: 
(  ) DoD PDBR
(  ) DVA