RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXX 	CASE: pd-2014-00041 
BRANCH OF SERVICE:  NAVY	SEPARATION DATE: 20061031	

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-1 (No Rating) medically separated for traumatic brain injury.  The condition could not be adequately rehabilitated to meet the physical requirements of his Rating or satisfy physical fitness standards.  He was placed on limited duty (LIMDU) and referred for a Medical Evaluation Board (MEB).  The “migraine, unspecified” condition was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  The Informal PEB adjudicated “traumatic brain injury” as unfitting, rated 0% with application of Veterans Affairs Schedule for Rating Disabilities (VASRD).  The PEB also adjudicated “cognitive disorder, mild” and “migraine without aura” as category II, contributing to the above unfit condition.  The CI made no appeals and was medically separated.  

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 20060925	VA* - 5 Months Post-Separation	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Traumatic Brain Injury	8100	0%	No VA Placement	

Cognitive Disorder, Mild	Not Unfitting  
Cat II	Residuals of a Motor Vehicle Accident to Include
Headaches, Fractional Short-Term Memory Loss, Fatigue,
Nausea and Sleeplessness	8045-9304	10%	20070330	
Migraine without Aura						
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 3	
RATING:  0%	COMBINED RATING:  40%	
*Derived from VA Rating Decision (VARD) dated 20070629 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

Traumatic Brain Injury.   The service treatment record (STR) documented that on 14 August 2005, the CI was the driver of a motor vehicle crash.   He reportedly ran off the road and hit a tree after spilling some coffee on himself.  The CI sustained a concussion with loss of consciousness for several minutes.  The CI spent 5 days in the hospital due to his injuries (concussion, partial thickness burns to anterior thigh, and metacarpal neck fracture involving right hand).  Magnetic resonance imaging (MRI) of the neck and brain demonstrated no significant traumatic abnormalities.  The CI underwent neuropsychological testing and was found to have mild cognitive impairments with primary deficits consistent with a concussion.  The CI began to complain of headaches and dizziness soon after his release from the hospital.  The neurology MEB exam recorded the CI had headaches 2-4 times a week without associated aura.  He developed sensitivity to light and noise, and his mood became irritable when he had a headache.  There were no specific triggers, but his headache pain was aggravated by activity.  He was referred to the headache clinic, and tried multiple medications (Midrin, Imitrex, Relpax, Zomig, Depakote, amitriptyline, Migranal nasal spray, propranolol, gabapentin, Excedrin, Tylenol, and motrin) and none had been helpful.  Neurological examination recorded normal gait and station, intact cranial nerves, normal sensory, motor, and reflexes.   His mental status examination was normal.  The neurologist diagnosed migraine without aura, post traumatic, not EPTS, and stated that the CI’s condition is not treatable in the military environment and interferes with his work performance. The commander’s statement dated approximately 2 months before separation, documented that the CI “has provider permission to leave work to take his medication and rest.”  He was absent from work approximately 20 hours per week and usually worked about 4 hours a day.  

The VA Compensation and Pension (C&P) neurology evaluation was accomplished approximately 6 months after separation.  At this exam, the CI reported a history of recurring headaches 2-3 times per week that required him to seek refuge in a darkened room away from noise and light.  His headaches were throbbing in nature, and associated with irritability, nausea, light and sound sensitivity.  The CI believed his headaches had not changed since the accident.  He denied aura and stated that his present headache frequency was twice per week.  There were no abnormal findings on the neurological exam.  The examiner noted that the CI had sustained a closed head injury with white matter changes, visible on the brain MRI which showed some damage to brain cells, rendering the condition untreatable.  

The Board directed its attention to its rating recommendation based on the above evidence.  The IPEB rated the condition at 0%, coded 8100 (migraine).  The VA assigned a 10% rating for residuals of a motor vehicle accident, coded analogously 8045-9304.  The Board observed that the VA maintained the 10% rating 7 years after separation, indicating the condition had not worsened.  Additionally, the PEB determined that the conditions of migraine without aura, post traumatic, and cognitive disorder, mild were Category II conditions contributing to the unfitting condition.  Applicable codes for rating the condition of TBI include 8045, 9304, and those codes referred to as residues (e.g. 8100).  A compensable rating of 10% under the 8100 code requires evidence of one prostrating headaches in 2 months over past several months.  The higher rating of 30% requires once monthly over several months of prostrating headache attacks.  Key evidence of prostrating, severity, and frequency include evidence of the stoppage of work or current activity due to pain severity that interferes with ability to work, and measures taken to alleviate the headache (time off from work, accommodations like having to go to a darkened/quiet room), evidence of self-management (medications, sleep), treatment notes, and supervisor statement.  As noted above the commander’s statement documented that the CI’s headache resulted in him leaving work several times a week.  The commander also noted his provider had granted him permission to leave work to take his medication and rest, which was documented as “often”.  The commander noted that the CI was sensitive to light and noise; however, noted that he performs his military duties exceptionally well considering his duty limitation, and he completes all assignments with 100% efficiency.  It appears that the CI may have left work daily as permitted by his provider; however, there was no documentation that the CI sought help and care after early dismissal from work.  Treatment records provided no evidence of ER visits, and although it was recorded that the CI was sent home from work, it was not clear that his headache pain was of such intensity to interfere with work.  Again, the commander noted that although he was not expected to fulfill a complete work day he completed all assignments with 100% efficiency.  Board members agreed the headaches were not consistent with the definition of a prostrating headache and, therefore, the 10% criteria were not met.  The Board next considered the 8045 (brain disease due to trauma) code.  The record is clear in regards to chronic, frequent headaches accompanied by photo and phonophobia.  The C&P examiner noted that his type of headaches did not conform to cluster or migraine pattern, and was not relieved with available treatment protocol.  The CI also reported episodes of dizziness, and nausea associated with headaches.  The VA examiner documented imaging findings consistent with disruption of the normal brain integrity, and that his headaches were directly the result of brain injury.  The 10% rating under the analogous coding 8045-9304 is met when there are purely subjective complaints such as headache, dizziness, insomnia, etc.”, recognized as symptomatic of brain trauma.  All Board members agreed the 10% criteria were met in this case.  There were no additional codes to consider.  The Board opined that the cognitive disorder, mild, migraine without aura, post traumatic conditions were integral components of the traumatic brain injury and could not be recommended for additional rating IAW VASRD 4.14 (avoidance of pyramiding). 

After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the TBI condition, coded 8045-9304.  

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 Traumatic Brain Injury condition, the Board unanimously recommends a disability rating of 10%, coded 8045-9304 IAW VASRD §4.124a.  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	
Traumatic Brain Injury	8045-9304	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131222, with attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW
               BOARDS 

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS
 
Ref:   (a) DoDI 6040.44
       (b) CORB ltr dtd 18 Dec 15

      In accordance with reference (a), I have reviewed the cases forwarded by reference (b), and, for the reasons provided in their forwarding memorandums, approve the recommendations of the PDBR that the following individual’s records not be corrected to reflect a change in either characterization of separation or in the disability rating previously assigned by the Department of the Navy’s Physical Evaluation Board:

- XXXXXXXXXXXXXXXXXXXX former USN
- XXXXXXXXXXXXXXXXXXXX former USN
- XXXXXXXXXXXXXXXXXXXX former USMC  
- XXXXXXXXXXXXXXXXXXXX former USN
- XXXXXXXXXXXXXXXXXXXX former USMC 

						  XXXXXXXXXXXXXXXXXXXX
	     				  Assistant General Counsel
						  (Manpower & Reserve Affairs)