RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00489
BRANCH OF SERVICE:  Marine Corps 	SEPARATION DATE:  20061215

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E2, Rifleman, medically separated for “low back pain” and “status post improvised explosive device blast,” with a disability rating of 10%.

CI CONTENTION:  The CI states that he was given a higher rating by the VA.  The CI’s complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  It is limited to those conditions determined by the Physical Evaluation Board (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 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:  

SERVICE PEB - Dated 20061025	VARD - 20070615	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Status Post Improvised Explosive Device Blast	8045-9304	10%	No VA Placement	
Gait Instability with Inability to Tandem	Cat II	Post Concussive Syndrome with Chronic Vestibular
Dysfunction and Post Concussive Headaches	8045	10%	20070504	
Unstable Romberg	Cat II					
Persistent Vertigo	Cat II					
Post-concussion Syndrome	Cat II					
Grade 3 Concussion	Cat II					
Chronic Daily Headaches	Cat II					
		Chronic Daily Headaches	8199-8100	Voc Rehab	20070504	
Right Knee Joint Injury …	Cat II	Shrapnel Wound, Right Knee w/PFS	5314	10%	20070504	
Antisocial Traits	Cat IV	PTSD w/Adjustment Disorder w/ Depressed Mood	9411	70%	20070504	
R/O Adjustment Disorder with Depressed Mood	Cat IV					
RATING:  10%	RATING:  80%	

ANALYSIS SUMMARY:  

Status Post Improvised Explosive Device Blast.  According to the service treatment record and the Medical Evaluation Board (MEB) narrative summary (NARSUM) in July 2005, the CI sustained shrapnel injury to his right knee (without retaining fragments) and suffered a brief loss of consciousness after exposure to an improvised explosive device (IED).  After irrigation and bandaging of shrapnel wound, the CI remained in theater and was on light duty until September 2005.  He was also assessed with a grade 3 concussion.  The CI reported daily headaches since the injury, tinnitus, vertigo, loss of balance, cognitive and mood symptoms, diagnosed as post-concussion syndrome (related Category II conditions) and adjustment disorder with depressed mood.  He underwent consultations with neurology, the Vestibular Balance Center, psychiatry, sports medicine, physical therapy and neuropsychology.  Brain magnetic resonance imaging (MRI) was normal and right knee MRI showed minimal joint effusion.  The CI received neurocognitive rehabilitation services to address his report of dizziness, problems with balance, and post concussive symptoms.  He had reported problems with short-term memory, concentration and confusion with appointments, and therefore, he was referred for neuropsychological testing (NP).  NP testing was conducted 4 months prior to separation.  The psychologist assessed post concussive” symptoms,” alcohol abuse, in remission, rule-out adjustment disorder with depressed mood and antisocial personality traits.  The examiner wrote, “Given the history of a possible mild concussion, the level of cognitive impairment he demonstrated on formal testing is not congruent.  It is likely that the etiology of his cognitive complaints is due to other factors such as psychiatric or volitional.”  Despite treatment, the CI reported his symptoms had not improved; therefore, he was referred to the MEB.  The NARSUM was accomplished in August 2006, approximately 4 months prior to separation.  The examiner noted that the CI was 10 feet away from the blast.  He continued to experience daily headaches, and had tried multiple medications with little effect.  He was not taking medication at the time of the NARSUM.  The physical examination recorded “Full range of motion” in all extremities, normal coordination, and the presence of vertigo during an attempted tandem walk.  He had a limp due to right knee injury; however, motor strength and muscle tone was normal.  The examiner (also his treating neurologist) noted that the CI was dismissed from the rehabilitation program due to interpersonal conflict with the counseling personnel.  The examiner indicated that the CI had limited ability due to headaches, cognitive difficulties, difficulty with gait, and vertigo, all opined to have been associated with his post-concussion syndrome (related Category II conditions), symptoms which was subsumed under the status post improvised explosive device blast.  As noted above, a cognitive disorder was not assessed at the NP evaluation.

The VA Compensation and Pension (C&P) exam was accomplished 6 months after separation.  It was noted that the CI had worked in fast foods since separation from the service and was working in a power coating job.  The CI reported that he had continued to have problems with blurred vision associated with headaches, poor balance, fatigue, mood swings, violent outbursts, nervousness, sleep problems and poor concentration.  He noted that he had right knee patella surgery at the age of 14 and had no issues with the knee until the IED blast in 2005.  Physical examination was unremarkable.  Neurological exam documented normal gait and posture, and poor tandem walking.  The diagnoses of post-concussive syndrome, chronic vestibular dysfunction, and post-concussive headaches were recorded.  The examiner also diagnosed right knee patellofemoral syndrome.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the condition of status post (s/p) improvised explosive device blast at 10% coded analogously 8045-9304 (brain disease due to trauma/dementia due to trauma), and opined that the conditions of post-concussion syndrome, chronic daily headaches, gait instability, unstable Romberg, and right knee injury were Category II conditions (contributed to the primary condition).  The VA combined the conditions of post-concussive syndrome with chronic vestibular and post-concussive headaches at 10%, coded 8045, and assigned 10% ratings to the right knee, coded 5314 (muscle group XIV) and tinnitus, coded 6260.  The PEB noted the diagnosed adjustment disorder was not a physical disability.  The Board next proceeded with the rating recommendation for the primary condition.  The VARSD in effect at the time of separation captured brain injuries under the generic category of brain disease due to trauma (8045).  There are two different scenarios for rating under this code; analogously with purely neurological deficits, or purely subjective symptoms.  Purely subjective complaints in this case included headaches, dizziness, vertigo, and post-concussive symptoms. In the absence of associated neurological disabilities (seizures, nerve paralysis, etc.), rating of this condition under 8045-9304 is limited to 10%, and cannot be combined with any other rating for a disability due to brain trauma.  The Board found absence of evidence that would support any neurological disability, and therefore, only 10% was supported. The Board opined that all the conditions listed as Category II with the exception of the right knee, were accounted for under the 8045-9304 coding scheme.  Therefore, the post-concussion syndrome, chronic daily headaches, and the unstable Romberg conditions were integral components of the IED blast pathology and could not be recommended for additional rating IAW VASRD 4.14 (avoidance of pyramiding).  The right knee condition and unstable gait were addressed under contended conditions. 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 s/p improvised explosive device blast condition.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the right knee joint injury condition with positive MRI findings of effusion, tibial plateau contusion, and unstable gait were not separately unfitting (Category II conditions).   The Board also considered the contended adjustment disorder with depressed mood, and antisocial traits The Board’s threshold for countering fitness determination requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The Board first acknowledged that the diagnosed adjustment disorder and personality disorder are not considered physical disabilities and therefore, are not ratable or compensable conditions IAW DoDI 1332.38.  The Board also acknowledged the VA’s mental health assessment of posttraumatic stress disorder (PTSD;) however, there were insufficient evidence in the service treatment record supporting the diagnosis of PTSD.  The initial psychiatric evaluation occurred 8 months prior to separation.  He had one recorded visit post the first evaluation.  Neither exams recorded symptoms sufficient enough to make a PTSD diagnosis nor there was evidence that he met DSM-IV diagnostic criteria for PTSD.  The Board also found no evidence of an unfitting mental health condition.  The Board next considered the right knee condition and unstable gait.

Right Knee and Unstable Gait.  A review of the available treatment records noted the CI had surgery related to the right knee at the age of 14.  His physician supplied a letter in June 2003 that noted his condition at that time would not preclude his entry into the service.  The NARSUM documented a normal right knee exam with the exception of a limp, opined to be associated with the right knee injury.  The NARSUM recorded normal muscle tone and strength, no evidence of wasting or atrophy.  The only finding at the NARSUM associated with the right knee was the disturbance of gait related to his limp.  The examiner documented that the right knee condition did not exist prior to service.  The CI was evaluated by a sports medicine physician 4 months prior to separation.  It was noted that although an MRI showed slight bony contusion, that finding was non-specific and his condition was more consistent with knee pain “most likely due to weakness sustained after IED blast.”  The condition of patellofemoral syndrome was recorded.  Although the record sufficiently documented a prior history of right knee surgery, the PEB did not judge the condition to be EPTS, and therefore, the condition must be considered as line of duty.  The Board considered the sports medicine evaluation (that noted his knee pain was most likely due to weakness sustained after the IED blast), the commander’s statement, and his profile.  The unstable gait was not profiled or implicated in the commander’s statement.  The Board found absence of evidence that the right knee condition was not the direct result of the IED blast. With the exception of right knee pain, the record demonstrated absence of compensable range of motion, locking, ratable weakness, muscle atrophy, or dislocation.  His profile contained limitations that were consistent with a combination of conditions and it was not possible to separate the knee limitations from those related to vestibular function.  Therefore, all Board members agreed the right knee condition was best understood in the context of the primary blast condition.  Board members concluded, there was insufficient evidence to attribute duty performance impairment to a single condition.  Board members concluded, the right knee condition was a by-product of the primary condition, and that the preponderance of evidence did not support a finding that this condition arose to the level of being separately unfitting.  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 right knee and MH conditions.

BOARD FINDINGS:  in the matter of the status post improvised explosive device blast condition and IAW VASRD §4.124a, the board unanimously recommends no change in the PEB adjudication.  In the matter of the contended right knee joint injury, and gait instability conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.  In the matter of the contended PEB conditions, the Board unanimously agrees that they cannot recommended for additional disability ratings.  There were no other conditions within the Board’s scope of review for consideration.  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 20140109, w/atchs
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 15 Apr 16

      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:

		- XXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXX, former USMC
	- XXXXXXXXXXXXXXX, former USN