RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00584
BRANCH OF SERVICE:  navy 	SEPARATION DATE:  20050731

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Engineman) medically separated for a cerebellar lesion condition.  The condition could not be adequately rehabilitated to meet the physical requirements of his Rating.  He was placed on limited duty (LIMDU) and referred for a Medical Evaluation Board (MEB).  The MEB forwarded “other conditions of brain” to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  The MEB also identified and forwarded one other condition (sleep apnea) for PEB adjudication.  The Informal PEB (IPEB) adjudicated “cerebellar white matter lesion consistent with ischemic disease” as unfitting, rated 10% with application of Veterans Affairs Schedule for Rating Disabilities (VASRD).  The obstructive sleep apnea condition was determined to be not unfitting Category III (conditions that are not separately unfitting and do not contribute to the unfitting condition).  The CI initially accepted the IPEB findings but then opted to submit additional information and a Reconsideration PEB convened which affirmed the IPEB findings.   The CI initially indicated he was going to pursue a Formal PEB  but decided to accept the Reconsideration PEB findings and was medically separated.  

CI CONTENTION:  ““He was not evaluated for his bilateral carpal tunnel conditions.  His 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 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:  

Recon IPEB – Dated 20050302	VA* - (~2 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Cerebellar White Matter Lesion Consistent with Ischemic Disease	6299-6204	10%	White Matter Lesion, Right Cerebellar Hemisphere, with Vertigo and Visual Changes	6299-6204	10%	20051012	
Obstructive Sleep Apnea	Cat  III	Obstructive Sleep Apnea …Asthmatic Component	6000-6847	50%	20051012	
Other x 0 (Not In Scope)	Other x 3	
RATING:  10%	RATING:  70%	
*Derived from VA Rating Decision (VARD) dated 20051205 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:

Cerebellar White Matter Condition.  The CI presented in November 2003 for evaluation of lightheadedness and tunnel vision, but no cause of these symptoms was found.  Over the ensuing months he complained of episodic vertigo.  Based on brain imaging studies in June and September 2004, a neurologist determined that the source of recurrent vertigo was possibly related to a small (8 millimeter size) focus of presumed ischemic injury in the cerebellum.  On 29 September 2004 (10 months prior to separation), the neurologist reported that episodes of profound dizziness occurred every 2-3 months.  These lasted for about an hour and were associated with sweating, vomiting and an inability to stand.  Mild symptoms of light dizziness occurred daily.  Approximately every other week he experienced an episode lasting 5-10 minutes that required cessation of any activity he was involved in at the time.  Examination showed a normal gait and ability to stand without assistance.  The narrative summary performed on 7 January 2005 (7 months prior to separation) reported that episodes of brief dizziness occurred almost daily, and that more prolonged, severe episodes occurred approximately once per month.  Accompanying symptoms could include palpitations, shortness of breath and nausea.  The physical examination, performed 3 weeks previously, noted a normal gait.  Staggering was not reported.  It was recommended to the CI to avoid activities which could place him at risk in the event an episode of dizziness occurred.  The CI reported more significant and frequent vertigo at a follow-up with neurology on 14 February 2005 (6 months prior to separation).  Examination was “unchanged from previous visit.”  Staggering was not reported.

At a VA Compensation and Pension (C&P) ear, nose and throat evaluation on 4 October 2005 (2 months after separation), the CI reported a history of dizziness and unsteadiness since 2002.  Hearing evaluation was completely normal.  The examiner stated the CI’s current employment and daily functioning should not be adversely affected by his disabilities.  At another C&P exam the following week, the CI reported episodes of vertigo that occurred every 2 months and lasted about 60 seconds.  The last episode occurred a few days previously while driving; the CI pulled over and proceeded driving after waiting a few minutes.  He had experienced no episodes in his current maintenance job.  Examination showed a normal gait.  Staggering was not reported.  The examiner opined that the radiographic lesion noted on magnetic resonance image was likely an incidental finding and not the cause of his symptoms.  A neurological C&P examiner on 28 October 2005 reported that the CI experienced a variable frequency of vertigo episodes (none to several per month) that lasted approximately 30 seconds.  Examination showed a normal gait and no sign of unsteadiness.  A provocative test for vertigo was negative.  The examiner opined that the cerebellar lesion was “not causing any neurological signs at present” and rendered a diagnosis of benign vertigo.

The Board directed attention to its rating recommendation based on the above evidence.  While there was some uncertainty regarding the cause of the CI’s symptoms, it is clear that vertigo was the unfitting symptom.  Therefore, the coding option used by the PEB and the VA was reasonable.  It is noted that rating according to stroke pathways (for example, 8008: Brain, vessels, thrombosis of) defaults to a rating of residuals, which in this case was vertigo.  The applicable rating criteria are excerpted below:

6204  	Peripheral vestibular disorders:  
			Dizziness and occasional staggering………..30
			Occasional dizziness………………………………..10 

It is noted that both “dizziness” and “occasional staggering” must be present in order to justify the 30% rating.  The PEB and the VA assigned a 10% rating analogously under the 6204 code for “occasional dizziness.”  In deliberating a rating recommendation, members debated whether “occasional dizziness” or “dizziness” more accurately described the condition.  Because the VA C&P exam was more proximal to separation, it was assigned higher probative value by the Board.  By that time the frequency of dizziness was best characterized as “occasional.” Moreover, because episodes of staggering were not evident Board members concluded that the condition was most accurately depicted by the 10% rating criteria at the time of separation.  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 cerebellar white matter lesion condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that obstructive sleep apnea was not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  In October 2004 a sleep study confirmed the presence of severe sleep apnea.  Follow-up verified that CPAP treatment was very effective.  The sleep apnea condition did not carry an attached LIMDU, and was not implicated in the non-medical assessment or judged to fail retention standards.  This condition was reviewed and considered by the Board.   There was no performance based evidence from the record that it significantly interfered with satisfactory duty performance.  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 contended condition and so no additional disability rating is recommended.

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 cerebellar white matter lesion condition and IAW VASRD §4.87, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended obstructive sleep apnea condition, the Board unanimously recommends no change from the PEB determination as not unfitting.  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 20131209, 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 7 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 USN  
- XXXXXXXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXXXXXXX, former USMC 

						  XXXXXXXXXXXXXXXXXXXX
	     				  Assistant General Counsel
						  (Manpower & Reserve Affairs)