RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	 CASE:  PD-2014-01324
BRANCH OF SERVICE:  MARINE CORPS	SEPARATION DATE:  20080331

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E3, Rifleman, medically separated for cognitive defects secondary to traumatic brain injury (TBI), with a disability rating of 10%.  

CI CONTENTION:  “Traumatic Brain Injury, Post-concussion syndrome with headaches, post blast injury with memory loss, bilateral tympanic membrane ruptures hearing loss, and tinnitus.”  The applicant’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 - 20080213	VARD - 20091030	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Cognitive Defects Secondary to Traumatic Brain Injury (TBI)	8045-9304	10%	Traumatic Brain Injury	8045	NSC	STR	
Post-concussion Syndrome with Headaches	Cat II					
Status Post Blast Injury with TBI	Cat II					
Bilateral Tympanic Membrane Rupture	Cat III	Bilateral Ear Drum Perforation	6211	NSC	STR	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  0%	

ANALYSIS SUMMARY:  

Cognitive Defects Secondary to Traumatic Brain Injury Condition.  According to service treatment records (STR), the CI was injured during a blast on 28 September 2006 in Iraq.  He lost consciousness for an unknown period of time.  He was diagnosed with bilateral ruptured tympanic membrane and evacuated for care of his decreased mental status.  He was later evacuated to Triple Medical Center where he was observed for ruptured tympanic membranes and traumatic brain injury (TBI).  He developed frequent headaches and underwent neuropsychological testing in June and July 2007, which showed deficits across several domains.  Magnetic resonance imaging (MRI) on February 2007 was normal. He had signs of emotional disturbance, including irritability, blunted emotions, and feelings of detachment, consistent with a post-concussion syndrome.  

A neuropsychological report, dated in November 2007, showed deficits in attention and memory with problems in processing speed, working memory and sustained concentration.  Verbal and visual short-term memory was impaired.  His responses did not support a diagnosis of posttraumatic stress disorder (PTSD) or acute stress disorder.  Diagnoses of post-concussion syndrome and status post blast injury with TBI were rendered.  The examiner noted he was not fit for full duty due to cognitive deficits and recommended a medical board.  The Non-Medical Assessment, Wounded Warrior Company, noted the CI was “of great initiative and looks for tasks when none are assigned or all are completed…due to his injuries he is unable to perform in his MOS.”

The narrative summary (NARSUM), dated 11 January 2008, noted the CI was unable to perform in any occupation that required prolonged concentration or memory.  He was taking medications for depression and pain.  Diagnoses of TBI, bilateral TM rupture, and post-concussion syndrome were rendered.  The examiner noted it was likely he would always have some deficits in memory and attention.  The CI failed to report at the original VA Compensation and Pension (C&P) exam on 30 October 2009.  The Board directed its attention to its rating recommendation based on the above evidence.  The PEB rated the condition of cognitive deficits due to TBI at 10% coded analogously 8045-9304 (dementia due to head injury.)  The conditions of post-concussion syndrome with headaches and s/p blast injury due to TBI, were determined to be Category II conditions.  

The Board first considered if application of VASRD §4.129 with a constructional 6-month period on the Temporary Disability Retirement List (TDRL) was indicated in this case.  Although the blast incident certainly constitutes a “highly stressful event” as referenced by §4.129; it must be recognized that the cognitive and psychiatric sequellae of a medical insult to the brain is more akin to traumatic brain injury, for which §4.129 is not applicable, than it is to PTSD and other purely psychologically mediated conditions for which §4.129 was promulgated.  All members agreed, therefore, that application of §4.129 was not indicated in this case.

The Board’s rating recommendation for TBI in this case is subject to the following policy (established by precedent and prior legal opinion).  As an implied extension of the DoDI 6040.44 and NDAA 2008 mandates, the Board must comply with applicable VA disability rating policy changes issued via training letters (TL), effective at the time of separation.  Based on the constraints of the VASRD in effect at the time of the CI’s separation, and with the application of TL 07-05, there is not reasonable doubt in the CI’s favor supporting a change from the PEB’s rating decision for the TBI condition.  Although he had deficits in concentration, attention and memory, his commander noted that he had great initiative and looked for tasks to complete.  He had a good relationship wife his family who were supportive.  His condition is appropriately coded 8045-9304, and meets criteria for the 10% rating.  The Board opined that the post-concussion syndrome with headaches and s/p blast injury due to TBI conditions were an integral part of the dementia due to head injury pathology 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 concluded that there was insufficient cause to recommend a change in the PEB adjudication for the cognitive deficits due to TBI = condition. 

Contended Bilateral Tympanic Membrane (TM) Rupture.  The Board’s main charge is to assess the fairness of the PEB’s determination that bilateral tympanic membrane rupture 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.  The TM ruptured during the blast.  The left TM closed spontaneously and the right TM was repaired by an operation.  The bilateral tympanic membrane rupture was not profiled or implicated in the commander’s statement and were not judged to fail retention standards.  All were reviewed and considered by the Board.   There was no performance based evidence from the record that bilateral tympanic membrane rupture 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 PEB Category III condition and so no additional disability ratings are recommended.

BOARD FINDINGS:  In the matter of the cognitive deficits due to TBI condition and IAW VASRD §4.124, the Board recommends no change in the PEB adjudication.  In the matter of the post-concussion syndrome with headaches, and s/p blast injury due to TBI contended, conditions, the Board recommends no change from the PEB adjudication as Category II, not separately unfitting.  In the matter of the bilateral TM rupture condition, the Board unanimously recommends no change from the PEB adjudication as Category III, not unfitting or ratable.  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 20140313, 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 16 Mar 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:

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