RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02136
BRANCH OF SERVICE:  MARINE CORPS	BOARD DATE:  20150226
SEPARATION DATE:  20041031

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Field Artillery Cannoneer) medically separated for a traumatic brain injury (TBI).  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was placed on limited duty and referred for a Medical Evaluation Board (MEB).  The conditions, characterized as “Status Post (S/P) Severe Traumatic Brain Injury (TBI)” and “Persistent Cognizant Deficits,” were forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  The Informal PEB adjudicated dementia due to head injury as unfitting rated 10%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The PEB determined that s/p severe TBI, persistent cognizant deficits, and anosmia were related as Category II conditions (contributing to unfit).  The CI appealed to the Formal PEB (FPEB), which affirmed the PEB findings and rating and was medically separated.

CI CONTENTION:  “Please consider all conditions”

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:

FPEB – Dated 20040330	VA* - (~61 Months Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Dementia due to Head Injury	8045-9304	10%	Traumatic Brain Injury	8045	70%	20091210	
S/P Traumatic Brain Injury	Cat II					
Persistent Cognizant Deficits	Cat II					
Anosmia	Cat II	Loss of Sense of Smell	6275	10%	20091119	
Other x 0 (Not In Scope)	Other x 6 	
RATING:  10%	COMBINED:  80%	
*Derived from VA Rating Decision (VARD) dated 20010209 (most proximate to date of separation (DOS)).
ANALYSIS SUMMARY:

Dementia due to Brain Injury.  A motor vehicle accident (MVA) in March 2000 resulted in severe head injuries as well as neck and facial fractures.  The CI underwent surgery to evacuate a blood clot; and a month later, he developed accumulation of fluid on the brain and a shunt was placed.  Cognitive deficits were apparent after resolution of the coma; however, the hospital discharge summary noted that he showed rapid improvement after placement of the shunt in April 2000.  During his 2-month long inpatient hospitalization, he was assessed by neuropsychology and placed in the cognitive arm of a research study under the Defense and Veterans Head Injury Program (DVHIP). The Core Neuropsychological Assessment findings recorded in the initial rehabilitation assessment dated 20 April 2000, documented intellect in the average range, and impairments in processing speed and reading speed.  The CI assessed above average on nonverbal memory, and average in the areas of problem solving and verbal memory.  The rehabilitation physician’s clinical evaluation documented cognitive impairments in attention, memory, safety, judgment, and problem solving skills.  It also noted that his reading and writing skills were fair and he was able to read and retain information from a short paragraph.  His mini mental status examination (MSE), which includes brief tests of orientation, long, short, and immediate recall, and executive function tasks, recorded a score of 30/30.  The CI reported he had difficulty with concentration but felt his cognition was at baseline otherwise.  The hospital discharge summary dated 9 May 2000 indicated the CI could walk without assistance, had good balance, and would continue community re-integration and balance training, as well as a home exercise program with the availability of standby assistance.  The summary also noted that the CI underwent intensive speech and cognitive therapy and was within normal limits for auditory comprehension, verbal expression, and writing.  He had mild deficits in attention and moderate deficits with problem solving and executive skills; however, judgment, initiation, visual spatial skills, processing speed, memory, and insight were within normal limits.  The CI reportedly passed his written driver’s test with score of 90%, and scored 90% on the map reading test.  A behind-the-wheel assessment noted that the CI had overall good driving skills; he was able to navigate without the assistance of a map, drove at an appropriate speed, and demonstrated good decision-making skills and appropriate judgment.  On 22 August 2000, neuropsychological testing recorded that the CI performed poorly on tasks requiring attention, working memory, and mental flexibility.  The examiner opined that there was evidence of persistent cognitive decline following the TBI and asserted that the CI had limited insight in regards to the impact of his injury.  The diagnosis of dementia due to TBI was recorded. 

At a 23 June 2001 (a year later) follow-up evaluation with the Physical Medicine and Rehabilitation (PM&R) physician under the DVHIP, the CI reported he had experienced some difficulty with short-term memory but that it was improving.  The physician documented the results of the neuropsychological tests that noted executive function (ability to plan and problem solve) was normal, immediate recall for nonverbal material was in the very superior range; however, verbal list-learning skills were severely impaired.  On clinical examination, the physician noted that the CI demonstrated minimal deficits in attention, memory, safety judgment, and problem solving; however, he also noted he had engaged in high-risk behaviors of binge drinking, and made poor decision/judgment demonstrated by his being a passenger in a car with a driver whose license had been suspended and being involved in traffic citation/arrests.  The physician opined that “despite his high-risk behaviors he was capable of living independently and working in a competitive job market.”  The brief neurological examination recorded “he had no olfaction”; however, it was not clear if any formal testing had been performed.

In the narrative summary (NARSUM), dated 19 December 2002, the examiner noted the CI had returned to duty in a limited duty status after his discharge from the hospital.  He had been doing basic office work, had not participated in any physical fitness tests or forced marches.  His job was to answer the phone in the battalion office.  At the examination, the CI reported difficulty with memory and had been unable to make appointments due to his memory issue.  Physical examination recorded a normal gait, no evidence of cerebellar function compromises, or gross neurological deficits.  Cranial nerves were all intact, and his ventriculoperitoneal (VP) shunt was palpable.  He had a mini MSE of 28/30.  The physician referenced a head CT (computed tomography) scan, from February 2002 that demonstrated findings consistent with TBI.  The physician assessed s/p severe TBI secondary to MVA and persistent cognizant deficits, and opined the cognitive impairment had impaired the CI’s ability to function on a full active duty status.  Recommendations included repeat neuropsychological cognitive assessment with the DVHIP, and that he be restricted from operating heavy machinery and not operate or carry weapons.  The CI had a full battery of neuropsychology tests under the research study program on 18 March 2003 that demonstrated intellectual functioning in the average range; however, the test results also reported areas of deficit.  Specifically, he performed less than expected on measures of information processing, efficiency and sequencing.  His performance on tasks of working memory and efficiency in learning was also deficit; however, the examiner stated that he performed above average in some areas (visual learning).  The examiner indicated that without documentation of pre-accident cognitive functioning, the evidence of any cognitive decline was inconclusive; however, he opined that his results were fairly consistent and common among head-injured patients.

On 22 April 2003, the neuropsychological addendum to the medical board recorded the results of the March 2003 psychological tests and the mental status examination, and documented disturbance in sleep, occasional problems with dizziness, but no headaches or back problems.  The examiner also noted that the CI had a loss of smell “for most things.”  The CI denied symptoms suggestive of an anxiety or depression disorder and noted that he was not taking any medication for any condition.  The psychologist noted he had occasional use of alcohol but no history of abuse.  It was noted that the CI was able to present to work on time and remember to pay his bills on time; he had no legal or disciplinary problems.  The examiner noted that his ability to behave appropriately and manage his activities of daily living and financial and legal affairs was not impaired; however, he was not suitable for continued military service due to his cognitive impairment and his VP shunt.  An updated NARSUM dated 19 July 2003 indicated no new findings or recommendations.  The CI did not submit a VA claim for his TBI condition until 
2009, approximately 5 years after separation.

The Board directed attention to its rating recommendation based on the above evidence.  The Informal PEB (IPEB) rated the condition of dementia due to head injury at 10% coded analogously as 8045-9304 (brain disease due to trauma with purely subjective complaints).  The CI appealed and the FPEB agreed with the decision of the IPEB.  The conditions of persistent cognizant deficits, s/p severe TBI, and anosmia were determined to be Category II conditions.  The VARSD in effect at the time of separation captured brain injuries under the generic category of brain disease due to trauma coded 8045.  There are two different scenarios for rating under this code; analogously with purely neurological deficits, or based on purely subjective 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 an absence of evidence that would support any neurological deficit.

The Board next considered if there was sufficient evidence to support a determination of separately unfitting conditions for the persistent cognizant deficits or s/p severe TBI.  The record in evidence demonstrated mild cognitive findings.  The commander’s statement noted that the CI was unable to deploy or go to the field but could be depended upon to accomplish any assigned task.  There was no documentation referencing the CI’s inability to perform his duties secondary to behavioral or cognitive issues.  The PM&R physician documented that the CI was capable of competing in the job market, thereby, implying no clinically significant cognitive issues.  The Board concluded there was insufficient evidence to support that either of the above conditions were separately unfitting.  The Board also concluded that subsuming the diagnoses of cognizant deficits and s/p severe TBI under the general rubric of brain disease due to trauma with purely subjective complaint (8045-9304) was supported by the evidence.  The Board agreed the 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).

The Board next considered if there was sufficient evidence to support a determination of a separately unfitting anosmia, or loss of smell, condition. The record in evidence noted a subjective report of loss of smell that was recorded as “loss of olfaction” in 2001 without quantification, and as “loss of smell for most things” in 2003.  Anosmia was not listed on the profile and the commander’s statement was silent as well.  There was no other documentation referencing the CI’s inability to perform his duties secondary to anosmia.  The Board concluded the evidence in the record did not to rise to the level of a separately unfitting condition.

After due deliberation, and in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB determination for the dementia due to head injury condition.

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 dementia due to head injury condition and IAW VASRD §4.124a, the Board unanimously 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 20140425, 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 XX Sep 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:

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