RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX		CASE:  PD-2014-03456
BRANCH OF SERVICE:  NAVY		SEPARATION DATE:  20070918

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4, Nuclear Electronics Technician, medically separated for “traumatic brain injury, ” with a disability rating of 10%.

CI CONTENTION:  The CI requests the Board consider all conditions.  His 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 - 20070718	VARD - 20081107	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Traumatic Brain Injury	8045-9304	10%	Traumatic Brain Injury with Vertigo	8045-9304	10%	20071219	
Vertigo	Cat II					
Cognitive Disorder, NOS	Cat II	Cognitive Disorder	8045-9327	50%	20071219	
COMBINED RATING:  10%	COMBINED RATING FOR ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:

Traumatic Brain Injury.  The NARSUM documented that in November 2004, the CI’s motorcycle crashed into a truck which resulted in multiple injuries to the face.  He also suffered 3 fractured ribs and injury to the right knee.  He was hospitalized for 2 weeks for his injuries and underwent multiple surgeries for repair of his facial injuries.  The examiner noted on 17 November 2004 he was discharged in stable condition but required two more facial surgeries.  The evidence showed since the accident the CI suffered from benign paroxysmal positional vertigo (turn your head and become dizzy) and short-term memory.  Two brain MRIs performed in April 2006 and February 2007 were normal.  He also had a normal arteriogram (view blood vessels).  The physician indicated that in spite of aggressive treatment directed at controlling his vertigo, he had remained symptomatic.  The CI underwent neuropsychological testing in 2006 to evaluate functional capacity.  He was diagnosed with cognitive disorder not otherwise specified secondary to “a probable traumatic brain injury.”  Specifically, deficits were noted on measures of visual memory and some executive weaknesses; however, his intellectual quotient was in the superior range.  The neuropsychologist opined that it may be possible for the CI to return to a high level of functioning and be fit for regular duty if his symptoms of vertigo and confusion can be treated.  It was also noted that given the CI’s high intellect he may be able to compensate for “his mild cognitive deficits.”  Neurological consultation in January 2007 noted the CI reported he had been in a coma for 3 weeks after the accident, and that he was hospitalized for 2 months (not consistent with the NARSUM or hospital discharge).  The CI reported he has been forgetful and that his concentration had been poor.  His wife confirmed this.  His wife had witnessed many of his reported dizzy spells which were unpredictable; he may have vertigo episodes several times in one day but then may not have another for a few days.  The neurologist assessed status-post craniocerebral/facial trauma with episodic symptoms most consistent with peripheral vestibulopathy.  The CI underwent occupational therapy neurological assessment in February 2009 and was recommended services to address deficits in short-term memory.  The CI reported that he had problems with focusing, and visual and short-term memory.  The NARSUM dated 14 June 2007 that since his accident, he had continued to have severe vertigo despite aggressive occupational therapy and physical therapy.  He also continued to have cognitive memory deficits.  The examiner opined that his deficits and “neurocognitive ability have further restricted his abilities to function in a capacity of his current rate as a nuclear electronics technician.”

The VA Compensation and Pension (C&P) examination was accomplished 5 months after separation.  It noted the CI had headaches, but no difficulty with balance, ambulation, mobility or history of seizures.  He did not have speech, swallowing problems, bowel or bladder disturbances, but did have occasional insomnia.  His taste and smell were intact.  He had irritability with his family but physically attended college at major university studying electronic engineering and technology with a 4.0 grade point average.  He continued to experience vertigo with the feeling of falling but did not report any actual falls or vision disturbances.  He did not have hearing loss or tinnitus.

The Board directed its attention to its rating recommendation based on the above evidence.  Both the PEB and VA rated the unfit TBI condition at 10% coded analogously with 8045 (brain disease due to trauma with purely subjective residuals).  The VASRD in effective at the time of separation captured brain injuries under the generic category of brain disease due to trauma (8045).  There are two different rating scenarios under this 8045 code; analogously with purely neurological deficit or purely subjective residuals.  In the absence of associated neurological deficits, such as seizures or nerve paralysis, rating of this condition under codes 8045-9304 is limited to 10%, and cannot be combined with any other rating for a disability due to brain trauma; IAW VASRD §4.14 (avoidance of pyramiding).  The Board did not find any neurological deficits in evidence; and therefore, only a 10% rating was supported.  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 TBI condition.

Vertigo and Cognitive Disorder.  The Board next considered the CI’s PEB category II vertigo and cognitive disorder not otherwise specified (NOS) conditions. The Board opined that the vertigo condition was a subjective- integral part of the TBI condition and could not be recommended for additional rating IAW VASRD §4.14 (avoidance of pyramiding) as cited above.  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 vertigo condition.
The VA rated the cognitive disorder NOS (vertigo, headaches and insomnia) at 50% coded analogously 8045-9327 (residuals of traumatic brain injury and organic mental disorder, other).  The Board considered code 9327 falls under the schedule of ratings-mental disorders, §4.130.  After extensive review, the Board found no rating advantage for CI since there was insufficient evidence to support the minimum occupational or social impairment rating.  The CI demonstrated absence of significant mental health symptoms, no use of psychotropic medication, and no recorded mood or anxiety symptoms.  The commander’s statement noted that his performance in administrative duties had been excellent and that he had completed his assigned tasks in a timely and highly efficient manner.  There was no evidence from the record that his reported memory difficulties and irritability had significantly impacted his ability to perform his duties.  Although the neuropsychological examiner noted deficits on measures of visual memory and some executive weaknesses, it was also noted that his intellectual quotient was in the superior range.  The neuropsychologist opined that it may be possible for the CI to return to a high level of functioning and be fit for regular duty if his symptoms of vertigo and confusion can be treated.  After considerable deliberation, the Board majority opined there was no indication from that examiner that his cognitive disorder significantly interfered with the CI’s ability to perform his duty.  It was also noted that given the CI’s high intellect he may be able to compensate for “his mild cognitive deficits”.  Indeed, the CI demonstrated excellent mental functioning via his success in academia.  The record demonstrated no objective evidence of significant issues with his memory, mood symptoms, or anxiety symptoms.  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 disorder.

BOARD FINDINGS:  In the matter of the traumatic brain injury and related Category II vertigo and cognitive disorder 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.  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 20140704, 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 24 Jun 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 USN
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- 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)