RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-04115
BRANCH OF SERVICE:  ARMY 	SEPARATION DATE:  20020614

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Heavy Construction Equipment Operator, medically separated for “cognitive disorder” and “chronic low back pain,” rated 10% and 10%, respectively, with a combined disability rating of 20%.

CI CONTENTION:  The CI contends that his condition has worsened and negatively impacts his daily activities.  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 based upon a 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 - 20020410	VARD - 20020624	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Cognitive Disorder	8045-9304	10%	Cognitive Disorder with MDD	9304	10%	20020329	
			Residuals Headaches, Status Post Multiple Head Injuries	8099-8045	10%	20020329	
Chronic Low Back Pain	5299-5295	10%	DDD with Right Sacro-Ilitis, Lumbar Spine	5293	10%	20020301	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Cognitive Disorder.  The Board noted that the VA raised the ratings for the cognitive disorder and mental health conditions on the 30 June 2010 VA rating decision; this increased rating was cited by the CI in his application.  These rules were not in effect at the time of separation and the PEB and the VA (initially) used the VASRD guidelines from 2002.  The Board also uses the rules in effect at the time of separation in its recommendations.  The Board also noted that the old spine rules were in effect at the time of separation.  These guidelines and codes were used by the Board in its recommendation.  

According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s cognitive disorder condition began in August 1998 after a parachute jump.  The first record in evidence is an acute care clinic note dated 3 September 1998 in which he reported “blackouts” since he was “knocked out” on 6 August 1998 in a parachuting mishap.  He did not seek medical attention at the time of the accident.  He denied other symptoms associated with a post-concussive syndrome and had a normal neurological examination.  The next record in evidence is a primary care note dated 6 June 2000.  The CI reported two additional episodes of head trauma, both with loss of consciousness (15-20 minutes and ~1 hour, respectively, and 5-10 minutes for the first injury) with the third resulting in evaluation in the emergency room.  A CT scan was reportedly negative.  No records were in evidence for either event.  The CI reported symptoms of daily headaches, poor concentration and memory, and irritability.  He also noted poor balance.  He was referred to psychiatry with the diagnosis of a traumatic brain injury (TBI) and was seen on 19 July 2000.  He was treated for headaches, but no comment was made on a mental health issue.  A CT scan of the head on 26 July 2000 was normal.  A primary care note dated 7 August 2000 noted that the headaches were improved on medications.  There were no further records in evidence for the TBI condition until the CI was entered into the MEB process.  

At the MEB examination dated 9 October 2001, 8 months prior to separation, the examiner recorded that the CI reported ongoing headaches and dizziness and also noted impaired short term memory and a speech defect.  The neurological examination was normal other than slightly reduced flexion of the right hip (see back pain below).  The neurological addendum to the MEB was dated 13 December 2001.  The CI reported that his headaches were controlled with medications and the neurologist determined that they were not disabling.  The neurological examination was normal.  A neuropsychological examination was accomplished over several evaluations and the final report was dated 7 January 2002.  The CI reported three parachute mishaps with possible TBI manifested by loss of consciousness (LOC) and post-traumatic amnesia.  He stated that his headaches were improved, but that he still had problems with short term memory, distractibility, irritability, and easily coming to tears.  It was also noted that he and his wife were separated for 5 months and in the process of a divorce.  He denied special education in school, but dropped out repeatedly and eventually earned a GED.  He had a tutor for algebra and a “C” average.  He worked construction prior to enlistment.  His mood was “sober” and speech clear.  He was mildly tangential but easily redirected to task.  He endorsed worrying.  He also noted occasional double vision with his headaches (not reported at the neurological assessment).  It was thought that the memory problems represented (pre-existing) cognitive vulnerability aggravated by the TBIs and that his emotional and interpersonal problems represented a combination of interpersonal difficulties (divorcing with two small children) and post-concussive symptoms of increased irritability and marginal modulation of emotion.  The combination of cognitive and emotional problems were thought to render him unfit.  The commander noted, on 10 January 2002, that the CI accomplished “all his given tasks and missions…as long as he is allowed the latitude to stretch out or take time out when he feels the need to do so.”  

The MEB NARSUM examination performed on 22 January 2002, 3 months prior to separation, noted ongoing complaints of learning and short term memory impairment.  His headaches did “not really interfere with duty performance.”  He was determined to be unable to perform his duties adequately due to the cognitive problems and the back pain.  A memorandum to the PEB (containing information from the current and former commanders) dated 25 March 2002 noted that the CI used a notebook as a memory aid, problem solving was impaired, he was impatient, and that he went AWOL while going through a “very tough situation and unpleasant divorce.”  

At the VA Compensation and Pension (C&P) mental health examination on 29 March 2002, performed 3 months before separation, the CI reported that he began having problems with his memory in January 2000.  His mental status examination was essentially normal other than recalling 2 of 3 objects at 3 and 5 minutes (3 of 3 immediately).  He endorsed symptoms of decreased energy, loss of pleasure in normally enjoyable activities, inability to focus, irritability, depressed mood, loss of appetite (the records show a stable weight though), and frequent awakening.  The VA general C&P examination noted that the CI had ongoing headaches managed by medications.  The neurological examination was normal.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB initially assigned a 30% rating under dual code 8045 (traumatic brain injury) and 9304 (dementia due to brain trauma).  It combined two MEB diagnoses, cognitive disorder due to trauma and mood disorder depressed type due to head injury, into a single unfitting diagnosis, cognitive disorder, not otherwise specified.  This was then reviewed and additional information was requested.  The reconsideration PEB retained the description of the condition and coding, but reduced the rating to 10%.  The VA assigned a rating of 10% for a cognitive disorder with major depressive disorder, coded 9304 and also assigned a rating of 10% for residual headaches status post multiple head injuries, coded 8099-8045 (analogous to TBI).  The Board considered the evidence.  The headache condition was recorded as not debilitating and a finding of separately unfitting headaches is not supported by the evidence.  The Board also considered if there was a separately unfitting mental health disorder (depressive disorder).  It was forwarded by the MEB as not meeting retention standards.  The profile remained an S1 and the CI was noted to have stressors from the upcoming separation and recent divorce.  The commander noted that the CI accomplished all of his given tasks and missions and the subsequent update (on 25 March 2002) focused on the effects of the cognitive disorder rather than the mood disorder.  The Board considered the totality of evidence and determined that it did not support the presence of a separately unfitting mental health condition at 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 cognitive disorder, not otherwise specified, condition.  

Chronic Low Back Pain.  According to STR and the MEB NARSUM, the CI’s chronic low back pain condition began in November 1999 after a parachute jump.  He was initially evaluated on 7 June 2000 and had a normal examination other than tenderness.  He was treated initially with medications, physical therapy (PT), and duty restrictions, but his pain persisted.  X-rays were normal other than a slight left curvature to the spine.  He underwent injections of the sacro-iliac joint (between the back and pelvis) on the right and also the lower spine with temporary relief.  An MRI on 4 May 2001 revealed degenerative disc disease (DDD) at L5-S1 without nerve impingement (cord or nerve root).  There was also degenerative joint disease (DJD) at L4-5.  An examination in physical medicine on 7 August 2001 noted a normal neurological examination and full range of motion (ROM).  Minimal tenderness was present over the lower right spine, but spasm was absent.  Repeat X-rays in October were normal. 

At the MEB examination, the motor function was remarkable for 4+/5 strength of the right hip in flexion, but the neurological examination was otherwise normal.  A neurology evaluation on 13 December 2001 noted a normal examination though.  Formal ROM testing by PT on 8 January 2001 showed flexion reduced to 80 degrees (normal of 90) and a combined ROM of 220 degrees (normal 240) with limitations from pain.    

At the VA Compensation and Pension (C&P) examination on 1 March 2002, the CI had painful, but full ROM.  Tenderness was not documented.  Spasm and atrophy were noted to be absent.  The gait was guarded due to pain.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB and VA both rated the back condition 10%, coded 5299-5295 (analogous to lumbosacral strain) and 5293 (intervertebral syndrome), respectively.  The Board found no route to a higher rating.  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 chronic low back condition.  The Board noted that the PEB also determined the MEB (not disqualifying) condition of a herniated nucleus pulposus as not disqualifying as well.  The Board observed that this condition is subsumed under the unfitting LBP condition and that the rating is based on the total impairment from the back conditions.  

BOARD FINDINGS:  In the matter of the cognitive disorder not otherwise specified condition and IAW VASRD §4.124a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the chronic low back condition and IAW VASRD §4.71a, 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 w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAMR-RB						

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

07 DEC 2016

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for 
AR20160018241 (PD201404115)

I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual.  Under the authority of Title 10, United States Code, section 1554a, I accept the Board’s recommendation and hereby deny the individual’s application. This decision is final.  The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

 BY ORDER OF THE SECRETARY OF THE ARMY:

Enclosure

CF: 
(  ) DoD PDBR
(  ) DVA