RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00350
BRANCH OF SERVICE:  ARMY 	SEPARATION DATE:  20051121

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an National Guard E5, Food Service Specialist, medically separated for “cognitive disorder,” with a disability rating of 10%.

CI CONTENTION:  The CI contended that he had 20 jobs that he got fired from after deployment.  He has SS disability of 100%, concentration issues, bad headaches, can’t work, bad nightmares, panic attacks, and heighten alertness.  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 - 20051014	VARD - 20060628	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Cognitive Disorder	8045-9304	10%	Cognitive Dysfunction/Adjustment Disorder	9326-9440	NSC	20060222	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  NSC	

ANALYSIS SUMMARY:  

Cognitive Disorder.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s reported a history of having a closed head injury in April 2003. He lost consciousness for about 20 minutes and awoke with pain in his head and neck, dizziness, and disorientation.  Symptoms resolved within a month and was not evaluated further until May 2005 by neurology.  Magnetic resonance imaging (MRI) in May 2005 was normal.  Electroencephalogram (EEG) of the brain in May 2005 was abnormal and consistent with static encephalopathy, most likely related to prolonged low oxygen.  He had a history of low oxygen at the age of 7 during an accidental hanging.  Neurological consultation resulted in a diagnosis of cognitive disorder, not otherwise specified (NOS), present in a milder form prior to service but exacerbated by concussion experienced on active duty.  Despite treatment, the condition could not be adequately rehabilitated to meet the requirements of the CI’s military specialty and the CI was referred for an MEB.  The MEB forwarded “global cognitive dysfunction” for PEB adjudication.  

The MEB NARSUM examination on 20 September 2005, 2 months prior to separation, noted the CI could not tolerate anti-convulsion medications for the abnormal EEG, due to adverse side effects and was therefore taking no medications.  The second neurological consultation resulted in the impression, “partial complex behavior, epilepsy one consideration, however findings could represent global brain injury from hypoxia.”   Psychiatry consultation resulted in an Axis I diagnosis of adjustment disorder with mixed disturbance of emotions and conduct and Axis III diagnosis of rule out cognitive disorder due to childhood medical trauma.   Neuropsychological consultation gave a diagnostic impression of Axis I cognitive disorder NOS, moderate and dysthymic disorder, Axis II personality disorder NOS.  Psychologists also referenced traumatic brain injury (TBI, mild) and a history of childhood anoxia as precipitating injuries.  

At the 22 February 2006 VA Compensation and Pension evaluation, performed 3 months after separation, the CI reported trouble with impaired judgment, sleep and daytime sleepiness and fatigue.  He was looking for work and was unemployed.  The CI had problems relating to his wife and step-children.  He had no sex drive, low energy, frequent irritability, problems with concentration, no short term memory, and thoughts of suicide that religious beliefs kept him from acting on them.  The CI was not receiving current treatment for a mental disorder.  He was anxious about bills.  Mental status examination (MSE) showed moderate psychomotor retardation, slow soft speech with low volume, constricted affect, depressed mood, disoriented to time, limited judgment and insight, frequent suicidal thoughts, moderately impaired remote and recent memory.  Mini-mental status score was 26/30, losing points for orientation, serial 7s, and recall.  Diagnoses of cognitive disorder NOS, moderate severity and major depressive disorder, severe were rendered with a Global Assessment of Functioning (GAF) of 31 (major impairment in several areas.)

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the cognitive disorder condition 10%, coded 8045-9304 (dementia due to trauma), citing mild industrial impairment with aggravation of a pre-existing condition.  The VA denied service connection for the cognitive dysfunction/adjustment disorder condition, analogously coded 9326-9440 (nonpsychotic organic brain syndrome-chronic adjustment disorder), citing existence of the condition prior to military service without objective finding of permanent worsening related to military service.  

The PEB coding of 8045-9304 approach was consistent with the VASRD in effect at the time, which required that subjective symptoms of TBI be rated in this manner i.e. 

“Purely subjective complaints such as headache, dizziness, insomnia, etc., recognized as symptomatic of brain trauma, will be rated 10 percent and no more under diagnostic code 9304.  This 10 percent rating will not be combined with any other rating for a disability due to brain trauma.  Ratings in excess of 10 percent for brain disease due to trauma under diagnostic code 9304 are not assignable in the absence of a diagnosis of multi-infarct dementia associated with brain trauma.”  

The cognitive deficits described in this case was the main substrate for coding under the PEB’s 8045-9304 approach.  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 condition.  

BOARD FINDINGS:  In the matter of the cognitive disorder 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 20150526, w/attachments
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

19 DEC 2016

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for 
XXXXXXXXXXXXXXXXXX, AR20160018690 (PD201500350)

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