RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00036
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20070126

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E6, Patriot Missile System Operator-Maintainer, medically separated for “post-concussive subjective symptoms from two closed head injuries”, with a disability rating of 10%.

CI CONTENTION:  “It should be looked at according to VASRD instead of DODI 1332.39.   Review all conditions.”  The complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The panel’s scope of review is defined in DoDI 6040.44.  It is limited to review of disability ratings assigned 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 or non-compensable.  Any conditions outside the panel’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 panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The panel’s assessment of the PEB rating determination is based on 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(s) at the time of separation.  The panel 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 panel 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 - 20070104	VARD - 20150528	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Post-Concussive Subjective Symptoms from Two Closed Head Injuries	8045-9304	10%	Traumatic Brain Injury with Memory Loss	8045	10%	20150408	
Personality Change due to Closed Head Injury							
Sleepwalking Disorder							
Mood Disorder Secondary to Closed Head Injury							
Head Injury (S/P)	Not Unfitting					
Posttraumatic Stress Disorder (PTSD)	Not Unfitting	PTSD	9411	70%	20150403	
Tinnitus	Not Unfitting	Tinnitus	6260	10%	20150324	
Recurrent Headache	Not Unfitting	Headache Syndrome	8100	0%	20150408	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS: 80%	
Post-Concussive Subjective Symptoms from Two Closed Head Injuries (Post-Concussive).  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s post-concussive condition began after two closed head injuries, with the first occurring in April 2003 during deployment to Iraq (after which the CI apparently fully recovered) and the second occurring in February 2006 during a field training exercise when his head (wearing Kevlar helmet) slammed into the roof of the vehicle in which he was a passenger, striking the vehicle’s roof and rendering the CI unconscious for at least 30 minutes, One week later he experienced sleep walking and recurrent nightmares of both accidents.  He also reported very poor ability to attend and concentrate at work.  He further related depressed mood and irritability due to his inability to function adequately.   Outpatient evaluation, including neuroimaging and electroencephalogram (EEG) were negative.  He was subsequently admitted to inpatient psychiatry for further evaluation and testing.  Neuropsychological testing showed mild to moderate cognitive dysfunction, an exaggerated symptom picture and inconsistencies, which resulted in malingering as a diagnostic possibility.  There was no history of prior psychiatric disorder.  Medication management was initiated with anti-psychosis medication with no significant benefit to sleepwalking or nightmares.  

The MEB forwarded “PTSD, personality change, sleepwalking, mood disorder, tinnitus, S/P closed head injury and recurrent headache” for PEB adjudication.  The MEB NARSUM examination (undated in the record), noted complaints of nightmares, persistent sleepwalking, depressed mood, irritability and cognitive dysfunction.  Physical examination was unremarkable.  Mental status examination (MSE) showed slow, soft speech, left hand tremor, depressed mood with congruent affect but no suicidal/homicidal ideation.  Diagnoses on Axis I included PTSD, personality change due to closed head injury, sleepwalking disorder and mood disorder due to closed head injury and Axis 3. S/P closed head injury, tinnitus, recurrent headache (most likely due to head injury) rendered with a Global Assessment of Functioning (GAF) of 50 (moderate symptoms, impairment.)  

The 13 June 2006 pulmonary visit noted that on-going sleepwalking episodes despite treatment with an anti-anxiety agent argues against sleepwalking or REM behavior disorder.  The November 2006 memo noted there was no evidence to support headaches or personality change as unfitting and there was no clear picture of why this CI was unable to perform his duties. The psychiatric examiner and author of the NARSUM noted the presentation of cognitive decline, somatic symptoms and emotional symptoms subsequent to a closed head injury with a re-statement of DSM IV diagnoses.  The 8 April 2015 VA Compensation and Pension (C&P) evaluation, performed 7 years and 10 months after separation, was beyond the probative period for consideration.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the post-concussive subjective symptoms due to two closed head injuries condition 10% analogously coded 8045-9304 (dementia due to head trauma).  The PEB subsumed the following additional conditions as referred by the MEB, under this single disability determination: headache, personality change due to closed head injury, sleepwalking disorder, and mood disorder secondary to closed head injury.  The VA rated the post-concussive condition 10% coded 8045 (brain disease due to trauma), based on the VA C&P examination 7 years and 10 months after separation, citing the overall 10 percent evaluation was assigned for the CI’s traumatic brain injury with memory loss based on the highest level of severity of " 1" (IAW specific VASRD Code 8045 rating criteria in effect at the time.)

The PEB cited paragraph 2 under VASRD code 8045, 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.  The VA’s 30% rating was based on the general rating formula for mental disorders (occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks).  Regarding the appropriate coding option, it was agreed that the 8045-9304 code chosen by the PEB is technically accurate in this case and the post concussive syndrome was properly rated under the VASRD rules in effect prior to October 23, 2008:  “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).”  This PEB coding approach was consistent with the VASRD in effect at the time, which required that subjective symptoms of TBI be rated in this manner and could not be rated separately.

The option of applying the 8100 coding criteria was deliberated  The CI noted during the 14 December 2006 follow up visit that he did not experience disability as a result of headaches.  Although the CI had chronic daily headache graded as 7/10 point pain scale, clinic encounter examiners observed him to be in no acute distress.  There were no reported episodes of prostrating headaches.  He was taking no prophylactic medication but he did take an over the counter analgesic medication daily for the past several months.  The panel noted that the neurologist concluded the CI was overusing the medication and was counseled to not use the medication more than twice per week in order to prevent medication overuse headache.  The neurologist also prescribed an anti-convulsion medication for headaches.  Headaches were not profiled or noted in the second commander’s statement of December 2006.  There was no evidence of prostrating headaches during the several months prior to separation that would warrant a separate rating for the headache condition.  

The panel next considered whether the CI’s diagnosis was the result of a “highly stressful event,” IAW §4.129 (mental disorders due to traumatic stress).  The stressor, in this case was the trauma of his head hitting the roof of the vehicle that caused the CI’s injuries.  The CI’s brain injury; however, and subsequent personality change, sleepwalking and mood disorder were clearly related to trauma, and not to stress.  The Board adjudged that the provisions of VASRD §4.129 were not appropriate to apply in this case.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded that there was insufficient cause to recommend a change in the PEB adjudication for the post-concussive condition.  

Contended PEB Conditions:  Head Injury (S/P), Posttraumatic Stress Disorder (PTSD), Tinnitus.   The panel’s main charge is to assess the fairness of the PEB’s determination that the contended conditions were not unfitting.  

PTSD. The CI received a S3 profile that included PTSD and the NARSUM stated that this condition failed retention standards.  However, the Commander’s statement did not implicate symptoms of PTSD and the CI had few symptoms of PTSD, which included irritability and nightmares (possibly due to head injury) and it was not determined by the PEB as failing retention standards.  
 
Head Injury (S/P). The commander implicated residuals of head injury.  Head injury was not profiled or judged to fail retention standards.  

Tinnitus.   Tinnitus was not profiled, judged to fail retention standards or implicated by the commander as interfering with duty.  There was no performance-based evidence from the record that any of the conditions significantly interfered with satisfactory duty performance at separation.  

After due deliberation, the panel concluded that there was insufficient cause to recommend a change in the PEB fitness determination for any of the contended conditions and so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the post-concussive symptoms condition and IAW VASRD §4.124a, the panel unanimously recommends no change in the PEB adjudication.  In the matter of the Head Injury (S/P), Posttraumatic Stress Disorder (PTSD), Recurrent Headaches and Tinnitus contended conditions, the panel unanimously recommends no change from the PEB determinations as not unfitting.  There were no other conditions within the panel’s scope of review for consideration.  The panel, 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 20160120, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170013197, XXXXXXXXXXXXXXXXXX 

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found your separation disability rating and your separation from the Army for disability with severance pay to be accurate.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed), and I accept its recommendation.  I regret to inform you that your application to the DoD PDBR is denied.  

	This decision is final.  Recourse within the Department of Defense or the Department of the Army is exhausted; however, you have the option to seek relief by filing suit in a court of appropriate jurisdiction.

Sincerely,