RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX 	CASE:  PD-2016-01581
BRANCH OF SERVICE:  Marine Corps 	SEPARATION DATE:  20040831

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Rifleman, medically separated for “status post a closed head injury with post concussive syndrome” with a disability rating of 10%.  

CI CONTENTION:  The CI requested review of additional conditions, including conditions not identified by the Medical Evaluation Board (MEB) and the Physical Evaluation Board (PEB).  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 PEB to be unfitting for continued military service, and when specifically requested by the CI, those conditions identified by the MEB, but determined by the PEB 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.  The panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections when appropriate.  The panel’s assessment of the PEB rating determination is based on review of medical records and all available evidence relevant to application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards for 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, which operates 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 disability at the time of separation.  

RATING COMPARISON:  

SERVICE PEB - 20040527	VARD - 20041013	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Status Post a Closed Head Injury with Post Concussive Syndrome	8045-9304	10%	Status Post Traumatic Concussion Syndrome	8045	0%	20040709	
C5 Clay Shoveler’s Fracture	Cat III 	Status Post Cervical Spine Fracture	5235	0%	20040709	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20% 	

ANALYSIS SUMMARY:  

Status Post a Closed Head Injury with Post Concussive Syndrome.  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s head injury condition began in March 2003 after an explosion inside his armored vehicle during combat while deployed to Iraq.  There was reported loss of consciousness; however, intubation was not required.  Brain CT scan on the day of the trauma was unremarkable. He was medically evacuated to Spain and later transferred to the continental U.S. where he was evaluated by neurosurgery and treated as an outpatient in the traumatic brain injury (TBI) program.  MRI of the brain in August 2003 was reportedly without any significant findings.  Neuropsychological (NP) evaluation in June 2003, 14 months prior to separation, revealed a number of cognitive difficulties with deficits in attention, focus, and problem solving, but noted it had been a relatively short period of time since the injury and continued recovery was expected.  

During the 23 February 2004 MEB NARSUM examination, 6 months prior to separation, there were complaints of difficulty with concentration and in performing activities with his hands.  He did not have headaches.  Physical examination showed no weakness and no sensory changes.  

At the 9 July 2004 VA Compensation and Pension (C&P) examination, 1 month before separation, the CI reported he had sustained a head injury during his deployment and was diagnosed with post–concussion syndrome.  There had been no further NP testing.  Physical examination documented no significant evidence of generalized cognitive problems or emotional problems.  Examination of the head showed a palpable scar on the apex of the skull extending towards the occipital area that was non-tender.  The mental status examination (MSE) noted the CI was fully oriented with normal comprehension and intact memory.  The examiner also noted the CI reported some minor manual dexterity problems with the right hand; however, on examination these were not clearly evident.  During the14 July 2004 mental health C&P examination the CI reported some anxiety and nerve problems, and since he was told he had cognitive issues, repeat NP evaluation was planned for August.  The MSE was unremarkable.  The CI was fully oriented, with a good fund of knowledge and good memory, and was noted to have above average intelligence.  His concentration was good.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the head injury condition 10%, coded 8045-9304 (residuals of traumatic brain injury – dementia due to head trauma).  The VA rated the head injury condition 0%, coded 8045 (residuals of traumatic brain injury), based on the C&P examination, citing no disabling manifestations.  

The VARSD in effect at the time of separation captured brain injuries under the generic category of brain disease due to trauma (8045).  There are two different scenarios for rating under this code:  analogously with purely neurological deficits, or purely subjective symptoms.   In the absence of associated neurological disabilities (seizures, nerve paralysis, etc.), or in the absence of a diagnosis of multi-infarct dementia associated with brain trauma, 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 panel found absence of evidence that would support any neurological disability, and therefore only 10% was supported.  There were no additional applicable codes to consider for rating the condition.   After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded there was insufficient cause to recommend a change in the PEB adjudication for the status post a closed head injury with post concussive syndrome.  

Contended PEB Condition:  C5 Clay Shoveler’s Fracture.  The panel’s main charge is to assess the fairness of the PEB determination that the contended condition was not unfitting.  The contended condition was noted on the limited duty forms; however, the LIMDU was limited to 8 months and there was no evidence that a LIMDU was in place during the 8 months prior to separation.  The condition was not implicated in the non-medical assessment or judged to fail retention standards.  There was no performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition, so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the status post a closed head injury with post concussive syndrome and IAW VASRD §4.124a, the panel recommends no change in the PEB adjudication.  In the matter of the contended C5 clay shoveler’s fracture condition, the panel agrees it cannot recommend it for additional disability rating.  There are no other conditions within the panel’s scope of review for consideration.  Therefore, the panel recommends no modification or re-characterization of the CI’s disability and separation determination.   

The following documentary evidence was considered:  

Exhibit A.  DD Form 294, dated 20161018, w/atchs  
Exhibit B.  Service Treatment Record  
Exhibit C.  Department of Veterans Affairs 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

      In accordance with reference (a), I have reviewed the cases listed below and 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:

		- XXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USN

							XXXXXXXXXXXXXXXXXX
	     				                        Assistant General Counsel
						           (Manpower and Reserve Affairs)