RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX  	CASE:  PD-2016-01741
BRANCH OF SERVICE:  Marine Corps	SEPARATION DATE:  20040430

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E3, Ground Communications Organizational Repairer, medically separated for “status post open reduction internal fixation [ORIF] right intratrochanteric fracture” and “closed head injury,” rated 10% each, with a combined disability rating of 20%.  

CI CONTENTION:  No specific contention made.  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 Medical Evaluation Board (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 - 20040309	VARD - 20040617	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Status Post ORIF Right Intratrochanteric Fracture	5099-5003	10%	Residuals Status Post Right Hip Fracture with ORIF	5255	20%	20040325	
Closed Head Injury	8199-8100	10%	Migraine Headaches, Residuals, Closed Head Injury	8100	10%	20040325	
Post Concussive Syndrome	Cat II	Cognitive Impairment, Residuals, Closed Head Injury	9440-9326	10%	20040325	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Status Post ORIF Right Intratrochanteric Fracture.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI underwent ORIF of a right intertrochanteric hip fracture on 17 May 2003 after falling out of the third story of a building.  On 3 October 2003, an X-ray interpretation noted intact orthopedic hardware status post right hip ORIF but “fractures through the intertrochanteric fracture of the right hip.”  An assessment of healing could not be determined absent comparison studies.  

The 31 December 2003 MEB NARSUM examination, 4 months prior to separation, noted CI complaints of right hip pain and an inability to run.  The examiner indicated he was able to bear weight without significant problems, but could not stand or run for any sustained periods.  Physical examination showed right hip flexion to 115 degrees (normal 125) with external rotation to 70 degrees (normal 60).  Strength was normal with some spasticity and clonus.  The examiner stated that the CI received follow up X-rays that demonstrated “adequate and normal healing of his intra-trochanteric fractures and intact orthopedic hardware.”  During the 22 January 2004 MEB examination (recorded on DD Forms 2807-1 and 2808), 3 months before separation, the CI reported right hip pain.  Physical examination revealed right hip flexion to 120 degrees with external rotation of 70 degrees.  Strength was normal without muscle atrophy, and spasticity and clonus were present.  

At the 25 March 2004 VA Compensation and Pension (C&P) examination, 1 month before separation, the CI reported right hip pain and decreased range of motion (ROM).  Physical examination showed a normal gait and posture and a healed, tender scar on the right side.  Hip ROM was painful with flexion to 115 degrees, extension to 15 degrees, abduction to 45 degrees and external rotation to 50 degrees.  Pain additionally limited ROM and had the major functional impact.  Strength, reflexes, and sensory function were normal.  X-rays showed an old healed fracture with orthopedic appliances of the right femoral neck.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the right hip condition 10%, analogously coded 5099-5003 (degenerative arthritis).  The VA rated the right hip condition 20%, coded 5255 (impairment of femur), based on the C&P examination, citing moderate knee or hip disability.  The VA also cited the right sacral fracture as impacting the hip condition and not being separately ratable.  Members noted there was no ROM limitation which supported a rating under diagnostic codes for limitation of flexion, extension, or thigh impairment (5251, 5252, or 5253) for greater than a 10% rating. The panel next considered analogously rating to code 5255 given the multiple examinations documenting spasticity and clonus, and adjudged that the CI’s impairment at separation more nearly approximated the “moderate” knee or hip disability level to warrant the next higher 20% rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 20% for the right hip condition, coded 5299-5255.  

Closed Head Injury.  According to the STR and MEB NARSUM, the CI sustained a closed head injury with subarachnoid hemorrhage after the fall mentioned above.  He was hospitalized and intubated secondary to decreased mental status.  On 3 June 2003, he was transferred to VA inpatient care, and following complex multispecialty rehabilitation, he was discharged to outpatient status on 7 July 2003.  An inpatient neuropsychological assessment on 18 June 2003 showed impaired cognitive processing speed, design fluency (indicative of executive functioning), visual spatial construction, and visual memory.  

At a neurology consult on 19 November 2003, the CI complained of chronic headaches and difficulties with memory.  Neurologic examination was normal and the specialist’s impression was “post-concussion syndrome, closed head injury, multi organ trauma, and status post extensive rehab” with neuropsychiatric evaluation concluding that the CI had “mild-to-moderate cognitive and linguistic deficits.” The provider also noted that “it will be time that is going to heal his headaches” and cognitive deficits would “require a longer time for complete resolution.” 

On 31 December 2003, the MEB NARSUM examiner noted that a 23 September 2003 medical board included a closed head injury and recommended 8 months of limited duty and no weapons or ammunition handling.  The examiner referred to the November 2003 neurology consultation and additionally documented that the CI was taking Imitrex (for headaches) and continued to have chronic headaches/migraines that interfered with his ability to perform in his specialty.  

The 7 January 2004 non-medical assessment (NMA) indicated the CI missed 8-10 hours per week of duty time due to his “condition.”  While he performed “minimal non-physical/administrative tasks” due to hip related restrictions, the commander indicated he could be “utilized within this command as [a] Radio Technician in garrison.”  During the 22 January 2004 MEB examination, the CI reported dizziness, severe headaches, memory loss, and noted post-concussion syndrome.  The examiner diagnosed post-concussion syndrome and adjustment disorder.  

At the C&P examination, the CI reported having recurring, unpredictable, and debilitating migraine headaches, and that during attacks, he had to stay in bed and was “unable to do anything.”  He stated the headaches averaged “once every 15 days and each attack lasted for 3 hours.”  The examiner noted he had been suffering from a closed head injury with anterograde amnesia and memory loss.  A mini-mental status examination was normal and indicated the CI was alert and oriented with normal behavior and appropriate affect.  Comprehension was normal, memory was intact, and there were no signs of tension.  The provider indicated that a “neuro psych report” was attached, but this was not in evidence.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the head injury condition 10%, analogously coded 8199-8100 (migraine headaches), with post concussive syndrome listed as at Category II condition (see below).  The VA rated the head injury as “migraine headaches, residuals, closed head injury” at 10%, coded 8100, and “cognitive impairment, residuals, closed head injury” at 10%, dual coded 9440-9326 (chronic adjustment disorder–dementia due to other neurologic or general medical conditions), based on the C&P examination, citing occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks.  

The panel considered the great disparity between the headache history documented in the STR and in the pre-separation VA examination.  The NMA did not indicate that headaches specifically caused missed duty or impaired duty performance, and aside from the C&P examination, there were no other entries documenting history or episodes of prostrating headaches.  Rating guidance under diagnostic code 8100 is based on the frequency of “prostrating attacks” over the “last several months.”  The VASRD does not further define prostrating attacks, however commonly accepted definitions include “utter physical exhaustion or helplessness” (Webster's New World Dictionary of American English), “complete physical or mental exhaustion” or “extreme exhaustion or powerlessness” (Dorland's Illustrated Medical Dictionary).  Members carefully considered the frequency and nature of the CI’s headaches including objective and corroborating subjective evidence.  Review of the record did not show prostrating headaches occurring on average once per month, or more frequently, over the last several months prior to separation to support a rating higher than the 10% adjudicated by the PEB.  

As noted above, the PEB listed the post concussive syndrome as a Category II condition (related and contributed to the primary unfitting condition).  The panel’s assessed whether the condition was reasonably justified as separately unfitting for rating consideration, but members agreed that given the NMA assessment of the CI being fully functional in garrison specialty duties (aside from those requiring physical activities), the preponderance of evidence indicated the post concussive syndrome was not justified as separately unfitting and could not be recommended for an additional rating.  After due deliberation, considering all of 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 closed head injury (with Category II post concussive syndrome) condition.  

BOARD FINDINGS:  In the matter of the status post ORIF right intratrochanteric fracture, the panel recommends a disability rating of 20%, coded 5299-5255 IAW VASRD §4.71a.  In the matter of the closed head injury (with Category II post concussive syndrome) condition and IAW VASRD §4.124a, the panel recommends no change in the PEB adjudication.  There are no other conditions within the panel’s scope of review for consideration.  

The panel recommends the CI’s prior determination be modified as follows; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Status Post Open Reduction Internal Fixation (ORIF) Right Intratrochanteric Fracture	5299-5255	20%	
Closed Head Injury	8199-8100	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20161111, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record  

MEMORANDUM FOR DEPUTY COMMANDANT (Manpower and Reserve Affairs)
		   COMMANDER, NAVY PERSONNEL COMMAND	
	                          
Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS          

Ref:  (a) DoDI 6040.44
	(b) PDBR ltr dtd 18 May 18 ICO XXXXXXXXXXXXXXXXXX
	(c) PDBR ltr dtd 07 Jun 18 ICO XXXXXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 05 Jun 18 ICO XXXXXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 13 May 18 ICO XXXXXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 18 May 18 ICO XXXXXXXXXXXXXXXXXX

1.  Pursuant to reference (a), the recommendations of the Physical Disability Board of Review set forth in references (b) through (f) are approved.  The official records of the following individuals are to be corrected as follows:

     a. XXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.

     b. XXXXXXXXXXXXXXXXXX, former USMC: Placement on the Permanent Disability Retired List with a 30 percent rating (increased from 20 percent) effective date of discharge.  

     c. XXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.

     d. XXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.

     e. XXXXXXXXXXXXXXXXXX, former USMC: Placement on the Permanent Disability Retired List with a 30 percent rating (increased from 10 percent) effective date of discharge.  
 
3.  Please take action to implement these decisions and provide notification to the above individuals once those actions are complete.

                                  XXXXXXXXXXXXXXXXXX
                                  Assistant General Counsel
                                  (Manpower and Reserve Affairs)