RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW
NAME: XXXXXXXXXXXXXXXX	CASE: PD-2017-01166
BRANCH OF SERVICE: ARMY	SEPARATION DATE: 20060730

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Motor Transport Operator, medically separated for “post concussive syndrome with mild cognitive disorder and headaches” with a disability rating of 10%.

CI CONTENTION:  “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 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 - 20060622	VARD - 20070801	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Post-Concussive Syndrome…	8045-9304	10%	Post-Concussion Syndrome	8045-9304	10%	20060925	
Seizures	Not Unfitting	Subsumed in above.	
COMBINED RATING: 10%	COMBINED RATING OF ALL VA CONDITIONS: 70%	

ANALYSIS SUMMARY:

Post-Concussive Syndrome. According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI experienced a concussive injury (struck by tent pole) in 1999, and subsequently had chronic headaches, occasional dizzy spells, and subjective memory complaints. He experienced a second concussive event after a fall from a height in mid-2005 while deployed to Iraq, and was medically evacuated a month later for daily headaches and short-term memory loss (no further details available). Imaging to include a CT in theater and post-deployment MRIs, first suggested an old brain injury (right frontal lobe parenchymal abnormality), then a suspected subarachnoid cyst. Multiple comprehensive neurological examinations were normal, but neuropsychological testing in October 2005 indicated some nonspecific cognitive    impairment.

Repeat testing in March 2006, 4 months before separation, documented variable results “generally ... within the low average and average levels,” and the examiner opined that the CI “could be demonstrating very mild impairment relative to his premorbid functioning.”

With regards to the headaches, there was inconsistent STR evidence for their frequency and severity. Most examiners characterized them as daily without elaboration of severity or noting any prostrating episodes. These included the initial service neurology consult soon after deployment, a follow-up note by the same provider, and the examiner for the initial neuropsychological testing (as above). A civilian neurology consult in October 2005 documented that the headaches were more frequent than the baseline (dating to 1990) with daily, more severe episodes which “at times ... interfere[d] with driving and other routine activities.” A service neurologist, in a December 2005 entry, recorded the CI’s report of “about 2-3 headaches a week” that for the past month had required “that he goes home and stops doing what he is doing.” A daily headache prophylaxis medication (nortriptyline) was started at that time. A follow-up and final service neurology entry repeated verbatim the preceding history (via automated charting), and characterized the headaches as “prostrating” in the summary and increased the dose of nortriptyline. Although not captured in the STR, post-separation VA evidence indicated that nortriptyline had been effective. At the time of the repeat neuropsychological testing in March 2006, the examiner characterized the headaches as “daily” without elaborating severity or noting any prostrating features.

There was no STR evidence of any emergent treatment of headache other than an emergency department visit in April 2006 that was treated with an injectable anti-nausea medication (Compazine) and oral non-narcotic medications. There was no record of any quarters assignment or other duty accommodation for headaches. The commander’s statement did not document any duty loss due to headaches or any specific cognitive impairment, and listed only physical limitations (presumably due to out-of-scope orthopedic conditions) that prohibited field duty and deployment.

At the 2 February 2006 MEB NARSUM examination, 6 months before separation, the CI reported that his headaches had “gotten worse to the point of having to leave work, and go home in a dark room to care for his headache.” The examiner noted the above neurologist’s opinion that the headaches were prostrating, but did not specify the frequency of these episodes. Neurological findings were recorded as normal on the MEB physical examination DD Form 2808.

The cognitive complaints were addressed by a 10 May 2006 psychiatric addendum to the NARSUM, 3 months prior to separation. At that examination, the CI complained that he was “very bothered by his memory ... [and] ... needs to write things down,” but the examiner stated that “he is able to supervise others and ... has not been removed from his work.” The frequency and severity of headaches was not elaborated, although the examiner opined that they were the primary interference with work. The mental status examination (MSE) was completely normal, but “mild” cognitive impairment was diagnosed based on neuropsychological testing. The examiner opined that there was no social/industrial impairment (IAW DoDI 1332.39) and the global assessment of functioning score was 70 (slight to mild impairment).

At the 25 September 2006 VA Compensation and Pension (C&P) examination, 2 months after separation, the CI reported headaches “intermittently throughout each day” that were helped by laying in a dark room. He was taking only Tylenol and no longer using prescribed medications. He additionally reported “unable to remember things...forgets easily.” The MSE and neurological examinations were normal and the results of service neuropsychological testing were detailed. The C&P examination summarized a recent VA neurology consult (date and source document not in evidence) as “chronic daily headache since 1999; post trauma vs. somatization disorder; mild cognitive impairment.” The examiner’s diagnosis was “residuals of head injury causing mild cognitive  impairment  and  daily  headaches.”     It  was  opined  that  there  was     “significant”

occupational effect for the cognitive symptoms, but “no evidence to support migraine-type headaches.” Repeat VA neuropsychological testing 2 weeks after the C&P examination yielded equivalent results to the service testing.

A VA mental health C&P examination of 8 May 2007, 9 months after separation, documented that “headaches are reported as daily, moderate to severe in nature and chronic since 1999” and there were no deficits on cognitive testing. There were multiple subsequent VA provider notes (still within 12-month interval after separation) that noted an improved and stable course for the headaches with no prostrating features.

The panel directed attention to its rating recommendation based on the above evidence. The PEB combined separate MEB submissions of cognitive disorder and migraine headaches (specifically attributing each to head injuries) as a post-concussive syndrome rated 10%, dual coded 8045-9304 (residuals of traumatic brain injury (TBI)-dementia due to head trauma), specifically citing VASRD 4.124a (see below). The VA also subsumed both conditions as post- concussion syndrome under the same code with the same rating, citing the applicable VASRD
§4.30 criteria for code 9304. Although the VA referenced §4.30 (mental health disorders) criteria, the applicable criteria for code 8045-9304 are specified in VASRD §4.124a (neurological disorders) as cited by the PEB. Per the VASRD in effect for rating TBI, “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 panel first considered whether the etiology of the headaches should be ascribed to a migraines, unrelated to the head injuries and meriting separate rating, but agreed that more likely than not they were post-concussive in nature (well corroborated onset with the first head injury); thus, appropriately subsumed under 8045-9304.

Based solely on the above VASRD rating language in effect, a 10% was the maximum rating that could be supported. However, it is established policy that the panel will comply with applicable VA rating guidance issued formally via “FAST” or Training Letters effective at the time of separation. The VA Training Letter, TL06-03, dated 13 February 2006 and thus applicable to this case, specifically addressed the complexity of TBI and recommended coding “outside” of 8045- 9304 when more favorable rating could be achieved under an alternate code applicable to one of the elements. This opened the option for substituting code 8045-8100 (rated for migraine headaches), if there was support for a rating higher than 10% under the §4.124a criteria for code 8100. Panel members deliberated whether this option was favorable to the 10% rating under code 8045-9304. The §4.124a rating criteria for code 8100 are 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).

The 30% rating (next higher more favorable rating) is for prostrating attacks at least monthly, and the highest 50% rating is for “very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.” Panel members agreed that the 50% rating was not justified, given that the CI remained functional for routine work duties (commander’s statement, psychiatric addendum); but, considered whether a recommendation for the 30% criteria could be justified. It was clear that the frequency criterion for the 30% rating was satisfied, but the panel deliberated whether the requisite prostrating criterion was sufficiently supported by the evidence, and ultimately agreed that there was not enough overall objective evidence from which to conclude that the prostrating criterion was satisfied. The service neurology opinion that the headaches were prostrating was premised on a reported history that could not be corroborated by, or even inferred from, the objective evidence. It would be logical to expect that a need to abandon work several times weekly because of headaches would have

been noted by the commander, and would have been supported by provider documentation and authorization. Headaches of that severity would also have reasonably prompted provider visits for emergent treatment, and would have necessitated continued treatment with prescribed medications (discontinued before or soon after separation per the C&P evidence). It was conceded that there was a period of increased severity, as reflected in the later service neurology notes and the NARSUM; but, the evidence from the interval leading up to and for an extended period after separation indicated that this severity was not protracted. It was most likely that the headaches improved with nortriptyline prescribed at the onset of the exacerbation, and that by the time of “the last several months” (per 30% criteria) before separation, they had returned to the chronic baseline (daily headaches since 1999). Therefore, since the 30% criteria were not sufficiently supported, there was no advantage to rating under code 8045-8100. After due deliberation, considering all 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 syndrome.

Contended PEB Condition: Seizures. The NARSUM documented a reported history of “two major incidents of blackouts,” one associated with the 1999 head injury and another in 2005 soon after redeployment. There was no STR evidence for any witnessed episodes or further details consistent with seizure activity, and an electroencephalogram was normal. The condition was not profiled or implicated in the commander’s performance statement, and did not fail retention standards. The panel’s main charge is to assess the fairness of the PEB’s determination that the condition was not unfitting. There was no performance-based evidence from the record that it 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 the seizure condition and so no additional disability rating is recommended.

BOARD FINDINGS: In the matter of the post-concussive syndrome (subsuming cognitive impairment and headaches) and IAW VASRD §4.124a, the panel recommends no change in the PEB adjudication. In the matter of the contended seizure condition, the panel recommends no change from the PEB determination as not unfitting. There are no other conditions within the panel’s scope of review for consideration. Therefore, the panel recommends that there be no modification or re-characterization of the CI’s disability and separation determination.

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Dear XXXXXXXXXXXXXX:

	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.