RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-02099
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20051215

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Fire Support Specialist, medically separated for “cognitive disorder, not otherwise specified [NOS], secondary to traumatic brain injury” and “posttraumatic headaches secondary to traumatic brain injury,” rated 10% each, with a combined disability rating of 20%.   

CI CONTENTION:  “Injuries that were only recognized and not related at correct level of severity.  Also injuries that should have been recognized….some of my injuries were more severe than realized and gotten worse since then.”  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 - 20051013	VARD - 20060407	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Cognitive Disorder, NOS… 	8045-9304	10%	Traumatic Brain Injury with Posttraumatic Headaches and Cognitive Disorder, Pelvic Fractures, Right Sided Jaw Fracture, Spleen Injury, and Low Back and Right Knee Condition	8100-8045	50%	20060821	
Posttraumatic Headaches… 	8045-9304	10%					
Residual Pelvic Pain from Healed Pelvic Fractures	Not Unfitting					
Occasional Knee Pain	Not Unfitting					
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

Cognitive Disorder, NOS.  According to the service treatment record and MEB narrative summary (NARSUM), the CI was shot down in a helicopter in November 2003, and sustained a traumatic brain injury with scalp laceration, splenic rupture, pelvic fractures and mandibular fracture.  No loss of consciousness was reported, but retrograde amnesia was documented with the first memory one week later.  A brain CT in November 2003 was negative, but did note soft tissue injury and a fracture of the right mandibular condyle. The CI remained hospitalized for 5 weeks followed by convalescent leave.  An MRI in October 2004 demonstrated findings that were not attributable to the CI’s symptoms.  

At a neuropsychological (NP) evaluation on 8 March 2005, 9 months before separation, the CI complained of daily headaches, dizziness and fatigue, visual disturbance, light sensitivity, poor attention and concentration, memory and word-finding difficulties, feeling “spaced out,” depression, anxiety and irritability.  Test results showed average range of intelligence (FSIQ=100), with no executive functioning impairment.  However, there was mild impairment in working memory, and mild deficits with retention of verbal information after a long delay.  The CI also had great difficulty resisting distraction.  The examiner opined that he had moderately impaired social and occupational functioning due to his cognitive and emotional difficulties (not detailed), and would benefit from “comprehensive psychiatric care,” but did not mention a diagnosed condition for such treatment.

During the 8 May 2005 MEB NARSUM neurology examination, 7 months prior to separation, the CI reported memory impairment, difficulty with concentration and naming/selecting words, and easy distraction.  He also had increasing agitation that had not impaired social relationships.  The limited mental status examination (MSE) was significant for mild distractibility.  The CI had fluent speech without dysarthria (weakened speech muscles), and cranial nerves, motor strength, coordination and sensory functions were intact.  The 19 May 2005 MEB NARSUM mental health (MH) addendum documented no impairment in memory, concentration or cognition, and mood as “happy” with full range of affect.  The CI took medication for headaches, and the examiner stated that his cognitive disorder made it difficult to report to duty on time, remember appointments, and focus.

The 3 August 2005 MEB NARSUM examination, 4 months before separation, noted the CI had not worked in his military specialty since March 2005 and was currently performing administrative tasks since he was not able to perform duty in a high-intensity combat environment.  The CI reported easy distractibility, irritability and memory problems.

At the 14 August 2006 VA Compensation and Pension (C&P) NP examination, 8 months after separation, the CI complained of headaches which interfered with concentration, and along with memory problems, were a source of difficulty in work environments.  He stated that he had not been able to hold a full-time job since leaving the service, but had had done some odd jobs in construction.  The results of NP testing showed intellectual functioning in the high average range (FSIQ=117) with relatively preserved verbal and visuospatial abstract reasoning and ability to solve unfamiliar complex visuospatial problems.  There was evidence of distractibility, and scores on attention and working memory tests were significantly lower than predicted from IQ scores, suggesting that he had not recovered to his pre-injury condition.  The CI had mild to moderate inefficiency in retrieving object names.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the cognitive disorder 10%, analogously coded 8045-9304 (brain disease due to trauma/dementia due to head trauma), citing mild impairment in working memory, retention of verbal information after a long delay, and the ability to discriminate between words; and severe difficulty resisting distraction.  The VA rated the traumatic brain injury with posttraumatic headaches and cognitive disorder, pelvic fractures, right sided jaw fracture, spleen injury, and low back and right knee conditions 50%, coded 8100-8045 (migraine headache/brain disease due to trauma), based on the C&P examination, citing “A 50% prestabilization rating is assigned… for unhealed or incompletely healed wounds or injuries, with it being likely there will be material impairment of employability.”

The VARSD in effect at the time of separation captured brain injuries under the generic category of “brain disease due to trauma” under code 8045.  There are two different scenarios for rating under this code: analogously with purely neurological deficits, or based on purely subjective symptoms.  In the absence of associated neurological disabilities (seizures, nerve paralysis, etc.), rating under 8045-9304 is limited to 10%, and cannot be combined with any other rating for a disability due to brain trauma.  Ratings in excess of 10% for brain disease due to trauma under code 9304 are not assignable in the absence of a diagnosis of multi-infarct dementia associated with brain trauma.  While there was record of mild to moderate cognitive findings and headaches, the panel found no evidence that would support rating the condition due to neurological or vascular disability.  

The panel next considered a rating under VASRD §4.130, and noted that the March 2005 NP evaluation documented emotional difficulties, some irritability and depressed mood.  However, while psychiatric treatment was recommended, the examiner did not address a diagnosed psychiatric condition or symptoms.  The May 2005 MEB MH examination also did not record significant mood or anxiety problems, and noted a completely unremarkable MSE.  Although the CI had an S4 profile, he was allowed to carry and fire a weapon, and psychiatric restrictions were not mentioned.  After prolonged deliberation, members agreed that the cognitive disorder was best characterized by code 8045 and a 10% rating.  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 cognitive disorder.  

Posttraumatic Headaches.  During the MEB NARSUM neurology examination, the CI described dull aching pain located frontally, but at times included the side of the head.  The pain was rated at 4/10 on average, and could increase to 7-8/10.   For severe headaches, which occurred about once a month, he had to sleep.  The CI noted that the headaches limited his functional abilities and impaired concentration.  Physical examination, including neurological, was unremarkable.

At the MEB NARSUM examination, the CI reported headaches that lasted “24 hours a day,” but did not require medical treatment.  Exacerbations occurred several times a week for which he took a non-steroidal anti-inflammatory drug.  About once a month, he had a more severe headache associated with photophobia that required isolation in a dark room and sleep.  The CI had not sought emergency medical intervention or unscheduled clinic visits for the headaches.  He could not tolerate wearing a Kevlar helmet, and the examiner noted that he had not filled a prescription for prescribed prophylactic medication.  

At the 15 August 2006 C&P examination, 8 months after separation, the CI reported headaches located in the frontal area every day.  Physical examination was unremarkable and the provider diagnosed non-prostrating posttraumatic headaches.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the headache condition 10%, dual coded 8045-9304, citing unremarkable motor, sensory and neurological examinations.  As noted, the VA combined all conditions for a 50% rating, coded 8100-8045 (migraine headache/brain disease due to trauma.  Based on the scenarios discussed above for code 8045 ratings under the VARSD in effect at the time of separation, members agreed that in the absence of associated neurological disabilities (seizures, nerve paralysis, etc.), rating the headaches higher than 10% was not possible.  The panel also considered whether a higher rating could be obtained under code 8100, however, there was no evidence of prostrating headaches.  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 posttraumatic headache condition.  

Contended PEB Conditions:  Residual Pelvic Pain and Occasional Knee Pain.  The panel’s main charge is to assess the fairness of the PEB determination that the contended conditions were not unfitting.  The panel noted that the pelvic, but not knee, pain was listed on the profile, and neither condition was implicated in the commander’s statement. The knee pain did not fail retention standards, and while, the NARSUM examiner documented that the pelvic condition failed to meet retention standards, during the September MEB addendum examination, near normal range of hip motion was noted without significant pain.  The C&P examination documented that the CI could run and jog “as well as ever.”  Members agreed that 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 there was insufficient cause to recommend a change in the PEB fitness determination for any of the contended conditions, so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the cognitive disorder and IAW VASRD §4.124a, the panel recommends no change in the PEB adjudication.  In the matter of the posttraumatic headaches and IAW VASRD §4.124a, the panel recommends no change in the PEB adjudication.  In the matter of the contended pelvic pain and knee pain conditions, the panel recommends no change from the PEB determinations as not unfitting.  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 20170220, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20180016336, 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,					       

Enclosure