RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2017-02139
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20061015

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E7, Recruiter, medically separated for “postconcussive syndrome secondary to traumatic brain injury [TBI],” rated 10%, and “cervicalgia” and “blepharospasm, manifested by constant bilateral eyelid and brow twitches” rated 0% each, with a combined 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 - 20060614	VARD - 20070821	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Postconcussive Syndrome…	8045-9304	10%	Major Depressive Disorder and Cognitive Disorder…	8045-9434	70%	20061204	
			Migraine Headaches	8100	50%	20061205	
Cervicalgia	5237	0%	Degenerative Disc Disease of the Cervical Spine	5243	10%		
Blepharospasm…	8199-8103	0%	Blepharospasms, Bilateral Eyes…	8045-8103	30%		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  100%	

ANALYSIS SUMMARY: 

Post-Concussive Syndrome.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI was involved in a motor vehicle accident (MVA) in January 2005 and reported a brief loss of consciousness.  He was seen in the emergency room, and the work-up was normal, including X-rays, MRI and CT scan of the brain.  In the few weeks after the accident, he began experiencing difficulty with concentration, speech and memory, and subsequently developed crying spells, anxiety and depressive symptoms.  

The 13 June 2005 neuropsychological examination, 16 months prior to separation, noted complaints of headaches, insomnia, dizziness, impaired concentration and problems recalling names and regulations at work.  The CI also reported deep depression with crying spells, anxiety attacks, and excessive worrying, and also noted personality changes.  Psychological testing revealed average intellectual ability, but showed weaknesses for attention and working memory, auditory processing, visual motor integration, and dyscalculia.  The examiner opined the CI was showing signs more consistent with a mild TBI than with post-concussive syndrome, as well as signs of moderate depression and anxiety despite psychiatric treatment.  

At the 5 October 2005 MEB NARSUM neurology examination, 12 months before separation, the CI reported significant difficulty maintaining focused attention on multiple tasks.  He had headaches and right shoulder/neck pain, but was not taking medication for migraine prevention or acute management.  Neurological examination was unremarkable with the exception of mild blepharospasm.  The examiner noted the headaches and right shoulder/neck pain were “often prostrating,” preventing focusing attention on duties at work, and “intermittent dizziness, memory disturbances, depression, and anxiety, all negatively impact[ed] his ability to perform to his fullest potential.”  

At the 5 December 2006 VA Compensation and Pension (C&P) examination, 2 months after separation, the CI reported taking Maxalt as needed for migraine headaches, and Topamax for headache prevention.  He also complained of short-term memory loss and migraine headaches, which usually occurred once a week, but did not have associated weakness.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the post-concussive syndrome 10%, dual coded 8045-9304 (brain disease due to trauma–dementia due to head trauma), citing “secondary to traumatic brain injury” and “status post vehicle accident…manifested by frequent headaches and secondary depressive symptoms.” The VA rated “major depressive disorder and cognitive disorder status post mild traumatic brain injury” 70%, dual coded 8045-9434 (brain disease due to trauma–major depressive disorder) based on the C&P examination, citing §4.130 criteria and findings of memory impairment and difficulty with both verbal fluency and word finding.  The VA also rated migraine headaches 50%, coded 8100 (migraine headache).  Members first noted that the VARSD in effect at the time of separation captured brain injuries under the generic category of brain disease due to trauma, coded 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 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 considered the post-concussive syndrome and observed that the CI reportedly experienced headaches, dizziness, and irritability after the accident, consistent with TBI.  The neuropsychological evaluation revealed average intellectual ability, but showed weaknesses for attention and working memory, auditory processing, visual motor integration, and dyscalculia.  Thus, members found no evidence that would support any neurological deficit.  The panel next considered whether a higher rating was achievable under code 8100, which provides rating options related to the frequency of “prostrating” attacks.  Although VASRD §4.124a does not define “prostrating,” the panel’s precedence has relied on the English definition (extreme exhaustion, or powerlessness, reduced to extreme weakness), and thus members carefully considered the frequency and nature of the CI’s headaches including objective and corroborating subjective evidence.  Although, the NARSUM neurologist documented prostrating refractory migraine headaches, the evidence of objective functional impairment was minimal.  Therefore, a higher rating for the condition of post-concussive syndrome is not possible under this code, and was of no benefit to the CI.  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 post-concussive syndrome.  

Cervicalgia.  According to the STR and MEB NARSUM, the CI’s neck pain began in January 2005 after the MVA mentioned above;  X-rays and a CT scan were normal.  The 8 May 2006 orthopedic evaluation, 5 months prior to separation, recorded range of motion (ROM) as flexion to 30 degrees (normal 45) and combined ROM of 230 degrees (normal 340), with painful motion and tenderness noted by the examiner.  At the 1 June 2006 MEB orthopedic addendum examination, the CI complained of continued radiating neck pain despite steroid anesthetic and botox injections, physical therapy and pain medications.  Physical examination showed some discomfort along the paravertebral musculature on both sides of the neck and into the shoulder muscles, but atrophy was not present.  Cervical ROM noted flexion to 30 degrees and combined ROM of 225 degrees, with motion limited by pain.  Neurologic examination was normal.  

At the C&P examination, the CI reported intermittent neck pain with stiffness mainly in the morning.  He experienced neck popping at times but there was no true radicular pain.  Physical examination showed normal posture and gait, with ROM recorded as flexion to 45 degrees and combined ROM of 235 degrees, with painful motion and tenderness noted.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the neck condition 0%, coded 5237 (cervical strain), citing pain limited motion.  The VA rated the neck condition 10%, coded 5243 (intervertebral disc syndrome (IVDS), based on the C&P examination, citing 10% criteria for IVDS.  Members agreed that the C&P examination carried higher probative value since it was most proximate to separation, thus provided sufficient evidence to support a 10% rating for combined ROM greater than 170 degrees but no great than 335 degrees.  Alternatively, the panel agreed a 10% rating was justified for the presence of painful motion and tenderness, IAW VASRD §§4.59 and 4.40.  There was no muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis, and there was no documentation of IVDS.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the neck condition, coded 5237.  

Blepharospasm.  According to the STR and MEB NARSUM, the CI began experiencing eye and brow spasms after the MVA.  The MEB NARSUM examiner recorded a diagnosis of blepharospasm and noted that he might “recover significantly with adequate time/treatment;”  however, there was no mention of treatment or symptoms.  The October 2005 commander’s statement did not mention eye/brow twitching or a tic, and the 14 October 2005 mental health (MH) NARSUM did not mention any abnormal facial movement.  The condition was not recorded on the 6 February 2006 MEB examination (DD Form 2808), but the examiner documented “flat affect.” 

The 20 November 2006 VA C&P eye examination, 1 month after separation, noted the CI intermittently complained of blurriness in the right eye, and reported a history of blepharospasm that was treated with botox injections.  The ocular examination was normal.  During the 4 December 2006 C&P MH examination, the examiner noted the CI had “a twitch” and that the records noted he suffered from blepharospasm; however, there was no description suggesting disfigurement.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the blepharospasm 0%, coded 8199-8103 (analogous to convulsive tic), citing “constant bilateral eyelid and brow twitches” which “negatively affected” his duties as a recruiter by “decreasing his credibility.”  The VA rated the blepharospasm 30%, dual coded 8045-8103 (brain disease due to trauma–convulsive tic) based on the C&P MH examination, citing interference with vision and the ability to communicate effectively due to “disfigurement” of the face.  Members noted normal ocular health, and vision corrected to 20/20 both eyes, and that there was scarce STR evidence regarding treatment and functional impairment.  The condition was not described (frequency, quality, disfiguring, etc.) in any of the examinations noted above, and thus the panel concluded there was insufficient evidence to support a rating higher than that adjudicated by the PEB.  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 blepharospasm.  

Contended PEB Conditions. The panel first acknowledged the conditions of depressive disorder, not otherwise specified (NOS), and prostrating refractory migraine headaches, forwarded from the MEB DA Form 3947 to the PEB as medically unacceptable separate conditions.  After the PEB received the MEB, the PEB requested clarification as to why the conditions were medically unacceptable.  That information was forwarded to the PEB, and each remained medically unacceptable by respective psychiatrist and neurologist.  

Prostrating Refractory Migraine Headaches. The panel’s main charge is to assess the fairness of the PEB’s determination that prostrating refractory migraine headaches was not unfitting.  The migraine headache condition was profiled as a condition manifested with the post-concussive syndrome.  At the 5 October 2005 MEB NARSUM neurology examination, CI reported significant difficulty maintaining focused attention on multiple tasks.  He had headaches and right shoulder/neck pain.  The CI was not taking migraine prevention or acute management treatment.  Neurological examination was unremarkable with the exception of mild blepharospasm.  The examiner noted the headaches and right shoulder/neck pain “are very often prostrating preventing him from focusing his attention on work-related duties.  He has significant post-concussive symptoms of headache, intermittent dizziness, memory disturbances, depression and anxiety, all of which negatively impact his ability to perform to his fullest potential.”  The panel noted the examiner’s opinion directly tied into the PEB’s assertion that headaches were manifestation of post-concussive syndrome.  

The condition of migraine headaches was not implicated in the commander’s statement, but did fail retention standards.  There was no performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at separation.  Panel members concluded, the condition of migraine headaches was an integral, comorbid component of the post-concussive syndrome condition and could not be rated as a single unfitting condition IAW VASRD §4.14.(avoidance of pyramiding).  

Depressive Disorder (NOS).  The panel’s main charge is to assess the fairness of the PEB’s determination that depressive disorder NOS was not unfitting, but that depressive symptoms were manifestations of the post-concussive syndrome.  The panel carefully undertook a review of the service treatment records.  The 13 June 2005 neuropsychological examination, noted complaints of, deep depression with crying spells, anxiety attacks, and excessive worrying.  The examiner opined the CI was showing signs of moderate depression and anxiety despite psychiatric treatment.  

The October 2005 psychiatric addendum to the MEB noted complaints of depression, anxiety, and low energy, lack of motivation, irritability, and poor concentration.  The examiner wrote, “He has had minimal improvement in neurovegetative symptoms of depression.”  It was noted that problems of depression, anxiety, irritability, lack of motivation, low energy, decreased libido, poor concentration and foreshortened sense of the future, continued.  

On 23 March 2006, 7 months prior to separation, a psychiatric addendum to the PEB to clarify why depressive disorder NOS was medically unacceptable, was completed by the treating psychiatrist.  The examiner stated the CI reported periods of irritability, and his [CI] supervisor had reported that he “forgets a lot of stuff…he barely knows how to do a package…there is always something wrong with his packages…he looks real tired at work and this is most of the time.”  The examiner stated the medication helped the depression and irritability, but the CI continued to have irritability and depression.  The psychiatrist opined that the condition of depressive disorder NOS was medically unacceptable.  

During the 4 December 2006 C&P MH examination, 2 months after separation, the CI complained of difficulty with communication, memory, and concentration.  He noted he was unable to remember how to perform simple mechanical tasks and that he forgot conversations and often displaced things.  The CI also reported problems with staying and falling asleep, worry and anxiety, poor appetite, low energy level, loss of libido, and loss of interest in most things.  He was unemployed and indicated uncertainty of finding employment.  The mental status examination recorded dysphoric mood, blunted affect and tearfulness.  

Based on the evidence, panel members agreed, the majority of the STR suggested that the depressive symptoms of irritability, memory impairment, reduced energy, chronic sleep impairment, forgetfulness, motivation, anxiety, and depression, were the most disabling aspect of the CI’s condition.  The NARSUM examiner twice documented the condition was not medically acceptable.  Although the depressive disorder NOS was not listed on the profile, the profile contained a permanent S3, and therefore, restrictions of a profile due to an MH condition were present.  A MH condition was not specifically implicated in the commander’s statement, but it was stated that the CI “no longer possesses the cognitive tools to accomplish his tasks.”  The commander implied that the stress was too much for the CI to manage.  

The panel next considered a rating recommendation IAW VASRD 4.130, and agreed the CI’s condition exceeded the 10% rating since his condition was not mild or transient, and was not controlled by medication.  The October 2005 psychiatric addendum, 12 months prior to separation, noted minimal improvement in depressive symptoms, “due to problems with organization, memory, multitasking, monotone speech, flat affect and difficulty with enthusiasm.”  It was also noted that problems of depression, anxiety, irritability, lack of motivation, low energy, decreased libido, poor concentration and foreshortened sense of the future, continued.  The C&P examination, most proximate to separation, documented difficulty with communication, memory, sleep, appetite, libido, energy, loss of interest, and concentration.  He continued to have marital problems and he reportedly had no meaningful social relationships and had no enjoyable activity.  He was unemployed and indicated uncertainty of finding employment.  However, the condition had not required psychiatric hospitalization, and there was no documentation of frequent panic attacks, or visits to the emergency room for MH care.  Panel members agreed, the CI’s condition was most reflective of the 30% disability level for “Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.”  After due deliberation, the panel agreed the preponderance of the evidence with regard to the functional impairment of depressive disorder NOS favors its recommendation as an additionally unfitting condition for disability rating.  It is appropriately coded 8045-9435 and meets the VASRD §4.130 criteria for a 30% rating.  

BOARD FINDINGS:  In the matter of the post-concussive syndrome secondary to traumatic brain injury condition, the panel recommends no change in the PEB adjudication.  In the matter of the cervicalgia, the panel recommends a disability rating of 10%, coded 5237 IAW VASRD §4.71a.  In the matter of the blepharospasm condition, the panel recommends no change in the PEB adjudication.  In the matter of the contended prostrating refractory migraine headaches, the panel agrees it cannot recommend it for additional disability rating.  In the matter of the contended depressive disorder, not otherwise specified, the panel agrees it was unfitting and recommends a disability rating of 30%, coded 8045-9435 IAW VASRD §4.130.  

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	
Post-Concussive Syndrome	8045-9304	10%	
Cervicalgia	5237	10%	
Blepharospasm	8199-8103	0%	
Depressive Disorder NOS	8045-9435	30%	
COMBINED	50%	

The following documentary evidence was considered:  

Exhibit A.  DD Form 294, dated 20170305, w/atchs  
Exhibit B.  Service Treatment Record  
Exhibit C.  Department of Veterans Affairs Record  

AR20190011843, 

Dear XXXXXXXXXXXXXXXXXXXXXX:

I accept the recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) to re-characterize your separation as a permanent disability retirement with the combined disability rating of 50% effective the date of your medical separation for disability with severance pay.  Enclosed is a copy of the Board’s recommendation and record of proceedings for your information.

	The re-characterization of your separation as a permanent disability retirement will result in an adjustment to your pay providing retirement pay from the date of your original medical separation minus the amount of severance pay you were previously paid at separation.
 
	The accepted DoD PDBR recommendation has been forwarded to the Army Physical Disability Agency for required correction of records and then to the U.S. Defense Finance and Accounting Service to make the necessary adjustment to your pay and allowances.  These agencies will provide you with official notification by mail as soon as the directed corrections have been made and will provide information on your retirement benefits.  Due to the large number of cases in process, please be advised that it may be several months before you receive notification that the corrections are completed and pay adjusted.  Inquiry concerning your correction of records should be addressed to the U.S. Army Physical Disability Agency, (AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557.

	A copy of this decision has also been provided to the Department of Veterans Affairs.

Sincerely,		      

Enclosure