RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX 	CASE:  PD-2017-02755
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20050715

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Food Service Specialist, medically separated for “cognitive disorder, NOS [not otherwise specified], mild, secondary to closed head injuries” and “chronic low back pain,” rated 10% each, with a combined disability rating of 20%.   

CI CONTENTION:  “The Ratings and Findings between the MEB/MRB and VA differ greatly. I Respectfully request a Review of the Separation Rating issued by the Army.” [Sic] 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 - 20050506	VARD - 20060119	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Cognitive Disorder, NOS…	8045-9034	10%	Cognitive Disorder	8045-9434	30%	20051012	
Chronic Low Back Pain	5232	10%	Thoracolumbar Strain	5237	10%	20051012	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  50% 	

ANALYSIS SUMMARY:  

Cognitive Disorder, NOS.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI suffered multiple closed head injuries beginning in November 1991 when his head was crushed between a wall and trailer.  He subsequently developed character changes, difficulty concentrating, depression, memory loss and mood swings.  He sought mental health (MH) care in October 2004, and was placed on antidepressant medication.
The 27 October 2004 neuropsychological (NP) examination, 8 months prior to separation, documented adequate test motivation and average intellectual ability.  Mild impairment was noted with visual attention on measures that incorporated motor speed, and with executive functioning on tasks of social reasoning and without clear rules.  Motor strength was also impaired.  The examiner indicated there was some evidence of a possible cognitive disorder, but was unable to determine clearly whether the cognitive deficits were due to depression and impaired motor functioning alone.

The 9 December 2004 MEB neurology consult, 7 months before separation, noted CI complaints of post-concussive syndrome.  He reported a basilar skull fracture in 1991, left sixth and seventh cranial nerve palsy in 1998, and a brief loss of consciousness after a parachute landing in 2003.  Since these episodes, he experienced problems with concentration and forgetfulness, and had recurrent daily headaches in the left retro and periorbital areas.  Physical examination showed intact cranial nerves, normal muscle strength and tone throughout, and intact sensory function.  Gait was normal and he could heel, toe and tandem walk without difficulty.  

At the 10 February 2005 MEB psychiatry consult, 5 months prior to separation, the CI reported a history of persistent depressive symptoms since his 1991 head injury, but not before; however, it was noted that he was briefly hospitalized for angry mood symptoms in 1991 prior to his head injury.  The CI stated he had difficulty performing his duties as a cook because of his depression, and that he was married to his wife of 6 years in a second marriage. The provider noted that the CI did not refill his prescriptions in December 2004, and had not attended three therapy sessions scheduled in November and December.  The mental status examination (MSE) was unremarkable except for mood which he described as ‘down in the dumps.’ and affect noted as tired and anxious; judgement was intact.  The CI indicated a headache at the time of the examination with pain rated at 10/10.  The examiner noted no history of suicidal or homicidal ideation, mania, or psychosis, and that while depressive symptoms had an adverse effect on the CI’s duty performance, he had not had an adequate course of antidepressant medication therapy.  The diagnoses of mood disorder due to closed head injury with depressive features and cognitive disorder NOS were recorded and determined to meet retention criteria.

At the 12 October 2005 VA Compensation and Pension (C&P) mental disorder examination, 3 months after separation, the CI reported a pattern of higher energy accompanied by an inability to sleep for a couple of nights, and low energy associated with a very depressed mood and excessive sleeping.  He experienced emotional lability and occasional panic attacks about once a week with shortness of breath, palpitations and sweating.  He reported irritability and difficulties with his marriage, and complained of memory problems and forgetfulness.  He was not taking any psychotropic medication as he had recently run out.  The CI was not working, but was caring for his four children and the house, went out to eat at times, and engaged in social activities with the kids.  He stated that he would like to go to school but was not sure if he could handle it.  The MSE noted that he was pleasant, cooperative and polite with normal speech.  His affect was anxious but there was no evidence of psychosis or suicidal/homicidal ideation.  Memory and judgement were good.  The examiner assessed cognitive disorder NOS and depression NOS, “secondary to head injury and military stress.”

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 neuropsychological tests showing “mildly impaired visual attention; executive function and motor strength and speed,” and neurological tests indicating normal strength, sensation and reflexes.  The PEB also documented associated chronic recurrent headaches and depression with multiple symptoms.  The MEB psychiatric consult assessed that the CI’s depressive symptoms were secondary to the head injury and there was no separately unfitting MH condition, thus panel members concluded the associated depression was not a condition which could be reasonably justified as separately unfitting; nor would separate ratings be achievable without violation of VASRD §4.14 (avoidance of pyramiding). The VA rated the cognitive disorder (also claimed as affective disorder, bipolar disorder, major depressive disorder, and dysthymia) 30%, analogously coded 8045-9434 (brain disease due to trauma-major depressive disorder), based on the C&P examination, citing occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.  

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.  The two different scenarios for rating under this code are analogously with purely neurological deficits, or based on purely subjective symptoms, such as headaches, dizziness, insomnia, etc.  In the absence of associated neurological disabilities (seizures, nerve paralysis, etc.), rating this condition under code 8045-9304 is limited to 10%, and cannot be combined with any other rating for a disability due to brain trauma.  Panel members noted that while the CI reportedly experienced headaches, depressed mood, and irritability after the accident, consistent with post-concussive syndrome, the NP evaluation identified a mild cognitive disorder and the MEB neurological evaluation showed normal findings.  Thus, the panel agreed that there was no evidence of a neurological deficit. 

The panel next considered a rating under code 8100 (migraine) which is based on the frequency of prostrating attacks.  While VASRD §4.124a does not define “prostrating,” the panel’s precedence relies on the English definition which includes extreme exhaustion, weakness, or powerlessness.  The panel carefully considered the frequency and nature of the CI’s headaches including objective and corroborating subjective evidence, but there was insufficient record of prostrating headaches to justify a rating under code 8100.  The panel also considered rating under VASRD §4.130, but the CI was considered stable, and in the absence of consistent treatment, emergency room visits or hospitalization, a rating higher than the 10% adjudicated by the PEB was not justified based on the evidence at separation.  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.  

Chronic Low Back Pain (LBP).  According to the STR and MEB NARSUM, the CI’s LBP began in March 2001 after a hard parachute landing and fall.  Lumbar spine X-rays on 19 January 2005 were normal, but a 12 October 2005 X-ray showed spina bifida at S1.

During the 19 January 2005 MEB examination (recorded on DD Forms 2807-1 and 2808), 6 months prior to separation, the CI reported lower lumbar pain.  Physical examination revealed no pain with range of motion (ROM), intact neurological findings and negative straight leg raising.  The NARSUM examination the same day, noted complaints of chronic LBP with occasional tingling and numbness in the left leg.  The CI reported pain rated at 4-5/10, and that about 6-8 times a year, the pain was accompanied by left leg numbness and tingling that lasted up to 10 minutes.  The examiner referenced physical findings from the MEB examination.

The 2 February MEB physical therapy (PT) ROM study, 5 before separation, showed thoracolumbar flexion of 80 degrees (normal 90) and combined ROM of 165 degrees (normal 240), after repetition and without painful motion.   

At the 12 October 2005 VA Compensation and Pension (C&P) general examination, 3 months after separation, the CI reported chronic LBP with associated weakness, stiffness and easy fatigability.  Physical examination showed some lower thoracic spine tenderness, but gait and posture were normal, and there was no objective evidence of painful motion, spasm or weakness.  Muscle strength and sensation were both normal.  Thoracolumbar ROM showed flexion of 65 degrees and combined ROM of 220 degrees, with pain at extremes of motion.    

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 10%, coded 5232, citing flexion of 80 degrees.  The VA also rated the low back condition 10%, coded 5237 (lumbar spine strain), based on the C&P examination, citing thoracolumbar flexion greater than 60 degrees but not greater than 85 degrees.  Panel members first noted that the PEB’s use of code 5232 was likely a typographical error and the appropriate code was 5237.  The panel agreed that a 10% rating, but no higher, was justified for limitation of flexion, as reported on the MEB NARSUM and VA C&P examinations.  There was no muscle spasm or guarding to result in an abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  There was no documentation of intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating under that formula.  The panel concluded there was no 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 low back condition.  

Contended PEB Condition:  Affective Disorder.  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 profiled (S2) as being associated with post-concussive syndrome, but was not implicated in the commander’s Statement, and did not 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 cognitive disorder and IAW VASRD §4.124a, the panel recommends no change in the PEB adjudication.  In the matter of the low back condition, and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  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 20170327, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20190008410, 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.