RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXXX.		CASE: PD-2017-02959 BRANCH OF SERVICE: MARINE CORPS	SEPARATION DATE: 20070815

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Fiscal Budget Technician, medically separated for “mood disorder secondary to general medical condition,” “moderate-to-severe, postconcussive syndrome” and “traumatic brain injury (TBI),” rated for overall effect with a combined disability rating of 0%.

CI CONTENTION: The conditions continue to worsen. The CI requested review of additional conditions not identified by the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB).  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 PEB to be unfitting for continued military service, and when specifically requested by the CI, those conditions identified by the 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 - 20070530	VARD - 20070920	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Mood Disorder	
Overall Effect	
0%	Depressive Disorder	9434	50%	
20070809	
Traumatic Brain Injury (TBI)			TBI	8045	10%		
			Stuttering due to TBI	7299-7202	0%		
Postconcussive Syndrome			No VA Placement	
COMBINED RATING: 0%	COMBINED RATING OF ALL VA CONDITIONS: 80%	

ANALYSIS SUMMARY:

Mood Disorder. The PEB combined the mood disorder, post-concussive syndrome and TBI under a single disability rating for “overall effect” as permitted by DoDI 1332.38 (E3.P3.4.4). The combination of multiple conditions as a single disability reflects the PEB’s determination that

each condition was not separately unfit, but the functional impairment resulting from the conditions when considered together was unfitting. The panel’s initial charge in this case was therefore directed at determining if the PEB’s single overall effect rating was justified in lieu of separate unfit determinations and ratings. If the panel judges that two or more separate ratings are warranted, it must satisfy the requirement that each “unbundled” condition was unfitting in and of itself as shown by a preponderance of evidence. The panel’s recommendations may not produce a lower combined rating than that of the PEB. The evidence for the mood disorder will be presented separately, but the evidence for the post-concussive syndrome and TBI will be presented together, with separate fitness determinations and rating recommendations if indicated.

According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI was involved in a boating accident and suffered a skull fracture in June 2001, but was able to complete a deployment in 2005. However, in July 2006, the CI presented to mental health (MH) with the complaint of depression and anxiety and was diagnosed with adjustment disorder with depressed mood. He was later diagnosed with depression, anxiety disorder, NOS, and pain disorder associated with psychological and physical factors, before receiving the MEB diagnosis of mood disorder. The CI took psychotropic medication for headaches, depression, sleep and memory problems. There was no evidence that the MH disorder required treatment in the emergency room or hospitalization, and there was no evidence of psychosis or report of suicidal thoughts during his time in the service.

The 24 October 2006 psychiatry visit noted an absence of specific records in the CI’s chart pertaining to the head injury. At the time, the CI reported significant depression and anxiety symptoms. The psychiatrist noted the CI was suffering a severe depressive syndrome, but was able to state with certainty that his depression was the result of the TBI. It was noted that the CI had qualified to teach finance at an instructor’s school. The 17 November 2006 LIMDU did not list any of the conditions that were forwarded to the PEB.

At the January 2007 neuropsychological evaluation (NP), 8 months before separation, the CI reported having difficulties with short-term memory, decreased attention and concentration, problems with word finding and increased irritability since his 2001 accident. The examiner found significant impaired attention and concentration, and slight-to-mild difficulties with learning and memory. The examiner opined that anxiety needed to be addressed; however, no diagnoses were rendered.

During the 13 April 2007 NARSUM, the CI complained of mood and anxiety problems since the accident. The examiner opined that his mood problems were possibly due to the head injury and to the social stigma and difficulties of functioning after a TBI. The 2 May 2007 MEB NARSUM examination, 3 months prior to separation, noted complaints of depressed mood, irritability, poor concentration and fatigue. The examiner noted the CI was first seen by a psychiatrist in August 2006 and was diagnosed with depression secondary to his injuries. The CI was married with one child and his marriage was not good due to arguments and occasions of non-speaking. Mental status examination (MSE) was unremarkable with the exception of depressed affect and mood, and mildly impaired memory. The CI denied suicidal or homicidal ideations. The diagnosis of mood disorder secondary to general medical condition, moderate-to–severe, was assessed for the first time. The examiner opined that there was “Impairment in decrease in work efficiency and productivity.”

The non-medical assessment (NMA) dated 7 May 2007, documented that the CI “still accomplishes his duties as required.” It was noted that the CI had three medical appointments per week, which included physical therapy. The CI’s supervisor reportedly stated the CI had performed very well despite his condition. It was also noted that the CI was not engaged in off- duty social or athletic activities since his 2001 accident.         The STR going forward was silent in

regards to treatment of MH disorders. On the 3 May 2007 Periodic Health Assessment, the CI reported his medications were still effective for treating his mood, anxiety, sleep, ADHD and headache symptoms.

At the 9 August 2007 VA Compensation and Pension (C&P) MH examination, 1 week before separation, the CI reported irritability, poor sleep and difficulty “turning his mind off” since the head injury. He stated that his memory problems affected his job, but found ways to compensate by writing notes and using other types of memory queues. The CI also reported he was having difficulty relating to his family since the head injury and his social interactions were limited to his family. The MSE recorded impaired concentration and short-term memory, flat affect and dysphoric mood. It appeared that no cognitive examination was administered. The examiner diagnosed depressive disorder due to general medical condition. The psychologist opined that the CI’s depression was “at least as likely as not” related to his boating accident.

The panel directed attention to its rating recommendation based on the above evidence. The VA rated the depressive disorder 50%, coded 9434 (major depressive disorder), citing occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; sleeping impairment; stereotyped speech; irritable; impairment of short-term memory; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships.

Panel members reviewed the evidence for the depression carefully and noted the STR and CI, consistently linked the depression to the TBI condition, manifested by complaints of memory deficits, irritability, headache, stuttering and sleep disturbance. A MH disorder was not listed on the LIMDU. The NARSUM examiner referred the condition of TBI to the PEB, and indicated a psychiatry addendum may be needed. The addendum documented that the CI was referred into the DES due to the TBI. No MH disorder was mentioned specifically in the NMA, and the depression was not discussed in the NARSUM as interfering with duty performance. Although the psychologist opined there was impairment in work efficiency and productivity, the CI’s supervisor indicated the CI had performed very well. There was no indication from the STR that the CI’s duty performance had been negatively impacted by the depression. The panel concluded there was not a preponderance of evidence to show that the mood disorder standing alone would have caused the CI to be referred into the DES or be found unfit.

Postconcussive Syndrome and TBI. According to the STR and MEB NARSUM, the above mentioned boating accident caused a skull fracture in June 2001. Documentation regarding the accident and treatment of the fracture was not available, and therefore, the CI was the historian. The CI reported that since the accident he suffered memory loss and headaches, but had no seizures. At the NP examination the CI reported having difficulties with short-term memory, decreased attention and concentration, problems with word finding and increased irritability. The examiner found significant impaired attention and concentration, and slight-to-mild difficulties with learning and memory. No diagnosis was rendered. The 13 April 2007 MEB NARSUM examination noted complaints of headaches about two to three times a week that were relieved with sleep. The CI reported problems with slowed speech. Physical examination showed intact cranial nerve function, normal motor strength and otherwise unremarkable neurological and physical examinations with the exception of slight difficulty with tandem walk. MRI demonstrated some encephalomalacia in the left temporal lobe. During the 8 May 2007 MEB examination (recorded on DD Forms 2807-1 and 2808), 3 months prior to separation, the CI reported dizzy spells, migraine headaches, memory loss and stuttering, with sleep problems starting in 2006.  Physical examination was unremarkable.

At the 27 August 2007 C&P MH examination, 2 weeks after separation, the CI reported occasional dizziness, headaches and problems with short-term memory and stuttering. The CI was looking for employment and reported his injuries from the accident had affected his functioning to  the

extent that he had to carry a note pad and write things down so not to forget. The headaches were unilateral and relieved by lying down for a while or taking medication. Physical examination revealed normal cranial nerves, gait, motor function, sensory function and reflexes. The skull was of normal appearance.

The NARSUM examiner was silent in regards to fitness but noted the CI had impairment in psychosocial skills as the result of the TBI. The STR demonstrated that every clinical evaluation documented some impairment related to the TBI. Panel members agreed the preponderance of evidence showed that the TBI with post-concussive syndrome was separately unfitting. The panel directed attention to its rating recommendation based on the above evidence. The VA rated the TBI 10%, coded 8045 (residual of traumatic brain injury) based on the STR and C&P examination, citing a 10% rating for “purely neurological disabilities, such as hemiplegia, epileptiform seizures, facial nerve paralysis, etc., following trauma to the brain.”

The panel considered a rating recommendation under code 8045 (brain disease due to trauma) based on the evidence at the time of separation. 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, such as headaches, dizziness, insomnia, etc. 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. Although the brain MRI cited in the 13 April 2007 MEB reportedly demonstrated some encephalomalacia in the left temporal lobe, the finding was not correlated clinically and therefore, the significance of such a finding is unclear. The panel found an absence of evidence to support a neurological deficit. The panel next considered a rating under code 8100. The rating options under 8100 rely on the frequency of “prostrating” attacks, and VASRD §4.124a does not define “prostrating.” The panel’s precedence has relied on the English definition of prostrating (extreme exhaustion, or powerlessness, reduced to extreme weakness). The panel carefully considered the frequency and nature of the CI’s headaches including objective and corroborating subjective evidence, and was unable to justify a rating under the 8100 code due to insufficient evidence of prostrating headaches. 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 TBI.

BOARD FINDINGS: In the matter of the post concussive syndrome and TBI, the panel recommends a disability rating of 10%, coded 8045-9304 IAW VASRD §4.124a. In the matter of the mood disorder and IAW VASRD §4.124a, the panel recommends no change in the PEB adjudication.

The panel recommends the CI’s prior determination be modified as follows, effective the date of medical separation:

CONDITION	VASRD CODE	PERMANENT RATING	
Postconcussive Syndrome and TBI	8045-9304	10%	

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20170330, w/atchs Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record

IN REPLY REFER TO

DEPARTMENT OF THE NAVY
SECRETARY OF THE NAVY COUNCIL OF REVIEW BOARDS
720 KENNON STREET SE STE 309
WASHINGTON NAVY YARD DC 20374-5023

									                            1850
									                            CORB:003
                                                                                                                                                                            9 Jun 20 

From:  Director, Secretary of the Navy Council of Review Boards

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) 

Ref:   (a) DoDI 6040.44
         (b) PDBR ltr of 29 Apr 19

1.  Pursuant to reference (a), the PDBR reviewed your case and forwarded its recommendation to the Department of the Navy for appropriate action.   

2.  On 4 June 2020, the Assistant Secretary of the Navy (Manpower & Reserve Affairs) took action in your case by accepting the recommendation of the PDBR.  Accordingly, your records will be corrected to reflect an increase in the disability rating awarded by the Department of the Navy Physical Evaluation Board (PEB) from 0% to 10% without re-characterization of your discharge. 

3.  For your information, since all disability ratings from 0% to 20% qualify for disability severance pay, the above stated increase will not result in your entitlement to additional compensation. 

4.  The Assistant Secretary’s determination, which represents final action in your case by the Department of the Navy, has been forwarded to the office of the Deputy Commandant, Manpower and Reserve Affairs, for appropriate changes to your personnel records and notification to you upon completion.