RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-03039
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20051004

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Light Wheel Vehicle Mechanic, medically separated from the Temporary Disability Retired List (TDRL) for “cognitive disorder” with a disability rating of 10%.  

CI CONTENTION:  He was military retirement eligible.  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 - 20050811	VARD - 20060410	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Cognitive Disorder	8045-9304	10%	Evaluation Of Dementia and Cognitive Disorder with Associated Depression secondary to Traumatic Brain Injury (TBI), secondary to Motor Vehicle Accident (MVA)	9304	30%	20060124	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Cognitive Disorder.  According to the service treatment record (STR) and Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s cognitive disorder began 21 October 2000 after an MVA.  The CI was separated and placed on TDRL on 4 October 2005.  A diagnosis of dementia and associated depression due to TBI was rated at 30%, coded 9304.  

At the 14 March 2005 TDRL psychiatry re-evaluation the CI reported he lived with his parents and his dad had brought him to the clinic since he was not sure he could find the place and he was not doing well in terms of his memory.  He reported this is why he had trouble keeping a job.  He reported difficulty with crying even when he felt down and difficulty with sleep 2-3 times per week.  The CI reported he was irritated and upset easily but denied violence.  He reported he had to drop out of a technical course due to memory, poor concentration and not wanting to fail.  He had numerous short-term jobs but could not recall the reason he had to leave. He later reported he experienced problems with maintaining a job due to poor concentration and memory and irritability.  The CI reported his most recent job was working in a gas station 16 hours a week and he was expecting to start a new job March 28.  He took medication for depression and he felt this was helping.  A mental status examination (MSE) showed immediate recall was intact for two out of three objects and he continued to have significant memory problems recalling details of events.  Diagnoses of dementia due to TBI and depressive disorder were rendered with a Global Assessment of Functioning (GAF) score of 65 (mild symptoms, impairment.)  The examiner noted the dementia was stable, the CI was competent to manage his funds, and suggested the next evaluation should occur in 15 months.  

The 3 May 2005 TDRL neurology re-evaluation NARSUM examination, 5 months prior to separation, noted complaints as described above in March 2005.  The CI reported he would like to be independent, but because of neuropsychological issues, he was currently living at home and dependent on his parents.  He had started his new job in a warehouse and was taking venlafaxine (depression.)  The CI reported exercise, including weight lifting, seemed to help his overall condition.  He got along well with his mother and poorly with his father, since he was less patient with him.  He reported he had no friends and had some difficulty explaining why not.  Neurological examination showed memory impairment for certain details of his recent medical history.  The 22 November 2005 neurology consult noted the CI’s disability was undervalued.  A mini-MSE was 23/30, largely due to recall and what resulted in retrograde amnesia.  He had made a remarkable recovery though the remaining deficit in his left frontal lobe caused him a spectrum of problems.  A diagnosis of post-traumatic brain syndrome was rendered.  

At the 24 January 2006 VA Compensation and Pension (C&P) examination, 4 months after separation, the CI reported he was recently hired by a demolition company that would be traveling around the country; he had been on this job just one day.  The CI reported he had lost jobs in the past due to “poor performance.” The difficulty seemed to be with impaired immediate memory, causing him to be unable to complete work tasks.  The CI reported no hobbies but he did exercise occasionally and perform household chores.  The examiner noted a review of the record showed no treatment entries after 30 March 2005.  

Behavioral observations noted the examination was very difficult because the CI gave the answer, “I don’t know” to 9 out of 10 questions.  The examiner noted little weight should be given to the examination given the CI reported his primary problem was with long-term memory.  It was noted it is uncommon for persons to have adequate short-term memory and have no long-term memory.  He could not recall anything about his childhood, military service, or life since the auto accident.  This was remarkable given no obvious evidence of immediate memory impairment.  An MSE showed the CI was dysphoric, gave brief answers, expressed hopelessness, and denied suicide attempts or plans.  The examiner noted that if the CI had impaired memory and cognitive function he should have a payee and be deemed incompetent to manage his own funds.  The CI reported his father had power of attorney and maintained control over his checking account.  The examiner noted the presentation was very unusual and noted the CI was moderately impaired in his functioning.  Diagnoses of cognitive disorder not otherwise specified (NOS) and depressive disorder NOS were rendered with a GAF score of 55 (moderate symptoms, impairment.)  The CI was removed from TDRL with a permanent disability disposition of separation with severance pay at 10%.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the cognitive disorder 10%, coded 8045-9304 (dementia due to head trauma), based on the TDRL re-evaluation, citing results of neuropsychology testing in 2004 and competence in legal, medical, or financial decisions.  The VA rated the cognitive disorder condition 30%, coded 9304 (dementia due to head trauma), based on the C&P examination, citing recent evaluation of the CI’s mental health status.  

The panel considered the VASRD rules in effect at the time for the 8045 code (TBI) which states:  “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.  This 10 percent rating will not be combined with any other rating for a disability due to brain trauma.  Ratings in excess of 10 percent for brain disease due to trauma under diagnostic code 9304 are not assignable in the absence of a diagnosis of multi-infarct dementia associated with brain trauma.”  However, the TDRL re-evaluation showed little change from the PEB’s TDRL placement reasoning.  The CI continued to live with his parents and could not maintain employment due to cognitive deficits in memory, concentration and irritability. He remained depressed and was taking anti-depression medication.  The CI reported he had no friends, was dependent on his parents, and was unable to manage his financial affairs.  The neurologist noted persisting left frontal lobe deficits.  Panel members agreed the CI more closely met criteria for 30% disability.  

BOARD FINDINGS:  In the matter of the cognitive disorder, the panel recommends a disability rating of 30%, coded 9304 IAW VASRD §4.130, at the time of removal from TDRL and permanent disability disposition.  The single voter for dissent recommends no change and did not elect to submit a minority opinion.  There are no other conditions within the panel’s scope of review for consideration.  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	
Cognitive Disorder	9304	30%	

The following documentary evidence was considered:

[AR NUMBER], XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX

I accept the recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) to re-characterize your separation as a disability retirement with the combined disability rating of 30% 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 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.  Inquiries 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 and to the counsel you listed on your application,.

Enclosure