RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXX		CASE: PD-2017-03456 BRANCH OF SERVICE: MARINE CORPS	SEPARATION DATE: 20070831

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Logistics Vehicle System Operator, medically separated for “traumatic brain injury [TBI]” and “ulnar nerve entrapment,” rated 10% each, with a combined disability rating of 20%.

CI CONTENTION: No specific contention was made. 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 - 20070705	VARD - 20080118	
Condition	Code	Rating	Condition	Code	Rating	Exam	
TBI	8045-9304	10%	Anxiety Disorder with Major Depressive Disorder, Residual of TBI	9413	30%	20071106	
Low Intelligence	Cat II					
Chronic Migraine Headaches	Cat II	Migraine Headaches, Residual of TBI	8100	10%	20071005	
[Left] Ulnar Nerve Entrapment	8516	10%	Left Ulnar Neuropathy and Radial Nerve Syndrome, Status Post Transposition	8699-
8611	30%	20071013	
COMBINED RATING: 20%	COMBINED RATING OF ALL VA CONDITIONS: 70%	

ANALYSIS SUMMARY:

TBI. According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI had a history of multiple head injuries beginning in childhood with neuropsychological evaluation consistent with TBI. The CI was diagnosed with migraines and placed on verapamil and fioricet. He was also experiencing difficulty at work functioning in his MOS as a Sergeant related to difficulty with short term memory and other cognitive deficits.

The 1 May 2007 visit to the neurological clinic noted the CI was being treated with phenobarbital to address his complaint of starring spells and inattentiveness. The CI had complained of frequent episodes of flashing lights, day dreaming and starring spells while driving. His EEG was normal.

At the 29 May 2007 neuropsychological (NP) evaluation, 2 months before separation, the CI reported being kicked in the head at age three by a horse. He had difficulty during his school years with particular difficulty in subjects requiring use of language. The CI reported other academic problems, and noted that his MOS had changed and that he was up for a slot usually filled by a Gunnery Sergeant, which required teaching and more verbal skills than he felt he had. The CI complained of trouble sustaining attention in routine situations, trouble listening, being easily distracted, forgetful in the midst of what he was doing, excessive daydreaming, trouble shifting attention from subject to subject and trouble shifting behaviors from task to task. Additionally, he had mood and anxiety problems. Test results showed below average intellectual quotient (borderline intellect), auditory processing impairment, attentional impairment and other findings suggestive of TBI. The examiner opined the CI was expected to have problems with performing tasks that require speech, auditory and motor processing above his low average to borderline intellectual ability.

The 8 June 2007 MEB NARSUM examination, 2 months before separation, noted complaints of chronic migraine headaches. The CI reported he was unable to perform his duties due to his cognitive impairment. The CI noted that he was hit in the head with a tailgate from a 7 ton vehicle, and had multiple exposure to explosions leading to severe headaches requiring medications. Physical examination was unremarkable with the exception of decreased strength and sensation to the left upper extremity. The CI scored 29/30 on the mini-mental status examination. Brain MRI was normal.

At the 6 November 2007 VA Compensation and Pension (C&P) examination, 2 months after separation, the CI reported a history of severe, near-daily migraine headaches with onset following head injury at age three after he was kicked in the head by a horse. The CI complained that he was unable to remember things, and had problems with recalling names, tracking conversations and remembering verbal instructions. He had other cognitive difficulties and other symptoms consistent with TBI. His IQ test result was somewhat consistent with the NP findings of low IQ, but current tests demonstrated “more severe findings than is seen in patient with severe TBI and or dementia.” The examiner opined that due to the CI’s “suboptimal performance,” it was not possible to identify true areas of cognitive deficits or reach a diagnostic conclusion on the basis of demonstrated impairment on testing.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the TBI 10%, dual coded 8045-9304 (residuals of TBI-dementia due to head trauma). The Navy PEB listed migraine headaches and low intelligence conditions as related diagnoses (Category II) contributing to the disability in this case. The panel concluded the Category II diagnoses were not separate conditions which could be reasonably justified as separately unfitting; nor would separate ratings be achievable without violation of VASRD §4.14 (avoidance of pyramiding) and the low intelligence condition is not a ratable condition under the VA schedule for rating disabilities. The VA rated the migraine headaches 10%, coded 8100 (migraine), based on the STR and C&P examinations, citing prostrating attacks averaging one in two months over the last several months.

The VASRD 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%, therefore, a higher rating is not possible under this code.

The panel also considered a rating under the 8100 code for migraine headaches. 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. The NARSUM made no mention of headache frequency or that headaches had interfered with performance of duty. There was no indication that the CI sought treatment in the emergency room or had to leave work due to migraine 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 TBI.

[Left] Ulnar Nerve Entrapment. According to the STR and MEB NARSUM, the right hand dominant CI injured his left elbow while doing pull-ups, log rolls and lifting with the upper extremity in November 2005. He developed chronic left elbow pain with weakness, numbness and tingling. Electrodiagnostic studies found a well localized radiculopathy in the left T1 segment and underwent ulnar nerve transposition in November 2006. The 20 February 2007 sports medicine examination, 6 months before separation, showed sensitivity in the fourth and fifth fingers, but noted strength had markedly improved in the areas of decreased sensation. Range of motion (ROM) of the elbow was noted as full.

At the 8 June 2007 MEB NARSUM examination, 2 months before separation, the CI complained of continued pain, weakness and paresthesias in the left elbow and forearm, and occasional dropping of items carried in the left hand. Physical examination showed intact tendon reflexes, but decreased sensation and strength in the left upper extremity. There was no mention of muscle atrophy and decreased strength was not expressed in quantitative terms. ROM was not recorded.

During the 5 October 2007 VA Compensation and Pension (C&P) general examination, 2 months after separation, the CI complained of numbness and tingling in the left arm distal to the elbow involving the left hand, second, third and fourth fingers, and poor grip strength. Physical examination showed normal motor strength, but diminished sensation to pinprick and light touch toward the medial aspect of the lower arm and hand. At the 13 October 2007 C&P joint examination, the CI reported improved strength of his left hand, but still had sensory loss. He also reported numbness, pain, tingling and burning along the left arm and elbow. He wore a strap on his arm from time to time and that helped some. The CI had lifting limitations of the left arm and dropped things. Physical examination of the left upper extremity showed decreased light touch sensation in the ulnar nerve distribution, but normal motor strength. Left elbow ROM was limited to 135 degrees (normal 145). There was no swelling, but tenderness was present on motion. Grip strength was 5/5 bilaterally. The examiner opined that the CI had” intact motor function and profound sensory loss.”

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the left ulnar nerve entrapment 10%, coded 8516 (mild incomplete paralysis). The VA rated the left ulnar nerve entrapment 30%, analogously coded 8699-8611 (neuritis-middle radicular group) based on the STR and C&P examination, citing incomplete paralysis of arm, elbow and wrist movements (moderate). Panel members agreed, the 10% rating and no higher was warranted for the elbow condition under the 8516 code. The VASRD notes that “when the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.” The NARSUM documented decreased sensation and decreased motor strength in the left extremity. The C&P examination showed full motor strength, and “decreased” sensation in the ulnar and median nerve distribution in the left forearm. ROM during the specialist

examination was recorded as full, and the C&P exam showed only a 10 degree decrease in elbow ROM. The C&P examiner wrote “profound sensory loss,” but indicated decreased sensation. The examination did not define or interpret the finding of “profound loss.” However, the examiner also wrote decreased sensation was to light touch only. The NARSUM recorded decreased sensation but did not comment on the severity of sensory loss. The panel members agreed, the 8516 code was specific to the CI’s condition of ulnar nerve damage, and therefore, was the most appropriate code in rating the ulnar nerve condition. The panel concluded, there was no appropriate additional VASRD code that would result in a higher 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 left ulnar nerve entrapment.

BOARD FINDINGS: In the matter of the TBI and IAW VASRD §4.124a, the panel recommends no change in the PEB adjudication. In the matter of the left ulnar nerve entrapment and IAW VASRD
§4.124a, 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.

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

IN REPLY REFER TO:
1850
CORB: 003
10 Sep 20

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

Subj: PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) Ref:	(a) DoDI 6040.44
1.	Pursuant to reference (a), the PDBR reviewed your case and forwarded its recommendation to the Department of the Navy on 13 Aug 2020 for appropriate action.

2.	On 27 August 2020, the Assistant Secretary of the Navy (Manpower & Reserve Affairs) accepted the recommendation of the PDBR of no change to your characterization of separation or disability rating assigned by the Department of the Navy's Physical Evaluation Board.

3.	The Secretary's decision on your PDBR application is final and is not subject to appeal or additional review by the Board for Correction of Naval Records.