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Dear XXXXXXXXXX:

	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.

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXX.	CASE:  PD-2017-03505
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20050826

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Ammunition Specialist, medically separated for “closed head injury” with a 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 - 20050526	VARD - 20060215	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Closed Head Injury	8045-9304	10%	Closed Head Injury	8045-9304	10%	20051116	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:  

Closed Head Injury.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI suffered a closed head injury in November 2004 during combatives training (pugil stick blow).  He was temporarily dazed but did not suffer a loss of consciousness.  He had a pre-service history of concussions (high school football), but reportedly entered the service with no residuals.  There were frequent STR entries for treatment of headaches, diagnosed as post-concussive, following the injury.  Multiple neurological examinations were normal.  Imaging (CT) was normal.  The headaches did not adequately respond to various medication trials.  

A neurology consult on 31 March 2005, documented “daily” headaches rated 10/10 associated with photophobia (light sensitivity) but no nausea or other symptoms.  The physical examination detailed normal neurological findings to include normal gait and coordination.  The diagnosis was “post-concussive syndrome with recurrent headache.”

The 20 April 2005 MEB NARSUM examination, 4 months prior to separation, documented “intermittent” headaches rated 6/10 associated with photophobia, phonophobia (sound sensitivity) and nausea, but no vomiting or other associated symptoms.  The physical examination was “unremarkable” and referenced the normal neurological findings from the preceding consult referenced above.  The diagnosis was “multiple closed head injuries with chronic headache, photophobia and phonophobia.”

At the 16 November 2005 VA Compensation and Pension (C&P) examination, 4 months after separation, the CI reported that he “has had headaches 24 hours a day” since the injury.  He complained of light and sound sensitivity, “nausea on occasion, but no vomiting,” and difficulty sleeping.  He was currently untreated, having discontinued his most recent medication because of side effects.  The physical examination detailed normal neurological findings to include normal gait and coordination.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the closed head injury 10%, coded 8045-9304 (residuals of traumatic brain injury - dementia due to head trauma), conceding service aggravation of the prior concussions.  The VA, based on the C&P examination, rated the condition identically under the same code.  The rating decision clarified that 10% was the “maximum evaluation provided in the Rating Schedule [for] post-traumatic headaches resulting from closed head injury.”

The applicable VASRD §4.124a rating language in effect at the time of separation is excerpted below.
Purely neurological disabilities, such as hemiplegia, epileptiform seizures, facial nerve paralysis, etc., following trauma to the brain, will be rated under the diagnostic codes specifically dealing with such disabilities, with citation of a hyphenated diagnostic code (e.g., 8045– 8207).

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.
The panel is obligated to apply the VASRD in effect at the time to its recommendations, even though interim VASRD revisions provided for a more generous rating for the sequelae of traumatic brain injury.  Although the evidence might support a higher rating for the CI’s headaches under code 8100, the applicable rating language specifically subsumes headaches due to brain injury.  Therefore, as corroborated by the VA rating decision, the maximum rating allowed at the time of separation was 10% and there was no flexibility for more favorable coding options.  After due deliberation, considering all 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 closed head injury.

BOARD FINDINGS:  In the matter of the closed head injury (subsuming headaches and all associated symptoms) and IAW VASRD §4.124a in effect at the time, 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 there be no modification or re-characterization of the CI’s disability and separation determination.