RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  xxxxxxxxxxxxxxxxxxx	CASE:  PD-2017-03780
BRANCH OF SERVICE:  Air Force 	SEPARATION DATE:  20051219

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E3, Security Forces, medically separated for “status post traumatic brain injury (TBI)” with a  disability rating of 10%.  

CI CONTENTION:  “TBI.”  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 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 - 20051003	VARD - 20060130	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Status Post (S/P) TBI 	9304	   10%	Adjustment Disorder with Depressed Mood, S/P TBI Injury	9399-9304	50%	20060110	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

TBI.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI was injured in August 2004 after being assaulted at a local bar.  He suffered a loss of consciousness and was hospitalized for 4 days.  Since that time, he suffered from TBI with significant problems with short term memory recall.

At the October and November 2004 psychological evaluations, the CI reported problems with short-term memory, poor concentration, irritability, headaches, dizziness and personality changes.  His mood had become far more sullen and easily depressed. The mental status examination documented normal speech, mildly dysphoric mood and depressed affect, although he was also able to express full range.  Psychological tests revealed overall intellectual functioning in the average range.  He was noted to have significant attention and concentration problems that were thought to be related to an undiagnosed history of attention-deficit, hyperactivity disorder (ADHD), exacerbated by head injury.  His overall cognitive abilities were assessed as intact.  

The 26 January 2005 MEB NARSUM examination, 11 months prior to separation, noted complaints of forgetfulness, poor concentration, increased irritability, headaches, dizziness and short term memory loss.  It was noted that the brain MRI performed in October 2004 showed temporal lobe contusion, but the EEG was negative.  An addendum to the NARSUM, dated 6 August 2005, reported the findings of a July 2005 psychological re-assessment of the CI’s cognitive functioning.  The psychologist reportedly stated that the CI was unable to perform basic job tasks secondary to forgetfulness and lack of reliability, and that he continued to suffer from severe memory impairment related to his closed head injury.  The 30 September 2005 psychiatry addendum to the MEB, 3 months prior to separation, recorded diagnoses of cognitive impairment due to general medical condition, post-concussive syndrome with cognitive dysfunction including: exacerbated ADHD symptoms, reading disorder, written expression disorder, mathematics disorder and amnestic disorder due to general medical condition.  

At the 10 January 2006 VA Compensation and Pension (C&P) examination, 1 month after separation, the CI reported occasional problems with balance, but had no falls.  He lived with his fiancé and did not manage his financial affairs.  The CI scored 30/30 on the mini-mental status examination.  During the C&P mental examination, the CI complained of depression, irritability, poor concentration and attention, and headaches.  There was no report of domestic violence or problems in his relationships.  His typical day consisted of taking his dogs for a walk, watching television or playing video games.  The mental status examination was unremarkable with the exception of dysthymic mood and affect, some mild agitation, and difficulty with short-term memory and recall.  He denied problems with sleep or appetite.   

The panel directed attention to its rating recommendation based on the above evidence.  Panel members first agreed that the provisions of VASRD§ 4.129 for a “mental disorder that develops in service as a result of a highly stressful event” were not applicable.  The PEB rated the TBI 30% but deducted 20% for aggravating/contributing factors resulting in a 10% rating, coded 9304 (dementia due to head trauma), citing CI’s “social and industrial adaptability impairment prior to his non-LOD accident was in the definite range, however were it not for the non-ratable/non-compensable conditions, his impairment rating would best be described as mild.”  The VA rated the TBI 50%, analogously coded 9399-9304 (dementia due to head trauma), based on the C&P examination. 

Both the examiner of the psychiatry addendum and examiner of the psychiatry C&P indicated a considerable level of occupational impairment for military service due to the CI’s condition.  The examiners opined that the coexistence of ADHD, adjustment disorder and learning disabilities all led to the MEB, implying that the learning difficulties contributed significantly to the overall cognitive disability picture.  

The STR demonstrated absence of hospitalization for mental health (MH) concerns, absence of suicidal or homicidal ideation, no visits to the ER for MH symptoms, and no report of anxiety, panic attacks or problems with sleep or energy.  The STR entry on 19 October 2005 showed that alcohol abuse was in remission.  In fact, there was no documentation of alcohol dependence.

The commander stated, “His [CI] short term memory has been affected by his injuries.  His short-term memory losses could impair his ability to testify in courts martial proceedings, remember authentication codes and other critical security forces taskings.”  There was no indication of behavior issues at work despite the CI’s report of increased irritability.

The panel considered the absence of problems with sleep, panic attacks, and the apparent stability of mood despite complaints of chronic irritability.  The panel also considered the presence of mild memory loss reported as forgetfulness and objective finding of impaired memory and other cognitive impairment.  There was no impairment in judgment or thinking.  Although the psychological examiner diagnosed ADHD, and other cognitive disabilities, the examiner acknowledged that the ADHD diagnosis had not been given prior to the CI entering the service. The panel also acknowledged that the conditions of alcohol dependence, ADHD and adjustment disorder were non-ratable conditions at the time of separation.  However, there was no indication that the CI had problems associated with ADHD or other cognitive conditions prior to the injury.  Panel members agreed that although there were problems with focusing, attention, and perhaps impulsiveness, all suggestive of ADHD, the co-morbid ADHD and learning disabilities, appeared to have a minor role in the health of the CI.  Therefore, the 20% deduction was not appropriate in this case.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 30% for the TBI condition, coded 9304.   

BOARD FINDINGS:  In the matter of the TBI, the panel recommends a disability rating of 30%, coded 9304 IAW VASRD §4.130.  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	
S/P TBI with Residual Cognitive/Amnesic Disorder	9304	30%	

The following documentary evidence was considered:

	

SAF/MRB
3351 Celmers Lane
JBA NAF Washington, MD 20762-6435

Dear XXXXXXXXXXXX:

		Reference your application submitted under the provisions of DoDI 6040.44 (Section 1554, 10 USC), PDBR Case Number PD-2017-03780.

After careful consideration of your application and treatment records, the Physical Disability Board of Review determined that the rating assigned at the time of final disposition of your disability evaluation system processing was not in accordance with the guidelines of the Veterans Affairs Schedule for Rating Disabilities.  Accordingly, the Board recommended your separation be re-characterized to reflect disability retirement, rather than separation with severance pay.

I have carefully reviewed the evidence of record and the recommendation of the Board.    I concur with that finding, accept the recommendation and determined that your records should be corrected accordingly.  The office responsible for making the correction will inform you when your records have been changed.

As a result of the aforementioned correction, you are entitled by law to elect coverage under the Survivor Benefit Plan (SBP).  Upon receipt of this letter, you must contact the Air Force Personnel Center at to make arrangements to obtain an SBP briefing prior to rendering an election.  If a valid election is not received within 90 days from the date of this letter, you will not be enrolled in the SBP program unless at the time of your separation, you were married, in such a case, failure to render an election will result in automatic enrollment by law.