RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXXXXXX		CASE: PD-2017-03897 BRANCH OF SERVICE: MARINE CORPS	SEPARATION DATE: 20051130

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4 , Combat Engineer, medically separated for “status post [s/p] severe closed head injury with large right frontal parenchymal contusion” 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 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 - 20051012	VARD - 20060121	
Condition	Code	Rating	Condition	Code	Rating	Exam	
S/P Post Severe Closed Head Injury…	8045-9304	10%	S/P Head Trauma with Right Frontal Lobe Encephalomalacia, and Migraine Headaches	
9304-8045	
10%	
20051001	
Smaller Left Front Frontal Contusion	Cat II					
Major Depression	Cat III	Cognitive Disorder with Depression, and Anosmia Secondary to Brain Trauma	8045-9326	50%	20051017	
COMBINED RATING: 10%	COMBINED RATING OF ALL VA CONDITIONS: 60%	
	
ANALYSIS SUMMARY:

Severe Closed Head Injury. According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI sustained a severe head injury with a right frontal parenchymal contusion after an altercation in October 2004. He had a prolonged recovery, which included speech and physical therapy, as well as cognitive testing. Despite continued headaches, emotional lability, and some decision making difficulties, he made “rapid gains.”

During the 2 December 2004 neuropsychological (NP) evaluation, 10 months prior to separation, the CI reported short-term and long-term memory difficulties, impaired word finding, increased irritability, forgetfulness, and episodes of lightheadedness. He also could not smell anything since

the injury. The examiner concluded that his overall status was consistent with the severity of his injury, but that he had demonstrated good recovery and would likely continue to recover over time. His performance was consistent with impaired memory, attention and concentration, and decreased efficiency of processing. Depression was noted to be associated with the brain injury.

The 10 June 2005 MEB NARSUM examination, 5 months prior to separation, noted complaints of memory loss, headache, and difficulty with decision making as well as emotional lability. Physical examination was unremarkable and memory was intact. At the 2 August 2005 NP addendum, the CI described a depressed mood, difficulty concentrating, chronic fatigue, and some mild memory impairment. The examiner concluded that the CI’s depression did not appear to be severe enough to require medication. The mental status examination (MSE) showed normal memory, good judgment and insight, and no difficulty with the cognitive evaluation. The diagnosis of major depression was opined to be secondary to the brain injury and was of mild severity.

At the 1 October 2005 VA Compensation and Pension (C&P) examination, 2 months before separation, the CI reported dizziness, recurrent headaches, memory loss, and irritability when the headaches occurred. He reported migraine headaches once a week that lasted for an hour or so and were treated with Tylenol. Physical examination revealed no evidence of skull fracture, or loss of smell or taste. The MSE demonstrated a normal level of overall mental functioning with no cognitive or memory difficulties.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the closed head injury 10%, analogously coded 8045-9304 (brain disease due to trauma-dementia due to head trauma), and listed “smaller left front frontal contusion” as a Category II (contributes to the unfitting condition but not separately ratable) condition. Panel members agreed that the Category II condition was an intertwined diagnosis, and that the overall impairment from it was properly subsumed under the rating for the head injury to avoid pyramiding (§4.14). The VA also rated the closed head injury 10%, analogously coded 9304-8045, based on the C&P examination.

The VASRD in effect at the time of separation captured brain injuries within the generic category of brain disease due to trauma under code 8045, with 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 under 8045-9304 is limited to 10%, and cannot be combined with any other rating for a disability due to brain trauma. Therefore, a higher rating is not possible under this code. The panel agreed the STR did not show prostrating headaches occurring on average once monthly, or more frequently, over the last several months prior to separation to support a rating higher under code 8100 for 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 closed head injury.

Contended PEB Conditions: Major Depression. The panel’s main charge is to assess the fairness of the PEB determination that the contended condition was not unfitting. The contended condition was not noted on limited duty forms or implicated in the non-medical assessment, and did not fail retention standards. There was no performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at separation. After due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition, so no additional disability rating is recommended.

BOARD FINDINGS: In the matter of the closed head injury and IAW VASRD §4.124a, the panel recommends no change in the PEB adjudication. In the matter of the contended major depression, the panel agrees it cannot recommend it for additional disability rating. 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 20May20

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 dtd 23 Sep 19

1.	Pursuant to reference (a), the PDBR reviewed your case and forwarded its recommendation (reference (b)) to the Department of the Navy on 5 Mar 2020 for appropriate  action.

2.	On 20 March 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.