RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXX		CASE: PD-2017-04467 BRANCH OF SERVICE: MARINE CORPS	SEPARATION DATE: 20071031

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Machine Gunner, medically separated for “history of traumatic brain injury [TBI],” “cognitive disorder not otherwise specified [NOS],” “mood disorder,” and “benign essential tremor,” rated for “overall effect” with a disability rating of 0%.

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 - 20070904	VARD - 20080215	
Condition	Code	Rating	Condition	Code	Rating	Exam	
History of TBI	
Overall Effect	
0%	
Depressive Disorder NOS	
9499-9434	
10%	
20071227	
Cognitive Disorder NOS							
Mood Disorder							
Benign Essential Tremor							
COMBINED RATING: 0%	COMBINED RATING OF ALL VA CONDITIONS: 60%	

ANALYSIS SUMMARY:

History of TBI, Cognitive Disorder NOS, Mood Disorder, and Benign Essential Tremor. The PEB combined the listed conditions and determined they were unfitting based on overall effect (OE) IAW DoDI 1332.38 E3.P3.4.4. In these cases, each condition has been determined by the PEB to be separately not unfit, but the overall effect considered together creates a condition of unfitness. The panel’s initial charge was therefore directed at determining if combining conditions under OE was justified in lieu of separate ratings. When considering a separate rating

for each OE condition, the panel considers each condition to be separately not unfit unless a preponderance of evidence shows the condition to be unfitting. Each condition is separately considered below with attendant fitness determinations and rating recommendations if indicated.

Benign Essential Tremor. According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI initially experienced pain and “twitching” in February 2007 after he was started on Prozac (selective serotonin reuptake inhibitor) and Ambien (sedative). The twitching tremors were constant, involved the trunk and upper extremity, and persisting during sleep. A brain MRI, test for heavy metals, EEG, and spinal tap were all normal with no signs of a bacterial infection. The CI was evaluated by a movement specialist and diagnosed with benign essential tremor. Topamax (anti-convulsant) was started and improved the tremors significantly.

At the 20 August 2007 MEB NARSUM examination, 2 months prior to separation, the CI reported continued tremors. Physical examination revealed normal muscle strength/tone and sensation, but finger-nose-finger and heel-to-shin testing were somewhat difficult, and there was some tremor noted on arm drift testing as well as truncal tremor.

During the 28 November 2007 VA Compensation and Pension (C&P) neurological examination, 1 month after separation, the CI reported that his tremor was responsive to medication, but he continued to have tremors with twitching of neck, shoulder and back muscles. There was no history of gait or balance difficulties, and physical examination showed normal gait and motor strength and bulk, and no spasms. Tremors were noted in the neck, left shoulder, and lumbar spine regions, but did not affect range of motion (ROM).

The panel directed attention to its rating recommendation based on the above evidence. As noted above, the PEB rated the combined OE condition 0%, and panel members reviewed the evidence for the benign essential tremor carefully, noting that it was the sole condition listed on the limited duty form and was discussed extensively in the NARSUM as interfering with duty performance and being “quite debilitating.” Although the tremors responded to medication, the non-medical assessment (NMA) indicated that the CI was unable to “physically manipulate and employ assigned weapon systems” due to the condition. The panel concluded that there was a preponderance of evidence showing that the benign essential tremor alone would have caused the CI to be referred into the DES or be found unfit.

When considering a rating recommendation, panel members noted that at the time of separation, the STR evidence showed the CI was responsive to medication but continued to have neck, shoulder and back muscles twitching. The C&P examination, which was most proximate to separation, showed an unremarkable physical examination with no loss of balance or walking impairment, normal strength, and neck, shoulder and back ROM within normal limits. The examiner noted that the symptoms were mild, but medication was necessary. The panel considered a rating under analogous code 8045-8103 (residuals of TBI-tic, convulsive), and agreed that a 10% rating, but no higher, was justified for moderate impairment based on the NMA, NARSUM and VA findings. After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the benign essential tremor, coded 8045-8103.

Cognitive Disorder NOS (History of TBI). According to the STR and MEB NARSUM, the CI suffered a head injury in June 2005 while riding in a military vehicle, and subsequently had 3-4 headaches a week, memory problems, personality changes, and increased irritability and depression. Neuropsychological (NP) testing in June 2007, 4 months prior to separation, revealed “some problems with recent memory of unclear etiology but consistent with traumatic brain injury.”

At the 27 December 2007 VA C&P NP examination, 2 months after separation, the CI reported short-term memory problems, noting that he forgot conversations, had difficulty retaining information he read, and did not always remember to take his medications. At the time of the evaluation, he was in training for a utility company and had no difficulty learning the new position. He also had attended a 3-week training class in which he did well. The mental status examination was unremarkable and the CI scored 29/30 on the mini-mental status cognitive evaluation. Despite his report of poor short-term memory, he recognized some of the tasks that were administered as part of the previous NP test, and he had little difficulty detailing his history, though his description of his head injury and subsequent hospitalization was somewhat vague. There were some inconsistencies in his description of symptoms, and the examiner opined that the additional NP test results could not be reliably interpreted. A diagnosis of mild depressive disorder NOS was assessed, but cognitive disorder was not included in the diagnostic impression.

The panel directed attention to its rating recommendation based on the above evidence, and reviewed the evidence for the cognitive disorder carefully, and noted the condition was specifically mentioned in the NMA, but not listed on the limited duty form or discussed in the NARSUM as interfering with duty performance. Although the service and VA NP test results noted some impairments, overall effort in testing was noted as poor and thus reliability was compromised and a cognitive disorder was not diagnosed. Thus, the panel concluded that there was not a preponderance of evidence showing that the cognitive disorder alone would have caused the CI to be referred into the DES or be found unfit due to the condition.

Mood Disorder. As noted above, the CI sustained a head injury in 2005. At the time of NP testing in June 2007, the CI indicated he was not taking any psychotropic medication and reported problems with irritability and attention/concentration, but no mood symptoms.

During the MEB NARSUM examination, the CI complained of depression, which he felt was in part due to his headaches. Medication for treating depression or sleep was not recorded, and the examiner diagnosed TBI, headaches “with mixed features” and benign essential tremor.

The C&P NP examination noted complaints of cognitive problems, headaches, tremors and sleep issues. The CI initially reported an “okay” mood, but then admitted to some problems with depression characterized by decreased appetite and activity, increased sleep, and less enjoyment from activities. The MSE was unremarkable and mood assessed as normal.

The panel directed attention to its rating recommendation based on the above evidence, noting that a mood disorder was not listed on the limited duty form, mentioned specifically in the NMA, or discussed in the NARSUM as interfering with duty performance. The STR suggested absence of medication or therapy for a mood disorder during the 7 months prior to separation, and there was no clinical evidence of occupational or social impairment from the condition. Panel members concluded that there was not a preponderance of evidence showing that the mood disorder alone would have caused the CI to be referred into the DES or be found unfit due to the condition.

BOARD FINDINGS: In the matter of the benign essential tremor, the panel recommends a disability rating of 10%, coded 8045-8103 IAW VASRD §4.124a. In the matter of the cognitive disorder (with history of traumatic brain injury), the panel recommends no change from the PEB determination as not separately unfitting. In the matter of the mood disorder, the panel recommends no change from the PEB determination as not separately unfitting. 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, effective the date of medical separation:

CONDITION	VASRD CODE	PERMANENT RATING	
Benign Essential Tremor	8045-8103	10%	

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

IN REPLY REFER TO:
1850
CORB:003 12 Oct 20

From: To:

Subj:

Ref:

Director, Secretary of the Navy Council of Review Boards 
PHYSICAL DISABILITY BOARD OF REVIEW (PDBR)
(a) DoDI 6040.44
(b) PDBR ltr of 16 Aug 19

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

2.	On 5 October 2020, the Assistant Secretary of the Navy (Manpower & Reserve Affairs) took action in your case by accepting the recommendation of the PDBR. Accordingly, your records will be corrected to reflect an increase in the disability rating awarded by the Department of the Navy Physical Evaluation Board (PEB) from 0% to 10% without re-characterization of your discharge.

3.	For your information, since all disability ratings from 0% to 20% qualify for disability severance pay, the above stated increase will not result in your entitlement to additional compensation.

4.	The Assistant Secretary's determination, which represents final action in your case by the Department of the Navy, has been forwarded to the office of the Deputy Commandant, Manpower and Reserve Affairs, for appropriate changes to your personnel records and notification to you upon completion.