RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-04883
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20060731

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Infantryman, medically separated from the Temporary Disability Retired List (TDRL) for “cognitive disorder, NOS [not otherwise specified] associated with depressive disorder” and “headaches,” rated 10% and 0%, respectively, with a combined disability rating of 10%.  

CI CONTENTION:  The conditions continue to worsen and negatively affect activities.  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 FPEB - 20060111	VARD - 20051026	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Cognitive Disorder NOS 	9326-9435	10%	PTSD	9411-9424	70%	STR	
Headaches	8199-8100	0%	Headaches	8199-8100	30%	STR	
COMBINED RATING: 10%	COMBINED RATING OF ALL VA CONDITIONS:  90%	

ANALYSIS SUMMARY:  

Cognitive Disorder, NOS.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI was separated and placed on the TDRL on 10 May 2005 for cognitive disorder, NOS, associated with depressive disorder and headaches.  He had been assigned front desk duties but another person was always around because of his memory problems.  The 14 December 2005 TDRL MEB NARSUM examination, 6 months prior to TDRL removal, noted complaints of short-term memory loss.  Specifically it was noted that he was unable to remember details of daily events and conversations.  This interfered with complying with and understanding his medical care, organizing his daily activities, maintaining personal hygiene and attending to his medical appointments.  He denied that he was sad or suffered from anhedonia (expected in a depressive episode).  A detailed neurological examination disclosed normal cranial nerves and normal reflexes and coordination. A detailed sensory and motor examination was normal.  

The mental status examination (MSE) showed that he arrived 20 minutes late for his appointment and was notably malodorous and poorly groomed, wearing casual civilian clothes.  His speech was dysarthric initially, but cleared somewhat during the interview.  Eye contact was fair and improved during the course of the interview.  The CI described his mood as "okay" but his affect was markedly constricted.  His thought content was without suicidal or homicidal ideations.  His insight was poor. His judgment was poor as indicated by his difficulty in attending the interview, failure to explain discrepancies in his history and by his lack of attending to basic personal hygiene.  Impulse control appeared to be intact.  Formal cognitive neuropsychological test results indicated largely intact cognitive functioning.  Some mild difficulties in verbal learning and memory were noted, as well as some mild difficulties in some aspects of executive functioning.  The current test battery showed largely intact attention, speed of processing, visual spatial functioning, shifting of attentional resources, and language.  Objective test findings were markedly better than his own self-report of cognitive functioning.  While it was possible that the CI sustained a mild traumatic brain injury (concussion) in theater due to multiple blast exposures, the level of impairment that he reported was not consistent with such a mild injury, and may be more reflective of psychiatric disturbance.  

The psychiatrist made the following conclusions:  The CI had a cognitive disorder manifested by valid neuropsychological testing showing deficits in verbal learning and executive functioning with the degree of military/psychiatric impairment as minimal and the impairment for social and industrial adaptability as mild.  Psychological factors affecting a general medical condition (cognitive disorder), manifested by augmentation of somatic symptoms associated with alleged head injury/cognitive complaints with the degree of military/psychiatric impairment as marked and impairment for social and industrial adaptability as definite.  Depressive disorder manifested by MSE evidence of a depressed mood and an elevated HAM-D score on neuropsychological testing with the degree of military/psychiatric impairment as marked and impairment for social and industrial adaptability as mild.  The global assessment of functioning score was 65 (mild impairment).  There was no VA examination proximate to separation in evidence related to mental health (MH) disorders.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the MH disorder 10%, dual coded 9326-9435 (dementia due to other neurologic or general medical conditions and mood disorder, not otherwise specified).  Although the panel agreed the CI met the criteria for a 50% rating based on the presence of flattened affect, depressed mood, stereotyped speech, difficulty in understanding complex commands, impairment of memory, impaired judgment, disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships, a 70% rating is assigned when there is evidence of occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking or mood.  The panel noted that the CI met the criteria for three of the nine areas for a 70% rating (neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances (including work or a work like setting), and inability to establish and maintain effective relationships).  However, he did not have evidence of suicidal ideation, obsessional rituals which interfere with routine activities, speech intermittently illogical, obscure, or irrelevant, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, impaired impulse control (such as unprovoked irritability with periods of violence), or spatial disorientation.  Though the CI did have some elements for a 70% rating, the overall condition described in the STR most closely met the 50% criteria.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 50% for the MH disorder, dual coded 9326-9435.   

Headaches.  The 14 December 2005 TDRL MEB NARSUM examination, 6 months prior to TDRL removal, noted complaints of a constant daily headaches aggravated by bright light.  The headaches did not normally interfere with his daily activities, but at least 3-4 days a week the headaches were much worse, requiring him to retreat to a dark room for several hours and try to "sleep it off."  He had not required any ER or unscheduled clinic visits for treatment of headaches.  A detailed neurological examination disclosed normal cranial nerves and normal reflexes and coordination.  A detailed sensory and motor examination was normal.  The examiner concluded the CI had chronic daily headaches that were frequently prostrating.  At the 21 February 2006 neurology examination, 4 months prior to TDRL removal, the CI complained of headaches with extreme light sensitivity.  Physical examination showed the CI with a towel over his head to protect his eyes from light but was later able to sit in the normally illuminated room without any need for protection.  Eye examinations were normal.  Speech was fluent without dysarthria.  He had normal muscle strength and tone.   The neurologist concluded the CI had a largely unremarkable examination and suggested the CI had a post-traumatic migraine with aura.  

At the 2 April 2007 VA C&P neurology examination, 10 months after separation, the CI complained of headaches with extreme light sensitivity, nausea and vomiting, and dizziness with falling 5 times in the previous 3 months.  Physical examination showed normal muscle strength.  The MSE showed the CI to be alert and oriented, but had a garbled quality to his speech which was believed cultural.  The mini MSE was normal.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the headache condition 0%, analogously coded 8199-8100 (migraine).  The VA initially rated the headache condition 30%, analogously coded 8199-8100 based on the STR and later increased it to 50% based on the 2 April 2007 C&P examination.  The panel noted there were no acute medical encounters for severe headaches in the 24 month period from September 2004 to June 2006.  In February 2006 the neurologist noted the CI developed post-traumatic migraine headaches with aura.  After reviewing the evidence of the treatment records, the panel agreed the CI’s headache condition most closely approximated the characteristic prostrating attacks occurring on an average once a month over last several months for a 30% rating under code 8100 at the time of TDRL removal.  There was no clear evidence at the time of separation of “very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability” criteria to justify a 50% rating.  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 headache condition, coded 8100.  

BOARD FINDINGS:  In the matter of the MH disorder, the panel recommends a disability rating of 50%, dual coded 9326-9435 IAW VASRD §4.130.  In the matter of the headache condition, the panel recommends a disability rating of 30%, coded 8100 IAW VASRD §4.124a.  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	
Cognitive Disorder, Not Otherwise Specified	9326-9435	50%	
Headaches	8100	30%	
COMBINED	70%	

XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX

I accept the recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) to re-characterize your separation as a disability retirement with the combined disability rating of 70% effective the date of your medical separation for disability with severance pay.  Enclosed is a copy of the Board’s recommendation and record of proceedings for your information.

	The re-characterization of your separation as a disability retirement will result in an adjustment to your pay providing retirement pay from the date of your original medical separation.
 
	The accepted DoD PDBR recommendation has been forwarded to the Army Physical Disability Agency for required correction of records and then to the U.S. Defense Finance and Accounting Service to make the necessary adjustment to your pay and allowances.  These agencies will provide you with official notification by mail as soon as the directed corrections have been made and will provide information on your retirement benefits.  Due to the large number of cases in process, please be advised that it may be several months before you receive notification that the corrections are completed and pay adjusted.  Inquiry concerning your correction of records should be addressed to the U.S. Army Physical Disability Agency, (AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557.

	A copy of this decision has also been provided to the Department of Veterans Affairs.

Sincerely,					      
Enclosure