RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY CASE NUMBER: PD1201325 SEPARATION DATE: 20020919 BOARD DATE: 20130315 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (92R10/Parachute Rigger), medically separated for headaches following head trauma and a subjective sense of dizziness. He suffered head trauma with loss of consciousness following a parachute jump mishap in May 2000 when his chute collapsed. He reported post-injury problems with memory, speech, and emotional regulation along with chronic headaches and vertigo. He had persistent daily headaches aggravated by movement and exertion with occasional photophobia and disequilibria. Despite prophylactic medications the CI did not improve adequately with treatment to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was issued a permanent P3 profile and referred for a Medical Evaluation Board (MEB). Cognitive disorder and adjustment disorder conditions, identified in the rating chart below, were also identified and forwarded by the MEB. In January 2002 the Informal Physical Evaluation Board (IPEB) adjudicated the post-traumatic headache condition as unfitting, rated 30% with application of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD) and recommended that the CI be placed on the Temporary Disability Retired List (TDRL). The remaining conditions were determined to be not unfitting and therefore not ratable. The CI appealed for reconsideration by the IPEB and a month later the narrative was changed, but the rating and TDRL recommendation were not. In April of 2002 the United States Army Physical Disability Agency (USAPDA) revised the IPEB findings to a final disability percentage of 10% with separation and severance pay. The reason given for the revision was insufficient evidence to support the rating percentage. They went on to state the symptoms were subjective and even with them the soldier worked all day, every day. The soldier was considered unfit only because his medical status prevented his parachute rigger and jump duties. Finally they stated the VASRD limits recovery to 10% in such cases unless there is evidence of multi infarct dementia, which was not present. Even absent the VASRD 8045 rule, they stated there was no reasonable basis for rating the soldier at 30%. The CI then appealed to a Formal PEB (FPEB) who affirmed the USAPDA determination of 10% in accordance with VASRD instruction 8045; placement on TDRL was not recommended. The CI was then medically separated with a 10% disability rating. CI CONTENTION: “ISSUE #1: I feel the leagle [sic] repesenitive [sic] did not look or work in the my case in my best intrest [sic] his ansewrs [sic] were premditad [sic] and geard [sic] for protection on MEB ISSUE 2: I beleave [sic] that MEB members did not review medical records to give an approprat [sic] rating. ISSUE 3: Evory [sic] time my case revied [sic] by MEB my rating decreaced. [sic] ISSUE 4: My case was started in Vicenza Italy with the MEB or PEBO in Landstule Germany. My first rating was 60% then 30% then I did agree at 30% but then sent to Walter Reed MEB. Where it was reduced to 10%. ISSUE 5: As a detachment my document were not given to me by Stf. Sargont [sic] Ramos Barlosa. Who also violated my Hipa Rights to Alter medical records. ISSUE 6: I was told if I did not sine [sic] at 10% to agree I would get 0% and still be removed from Army.” SCOPE OF REVIEW: The Board wishes to clarify that the scope of its review as defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2) is limited to those conditions which were determined by the PEB to be specifically unfitting for continued military service; or, when requested by the CI, those condition(s) “identified but not determined to be unfitting by the PEB.” The ratings for unfitting conditions will be reviewed in all cases. The cognitive disorder and adjustment disorder conditions which were implied for consideration in the application do meet the criteria prescribed in DoDI 6040.44 for Board purview; and, are addressed below, in addition to a review of the ratings for the unfitting conditions. Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Army Board for Correction of Military Records. RATING COMPARISON: Service FPEB – Dated 20020701 VA (8 Mos. Post-Separation) – All Effective Date 20020920 Condition Code Rating Condition Code Rating Exam Headaches 8045-9304 10%* Post Concussion Syndrome w/ Headaches 8099-8045 0%** 20030624 Cognitive Disorder Not Unfitting NO VA ENTRY Adjustment Disorder Not Unfitting NO VA ENTRY .No Additional MEB/PEB Entries. Residuals of Glaucoma 6099-6013 10% 20030618 Bilateral Tinnitus 6260 10% 20030618 0% X 4/ Not Service-Connected x 3 20030624 Combined: 10% Combined: 20% *The original IPEB of 20020124 rated him at 30% and put him on TDRL. This was later changed by the USAPDA to 10% with severance and upheld by the FPEB. ** A 20050518 VARD changed this rating to 50% combining conditions of mood disorder with depressive features associated with post concussion syndrome with headaches; however, it was only postdated effective from 20031006 – a year post separation. ANALYSIS SUMMARY: The Board acknowledges the CI’s contentions in the DD Form 294. It is noted for the record that the Board does not have the jurisdiction to scrutinize or render opinions in reference to asserted service improprieties in the disposition of a case. The Board’s authority, as defined in DoDI 6044.40, resides in evaluating the fairness of Disability Evaluation System (DES) fitness determinations and rating decisions for disability at the time of separation. The DES has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation. This role and authority is granted by Congress to the Department of Veterans Affairs (DVA). The DVA, operating under a different set of laws (Title 38, United States Code), is empowered to compensate service-connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time. The Board utilizes DVA evidence proximal to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence. Post-separation evidence therefore is probative only to the extent that it reasonably reflects the severity of disability at the time of separation. Headaches Following Head Trauma and Subjective Dizziness Condition. Headaches and a sense of instability began soon after the head trauma. Brain imaging studies were negative; an initial electronystagmogram (ENG) was normal except for failure of fixation suppression, but a repeat study was reportedly normal. Otolaryngology examination concluded that there was no evidence of middle ear pathology as an explanation of symptoms. A neurology MEB narrative summary (NARSUM) in January 2001, 20 months prior to separation, noted daily, variable headaches, occasional blurred vision, sensitivity to light and noise, and vertigo provoked by motion. His headaches were worsened by noise and exertion, and improved with sleep, rest, and occasional abortive medication. He described emotional lability, including outbursts of anger and crying episodes. He continued to work as a rigger more than eight hours a day. The neurologic exam was normal. The condition was assessed as post-traumatic headaches and post-traumatic motion provoked disequilibrium. At a neurology MEB reevaluation in September 2001, a year prior to separation, the CI reported persistent, daily, right-sided headaches, lasting 10-11 hours per day, which were mildly improved over the preceding months. The headaches were occasionally associated with nausea, photophobia, and decreased equilibrium; and were worsened by movement and exertion, and improved with rest. He described the headache severity as 5-6 out of 10 (1-10 scale) and occasionally 8 out of 10. He continued to work as a parachute rigger and to run with his unit during physical training. The neurologic exam was normal. The condition was assessed as a post-concussion syndrome. At the VA Compensation and Pension (C&P) exam in June 2003, 9 months after separation, the CI reported constant, daily, right-sided headaches characterized as sharp, throbbing, and squeezing and sometimes associated with photophobia. The headaches were worsened by extreme heat, cold, and moving his head. He reported daily episodes of mild-moderate vertigo, associated with nausea and vomiting, and aggravated by activities such as driving and walking. His headaches and vertigo resulted in decreased sleep and feelings of fatigue and weakness. The neurologic exam was normal. The examiner noted a CT scan of the head in November 2002 which was reportedly normal. The Board directs attention to its rating recommendation based on the above evidence. The PEB assigned a 10% rating for code 8045 (traumatic brain injury) analogously rated as 9304 (dementia due to head trauma) IAW the concurrent VASRD §4.124a which states: 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 VA assigned a noncompensable disability evaluation for a post-concussion syndrome, coded 8099-8045. The CI had a post-concussion syndrome manifested by headaches and motion-provoked disequilibrium. The Board members agreed the post-concussion syndrome was consistent with a 10% rating under VASRD §4.124a in effect at the time of separation. The option of applying the 8100 coding criteria (migraine headaches) was deliberated at length. Although the VA declined to adopt this approach, Board members debated whether it was justified by VASRD §4.7 (higher of two evaluations) and §4.3 (reasonable doubt). In spite of his headache condition the CI was able to run, perform strenuous military training, and wear a Kevlar helmet and a rucksack; he continued to work eight or more hours per day and run with his unit. Although the CI had chronic daily headache graded as 5-6 on a 0-10 point severity scale, clinic examiners observed him to be in no acute distress. The Board concluded that there was no documentation of prostrating headaches to support consideration of an analogous rating under code 8100 (migraine headaches). After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the headaches and dizziness following head trauma condition. Contended PEB Conditions. The contended conditions adjudicated as not unfitting by the PEB were cognitive disorder and adjustment disorder. The Board’s first charge with respect to these conditions is an assessment of the appropriateness of the PEB’s fitness adjudications. The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard. At a neuropsychological evaluation on 21 March 2001, the CI reported memory disturbance, word articulation problems, and diminished problem-solving abilities since the parachute accident. He reported feeling “somewhat depressed and anxious due to uncertainty about his future and his medical condition” and more easily frustrated. The examiner noted a history of academic difficulty in English and spelling. Intellectual functioning was in the low average to average range, generally consistent with the estimated premorbid (pre-injury) level of functioning. The test results suggested that there may be relatively mild residual cognitive impairments related to the injury. The assessment of emotional functioning could not be reliably completed due to inconsistent responses. The examiner assigned the following Axis I diagnoses: cognitive disorder not otherwise specified, mild; adjustment disorder unspecified; and psychological factors affecting medical condition. In the report of medical history dated 4 June 2001 the CI indicated that he had not been evaluated or treated for a mental condition. Neither of these conditions was profiled, implicated in the commander’s statement or judged to fail retention standards. Both were reviewed by the action officer and considered by the Board. There was no indication from the record that these conditions significantly interfered with satisfactory duty performance. After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for either of the contended conditions; and, therefore, no additional disability ratings can be recommended. BOARD FINDINGS: IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication. The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised. In the matter of the headaches with dizziness condition and IAW VASRD §4.124a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the contended cognitive disorder and adjustment disorder conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting. There were no other conditions within the Board’s scope of review for consideration. RECOMMENDATION: The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows: UNFITTING CONDITION VASRD CODE RATING Headaches with Dizziness Following Head Trauma 8045-9304 10% COMBINED 10% The following documentary evidence was considered: Exhibit A. DD Form 294, dated 20120617, w/atchs Exhibit B. Service Treatment Record Exhibit C. Department of Veterans’ Affairs Treatment Record xxxxxxxxxxxxxxxxxxxx, DAF Acting Director Physical Disability Board of Review SFMR-RB MEMORANDUM FOR Commander, US Army Physical Disability Agency (TAPD-ZB / xxxxxxxxxxxxx), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for xxxxxxxxxxxxxxxxxxxxxxx, AR20130006868 (PD201201325) I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual. Under the authority of Title 10, United States Code, section 1554a, I accept the Board’s recommendation and hereby deny the individual’s application. This decision is final. The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail. BY ORDER OF THE SECRETARY OF THE ARMY: Encl xxxxxxxxxxxxxxxxxxx Deputy Assistant Secretary (Army Review Boards) SFMR-RB MEMORANDUM FOR Commander, US Army Physical Disability Agency (TAPD-ZB / xxxxxxxxxxxx), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for xxxxxxxxxxxxxxxxxxxxx, AR20130006868 (PD201201325) I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual. Under the authority of Title 10, United States Code, section 1554a, I accept the Board’s recommendation and hereby deny the individual’s application. This decision is final. The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail. BY ORDER OF THE SECRETARY OF THE ARMY: Encl xxxxxxxxxxxxxxxxxx Deputy Assistant Secretary (Army Review Boards)