RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD1201379
BRANCH OF SERVICE:  AIR FORCE	BOARD DATE:  20131024
SEPARATION DATE:  20020311

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an Air National Guard SSGT/E-5 (2A353J/Tac Aircraft Maintenance Journeyman) medically separated for cervical herniated disc while on UTA [unit training assembly] status in January 1997.  He was found unconscious on the sidewalk.  An ambulance was called to the scene, but the CI was not transported to a hospital for treatment.  The CI reported symptoms of being dizzy, had a headache, nausea and vomiting and finally sought medical care over a day later.  He was admitted to the local VA hospital and was diagnosed with a right occipital central skull fracture.  A cervical magnetic resonance imaging (MRI) exam dated 14 May 2000 showed a herniated nucleus pulposus at C5-C6.  The cervical condition could not be adequately rehabilitated to meet the physical requirements of his Air Force Specialty or satisfy physical fitness standards.  He was issued a P4 profile and referred for a Medical Evaluation Board (MEB).  The cervical herniated disc was forwarded to the Physical Evaluation Board (PEB) IAW AFI 48-123.  No other conditions were submitted by the MEB.  The Informal PEB (IPEB) adjudicated the “C5-C6 herniated disc” as unfitting, rated 10%, and cognitive deficit, status post (s/p) occipital skull fracture as a Category II condition (a condition that can be unfitting but is not currently compensable or ratable) with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI appealed to the Formal PEB but later waived his previous election and was medically separated.

CI CONTENTION:  “I was injured in the military and initially granted service connection for depression as a result of traumatic brain injury effective 4/11/2000.  The traumatic brain injury [TBI] (Granted effective 11/6/2008) was the result of the same injury as my cervical spine (Discharged for).  They did not rate me on TBI because they did not realize that I had it. They thought that all of my symptoms were associated with my cervical spine.  After VA redefined and changed the schedule for rating disabilities to accommodate TBI, I was awarded 40 percent effective 11/6/2008.  During my discharge physical I reported headaches and other symptoms which were all related to my symptoms of TBI and cervical spine.   Please use the following disabilities when deciding my case: Depression due to traumatic brain injury, traumatic brain injury and cervical disc disease to include herniated C5-C6.  I believe that it is the result of all these disabilities that I was discharged.  It is just that during that time we as a whole did not have a better understanding of traumatic brain injury.”

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2).  It is limited to those conditions determined by the PEB to be unfitting for continued military service and those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The rating for the unfitting cervical spine condition is addressed below.  The requested TBI condition, which was determined to be a Category II condition, is likewise addressed below.  Depression was not identified by the MEB/PEB and thus not within the DoDI 6040.44 defined purview of the Board.  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 Board for Correction of Military Records.

RATING COMPARISON:

Service IPEB – Dated 20020123	VA - (11 Mos. Post-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
C5-C6 Herniated Disc	5290	10%	Cervical Disc Disease	5290	10%	20030218	
Cognitive Deficit s/p Occipital Skull Fracture	CAT II	No VA Entry	
No Additional MEB/PEB Entries	Depression due to TBI	8045-9434	70%	20030218	
	Other x 0		
Rating:  10%	Combined:  70%	
Derived from VA Rating Decision (VARD) dated 20030806 (most proximate to date of separation [DOS]).
TBI was not service connected until 6 November 2008

ANALYSIS SUMMARY:  The Board acknowledges the CI’s contention regarding the significant impairment with which his service-connected condition continues to burden him; but, must emphasize that the Disability Evaluation System has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board also acknowledges the CI’s contention for rating of his TBI condition which was determined to be a Category II condition by the PEB; and, emphasizes that disability compensation may only be offered for those conditions that cut short the member’s career.  Should the Board judge that any contested condition was most likely incompatible with the specific duty requirements; a disability rating IAW the VASRD and based on the degree of disability evidenced at separation, will be recommended.

Cervical Spine Condition:  The narrative summary dictated on 5 December 2001, 3 months prior to separation, notes the CI had an MRI that showed a herniated C5-6 disk; cervical spine X-rays showed degenerative disc disease at the C5-6 level and mild loss of normal lordotic curvature.  Subjectively he complained of episodic and intermittent weakness of his left arm, numbness of his left arm in a C7 distribution, pinpoint pain in periscapular musculature, pain and spasm of his cervical spine and pericervical musculature, vertigo and headaches.  He denied any lower extremity weakness, difficulty walking, difficulty standing, bowel or bladder symptoms.  The symptoms were intermittent, but could be quite disabling when they occurred.  He was able to function reasonably well in his self-employment as a contractor and stable for more than 4 years after initial injury.  Physical examination revealed no muscle atrophy and no skin lesions.  Ranges-of-motion (ROM) of the cervical spine were decreased at left lateral bending, otherwise described as normal.  He had a negative Spurling’s test for radicular pain, normal sensory, and reflexes present symmetrically, no clonus, normal gait and a negative Hoffman’s test for upper motor neuron injury.  At the VA Compensation and Pension exam performed on 18 February 2003, 11 months after separation, the CI reported pain and spasms in the pericervical and left parascapular muscles, subjective left handed weakness intermittently, radicular pain to left arm, intermittent numbness and tingling in the 2nd, 3rd and 4th digits of the left hand.  Physical examination revealed no muscular atrophy, normal strength, normal sensation to pin prick and normal pulses.  ROM of the cervical spine were flexion 30 degrees (45 is normal) able to touch his chin to his chest without subjective complaints, extension 20 degrees with discomfort (45 is normal), left lateral flexion 30 degrees (45 is normal) with pain, right lateral flexion 40 degrees (45 is normal) with pain, left rotation 48 degrees (80 is normal) with pain and right rotation 55 degrees (80 is normal) with pain.

The Board directs attention to its rating recommendation based on the above evidence.  The Board considered a rating under code 5290 (limitation of cervical ROM) used by the IPEB and VA for a 10% rating, and determined that the ROMs in evidence could be rated at most a “slight” limitation – 10% with application of §4.59 (painful motion).  The Board also considered code 5293 (intervertebral disc syndrome).  The CI reported occasional symptoms without evidence of seeking urgent medical care.  He was fully employed in a physically demanding job and finished a deployment in 1999; thus, the level did not reach above the slight level of impairment for a higher adjudication.  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 cervical spine condition.

Traumatic Brain Injury, Cognitive Deficit Status Post Occipital Skull Fracture:  The Board’s main charge is to assess the fairness of the PEB’s determination that cognitive deficit s/p occipital skull fracture condition was not unfitting.  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.  The CI had an injury 5 years prior to separation on January 1997.  He sought medical care in the emergency room 2 days after the injury and was hospitalized for an occipital skull fracture and brain bifrontal contusions of the frontal lobes.  He was found to have abnormal MRI and electroencephalography.  He was taken off flight status and given a serial physical profile of S2 with worldwide qualification for active duty and less sensitive duties were recommended on the 22 June 1998 neuropsychiatry evaluation.  The CI underwent the first IPEB on 14 July 1998, for the conditions of s/p closed head injury, posttraumatic positional vertigo, cognitive disorder not otherwise specified and adjustment disorder with depressed mood; and, was found fit for duty.  The CI proceeded to deploy to Kuwait in April 1999 without health complaints.  This condition was not referred to the second IPEB by the MEB.  There was no evidence in the record of any worsening of the condition to indicate unfitness at the time of separation.  He continued self-employment as a contractor with some difficulties.  There was no performance based evidence in the record that the condition significantly interfered with satisfactory duty performance.  The commander’s statement dated 9 October 2002 stated the CI was a valued member of his unit, frequently deployed with the unit since November 1992 and that the CI’s decreasing mental abilities only prevented training into another career field.  After lengthy deliberations in consideration of the preponderance of the evidence, by a vote of 2-1, the Board concluded that there was insufficient cause to recommend a change in the IPEB fitness determination for the contended condition.  

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 cervical spine condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended cognitive deficit s/p occipital skull fracture conditions, the Board majority recommends no change from the PEB determination as not unfitting.  The single voter for dissent (who recommended an unfit determination coded 8045-9434 at 10% for a combined rating of 20%) did not elect to submit a minority opinion.  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	
C5-C6 Herniated Disc	5290	10%	
Cognitive Deficit Status Post Occipital Skull Fracture	Not Unfitting	
COMBINED	10%	
The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120727, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

XXXXXXXXXXXXXXXXXXXX, DAF
President
Physical Disability Board of Review

SAF/MRB
1500 West Perimeter Road, Suite 3700
Joint Base Andrews, MD 20762

Dear XXXXXXXXXXXXXXXXXXXX:

	Reference your application submitted under the provisions of DoDI 6040.44 (Title 10 U.S.C. § 1554a), PDBR Case Number PD-2012-01379.

	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 appropriate.  Accordingly, the Board recommended no re-characterization or modification of your separation.

	I have carefully reviewed the evidence of record and the recommendation of the Board.    I concur with that finding and their conclusion that re-characterization of your separation is not warranted.  Accordingly, I accept their recommendation that your application be denied.

							Sincerely,

XXXXXXXXXXXXXXXXXXXX
Director
Air Force Review Boards Agency

Attachment:
Record of Proceedings