RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXX	CASE:  PD-2013-00774
BRANCH OF SERVICE:  AIR FORCE	BOARD DATE:  20131206
SEPARATION DATE:  20051017

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSgt/E-5 (3E571/Engineering Craftsman) medically separated on 17 October 2005 for a non-mental health (MH) cognitive disorder, status post (s/p) motor vehicle accident (MVA).  She suffered a closed head injury (CHI) with a secondary cognitive deficit.  Despite treatment and time, the cognitive disorder condition could not be adequately rehabilitated to meet the requirements of her Air Force Specialty or satisfy physical fitness standards; she was issued a permanent P3 profile and referred for a Medical Evaluation Board (MEB).  Cognitive disorder s/p concussion was forwarded to the Physical Evaluation Board (PEB) IAW AFI 44-113 and 48-123.  No other conditions were submitted by the MEB.  The PEB adjudicated cognitive disorder s/p MVA, social and industrial adaptability impairment, mild; as unfitting, rated 10%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The PEB added adjustment disorder with mixed anxiety and depressed mood as a Category III condition, not separately unfitting and not compensable or ratable.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Conditions worsened; increased disability; vocational rehabilitation needed, mental stability affecting employment, traumatic brain injury residuals continue to appear over time resulting in stable relationship with TBI [traumatic brain injury] specialist/therapist; long term effects; combined rating currently 60%.”

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 cognitive disorder and any MH conditions are addressed below.  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.

In addition, the CI was notified by the Air Force that her case may eligible for review of the disability evaluation of any MH condition in accordance with Secretary of Defense directive for a comprehensive review of members who were referred to a disability evaluation process between 11 September 2001 and 30 April 2012 and whose MH diagnoses were changed or eliminated during that process.  Since the CI responded to this mailing, it is presumed that she has elected review by the PDBR for the MH condition although she did not specifically contend for it on the DD Form 294.  In accordance with Secretary of Defense directive for a comprehensive review of MH diagnoses that were changed during the Disability Evaluation System (DES) process, the CI’s case file was reviewed regarding diagnosis change, fitness determination and rating of unfitting MH diagnoses in accordance with the VASRD §4.129 and §4.130. 

RATING COMPARISON:

Service PEB – Dated 20070911	VA (8 Mo. After Separation) – All Effective Date 20051018	
Condition	Code	Rating	Condition	Code	Rating*	Exam	
Cognitive Disorder, s/p MVA, Social and Industrial Adaptability Impairment, Mild	9304	10%	Cognitive Disorder, Post Concussive Disorder	8045-9304	30%	20060427	
Anxiety Disorder with Mixed Anxiety and Depressed Mood	Category III; 
Not Separately Unfitting and Not Compensable or Ratable	No MH diagnosis made	N/A	N/A	20060427	
No Additional MEB/PEB Entries	Other x 5; NSC x 5 (to include PTSD)	20060503 & 20060427	
Combined:  10%	Combined:  50%	
Derived from VA Rating Decision (VARD) dated 20090130.   
*No change in the cognitive disorder or any MH condition on subsequent examinations

ANALYSIS SUMMARY:  The Board acknowledges the CI’s information regarding the significant impairment with which her service-connected condition continues to burden her, but must emphasize that 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.  That role and authority is granted by Congress to the Department of Veterans Affairs (DVA), operating under a different set of laws.  The Board considers DVA evidence proximate to separation in arriving at its recommendations; DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence.  Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.

Cognitive Disorder Condition.  The CI entered active duty on 3 January 1996 and had an exceptional service record until she was in a MVA on 4 January 2004 with a CHI.  She had loss of consciousness (LOC) and a posttraumatic seizure and vertigo.  A computerized tomography scan of the head was reportedly normal.  She was hospitalized for 5 days and then placed on convalescent leave with rehabilitation.  She endorsed symptoms of dizziness and headaches after discharge from the hospital along with some cognitive difficulties including memory issues.  She was (and remained) amnestic for the event.  By report, the CI had a neuropsychological screen on 21 January 2004 which was significant for poor attention and poor complex visual scanning and tracking.  She also had a mild, sub-clinical level of depression with mild anxiety.  She endorsed increased moodiness, irritability and anxiety.  An awake and asleep electroencephalogram completed on 4 February 2004 was normal as was a magnetic resonance imaging on 22 February 2004.  A second neuropsychological assessment was conducted on 9 June 2004.  The CI showed improvement in psychological and cognitive functioning with improved mood and decreased irritability and anxiety.  She had been treated by a psychologist from March to June who helped her pace herself in her recovery.  Subjectively, she reported a return to her premorbid level of memory and naming abilities and improvement in concentration, although she had continued difficulty concentrating for lengthy periods of time.  Screens for both depression and anxiety showed minimal impairment to normal scores.  On cognitive testing, she showed improvement from her prior evaluation and was thought to be able to perform her duties despite her residual deficits.  It was thought that she could continue to show improvement and that her cognitive disorder, not otherwise specified (NOS) was resolving.  A Global Assessment of Functioning (GAF) score of 65 was assigned, indicative of mild symptoms or impairment.  On 16 August 2004, a Family Practice (FP) note documented that she had returned to full duty days.  A screen for depression was negative.  The CI was again seen in neuropsychology on 1 December 2004.  She was unaccompanied and on time in casual attire.  She no longer needed a walker.  Mood and affect were appropriate.  Concentration was improved.  She endorsed some middle insomnia for the past week.  On testing, she scored in a minimal to no depression range and minimal to no anxiety range, showing significant improvement from her January 2004 testing.  A Family Practice note dated 27 January 2005 noted that she was continuing to make progress, but that she would need another 6-12 months for full recovery and that she was undergoing an MEB.  It was also noted that she was working full duty days, but was still restricted from testing for promotion and weapons firing/recertification.  The narrative summary (NARSUM) was dictated on 27 January 2005, 9 months prior to separation, noted that she had developed posttraumatic stress disorder (PTSD) for which she was being treated.  She was able to do her job well as long as she had a checklist to follow.  The MEB forwarded cognitive disorder s/p concussion as medically unacceptable on 1 February 2005.  There were no other diagnoses.  The PEB reviewed the MEB recommendation and requested a psychiatry review as well as current neuropsychological testing.  She was treated again in behavioral health on 14 March 2005 and it was recommended that she pace her activities to control her anxiety.  From 10-11 May 2005, she underwent a third (and final) neuropsychological assessment (as requested by the PEB), 5 months prior to separation.  Considerable improvement was noted, but mild cognitive residuals persisted.  Her MH findings remained in the mild range, but the symptoms reported for both anxiety and depression had increased.  On examination, her affect was mildly flat, with an appropriate but irritable mood.  She endorsed continued sadness, restlessness, diminished interest and indecisiveness.  Energy, sleep, appetite and concentration were diminished.  Fatigue was increased.  Thought processes were normal and she appeared to put forth her best effort.  Testing showed that she was experiencing a significant degree of psychological distress and may have a diminished ability to cope with her current difficulties.  Mild residual cognitive impairment remained and symptoms of anxiety and depression appeared to be worsening.  The diagnosis was cognitive disorder NOS and adjustment disorder with mixed anxiety and depressed mood.  A GAF of 70 was assigned indicative of mild symptoms.  This was an improvement from the previous evaluation.  Retesting at 6 to 9 months was recommended along with continued psychotherapy.  On a Family Practice noted dated 12 May 2005, she did endorse depressive symptoms which she previously had denied.  The commander’s letter dated 16 June 2005 noted that she was working full shifts, but that she had difficulty recalling the steps to procedures which were familiar to her.  A note from her Family Practice doctor to the MEB on 23 June 2005 noted that her abilities were sufficient for her to carry out her duties, but that she required additional time to acquire verbal information.  She denied depressive symptoms on screening that day.  The CI was evaluated on 22 July 2005 by psychiatry as requested by the PEB.  However, the full note is not in evidence and efforts to obtain it were not successful.  The final profile was on 1 August 2005 and was P4/S1.  The Board noted that she had maintained an S1 profile throughout her career.  The PEB determined that the cognitive disorder was unfitting and recommended separation at 10%, coded 9304 on 11 August 2005, 2 months prior to separation.  An adjustment disorder with mixed anxiety and depressed mood was added as a diagnosis, but it was determined to not be separately unfitting and compensable or ratable.  The CI was seen in Family Practice on 9 September 2005, a month prior to separation.  She again denied symptoms of depression.  The VA Compensation and Pension (C&P) examination was completed on 27 April 2006, just over 6 months after separation.  The CI reported a depressed, irritable mood, poor sleep and appetite, crying spells, poor energy and concentration, and that she was “withdrawn.”  She endorsed excessive hand washing as well as panic attacks 2-3 times a month.  She had no memory of the MVA.  She had worked as an administrator.  She reported that she had been terminated from a post-service job after 3 weeks due to difficulty learning her new job.  On examination, she was neatly groomed and appropriately dressed.  Psychomotor activity was described as lethargic.  She was easily distracted with a short attention span.  Thought content and processes were intact.  The criteria for PTSD were determined to not be met.  However, the examiner determined that her depression and anxiety were more likely than not the result of the head injury.  The CI was diagnosed with a cognitive disorder NOS (post-concussive.)  She was also diagnosed with an adjustment disorder with mixed anxiety and depressed mood.  A GAF of 60 was assigned, indicative of moderate symptoms and a decline from pre-separation testing.  

The Board directs attention to its rating recommendation based on the above evidence.  The Board first considered the unfitting cognitive disorder.  The PEB utilized the VASRD code 9304 for dementia secondary to trauma and the VA used the combined code 8045-9304 (brain disease due to trauma and dementia secondary to trauma).  The PEB rated the condition at 10% and the VA at 30%, the latter relying on the C&P examination 6 months after separation.  The Board first considered a rating using the coding option 8045.  Although the CI had neurological deficits after the MVA, these had resolved by the time of separation.  Use of this coding option for her sensory symptoms supports a 10% rating, but these cannot be combined with any other rating for the TBI.  The Board then considered a rating using the coding option 9304 (dementia due to trauma).  It noted that this code uses VASRD §4.130 for rating, a potential advantage to the CI.  The third cognitive screen was 5 months prior to separation, documented continued improvement in the cognitive portion of the test with essentially normal or low normal scores.  The Board recognized that this may reflect relative high function prior to the MVA.  The CI was able to work full time at a familiar job, although she took more time to complete tasks than prior to the MVA and also used a checklist.  The Board also observed that her symptoms of depression and anxiety were increasing as borne out on the VA examination 6 months after separation.  The VA examiner wrote that she had lost one job after 3 weeks as she was unable to master the new skills needed and that she was unemployed at the time of the examination.  The Board considered the descriptions for both the 10% and 30% level of disability and determined that the description for a 30% rating “occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events” better fit the level of disability evidenced at separation.  The Board specifically noted that she relied on checklists to do her job in the military, needed additional time to learn new tasks and had been terminated from a post-service job due to an inability to learn the new material.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 30% for the cognitive disorder condition.  

The Board then considered the appropriateness of changes in MH diagnoses, PEB fitness determination; and if unfitting, whether the provisions of VASRD §4.129 were applicable, and a disability rating recommendation in accordance with VASRD §4.130.  The general medical NARSUM listed the diagnoses of post-concussive disorder with memory impairment, PTSD and equilibrium disorder.  It is not clear from the records what the basis for the diagnosis of PTSD was.  The Board did not find direct evidence in the record that the CI had been diagnosed with PTSD by a MH professional although the third cognitive assessment, which was accomplished after the MEB NARSUM, noted that a psychologist had diagnosed PTSD.  The MEB psychiatric examination is not available for review.  The MEB forwarded cognitive disorder status post-concussion to the PEB for adjudication.  The PEB adjudicated the CI for the diagnoses of cognitive disorder, s/p MVA, social and industrial adaptability impairment, mild, as unfitting and added the diagnosis of adjustment disorder with mixed anxiety and depressed mood which was adjudicated as not separately unfitting and not compensable or ratable.  The Board determined that no MH diagnoses were changed to the CI's possible disadvantage in the disability evaluation process.  This CI therefore did not meet the inclusion criteria in the Terms of Reference of the Mental Health Diagnosis Review Project.  The Board considered if there was a separately unfitting MH condition at the time of separation.  It observed that the CI endorsed symptoms of anxiety and panic attacks on the VA C&P examination.  However, the commander noted impairment primarily from the cognitive impairment.  The CI maintained an S1 profile throughout her military service.  The MEB only forwarded the cognitive disorder for adjudication by the PEB.  The PEB, presumably after review of the MEB psychiatric evaluation, determined that the only unfitting condition was the cognitive disorder.  On the final FAMILY PRACTICE screen, a month prior to separation, the CI denied symptoms of depression.  The Board determined that the preponderance of evidence does not support the presence of an unfitting MH condition, regardless of diagnosis, at the time of separation.  The Board also determined that although the symptoms of depression and anxiety were noted to be worsening at the time of the final neuro-psychological testing, the CI was noted to be improving overall with only mild cognitive impairment and that her GAF had improved from previous testing.  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 the adjustment disorder 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 contended MH condition, the Board unanimously agrees that it cannot recommend it for additional disability rating.  There were no other conditions within the Board’s scope of review for consideration.  

RECOMMENDATION:  The Board recommends that 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 as of the date of her prior medical separation:  

UNFITTING CONDITION	VASRD CODE	RATING	
Cognitive Disorder, Status Post Motor Vehicle Accident, Social and Industrial Adaptability Impairment, Mild	8045-9304	30%	
Anxiety Disorder with Mixed Anxiety and Depressed Mood	Category III	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130605, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

			

	           XXXXXXXXXXXXXX
	           President
	           Physical Disability Board of Review

PDBR PD-2013-00774

MEMORANDUM FOR THE CHIEF OF STAFF

	Having received and considered the recommendation of the Physical Disability Board of Review and under the authority of Title 10, United States Code, Section 1554a (122 Stat. 466) and Title 10, United States Code, Section 1552 (70A Stat. 116) it is directed that:

	The pertinent military records of the Department of the Air Force relating to XXXXXXXXXXXXXX, be corrected to show that:

		a.  The diagnosis in her finding of unfitness was Cognitive Disorder, Status Post Motor Vehicle Accident, Social and Industrial Adaptability Impairment, Mild, VASRD code 8045-9304, rated at 30% rather than 10%.

		b.  On 16 October 2005, she elected spouse and child coverage under the Survivor Benefit Plan, based on full retired pay.

		c.  She was not discharged on 17 October 2005 with entitlement to disability severance pay; rather, on that date she was released from active duty and on 18 October 2005 her name was placed on the Permanent Disability Retired List.  

                   d.  On 13 July 2006, she divorced and spouse coverage was suspended.

                                                                            XXXXXXXXXXXXXX
                                                                            Director
                                                                            Air Force Review Boards Agency