RECORD OF PROCEEDINGS
                     PHYSICAL DISABILITY BOARD OF REVIEW

NAME:                       BRANCH OF SERVICE:  MARINE CORPS
CASE NUMBER:  PD0900530                                    SEPARATION DATE:
 20060706
BOARD DATE:  20110802


SUMMARY OF CASE:  Data extracted  from  the  available  evidence  of  record
reflects that  this  covered  individual  (CI)  was  an  active  duty  Staff
Sergeant/E-6 (6153,  Helicopter  Airframe  Instructor)  medically  separated
from the Marine  Corps  in  2006  for  post-concussive  syndrome  (PCS)  and
persistent cephalgia.  He was placed on limited duty (LIMDU)  in  June  2002
after a motor vehicle accident (MVA) with loss of consciousness  (LOC),  and
returned to full duty in January 2003.  His symptoms persisted, he  did  not
respond adequately to treatment, and was unable to fully perform within  his
rating or to meet physical fitness standards.  He was again placed on  LIMDU
on 15 June 2005 and was referred to a Medical Evaluation Board  (MEB).   The
MEB forwarded PCS, headache, and a right shoulder condition to the  Physical
Evaluation Board (PEB) as medically unacceptable on the NAVMED 6100-1.   The
PEB  adjudicated  the  PCS  as  unfitting,  rated  10%  IAW   the   Veterans
Administration  Schedule  for  Rating   Disabilities   (VASRD),   persistent
cephalgia as a category  II  condition  (contributing,  but  not  separately
unfitting), and the right shoulder injury as a category III  condition  (not
separately unfitting and does not contribute  to  the  unfitting  condition)
with a disability rating of 10%.  The CI made no appeals, and was  medically
separated with a 10% disability rating.  The CI was placed on a final  LIMDU
from 23 January 2006 until medical separation.
____________________________________________________________________________
__

CI CONTENTION:  “Received a 10% disability rating  from  the  PEB  for  post
concussive syndrome and persistent cephalagia.  Was rated by the VA  at  10%
and 30%, respectively, and I am appealing  those  decisions.   My  migraines
are persistent and debilitating and can occur  as  often  as  two  to  three
times per week and I have not less than  four  per  month.   This  does  not
include the almost constant  headache  that  I  have.   Treatment  has  some
affect on the frequency and can reduce a migraine to  a  headache,  but  the
medicine has completely  wipes  me  out  (physically  and  mentally).   Most
physical jobs and careers cannot be performed due  to  these  circumstances.
The medicine that I have to take to  try  to  control  these  headaches  has
numerous side effects which have had a  serious  impact  on  my  quality  of
life.  Part of my PEB was a MEB conducted at Naval  Hospital  Camp  Lejeune.
They assessed my right shoulder as to  whether  it  had  any  impact  on  my
ability to perform my job.  CDR E. performed this even though he was not  my
surgeon.  His evaluation after my surgery was poor in comparison to  MAJ  S.
was had to deploy on short notice  right  after  the  surgery  on  my  right
shoulder.  Dr E. stated that at six weeks post op, there was not  any  pain.
This is incorrect, as I have bad pain in that shoulder for more  than  eight
years now.  He stated that I had good range of motion but he manually  moved
my arm through the full range.  Having lived with pain for so  long,  I  did
not jump off the bed or scream.  I am a Marine, we do not do  that  sort  of
thing.  At the end of Dr E.'s report, he  states  that  it  was  anticipated
that the shoulder would fully recover and that I had full  strength.   If  I
could not hang from a pull-up bar, how do I have full strength?  And as  far
as anticipating a full recovery goes.  I anticipated  spending  20-30  years
in the Marine Corps and look what happened.  I do not think  that  something
as detrimental as a PEB should be  based  on  anticipated  recoveries.”   He
additionally lists all of his VA rated conditions.
____________________________________________________________________________
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RATING COMPARISON:

|Service IPEB  20051227          |VA (2 Mo. Pre- Separation)            |
|Condition        |Code   |Rating|Condition        |Code   |Ratin|Exam   |
|                 |       |      |                 |       |g    |       |
|Persistent       |Category II   |Post Concussion  |9304-80|10%  |2006042|
|Cephalgia        |              |syndrome with    |45     |     |5      |
|                 |              |Cephalgia…       |       |     |       |
|Shoulder Injury, |Category III  |Residuals, Right |5201-50|10%  |2006042|
|Right            |              |Shoulder         |19     |     |5      |
|↓No Additional MEB/PEB Entries↓ |Residuals, Left  |5201-50|10%  |2006042|
|                                |Shoulder         |19     |     |5      |
|                                |Residuals, Right |5206-50|10%  |2006042|
|                                |Elbow            |19     |     |5      |
|                                |Residuals, Left  |5206-50|10%  |2006042|
|                                |Elbow            |19     |     |5      |
|                                |Residuals, Right |5215-50|10%  |2006042|
|                                |Wrist            |24     |     |5      |
|                                |Residuals Right  |5271-50|10%  |2006042|
|                                |Ankle            |24     |     |5      |
|                                |Residuals Left   |5271-50|10%  |2006042|
|                                |Ankle            |24     |     |5      |
|                                |Residuals, Neck  |5237   |10%  |2006042|
|                                |                 |       |     |5      |
|                                |Residuals, Lower |5237   |10%  |2006042|
|                                |Back             |       |     |5      |
|                                |Tinnitus         |6260   |10%  |2006042|
|                                |                 |       |     |4      |
|                                |7 x 0%/8 x NSC                 |2006042|
|                                |                               |5      |
|Combined:  10%                  |Combined: 80%  from 20060707          |


*Initially 10%, it was increased to 30% on appeal using the same
information.  The combined rating did not change.
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__

ANALYSIS SUMMARY:  The Board’s rating  recommendation  for  8045,  Traumatic
Brain Injury (TBI), is directly impacted  in  this  case  by  the  following
policy (established by firm precedent  and  prior  legal  opinion).   As  an
implied extension of the DoDI 6040.44  and  National  Defense  Authorization
Act  (NDAA)  2008  mandates,  the  Board  will  comply  with  applicable  VA
disability rating policy changes issued via “FAST” or training letters  (TL)
in effect at the time of separation.  The  VA  TL06-03,  dated  13  February
2006, was in force at the time of  separation  and  the  initial  VA  rating
decision.  Under this policy letter, a maximum of 10%  can  be  assigned  to
code 8045 for "purely subjective  complaints.”   The  VA  TL07-05  dated  31
August 2007, specifically  addressed  the  need  for  a  more  comprehensive
rating approach to TBI pending the promulgation of the current VASRD  rating
formula, FL08-36 effective 23 October 2008.   TL07-05  provided  for  rating
TBI by combining  separate  ratings  from  each  component  of  the  symptom
complex.  TL07-05 was in effect at the time of the VA  review  of  the  CI’s
appeal.  The Board, however, must use the VASRD and  TL06-03  in  effect  at
the time of separation from service.

Post-Concussive Syndrome With Persistent  Cephalgia.   The  CI  was  ejected
from his all terrain vehicle (ATV) in May 2002 while “four-wheeling” in  the
CA  desert.   He  sustained  an  observed  four  minute  LOC.   A   computed
tomography (CT) scan showed an  acute  sub-dural  hematoma  with  mild  left
frontal lobe edema and petechial hemorrhages,  most  likely  due  to  axonal
shear injury.  He was intubated initially,  but  was  stable  for  discharge
after five days.  He also sustained a fracture of  the  right  scapula.   He
suffered from PCS such  as  impairment  of  short  term  memory,  retrograde
amnesia, difficulty with concentration, and  irritability.   These  symptoms
were not present at a  Defense  and  Veteran  Head  Injury  Program  (DVHIP)
intake interview one month after the accident, but waxed and waned over  the
next few months.  He improved sufficiently to return  to  full  duty  on  22
January 2003, eight months after the MVA.  Later  that  same  year,  he  had
recurrent  headaches.   The  working  diagnosis  was   chronic,   paroxysmal
hemicranias; treatment with medications and with botox  injections  provided
temporary  relief   and   chiropractic   manipulation   proved   inadequate.
Neuropsychological testing was done from October 11-13,  2005,  nine  months
prior to separation, to evaluate subjective complaints of  impaired  memory.
The  CI  also  noted  irritability.   No  cognitive  impairment  was  found.
Assessment    procedures    included    the     Expanded     Halstead-Reitan
Neuropsychological  Test  Battery;  Weschler  Adult  Intelligence  Scale-III
(WAIS-III);  Weschler  Memory  Scale-III  (WMS-III);  North  American  Adult
Reading Test (NAART); Minnesota Multiphasic Personality  Inventory-2  (MMPI-
2); and, clinical interview.  He was thought to have an adjustment  disorder
with depressed mood and the memory complaints most likely,  “stem  from  the
concentration-robbing impact  of  pain,  emotional  distress  and  situation
stressors on cognitive efficiency.”  He was considered fit  for  full  duty.
The non-medical assessment (NMA), accomplished two weeks later,  noted  that
he was the division chief instructor, “chosen for this position  because  of
his technical expertise, professionalism, and  leadership  abilities.”   The
commander stated that he would recommend retention on active duty,  but  the
CI was not motivated to stay.

The narrative summary (NARSUM) indicates that the CI’s  condition  prevented
him from taking a physical fitness test and  that  he  was  unable  to  lift
objects overhead because  of  both  shoulders,  and  he  was  not  worldwide
deployable.  The MEB NARSUM was performed on  20  October  2005  over  eight
months prior to separation, by the Neurologist who had cared for the CI  for
the previous two years.  The CI was noted to have occipital or right  retro-
orbital headaches typically triggered by heavy  exertion.   No  lacrimation,
rhinorrhea, flushing or phono/photophobia was noted.   The  neurologic  exam
was normal.  He was diagnosed with medically unacceptable PCS with  headache
as the manifestation.  A follow-up neurologic exam 23 March 2006, three  and
one-half months prior to separation, noted no cognitive impairment.  The  VA
compensation and pension (C&P) exam was performed 25  April  2006,  two  and
one-half months prior to separation.  The CI stated that he  was  forgetful,
had  problems  with  multi-tasking  and  staying  organized   as   well   as
irritability.   On  mental  status  exam  (MSE),  it  was  noted   that   he
concentrated well, could recall dates fairly well, had good  judgment,  fair
insight,  and  that  intelligence  was  a  little  above  average.   He  was
determined to have occasional social and work  impairment.   A  separate  VA
general C&P exam done the same day noted that  the  CI  had  post-concussive
headaches  5  days  per  week,  each  of  which  lasted  12  hours  and  was
incapacitating.  He missed five  days  of  work  per  month.   He  was  also
examined  for  migraine  headaches  which   lasted   12   hours   and   were
incapacitating, occurred 3 times per week leading to 5 days lost  from  work
per month.

As noted above, TL06-03 was in effect  at  the  time  of  separation  and  a
maximum of 10% disability is  allowed  for  subjective  symptoms.   Although
diagnosed as PCS rather than designated formally as TBI, the service and  VA
evidence clearly establishes the presence of TBI at separation.   Subjective
cognitive  impairment  was  present,  although  not  measurable.    The   CI
experienced irritability, forgetfulness, difficulty with  concentration  and
problems with multi-tasking which are all possible  sequelae  of  TBI.   The
question facing the Board is not  the  existence  of  TBI.   Rather,  it  is
whether or not the attributed  conditions  were  associated  with  unfitting
impairment at separation.  The Board paid specific attention  to  the  PEB’s
fitness adjudication for TBI and considered whether  the  impact  from  this
condition was unfairly minimized in the Disability Evaluation  System  (DES)
process.  The Board notes that the commanding officer had put the  CI  in  a
position  of  responsibility;  the   formal   three-day   neuropsychological
assessment did not show  cognitive  impairment,  contrary  to  what  the  VA
examiner noted in the VA C&P.  The MEB neurologist, who had  cared  for  the
CI for the previous two years, noted no  cognitive  impairment  on  the  MEB
narrative and on other exams, including a visit near separation.  The  Board
reasoned that if cognitive impairment could be  supported  as  an  unfitting
condition, it would have to be justified by  the  evidence  that  there  was
associated impairment which would have prevented  the  CI  from  discharging
his responsibilities as an instructor.  In fact,  his  commander  apparently
thought highly of his performance and recommended retention.  On the VA  C&P
exam, the TBI related conditions all appear to be part of the history,  with
no definitive evidence of cognitive impairment noted on the MSE.  The  Board
cannot therefore draw  a  reasonable  conclusion  that  unfitting  cognitive
impairment existed separately at the time of separation nor, as required  by
TL06-03, that there was any objective evidence of cognitive impairment.

The Board had a lengthy discussion as to whether or not the headaches  could
be considered as a separately unfitting condition since there was  objective
evidence of a subdural hematoma.  After  discussion,  the  determination  by
the Board was that IAW TL06-03 even  with  the  objective  evidence  of  the
subdural hematoma the headaches are still a subjective finding  of  the  TBI
and are limited to a 10% disability  rating.   After  due  deliberation,  in
consideration of the totality of the evidence  and  VASRD  §4.3  (reasonable
doubt), the Board concluded that there was insufficient cause  to  recommend
a re-characterization of the PEB fitness adjudication  for  the  TBI  (post-
concussive) condition.

Other  PEB  Condition.  The  other  condition  forwarded  by  the  MEB   and
adjudicated as not unfitting by the PEB was a right  shoulder  injury.   The
CI had a history of multiple right shoulder dislocations, beginning  at  age
13.  In the ATV accident noted above, he had  a  non-displaced  fracture  of
the scapula treated conservatively and an acromioclavicular  injury  treated
with surgery.  He later had a fourth right  shoulder  dislocation  in  April
2005.  A magnetic resonance imaging (MRI) revealed a right shoulder  Bankart
lesion,  a  tear   of   the   labrum   which   was   subsequently   repaired
arthroscopically in June 2005,  13  months  prior  to  separation.   He  was
placed on six months LIMDU; the NMA,  MEB  and  PEB  were  all  accomplished
during this period.  There were two range of motion (ROM) goniometric  exams
in evidence after the initial recovery from surgery and the MEB  exam  which
was not goniometric.

|Goniometric ROM |PT ~ 11 Mo.  |MEB ~7 Mo.  |VA C&P ~ 2+  |
|R Shoulder      |Pre-Sep      |Pre-Sep     |Mo. Pre-Sep  |
|Flexion (0-180) |140/160⁰     |-           |120⁰         |
|Abduction       |150/180⁰     |-           |120⁰         |
|(0-180)         |             |            |             |
|Comment         |Still in     |NLM ROM and |Limited by   |
|                |rehab-       |strength,   |pain         |
|                |             |Non-goniomet|             |
|                |             |ric, Also   |             |
|                |             |refers to   |             |
|                |             |20051005    |             |
|                |             |Ortho exam  |             |
|§4.71a Rating   |0%           |0%          |10%          |

At the time of the MEB examination on 14 December 2005  seven  months  prior
to separation, the CI was six months out from surgery,  and  had  progressed
to the strengthening part of his rehabilitation.  He was noted to have  full
ROM.  The  shoulder  was  stable.   There  had  been  improvement  from  the
orthopedic exam two months previously when there was  still  some  reduction
in strength.  The NMA, which noted mild impairment  with  duties,  was  also
written at that time (October 2005).  This was  four  months  after  surgery
while the CI was still in rehabilitation.

At the VA exam on 25 April 2006 two months prior  to  separation,  he  noted
pain rated 8/10 occurring ten times per day lasting for an hour, as well  as
weakness, stiffness, giving way, and locking.  On exam, no edema,  effusion,
weakness,  tenderness,  abnormal  movement,  guarding,  or  subluxation  was
noted.  Limited ROM from pain was the only objective finding noted.   DeLuca
criteria were positive only for pain.  Imaging was significant for  the  old
scapular fracture.  The joint space was normal as  were  the  soft  tissues.
All evidence considered, there is not reasonable doubt  in  the  CI’s  favor
supporting recharacterization of the PEB fitness adjudication for the  right
shoulder condition.

Other Contended Condition.  The CI’s application  asserts  that  compensable
ratings should be considered for migraines  and  this  is  discussed  above.
The CI also contends for tinnitus, neck  strain,  left  shoulder  condition,
bilateral patellofemoral  syndrome  (PFS),  bilateral  elbow  strain,  right
wrist strain, low back strain, bilateral ankle sprains, residual  scars  and
left varicocele.  All of  these  conditions  were  reviewed  by  the  action
officer and  considered  by  the  Board.   None  of  these  conditions  were
clinically  significant  during  the  MEB   period;   none   required   duty
limitations; and, none were implicated in the NMA.  There  was  no  evidence
for concluding that any of the conditions interfered with  duty  performance
to a degree that  could  be  argued  as  unfitting.   The  Board  determined
therefore that none  of  the  stated  conditions  were  subject  to  service
disability rating.

Remaining Conditions.  Other conditions identified  in  the  DES  file  were
gastroesophageal reflux  disease,  lipoma  removals,  lipoma  left  forearm,
motion sickness, bilateral arm numbness  and  sleep  disturbance,.   Several
additional non-acute conditions or medical complaints were also  documented.
 None of  these  conditions  were  clinically  significant  during  the  MEB
period; none required duty limitations; and, none  were  implicated  in  the
NMA.  These conditions were reviewed by the action  officer  and  considered
by the Board.  It was determined that none could be argued as unfitting  and
subject to separation rating.  Additionally,  allergies,  tinea  pedis,  and
onychomycosis as well as several other non-acute conditions  were  noted  in
the VA rating decision proximal to separation, but were  not  documented  in
the DES file.  The Board does not have the authority under DoDI  6040.44  to
render fitness or rating recommendations for any conditions  not  considered
by the DES.
____________________________________________________________________________
__

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.   In  the  matter  of  the  PCS,  the  Board
unanimously recommends no re-characterization of the PEB  adjudication.   In
the matter of the persistent cephalgia, no re-characterization  of  the  PEB
adjudication as not separately  unfitting.   In  the  matter  of  the  right
shoulder condition, the Board unanimously agrees that it cannot recommend  a
finding of unfit for additional rating at separation.  In the matter of  the
tinnitus, neck strain, left shoulder  condition,  bilateral  patella-femoral
syndrome, bilateral elbow strain,  right  wrist  strain,  low  back  strain,
bilateral ankle sprains, residual scars and left  varicocele  conditions  or
any other medical conditions eligible for  Board  consideration,  the  Board
unanimously agrees that it  cannot  recommend  any  findings  of  unfit  for
additional rating at separation.

____________________________________________________________________________
__

RECOMMENDATION:  The Board therefore recommends that there be no
recharacterization of the CI’s disability and separation determination.

|UNFITTING CONDITION                               |VASRD CODE  |RATING  |
|Post-Concussive Syndrome                          |8045-9304   |10%     |
|COMBINED    |10%     |


____________________________________________________________________________
__





The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20090901, w/atchs.
Exhibit B.  Service Treatment Record.
Exhibit C.  Department of Veterans' Affairs Treatment Record.




      President, Physical Disability Board of Review
MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW
                                         BOARDS

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATION
        5777

Ref:   (a) DoDI 6040.44
          (b) PDBR ltr dtd 23 Aug 11

      I have reviewed the subject case pursuant to reference  (a)  and,  for
the reasons set forth in reference (b), approve the  recommendation  of  the
Physical Disability Board of  Review  XXXXX  records  not  be  corrected  to
reflect a change in either his characterization  of  separation  or  in  the
disability rating previously  assigned  by  the  Department  of  the  Navy’s
Physical Evaluation Board.




      Assistant General Counsel
        (Manpower & Reserve Affairs)