RECORD OF PROCEEDINGS
                     PHYSICAL DISABILITY BOARD OF REVIEW

NAME:                                      BRANCH OF SERVICE:  MARINE CORPS
CASE NUMBER:  PD1001297                                    SEPARATION  DATE:
 20080531
BOARD DATE:  20111011


SUMMARY OF CASE:  Data extracted  from  the  available  evidence  of  record
reflects that this covered individual  (CI)  was  an  active  duty  LCpl/E-3
(3051/Warehouse Clerk) medically separated  for  cognitive  dysfunction  and
chronic left leg pain.  The  CI  sustained  multiple  injuries,  to  include
traumatic brain injury (TBI - with  loss  of  consciousness,  right  frontal
subarachnoid hemorrhage with contusion, and diffuse  axonal  injury)  and  a
closed left  tibia-fibula  fracture,  in  a  September  2006  motor  vehicle
accident.  He underwent open reduction and internal fixation of  the  tibial
shaft fracture and was observed in the intensive care  unit  for  his  brain
injury.  Following discharge from the hospital, he completed  an  outpatient
brain injury rehabilitation program before returning to full duty.   The  CI
successfully completed Marine Combat Training, but then developed  cognitive
dysfunction and chronic left leg pain that limited his ability  to  function
as a Marine.  Despite treatment with physical therapy, pain medication,  and
cognitive behavioral therapy, he  did  not  respond  adequately  to  perform
within his military occupational specialty (MOS) or  meet  physical  fitness
standards.   He  was  placed  on  limited  duty  and  underwent  a   Medical
Evaluation Board (MEB).  Intracranial injury,  tension  headache,  classical
migraine, insomnia, pain in limb  and  depressive  disorder,  moderate  were
forwarded to the Physical Evaluation Board (PEB) as  medically  unacceptable
IAW SECNAVINST 1850.4E.   The  PEB  adjudicated  cognitive  dysfunction  and
chronic left leg pain as unfitting, rated 10% each, with likely  application
of the SECNAVINST 1850.4E.  The  CI  made  no  appeals,  and  was  medically
separated with a 20% combined disability rating.


CI CONTENTION:  The CI elaborates no specific contentions  regarding  rating
or coding and mentions no additionally contended conditions.


RATING COMPARISON:

|Service IPEB – Dated 20080325 |VA (<1 Mo After Separation) – All        |
|                              |Effective 20080601                       |
|Condition                     |Code                             |Rating|
|Combined:  20%                |Combined:  60%                           |


ANALYSIS SUMMARY:  The  Board’s  rating  recommendation  for  8045,  TBI  is
subject to the following policy (established by precedent  and  prior  legal
opinion).  As an implied extension of the  DoDI  6040.44  and  the  National
Defense  Authorization  Act  2008  mandates,  the  Board  will  comply  with
applicable  VA  disability  rating  policy  changes  issued  via  “FAST”  or
Training Letters (TL) effective at the  time  of  separation.   TL06-03  (13
February  2006),  specifically  addressed  the   complexity   of   TBI   and
recommended coding “outside” of 8045 when a more favorable rating  could  be
achieved under an alternate code; e.g., analogous to migraines  8100  versus
8045-9304, if headache was present.  TL07-05 (31 August 2007)  went  further
in allowing separate ratings under the applicable  codes  for  each  ratable
component of TBI in evidence; e.g., headache, tinnitus, dizziness, etc.   In
this case that allows separate ratings for headache rendering it  in  effect
as a separately ratable condition  for  purposes  of  the  service  combined
disability rating.  This  TL  removed  the  prior  VA  Schedule  for  Rating
Disabilities (VASRD) restriction of a maximum of 10% rating  for  subjective
symptoms  of  TBI  under  8045-9304  and  also  specifically   stated,   “An
examination for possible mental disorder(s) due  to  TBI  may  result  in  a
diagnosis of dementia due to head trauma (diagnostic  code  9304),  dementia
due to neurologic or  other  general  medical  conditions  (diagnostic  code
9326), organic mental disorder,  other  (diagnostic  code  9327),  or  other
mental disorder.  In such cases, if  the  cluster  of  symptoms,  which  may
include  cognitive  impairment,  is  encompassed  by  the  mental  disorder,
evaluation under the General Rating Formula for  Mental  Disorders  will  of
course be appropriate.”  The current TBI VASRD criteria are  not  applicable
in this case as they were not effective until 23 October 2008.

Cognitive Dysfunction (with related Category 2 Diagnoses of Depression,  Not
Otherwise Specified, and Traumatic Brain  Injury).   The  CI  was  initially
diagnosed with cognitive dysfunction as a result of TBI in  September  2006.
The CI was treated with  outpatient  rehabilitation  therapy  following  the
accident, and by the time of formal neuropsychological  testing  in  January
2007, the CI’s cognitive dysfunction had shown significant improvement.   At
that time, he was noted to have deficits in  verbal  processing,  attention,
concentration, and efficiency  of  visual-spatial  processing.   His  visual
memory was also found to be mildly impaired.  All of the  noted  impairments
were felt to be consistent with his TBI.   The  examining  neuropsychologist
remarked that the CI had “made very good and rapid recovery of  function  to
this point in time.  It is anticipated that such recovery will continue  for
the foreseeable future.”  The CI was returned to full duty in  January  2007
and successfully completed Marine Combat Training.  In April  2007,  the  CI
complained of problems with memory, concentration and multi-tasking as  well
as  disturbed  sleep  and  headaches.   He  was   referred   for   cognitive
rehabilitation and placed on Celexa for treatment  of  headaches  and  sleep
disturbance (insomnia).  A comprehensive psychological evaluation  conducted
in  September  2007  noted  “pervasive…and  significant  levels  of   memory
impairment”  and  “particularly  poor   capacity   to   encode   information
effectively.”  Formal testing revealed that the  CI  was  functioning  below
expected  levels  in  several  areas  to  include  perceptual  organization,
general  reasoning  skills,  and  the  ability  to  formulate  common  sense
judgments.  Testing and  evaluation  also  revealed  severe  depression  and
anxiety, exacerbated by significant  multiple  life  stressors  and  losses.
The examiner opined that “there is now notable  psychological  overlay  when
deficits in his cognitive status and  memory  functioning  are  considered.”
The Axis I diagnoses were major depression (single episode with  melancholia
and significant features of generalized anxiety),  complicated  bereavement,
and  cognitive  disorder,  not  otherwise  specified  (NOS)  (neurocognitive
disorder secondary to TBI currently also  reflecting  notable  psychological
overlay).  The global assessment of functioning (GAF) was assessed at  38  –
42, in the range of major impairment.

At  the  time  of  the  psychiatric  MEB  addendum  three  months  prior  to
separation the CI was undergoing cognitive behavioral therapy.   He  was  no
longer on medication because the drug had  not  been  approved  by  TRICARE.
The  CI  endorsed  symptoms  of  moodiness,  insomnia,  loss  of  enjoyment,
feelings of guilt and decreased motivation.  He complained of  crying  often
and  expressed  passive  thoughts  of  suicide,   without   actual   intent.
Additionally, he complained of  difficulty  tolerating  the  stress  of  his
negative work environment and stated that he was “more able to  act  out  on
his irritable mood while away from work.”  The exam reported “no  change  in
his ability to concentrate.”  However, it is unclear if  this  indicates  no
improvement in prior reported symptoms or if it indicates  that  there  were
no problems with concentration.  The mental  status  exam  was  reported  as
“WNL.”  The examiner opined that the CI’s  “mild  symptoms  of  anxiety  and
moderate  symptoms  of  depression”  were  “most  likely   associated   with
situational variables  such  as  poor  job  satisfaction,  being  away  from
family, and the recovery process.”  He concluded that the  CI  was  fit  for
duty and added  that  “LCpl  McIlwain’s  most  immediate  challenge  from  a
psychological standpoint will be acceptance of new physical limitations  and
redefining goals for the future.”  The  Axis  I  diagnosis  was  depression,
NOS, moderate, and no GAF was assessed.  Axis III  was  “TBI  and  left  leg
with internal fix.”  The PEB referenced moderate  symptoms  associated  with
situational variables and assigned a rating of 10%  on  the  basis  of  this
exam, reflecting application of  the  SECNAVINST  1850.4E  and  prior  VASRD
coding limitations under 8045.

At the VA compensation and pension (C&P) exam  less  than  one  month  after
separation the CI continued to endorse symptoms  of  anxiety,  irritability,
decreased energy and insomnia, but stated that his depression had  resolved.
 The CI additionally  complained  of  decreased  cognitive  functioning  and
difficulty with planning and organizing.  He was no longer  in  therapy  and
he was only taking melatonin for help with sleep.  On  mental  status  exam,
the  examiner  noted  that  “cognitive  functioning  appears  to  have  been
somewhat reduced by his TBI; however, he appears grossly  functional.”   The
CI’s level of psychosocial functioning was  assessed  as  mild  to  moderate
anxiety and mild to moderate cognitive losses  compared  to  baseline.   The
Axis I diagnoses were cognitive disorder, NOS secondary to  TBI,  adjustment
disorder with anxious mood, and major depression,  currently  in  remission.
The GAF was assessed at 60, in the range of  moderate  impairment.   The  VA
assigned a rating of 30% on the basis of this exam.

The Board directs its attention to the rating recommendation  based  on  the
evidence just described.  IAW TL07-05 the Board applied the rating  criteria
of §4.130 rather than the prior VASRD limitations  under  8045.   The  Board
noted that the PEB adjudication  attempted  to  distinguish  and  separately
consider impairment due to cognitive dysfunction from impairment due to  TBI
and depression.  However, the Board determined  that  such  distinction  was
not consistent  with  the  VASRD,  as  there  are  no  means  to  accurately
apportion impairment between multiple conditions which rate under the  4.130
criteria.  With regard to TBI-related  mental  disorders,  TL07-05  advises,
“if the cluster of symptoms, which  may  include  cognitive  impairment,  is
encompassed by the mental disorder,  evaluation  under  the  General  Rating
Formula for Mental Disorders will of  course  be  appropriate.”   The  Board
therefore evaluated the CI’s  entire  constellation  of  TBI-related  mental
health symptoms in order to arrive  at  a  fair  rating  recommendation  IAW
§4.130.

The majority of the Board members agreed that the 10%  threshold  was  well-
exceeded, and all members agreed that the 50% threshold was not  approached.
 The Board’s deliberations were centered therefore on arguments  for  a  10%
versus 30% permanent rating  recommendation.   The  majority  of  the  Board
agreed that both the  detailed  neuropsychiatric  consult  and  the  VA  C&P
examinations were most consistent with a §4.130 rating of 30%  (occupational
and social impairment  with  occasional  decrease  in  work  efficiency  and
intermittent periods of inability to perform occupational tasks).   The  MEB
psychiatric addendum was considered of lower probative  value  and  appeared
to focus on the CI’s depression, without testing or evaluation of  cognitive
dysfunction.  The CI noted significant difficulty adapting  to  occupational
stressors and the non-medical assessment concluded that,  “While  doing  his
best to remain positive, he cannot function in his primary MOS.  He is  also
not able to perform other duties  associated  with  being  a  United  States
Marine.”  The Board  did  not  find  evidence  of  only  mild  or  transient
symptoms to support the lower 10% rating and did not find evidence that  the
occupational impairment was limited only to periods of  significant  stress.
After due deliberation, and in consideration of all the evidence  and  VASRD
§4.3 (reasonable doubt), the Board recommends  30%  as  the  fair  permanent
separation rating for TBI-related cognitive dysfunction, coded 8045-9304.

Chronic Left Leg Pain (Following Closed Tibia And Fibula  Fractures  Treated
With Intramedullary Nail Fixation).  The  CI  had  an  initially  uneventful
recovery following open  reduction  and  internal  fixation  of  left  tibia
fracture in September 2006.  In April 2007, however, the CI  presented  with
complaints of chronic pain in the left lower leg, knee and  ankle,  as  well
as pain and hypersensitivity to touch in the left foot.  Plain films of  the
lower  leg  (May  2007)  documented  healed  fractures  and  confirmed  good
position  of  the  intramedullary  rod  and  screws.   The  CI  was  treated
conservatively with pain medications and therapy, and duty limitations  were
imposed that precluded physical training  and  deployment.   The  option  of
surgery to remove hardware was discussed; however, the CI  declined  further
surgery upon the advice  of  the  orthopedist  who  originally  treated  the
fracture (considered reasonable).

There were four left leg evaluations in evidence which the Board weighed  in
arriving at  its  rating  recommendation.   The  evaluations  were  the  MEB
physical therapy range of motion (ROM) exam,  the  MEB  orthopedic  addendum
included and combined with the MEB narrative summary (NARSUM) exam, and  the
VA C&P exam.  The exam findings are summarized in the chart below.

|Goniometric   |MEB ~ 5 Mo       |PT ~ 4 Mo.       |VA C&P <1 Mo.     |
|ROM –         |Pre-Sep          |Pre-Sep          |After-Sep         |
|L Knee        |                 |                 |                  |
|Flexion       |normal           |0-40⁰ (passive 0-|0-90⁰ (passive 0 –|
|(0-140⁰       |                 |80⁰)             |100⁰)             |
|normal)       |                 |                 |                  |
|Extension (0⁰ |normal           |0⁰               |0⁰                |
|normal)       |                 |                 |                  |
|Comment       |Ortho stated     |Pain / guarding  |Pain from 90 –    |
|              |“normal ROM of   |w/ AROM; Normal  |100⁰; No change   |
|              |the knee and     |gait; decreased  |with repetition;  |
|              |ankle”; Tender at|flex/ext strength|Normal gait;      |
|              |hardware site;   |                 |crepitus          |
|              |vague pains      |                 |                  |
|§4.71a Rating |10%              |10%-20% (PEB –   |10% (painful      |
|              |                 |10%)             |motion)           |

|Goniometric ROM –|MEB ~ 5 Mo     |VA C&P ~ <1 Mo.    |
|L Ankle          |Pre-Sep        |After-Sep          |
|Left Dorsiflexion|normal         |0-20⁰ with pain    |
|(0-20)           |               |                   |
|Left Plantar     |normal         |0-45⁰ no pain      |
|Flexion (0-45)   |               |                   |
|Comment          |Ortho stated   |Tenderness; No     |
|                 |“normal ROM of |change with        |
|                 |the knee and   |repetition or other|
|                 |ankle”; Tender |DeLuca             |
|                 |at hardware    |                   |
|                 |site; vague    |                   |
|                 |pains          |                   |
|§4.71a Rating    |unk            |10% (painful       |
|                 |               |motion)            |

The service exams and the  C&P  exam  documented  a  normal  gait  and  pain
limited ROM of the left knee joint.  The NARSUM examiner additionally  noted
4/5 weakness of the left knee extensors  and  flexors,  commenting  that  it
“may be  give-way  weakness  due  to  pain.”   The  VA  exam  also  included
evaluation of the left ankle, documenting full but painful  ROM.   Both  the
orthopedic exam and the VA C&P exam noted tenderness to palpation along  the
foot.

The PEB and the VA used different coding options for the left leg  condition
which did bear on the rating.  The PEB coded for  impairment  of  the  tibia
and fibula, and rated  at  10%  for  malunion  with  slight  knee  or  ankle
disability.  The VA coded the ankle and knee impairments  separately,  under
their respective joint codes, and rated 10% each for painful ROM.   As  both
coding schema account for  associated  disability  of  the  knee  and  ankle
joint, neither coding is predominant.  The service  exams  and  the  VA  C&P
exam differed significantly in scope and  findings;  the  service  exam  for
this condition only  addressed  the  knee  joint,  while  the  VA  C&P  exam
addressed both the ankle and the knee.  The degree  of  limitation  of  knee
flexion documented at the service physical  therapy  exam  was  compensable,
whereas that documented at the C&P exam was not.  Additionally, the VA  exam
documented normal, but painful ROM of the ankle.  The Board  considered  the
probative value of the various  exams  and  noted  that  the  service  exams
included evaluation by an orthopedic specialist as well as  formal  physical
therapy ROM measurements.  The VA exam, however, was closer to the  date  of
separation.  The less restrictive limitation of knee flexion  documented  at
the VA exam, though still considerable, likely  represented  improvement  in
the CI’s leg condition.  The Board concluded that the VA  C&P  exam  was  of
greater probative value.

Using the PEB coding for impairment of the tibia and fibula, the  degree  of
limitation of active knee ROM documented at  the  service  physical  therapy
exam and VA exam meets the criteria for mild  to  moderate  knee  disability
and would rate 10%-20%.  The Board considered the  CI’s  normal  gait  along
with the normal knee and ankle ROMs documented  previously  in  the  service
treatment  records,  and  concluded  that  the  CI’s  condition   was   more
consistent with mild disability.  There is not reasonable doubt in the  CI’s
favor therefore to justify a Board recommendation for  other  than  the  10%
rating assigned by the PEB for the chronic left leg pain condition.

Other PEB  Conditions  (Intracranial  Injury,  Tension  Headache,  Classical
Migraine, Insomnia and Depressive Disorder).  The CI’s  intracranial  injury
or  TBI  resulted  in  the  residual  symptoms  of   cognitive   dysfunction
(discussed above) and headaches (tension and classical migraine).  IAW TL07-
05 the overall TBI picture includes separate  rating  under  the  applicable
codes for each ratable component of TBI in evidence;  e.g.,  headache.   The
headaches were provoked by driving, reading and exposure to  bright  lights,
and were relieved with rest in a dark room.  There was no  documentation  of
prostrating headaches.  There was no indication from  the  record  that  the
headaches limited duty performance or resulted in  time  off  work.   Absent
the provisions of TL07-05, the  headache/migraine  condition  would  not  be
ratable.  The social and occupational impact of impairment due  to  symptoms
of insomnia and depressive disorder was already discussed  and  included  in
the rating recommendation  for  the  CI’s  unfitting  cognitive  dysfunction
condition.  Independently rating the headaches IAW  TL07-05  and  8045-8100,
the CI meets the 0% rating criteria.

Remaining  Conditions.   The  only  other  condition   identified   in   the
Disability Evaluation System (DES)  file  was  periodic  cerumen  impaction.
This condition was not clinically active during the MEB period and  did  not
form the basis for limited duty.  This condition was reviewed by the  action
officer and considered by the Board.  It was determined that  it  could  not
be argued as unfitting and subject to separation rating.  Additionally,  the
conditions of left ankle tendonitis, right knee patellofemoral syndrome  and
lumbar strain were noted in the VA rating decision proximal  to  separation.
Impairment due to the left ankle  condition  was  previously  discussed  and
included in the rating  recommendation  for  the  CI’s  unfitting  left  leg
condition.  The right knee condition and the  lumbar  spine  condition  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.   The  Board  therefore  has   no
reasonable basis for recommending any additional  unfitting  conditions  for
separation rating.


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.  As  discussed  above,  PEB  reliance  on  the
SECNAVINST 1850.4E  for  rating  the  cognitive  dysfunction  condition  was
operant in this case and the  condition  was  adjudicated  independently  of
that policy and regulation by the  Board.   Some  Board  recommendations  in
this case are IAW application of TL07-05, issued 31 August 2007,  to  rating
under VASRD code  8045  prior  to  promulgation  of  the  current  standards
effective 23 October 2008.  In  the  matter  of  the  TBI-related  cognitive
dysfunction condition, the Board, by a vote of 2:1, recommends a  rating  of
30% coded 8045-9304 IAW VASRD §4.130 and  TL07-05.   The  single  voter  for
dissent (who recommended a  10%  rating)  submitted  the  attached  minority
opinion.  In the matter of the left leg condition and IAW VASRD §4.71a,  the
Board unanimously recommends no change in  the  PEB  adjudication.   In  the
matter of the migraine headache and tension headache conditions,  the  Board
unanimously recommends a rating of 0% coded 8045-8100 IAW VASRD §4.124a  and
TL07-05.  In the matter of the cerumen impaction and left  ankle  tendonitis
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 recommends that the CI’s prior  determination  be
modified  as  follows  and  that  the  discharge  with  severance   pay   be
recharacterized to reflect permanent disability retirement, effective as  of
the date of his prior medical separation:

|UNFITTING CONDITION                               |VASRD CODE  |RATING  |
|TBI-related Cognitive Dysfunction                 |8045-9304   |30%     |
|Headache/Migraine                                 |8045-8100   |0%      |
|Chronic Left Leg Pain                             |5262        |10%     |
|COMBINED    |40%     |


____________________________________________________________________________
__

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20101130, w/atchs.
Exhibit B.  Service Treatment Record.
Exhibit C.  Department of Veterans' Affairs Treatment Record.


                                        President
                                                                    Physical
Disability Board of Review

MINORITY OPINION:

The CI was found unfit for TBI-related cognitive dysfunction, and the  Board
is bound by  VASRD  §4.130  and  TL07-05  for  its  evaluation  and  rating.
Several documents are in evidence and were applied  to  the  General  Rating
Formula for Mental Disorders IAW TL07-05 and §4.130 forming  the  basis  for
my opinion.  The Navy PEB action officer  (physician)  noted  on  the  notes
that the CI’s psych issues were not unfitting  by  themselves,  but  were  a
major contributor to the cognitive dysfunction.  These comments  were  based
on a psychiatric evaluation done on 8 February 2008 (about  three-and-a-half
months pre-separation) as a PEB addendum.   The  examiner  noted  that  “His
symptoms are most likely associated with situational variables such as  poor
job satisfaction, being  away  from  family,  and  the  [accident]  recovery
process.”   He went on to say that the CI had begun to take  math  refresher
courses in preparation for college  after  separation.   In  addressing  his
overall psychological fitness for duty, the examiner considered him fit  for
duty.

The commander in his non-medical assessment noted that the CI was  not  able
to do his MOS as a 3051, but his work performance  with  the  S-4  was  good
considering his medical issues.  He was not motivated for  continued  active
duty since his accident, but he did try to  stay  positive.   The  commander
continued that although the CI could not remain in his MOS, his  performance
in itself was good, but with his medical  ailments  he  should  be  released
from active duty.

The VA C&P Mental Disorders exam done on  20  June  2008  (one  month  post-
separation) shows that the CI was not taking any medications  or  under  any
treatment.  He was planning to start college, had a girlfriend and hoped  to
be engaged in the near future.   He did not  feel  like  he  had  any  major
social issues, and he attended church every Sunday.  The physician  assigned
a GAF of 60.

In consideration of the evidence above, the best  description  of  the  CI’s
TBI-related cognitive dysfunction, rated under the  General  Rating  Formula
for Mental Disorders, in my opinion is “occupational and  social  impairment
due to mild  or  transient  symptoms  which  decrease  work  efficiency  and
ability to perform occupational tasks only  during  periods  of  significant
stress.”  This would be most accurately coded  as  8045-9304  and  rated  at
10%.

RECOMMENDATION:  I recommend the following, as a fair  and  accurate  rating
of the CI’s overall disability at the time of separation:

|UNFITTING CONDITION                               |VASRD CODE  |RATING  |
|TBI-related Cognitive Dysfunction                 |8045-9304   |10%     |
|Headache/Migraine                                 |8045-8100   |0%      |
|Chronic Left Leg Pain                             |5262        |10%     |
|COMBINED    |20%     |

MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW
               BOARDS

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATION


Ref:  (a) DoDI 6040.44
      (b) PDBR ltr dtd 8 Nov 11

    I have reviewed the subject case pursuant to reference (a) and non-
concur with the recommendation of the Physical Disability Board of Review
as set forth in reference (b).  In making my determination, I concurred
with the PDBR minority opinion for the reasons provided therein.
Therefore, XXXXXXX records will 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.




      Principal Deputy
      Assistant Secretary of the Navy
        (Manpower & Reserve Affairs)