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AF | PDBR | CY2012 | PD2012 01234
Original file (PD2012 01234.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:    BRANCH OF SERVICE: Army
CASE NUMBER: PD1201234   SEPARATION DATE: 20020612
BOARD DATE: 20130426


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (95B10/Military Police), medically separated for severe headaches resulting in an inability to wear Kevlar; status post (s/p) depressed skull fracture, multiple scalp lacerations, near avulsion of right auricle. In June 1999, the CI had a roll-over HMMWV accident while on a field training exercise at Pinon Canon. He sustained severe scalp lacerations, nearly avulsed his right ear, and had a depressed skull fracture. He was hospitalized, treated and had a full recovery. He subsequently developed severe headaches after wearing the Kevlar for several minutes. The post-traumatic headache condition could not be adequately rehabilitated. 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 and referred for a Medical Evaluation Board (MEB). Post-traumatic headache aggravated by Kevlar was forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW AR 40-501. The MEB also identified and forwarded hearing loss, left ear, s/p ossiculoplasty, Oct 1999, on H1 profile and patellofemoral pain syndrome (PFPS), intermittently symptomatic conditions judged to meet retention standards. The PEB adjudicated the post-traumatic headache aggravated by Kevlar as severe headaches resulting in an inability to wear Kevlar; s/p depressed skull fracture, multiple scalp lacerations, near avulsion of right auricle unfitting, rated 0%, with likely application of Veteran’s Affairs Schedule for Rating Disabilities (VASRD) and AR 635-40. The remaining conditions (hearing loss, left ear, status post ossiculoplasty Oct 1999, on H1 profile; and patellofemoral pain syndrome, intermittently symptomatic) were determined to be not unfitting and therefore not ratable. The CI made no appeals, and was medically separated with a 0% disability rating.
CI CONTENTION: “VeteRan is having major health Issues Relating to the incident. The VETERan Feels that the REsults oF the linE of Duty investigation REsults, wEre unfounded.”


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 depressed skull fracture, multiple scalp lacerations, hearing loss, left ear, s/p ossiculoplasty Oct 1999, patellofemoral syndrome and near avulsion of right auricle conditions as requested for consideration 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 condition. The remaining conditions rated by the VA at separation and listed on the DA Form 294 are not within the Board’s purview. 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 (ABCMR).


 RATING COMPARISON :

Service IPEB – Dated 20020311 VA (~1 Mo. Post-Separation) – All Effective Date 20020710
Condition Code Rating Condition Code Rating Exam
Status Post Depressed Skull Fracture, Multiple Scalp Lacerations, Near Avulsion of Right Auricle 8199-8100 0% Post Traumatic Headaches. Head Injury, Hearing Loss.
Left Ear Rupture. Open Depressed Skull Fracture.
Residual Scarring Head and Right Ear. Right Ear Partial
Amputation. Right Ear Problems. Tinnitus		 8100 NSC STR
Post Traumatic Headaches 8I00 NSC STR
Open Depressed Skull Fracture 5299-5296 NSC STR
Head Injury 5296 NSC STR
Right Ear Partial Amputation 6207 NSC STR
Residual Scarring Head/Right Ear 7800 NSC STR
Right Ear Problems 6209 NSC STR
Hearing Loss, Left Ear, Status Post Ossiculoplasty Oct 1999, On H1 Profile Not Unfitting Hearing Loss 6100 NSC STR
Left Ear Rupture 6211 NSC STR
Tinnitus 6260 NSC STR
Patellofemoral Pain Syndrome, Intermittently Symptomatic Not Unfitting Left Knee Strain (also claimed as Patellofemoral Pain
Syndrome)		 5261 NSC STR
↓No Additional MEB/PEB Entries↓ 0% X 1 / Not Service-Connected x 11 20080528
Combined: 0%% Combined: 0%


ANALYSIS SUMMARY: The Board acknowledges the CI’s contention about the results of the line of duty (LOD) investigation, the gravity of his condition, and the significant impairment with which his service-connected condition continues to burden him. While the Board consulted the Army for clarification of the service LOD determination to delineate the conditions within the Board’s scope of review, Army confirmed “CI injuries were in the line duty”. It is noted for the record that the Board has neither the jurisdiction nor authority to scrutinize, render opinions, or offer remedy in reference to decisions regarding LOD. That jurisdiction and authority resides with the ABCMR. IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations. The Board’s role is thus confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VASRD standards, based on severity at the time of separation.

Severe headaches s/p depressed skull fracture. In June of 1999, the CI was involved in a motor vehicle accident and sustained a head injury. He was hospitalized with an open depressed skull fracture, epidural hematoma, multiple scalp lacerations, and partial amputation of his right ear. He underwent elevation and debridement of his depressed skull fracture, a left tympanotomy, and repair of the partial right ear avulsion. He retained plates at the site of the open depressed fracture and underwent a left ossiculoplasty for his conductive hearing loss. He returned to full duty after 3 months of postoperative restrictions. In January of 2000, the CI developed severe headaches when wearing his Kevlar helmet. The CI underwent a preventative medication trial, but continued to experience severe headaches with Kevlar helmet use. He was issued a permanent profile restricting Kevlar use due to post-concussive headaches. The narrative summary (NARSUM) notes that the CI reported “mild infrequent headaches not requiring medication unless he wears his Kevlar.” The CI continued to report headaches lasting several hours after Kevlar helmet use.

The Board directs attention to its rating recommendation based on the above evidence. The PEB adjudicated the headache condition analogous to migraine headaches, coded 8100 rated at zero percent based on frequency less than once in 2 months or only with wearing a Kevlar helmet. The Board considered the commander’s statement that the CI was able to perform the duties of his MOS except for wearing a Kevlar helmet. The Board considered that the MEB forwarded post-traumatic headaches aggravated by Kevlar in evaluation of VASRD rating options. At the time of separation, a 10% disability rating could be conferred under VASRD code 8045, based on “purely subjective complaints such as headaches.” The Board concluded that based on the service clarification of the LOD (yes) determination for the skull fracture, the development of headaches subsequent to the motor vehicle accident, and retained plates at the site of the depressed skull fracture, an analogous rating of the headaches could be conferred coded 8045-9304. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the headache condition.
Contended PEB Conditions. The contended conditions adjudicated as not unfitting by the PEB were hearing loss and PFPS. The contended conditions referenced as fully recovered by the PEB were depressed skull fracture, multiple scalp lacerations, and s/p near avulsion of right auricle. With respect to the contended conditions, 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. None of these conditions were profiled; none were implicated in the commander’s statement; and, none were judged to fail retention standards. All were reviewed by the action officer and considered by the Board. There was no indication from the record that any of 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 the any 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 headache condition, the Board unanimously recommends a disability rating of 10%, coded 8045-9304 IAW VASRD §4.124a. In the matter of the contended hearing loss, scalp lacerations, depressed skull fracture, s/p near avulsion of right auricle, and PFPS 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 recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:

UNFITTING CONDITION VASRD CODE RATING
Headaches s/p Depressed Skull Fracture 8045-9304 10%
COMBINED 10%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120629, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record




         Physical Disability Board of Review

SFMR-RB                                                                         


MEMORANDUM FOR Commander, US Army Physical Disability Agency
(TAPD-ZB),


SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for AR20130010243 (PD201201234)


1. 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 to modify the individual’s disability rating to 10% without recharacterization of the individual’s separation. This decision is final.

2. I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum.

3. I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures.

BY ORDER OF THE SECRETARY OF THE ARMY:




Encl                                                 
                                                      (Army Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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