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AF | PDBR | CY2013 | PD-2013-01478
Original file (PD-2013-01478.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX    CASE: PD-2013-01478
BRANCH OF SERVICE: Army  BOARD DATE: 20150212
DATE OF PLACEMENT ON TDRL: 19980527
Date of Permanent SEPARATION: 20030402


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-1 (Construction Equipment Repair) medically separated for traumatic brain injury (TBI). The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards. He was issued a permanent P4 profile and referred for a Medical Evaluation Board (MEB). The TBI condition, characterized as “traumatic brain injury resulting in residual and persistent chronic headaches and cognitive dysfunction” was forwarded as the sole condition to the Physical Evaluation Board (IPEB) IAW AR 40-501. The Informal PEB adjudicated the condition as unfitting, rated 50%, citing the “considerable” criterion of Department of Defense Instruction (DoDI) 1332.39; and, placed the CI on the Temporary Disability Retired List (TDRL). After nearly 5 years on the TDRL, the TBI condition was considered to be stable but still unfitting; and, rated 10% (citing the “mild” DoDI 1332.39 criterion). The CI appealed to the Formal PEB (FPEB), which affirmed the previous PEB finding and rating; and, he was permanently separated.


CI CONTENTION: “I believe at the time I was railroaded because I was a young man. When I got my 10% I was receiving 100% from the VA and SSA. My rep said I should have been entitled to 30%. All they wanted to know was how much I was getting from VA & SSA. I think that due to the fact that I had not done a lot of years in service that they gave me an unfair rating.”


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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting. Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records. Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate. The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation. The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions. That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws. The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.






RATING COMPARISON :

Final Service PEB - 20030312
 VA (49 Mo. Pre-Separation)* - Effective 19980528
On TDRL – 19980527
 Code Rating Condition Code Rating Exam
Condition
 TDRL Sep.
TBI...Headaches...Cognitive 8045-8100-9304** 50% 10% TBI 9399-9304 70%* 19990216*
No other conditions
 Other x 2 19990216
Rated: 50% → 10%
 Combined: 80%
*Reflects VA rating proximate to TDRL placement (exam 9 months after TDRL) . The 70% rating was maintained based on subsequent VA exams during the period of TDRL, but a 100% rating was conferred effective 20030509 based on some evidence within 6 months of permanent separation.
**Note: For TDRL placement the PEB used code 8045-9304. The FPEB for permanent separation used 8045-8100-9304.


ANALYSIS SUMMARY:

Traumatic Brain Injury. The service treatment record documents that the CI was involved in a motor vehicle accident on 3 May 1997, with possible loss of consciousness (conflicting evidence), and sustained a brain contusion (frontal lobes, imaging confirmed). Surgical intervention was not required. The injury was complicated by persistent headaches and subjective cognitive complaints. The CI was evaluated and followed by neurology and he underwent several months of therapy with convalescent leave and work reduction. A neuropsychological evaluation was conducted in August 1997 (9 months prior to TDRL), and was subsequently forwarded as an addendum to the narrative summary (NARSUM). The CI indicated he had repeated the 6th, 7th, and 8th grade; had a history of skipping school and fighting, and received his GED a year prior to enlisting in the service. The CI reported symptoms of “intense” headaches, forgetfulness, difficulty concentrating and other cognitive complaints and described mood swings, which he characterized as “a split personality.” The examiner documented, “Given his dissatisfaction with his role within the Army, his questionable effort on several tests, and limited evidence that he tended to exaggerate his complaints, this evaluation may have underestimated his current level of cognitive functioning and should be interpreted with caution.” The testing was interpreted as “average” for memory and attention/concentration and, noted poor performance with visuospatial abilities, which “would not likely have been intentionally produced.” The examiner additionally reported “borderline” intellectual functioning “congruent with his academic and occupational history, but noticeably lower than estimates of premorbid IQ.” The CI scored in the “severely depressed range” on a subjective questionnaire (Beck Depression Inventory-II), endorsing a wide range of symptoms and “pervasive irritability” as well as multiple deviant behaviors and attitudes (MMPI-2). The examiner noted that he “appears to be experiencing very serious psychological distress,” but opined that “his profile should be interpreted with caution. He probably attempted to create an unrealistically negative impression of severe psychopathology as a ‘cry for help’ or to achieve some other secondary gain.” The Global Assessment of Functioning (GAF) was 50 (serious symptoms). The Axis I diagnoses were cognitive disorder, not otherwise specified (NOS), adjustment disorder and depressive disorder NOS. The psychiatric consultation for the MEB on 1 December, 1997 (5 months prior to TDRL placement), noted that the CI “appears more passively hostile than depressed…and his mood symptoms, while exaggerated to some degree are non-impairing.” The Axis I diagnoses were mood disorder 2 degrees to TBI, “medically acceptable,” cognitive dysfunction secondary to TBI, adjustment disorder with mixed emotional features, and Axis II finding of borderline intellect, and antisocial personality traits. The psychiatrist assigned a GAF of 60 (cusp of mild/moderate impairment), and opined the “Patient does not have a psychiatric condition (mood disorder) that warrants a MEB.” On the same day, a neurology clinic visit documented mood symptoms and noted there was diffuse weakness, decreased fine motor coordination “R>L” and postural activation tremor. The examiner assessed status post-TBI, residual headache, and cognitive dysfunction.
The NARSUM dated 1 December 1997 conveyed the history and consultant findings elaborated above, and stated that the CI “continues to suffer from headaches lasting several hours and occurring about four days out of the week ... provoked by physical exertion and emotional upset ... moderately incapacitating.” Additionally, the NARSUM documented that the CI “continues to suffer from residual cognitive [impairment] secondary to [TBI] ... [preventing] his return to ... duty, now more than six months following his initial injury.” The NARSUM examiner referred to the neuropsychological addendum for the mental status exam (MSE), but provided an independent detailed neurological exam that was normal except for decreased sensation around the forehead scars. The commander’s performance statement documented that the CI “cannot work more than 6 hours a day” (as prescribed in the P4 profile), and that his “duty performance is below average due to his physical limitations.” The initial VA Compensation and Pension (C&P) mental evaluation was conducted in February 1999 (9 months after TDRL placement). This documented an interim diagnosis of diabetes in addition to “significant depression,” citing the CI’s concern with the new diagnosis and the inability to work and support his family as contributors; and, assigned a GAF of 40 (major impairment). The CI noted he was married and had two children. The Axis I diagnosis was “Mood disorder due to brain trauma . . . as well as diabetes mellitus with depressive features,” and the psychiatrist opined that “at the present time” the CI was unemployable. The VA rating which references this exam was 70% (charted above); with the nomenclature indicating that it subsumed the headaches and cognitive disorder. An interim TDRL neurology re-evaluation in October 1999 noted that the CI was “frustrated that he is not able to get back to work.” His wife was pregnant and not working. Several stressors were recorded; however, the examination documented “mildly impaired” short term memory without other gross cognitive deficits, normal neurologic findings, and a normal MSE except for “appears to be mildly depressed.” Further counselling and repeat neuropsychiatric testing was recommended. The latter was conducted 6 weeks later and expressed the same caveats from the previous examiner with regard to cooperation and possible exaggeration and, the overall conclusions were similar with “subtle improvement” of intellectual functioning. The CI reported he had recently worked in a zinc factory on the production line but was laid off due to the holiday season. He noted he wanted to work to support his family (two children with another expected in a few months). The neuropsychologist opined, “It is highly unlikely that his cognitive complaints, his depressed mood, reported personality changes, and headaches are due to his very mild closed cranial trauma over 2½ years ago ... unemployment, depression, headaches, and family stress are more likely due to poor coping skills and his personality style that predates [date of injury].”

Repeat neurologic and psychiatric TDRL evaluations were conducted in March 2000. The neurological assessment was similar to the previous one with normal exam findings except for mild memory deficit. The VA psychiatrist noted that the CI had just started mental health (MH) treatment at the VA and was prescribed an anti-depressant and, opined that it was “unclear how much of this [‘significant work impairment’] is secondary to depression, cognitive dysfunction, alcohol use [concurrent alcohol abuse was documented], premorbid functioning, or personality characteristics.” The CI underwent a VA C&P psychiatric review examination in April 2001 (still 2 years prior to permanent separation). He was engaged in academic pursuits and domestic social functioning was intact, but the examiner opined that he was “overwhelmed” and expressed reservations that he would be able to successfully negotiate the stresses of his educational goal (physician assistant). The MSE noted “dysphoric mood” and “blunted” affect, but was otherwise normal; and the GAF assignment was 50.

Repeat neuropsychological testing was conducted by the Army in January 2002 (13 months prior to separation) with significantly improved results (considered “overall ... valid” by the examiner). The interpretation was “deficits on a measure of verbal abstract reasoning and on immediate recall of a word list. All other measures of memory, naming, working memory, processing speed, perceptual organization, and verbal abilities appear relatively preserved. Although [CI] reports memory impairment, it was not evident on the exam.” It was noted that the CI was “experiencing difficulty in college;” but this was “more likely related to his past poor performance in school, his current headaches, depression, and the stress that accompanies raising three children ... his performance on cognitive measures is relatively preserved.” The GAF assignment was 51(borderline severe to moderate). The examiner noted the CI was diagnosed with major depressive disorder ( MDD ) in December 1999 (after TDRL placement ), and had received the diagnoses of cognitive disorder and adjustment disorder in 2007. His MSE was unremarkable except for a depressed and anxious mood. The Axis I diagnosis was MDD, recurrent, and a diagnosis of posttraumatic stress disorder (PTSD) was specifically excluded (raised by the CI’s report of high anxiety with riding in automobiles). The examiner opined that due to his continuing problems with headaches and depression, he should be permanently retired. The final neurology TDRL re-evaluation was conducted in May 2002 (10 months prior to separation). The CI was still in school, but “finding it very difficult because he cannot remember.” The neurologist noted improvement of headaches; documented normal neurological exam findings; and, stated that the CI “continues to have some chronic symptoms” from TBI and “has not shown significant improvement in his condition.” The final psychiatric TDRL evaluation was conducted in June 2002 (9 months prior to separation). The examiner documented that the CI was a full-time student without comment regarding limitations, and noted that he was 100% disabled by Social Security and the VA. The CI endorsed “depressive symptoms with depressed and irritable mood, difficulty with attention, concentration, and memory, lack of motivation, lack of direction, and lack of energy.” He also reported that he was disorientated or lost in parking lots and that he frequently loses objects, and had difficulty with names and significant difficulty with memorization in his academic programs. The MSE was normal except for “mildly depressed” mood, and noted there was no evidence of impairment in speech, thought, or cognition. Additionally, there was no evidence of psychosis or impairment in thinking or judgment. There was no evidence of psychiatric hospitalization or continued participation in MH treatment, no recorded visits to the emergency room related to MH , and no recorded suicidal behaviors. It was noted that “the patient's condition has somewhat improved over the past 24 months with significant improvement in tested cognitive memory function ... depressive symptoms, however, have slowly deteriorated and his condition has persisted.” The Axis I diagnoses were MDD and “alcohol dependence ... in remission”. Specifically the psychiatrist opined that “it appears that the patient’s cognitive function secondary to [TBI] has fully resolved;” and reinforced this opinion in an addendum to the PEB on 10 January 2003, 3 months prior to separation:
In the absence of documented neuropsychological testing to support cognitive impairment, it is inappropriate to conclude that this deficiency exists. Further, cognitive loss secondary to injury should be consistent over time without intermittent improvement. [The neuropsychologist’s] report documents adequate performance on all neuropsychological tests without definable deficiency. For this reason, cognitive dysfunction secondary to post traumatic brain injury was deleted from the list of primary psychiatric diagnoses.
There is in evidence a series of civilian treatment notes from February 2003 (weeks preceding the final PEB) and a brief physician’s letter to the PEB confirming treatment for “depressive disorder NOS, personality change secondary to head injury, and PTSD (mild).” Criteria for the latter diagnosis were not supported in the treatment notes. The last of the treatment notes (dated 21 March 2003, 12 days preceding permanent separation) documented significant improvement of symptoms, a grossly normal (“calm”) MSE, and treatment with an anti-depressant (Lexapro). At a VA neurological C&P examination in August 2003 (4 months after separation), the CI reported frequent “significantly prostrating” headaches and continued difficulty with concentration, memory and mental acuity. The examiner’s impression was, “Question of traumatic brain injury, according to the patient. Patient claims cognitive deficit and significant depression. I would recommend a [neuropsychological] evaluation in order to determine the validity of these complaints.”

The Board directed attention to its recommendations based on the above evidence. It is noted that both PEBs (for TDRL and at permanent separation) and the VA defaulted to analogous rating under 9304 (dementia due to head trauma), which in turn provides rating under the criteria of the VASRD §4.130; although, the PEBs substituted the criteria of DoDI 1332.39 (E2.A1.5). This was advantageous to the CI in that alternate coding and rating under 8045 (brain disease due to trauma) would have been VASRD compliant and would have yielded a maximum rating of 10% under the VASRD in effect. It is further noted that both PEBs and the VA subsumed the disability attendant to cognitive deficits, neurologic residuals and headache under criteria specific only to psychiatric impairment. The Board first deliberated whether the DoD mandate for application of VASRD §4.129 was applicable, and all members agreed that the provision were appropriately not applied. It is furthermore apparent that both the 50% minimum rating and TDRL stipulations of §4.129 were satisfied in this case and, its application would thus be of no practical advantage to the CI.

The Board then turned to deliberation of a fair rating recommendation at the time of TDRL placement. The next higher rating of 70%, for which the §4.130 rating description is “occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood;” elaborating reference symptoms of suicidal ideation, obsessional rituals, illogical speech, near continuous panic or depression, spatial disorientation, neglect of hygiene and inability to establish relationships. The record in evidence noted the absence of impairment in judgment or thinking, stable relationship with his fiancé, and although he tested poorly on visual spatial measures, there were no identifiable impairment as a result of that finding. All Members agreed that, although occupational functioning was impeded, it remained intact. The Board therefore, with due consideration of VASRD §4.3 (reasonable doubt), recommends no change in the TDRL placement rating.

The Board then turned to deliberation of a fair rating recommendation at the time of permanent separation. At the second TDRL examination, the CI reported depressed mood, mild memory loss such as getting lost in parking lots, had few cognitive findings on formal testing and the psychiatrist noted that his depressive symptoms may have been the culprit in his memory complaints. The diagnosis of MDD was recorded, and the psychiatrist opined that his depression was chronic, with periods of partial remission, and that there was marked impairment for continued military duty and definite impairment for social and industrial adaptability. Specific nature of impairment was not recorded. The CI had indicated he had not used any medication for depression in 12 months or had any treatment. The 2003 addendum, 2 months prior to separation, indicated the diagnosis of depression and elaborated the same symptoms recorded in the TDRL removal examination. There was no indication of specific areas of social impairment, but CI noted he was on academic probation due to memory issues. The Board noted although the CI reported he had difficulty with his memory, and had gotten lost in parking lots; the CI had essentially normal tests of memory and other measures of cognition, was not dependent on GPS, and had a pre-service education history of academic challenges. Furthermore, the evidence establishes that the CI remained a full-time student for a 3-year period leading up to separation (commencing with the March 2000 TDRL evaluation through to the final TDRL evaluation). The Board noted the second neurology TDRL evaluation recorded that the CI reported problems with memory when he is stressed. This would suggest transient memory issues. The Board acknowledged the FPEB considered depression and indicated that the CI denied antidepressant use or treatment for his depressive symptoms and therefore rated his condition as mild. However, records indicated the CI took antidepressant medication weeks prior to PEB adjudication, for his depressive symptoms, and treatment placement dated 9 days prior to PEB adjudication and removal indicated overall improvement in symptoms, specifically in his ability to concentrate. The Board considered the evidence in totality, noted the CI never presented to the emergency room for his MH symptoms, had not engaged in suicidal behaviors, had no reported panic attacks, his MSEs were essentially normal, and although he was not taking psychotropic medication for many months prior to TDRL removal, his use of medication in the weeks prior to PEB adjudication noted improvement. His memory deficits were recorded as mild. Therefore, all Board members agreed, regardless of diagnosis, his level of impairment at the time of separation was most accurately reflected in the 10% disability rating. 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 adjudications for the TBI resulting in residual headaches and cognitive dysfunction condition upon TDRL placement and for post -TBI with migraine headaches, cognitive dysfunction and depression upon TDRL removal .


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 AR 635-40 and DoDI 1332.39 for rating TBI was operant in this case and it was adjudicated independently of that instruction by the Board. In the matter of the TBI and IAW VASRD §4.130, the Board unanimously recommends no change in the PEB adjudication. There were no other conditions within the Board’s scope of review for consideration.


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


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20130903, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record





XXXXXXXXXXXXXXX
President
Physical Disability Board of Review
SAMR-RB                                                                         


MEMORANDUM FOR Commander, US Army Physical Disability Agency
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557


SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXX, AR20150009920 (PD201301478)


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 and hereby deny the individual’s application.
This decision is final. The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

BY ORDER OF THE SECRETARY OF THE ARMY:




Encl              XXXXXXXXXXXXXXX
                           Deputy Assistant Secretary of the Army
                           (Review Boards)
                                                     
CF:
( ) DoD PDBR
( ) DVA

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