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AF | PDBR | CY2013 | PD-2013-02373
Original file (PD-2013-02373.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: xxxxxxxxxxxxxxxx   CASE: PD-2013-02373
BRANCH OF SERVICE: Army  BOARD DATE: 20141028
SEPARATION DATE: 20041119


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated Reserve E-4 (Heavy Wheeled Vehicle Mechanic) medically separated for a traumatic head injury. The head injury 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 L3 (S1) profile and referred for a Medical Evaluation Board (MEB). The head injury, characterized as “traumatic head injury with cerebral contusion and resultant neuropsychologic deficits,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded one other condition, posttraumatic stress disorder (PTSD). The Informal PEB adjudicated “traumatic brain injury (TBI), with resulting cognitive disorder and headaches” as unfitting, rated 10% with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The PEB adjudicated the PTSD as not unfitting. An administratively corrected PEB was issued to indicate the condition was the result of armed conflict. The CI made no appeals and was medically separated.


CI CONTENTION: The CI writes: “I was only rated on one issue. I have several service connected disabilities.”


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 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 :
Service Admin IPEB – Dated 20041012
 VA - (4 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Traumatic Brain Injury 8045-9304 10% Traumatic Brain Injury w/Left Frontal Lobe Encephalomalacia 8045 10% 20050324
PTSD Not Unfitting Anxiety 9413 50% 20050324
Other x 0 (Not in Scope)
 Other x 4 20050324
Combined: 10%
 Combined: 60%
Derived from VA Rating Decision (VA RD ) dated 200 50407 ( most proximate to date of separation [ DOS ] ). The original VARD of 20050217 deferred rating a PTSD claim. A VA Psych C&P diagnosis in 20050324 identified anxiety with the VARD of 20050407 rated 50%, backdated to the day after separation. VARD of 20080904 added Headaches, 8045, 10%, backdated to the day after separation.


ANALYSIS SUMMARY:

Traumatic Brain Injury. The narrative summary notes the CI experienced a head injury with loss consciousness while deployed in 2003 when a civilian bus ran into his vehicle. Initial computed tomography scans of the head showed an area of bleeding into the brain followed by evidence of a “resolving left frontal contusion.” He initially reported headaches and upper and lower extremity symptoms and returned to the CONUS for further evaluation. When evaluated he reported all symptoms had resolved except for mild short term memory problems and on neurological testing he was cognitively intact, with good immediate recall. The CI was returned to duty and completed the deployment with his unit. Several follow-up visits after deployment the CI reported memory problems, decreased attention, anger management issues, poor sleep and intermittent headaches and family members reporting mood lability and episodes of “staring.” Magnetic resonance imaging followed by angiography performed on 13 April 2004 showed an area of approximately one centimeter of frontal lobe brain injury (chronic encephalomalacia) likely due to the trauma. Electroencephalogram was normal with no evidence of a seizure disorder. At a neuropsychological evaluation performed on 14 May 2004, approximately 6 months prior to separation, the CI reported blurred vision, headaches, poor sleep and eye twitching. He reported that he avoided crowds, but denied significant emotional distress. The examiner summarized the standardized testing results as suggesting the CI had abnormalities of attention, concentration, memory and fine motor skills “sufficient to interfere with his functioning in everyday life circumstances and may make it extremely difficult for him to discharge his duties” in the military.

The MEB physical examination performed on 16 July 2004, 4 months prior to separation, noted a normal mental status exam (MSE) and full neurological evaluation, including cranial nerves, gait, motor strength, sensation and reflexes and cited the nurse practitioner (NP) evaluation reviewed above.

At the VA Compensation and Pension (C&P) neurology examination on 21 March 2004 performed 4 months after separation, the CI reported mild memory loss, irritability, aggression and migraines following TBI. The CI reported difficulty with word finding, doing math and using a hand held device to stay organized. He also noted that he was more aggressive, with a “shorter fuse” during confrontations, but not to the point of physical violence. The CI reported headaches three or four times per week for up to an hour, without associated symptoms and that he just worked through them. The CI reported being employed and his employer was happy with him, and depression symptoms that existed prior to finding the position were improved. The MSE was normal except for noted short term memory difficulty, with recall of one out of three words. The examiner indicated the CI had mild cognitive impairment with regard to memory loss and, as likely as not, mild behavioral changes of irritability and anxiousness and tension type headache.

The Board directed attention to its rating recommendation based on the above evidence. The PEB rated TBI 10%, coded 8045-9304 (chronic brain syndrome with brain trauma) and the VA rated it 10% also, coded 8045 (Brain disease due to trauma). The Board must apply VA rating guidelines in effect at the date of separation in its rating recommendations IAW DoDI 6040.44. Prior to February 2006 the available code for rating TBI was code 8045 (brain disease due to trauma). Since its interpretation is a fundamental consideration in this case, it is excerpted below.

Purely neurological disabilities, such as hemiplegia, epileptiform seizures, facial nerve paralysis, etc., following trauma to the brain, will be rated under the diagnostic codes specifically dealing with such disabilities, with citation of a hyphenated diagnostic code (e.g., 8045–8207).

Purely subjective complaints such as headache, dizziness, insomnia, etc., recognized as symptomatic of brain trauma, will be rated 10% and no more under diagnostic code 9304. This 10 percent rating will not be combined with any other rating for a disability due to brain trauma. Ratings in excess of 10% for brain disease due to trauma under diagnostic code 9304 are not assignable in the absence of a diagnosis of multi-infarct dementia associated with brain trauma.
The VA authorized alternative rating for TBI under a more favorable code in its “FAST” or Training Letter TL06-03 dated 13 February 2006 (15 months after the CI’s date of separation), but this option is not available to the Board in this case. The evidence in the record supports that the CI had mild memory problems, decreased concentration and attention, mild behavioral symptoms of irritability and increased aggression and frequent HA following his TBI. Under the VA rating guidelines in effect at the time of separation noted above, the Board unanimously agreed the CI met the 10% rating coded 8045-9304 for the cognitive and behavioral symptoms. The Board reviewed to see if a separate or higher rating for the headache disorder (as a neurological disability) was supported by the evidence. The CI reported “intermittent headaches” at the MEB examination and a few headaches per week, lasting an hour, requiring no medication or work stoppage at the Neurology C&P examination. The Board noted that headache condition did not meet a compensable evaluation coded 8199-8100 (analogous to migraine) IAW §4.124a (neurological conditions), which specifies “characteristic prostrating attacks averaging one in two months over the last several months.” 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 adjudication for the TBI condition.

Contended PEB Conditions. The Board’s main charge is to assess the fairness of the PEB’s determination that the PTSD condition was not unfitting. 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.

PTSD. There were no mental health (MH) treatment notes in the record. The MEB psychiatric evaluation performed on 6 April 2004 noted that the CI was being seen by behavioral health (BH) for the first time, referred for “stress.” The CI reported decreased memory, concentration and attention. There was no history of substance abuse, legal problems or psychiatric hospitalizations or emergency treatment for MH symptoms. On the mental status examination the CI had a normal mood and affect except for some noted irritability regarding being interrupted. There were no cognitive deficits noted except intermediate recall was “fair;” no thought or speech abnormalities and, no evidence of delusions, hallucinations or suicidal ideation. The examiner indicated the CI was able to laugh spontaneously and capable of abstract and logical thinking. The psychiatrist noted the findings of the NP evaluation of decreased attention, concentration, memory and fine motor skills. The Axis I diagnosis was PTSD. The psychiatric recommendation is excerpted below

“. . .that the patient be recognized as having received maximum benefit of available treatment within this setting, and that this has not restored him to a level consistent with the demands of full duty in the United States Armed Forces. This finding is made with specific attention to his closed head injury and reported sequelae thereto, which is to say that his duly diagnosed post traumatic disorder is not disqualifying in and of itself.”

At an initial VA outpatient psychiatry evaluation on 9 February 2005, approximately 3 months after separation, the CI reported that his TBI related memory issues were improving with the assistance of memory aids, including a hand held device. He reported “weird” combat-related dreams that were not nightmares; discomfort with crowds, but that he could go to familiar clubs; and, discomfort with driving if surrounded by trucks. He was living at home and engaged to be married. He had started working out to feel better. He was not employed but was thinking about working or going back to school. The MSE noted a mildly anxious mood, some pauses before responding to questions and recall of two out of three objects (three objects with cueing) and was otherwise normal. The Axis I diagnosis was PTSD with a Global Assessment of Functioning (GAF) of 50 (cusp of moderate/severe impairment range). He did not want any medications and was recommended to continue with counseling.

At the VA C&P PTSD examination performed on 24 March 2005, approximately 6 weeks later, the CI reported anger and aggression problems. He reported he initially had nightmares after the motor vehicle accident that caused his TBI, but had none in the last 3 months, but reported waking up in a panic sometimes, some intrusive and avoidant thoughts, headaches three times per week lasting an hour or less, ringing in his ears, anxiety when driving as a passenger, sleep difficulties, irritability and difficulty with concentration and math skills. The examiner noted “he doesn’t want any limitations or restrictions but acknowledges differences in behavior since the accident.” He was engaged and, as noted previously in the TBI discussion above, he was employed at a gun range and was working with military personnel. He was doing well in the position and reported his mood was improved since taking the job. He was not on any prescribed medication and there was no indication that he was involved in the recommended MH counseling. The MSE was normal. Standardized testing was performed and the examiner summarized that the history, interview, and testing did not meet the criteria for PTSD and diagnosed anxiety disorder with a GAF of 52 (moderate impairment range). The VA rated anxiety disorder 50%, coded 9413, five months after separation.

The Board considered if the evidence in record supports that the PTSD condition was separately unfitting when considered without the overlapping TBI symptoms of decreased memory, concentration, and headaches. The commander’s statement implicated the CI’s TBI as impairing his duty performance due to decreased motor skills, blurred vision, headaches, dizzy spells and decreased concentration and short term memory, and did not note any psychiatric symptoms specifically attributable to the PTSD diagnosis, such as anxiety or depression symptoms, avoidant behaviors, or hyperarousal symptoms. The CI was not involved with BH health until the MEB psychiatric evaluation. The MEB psychiatrist mentioned all the CI’s TBI symptoms combined impaired duty performance, but specifically stated that the PTSD was not separately disqualifying. A few months after separation the CI reported improving memory and a better mood; he was working out, able to be in public venues, engaged and successfully working. PTSD was not profiled and was not judged to fail retention standards. There was no performance based evidence from the record that PTSD 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 PTSD condition and so no additional disability rating is 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 TBI condition and IAW VASRD §4.124a the Board unanimously recommends no change in the PEB adjudication. In the matter of the contended PTSD 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, 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 20131102, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record




XXXXXXXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXXXXXXX , AR20150012432 (PD201302373)

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

                                   

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