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AF | PDBR | CY2013 | PD-2013-02607
Original file (PD-2013-02607.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXX  CASE: PD-2013-02607
BRANCH OF SERVICE: Army  BOARD DATE: 20141217
DATE OF PLACEMENT ON TDRL: 20020117
Date of Permanent SEPARATION: 20050307


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Aircraft Powerplant Repairer) medically separated for cognitive disorder. The cognitive disorder could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was issued a permanent P4, U4, L4, S4 profile and referred for a Medical Evaluation Board (MEB). The cognitive disorder conditions, characterized as “ c losed head injury, with traumatic brain jury and residual left hemiparesis and moderate cognitive impairment ” and “ AXIS I 311.00 cognitive di sorder not otherwise specified (NOS),” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded three other conditions (C1 fracture [neck], healed; T5-6 Compression fracture [mid-spine], healed, without neurologic deficits; and Left 5th digit fracture, healed) for PEB adjudication. The Informal PEB adjudicated left hemiparesis upper, minor, moderate; rated 30%, left hemiparesis lower, moderate; rated 20% and closed head injury, improving with moderate impairment of executive function, rated 10% for a combined 50% rating. Following the receipt of additional information, a Reconsideration PEB was conducted and modified the conditions to left upper extremity hemiparesis, mild; rated 20%, left lower extremity (LLE) hemiparesis, mild; rated 10%, and closed head injury, primarily to structures of the right hemisphere rated 70%. The CI made no appeal and was placed on the Temporary Disability Retirement List (TDRL) with an 80% combined disability rating (see chart below). The CI was re-evaluated after 35 months and the Informal PEB adjudicated cognitive disorder with continued impairment as unfitting, rated 10% with likely application of AR 635-40 or DoDI 1332.39. The remaining Reconsideration PEB conditions were determined to be not unfitting. The CI did not appeal and was medically separated.


CI CONTENTION: The CI elaborated no specific contention in his application.


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 those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI. The rating for the unfitting cognitive disorder condition is addressed below as well as the TDRL-placement unfitting left upper extremity (LUE) and LLE conditions; and, 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 Board for Correction of Military Records.


RATING COMPARISON :

Final Service PEB - 20050307
 VA* (~7 Mo. After TDRL placement**)
On TDRL - 20020117
 Code Rating Condition Code Rating Exam
Condition
 TDRL Sep.
Cognitive Disorder (original Closed Head Injury …) 8045 9327 9305 70% 10% Cognitive Disorder NOS, Mood Disorder Due to Closed Head Injury (Competent) 8045-9435 30% 20020814
Left Upper Extremity (LUE) Hemiparesis … 8599-8513 20% N/A Mild Left Hemiparesis, LUE 8599-8516 10% 20020814
Left Lower Extremity (LLE) Hemiparesis … 8599-8520 10% N/A (LLE not rated) -- -- --
Other x 0 (Not in Scope)
Other x 3 20020814
Combined: 80% → 10%
Combined: 40%
*Reflects VA rating decision (VARD dated 20030115 ) most proximate to the TDRL placement ; no VARD proximate to TDRL removal .
**Reflects VA rating exam proximate to TDRL placement; no VA rating exam proximate to TDRL removal.


ANALYSIS SUMMARY: The narrative summary, as supported by the service treatment record, noted that the CI was involved in a motor vehicle accident (MVA) in February 2001 (14 months prior to separation), suffered severe head trauma, and was unconscious for 4 days. Following prolonged hospitalization and after extensive rehabilitation, he had persistent problems with short-term memory, emotional lability, decreased patience, and left hemiparesis (slight paralysis or weakness of the LUE and LLE). Imaging (magnetic resonance imaging) revealed compression fractures of the C1 (in neck) and T5 and T6 (mid-back) vertebra, and a contusion to the brain (which was thought to be the cause of his hemiparesis). He was deemed unfit for further service but likely to improve, resulting in placement on the TDRL.

Cognitive Disorder Condition. At the MEB exam 10 months prior to placement on TDRL, the CI could answer simple questions and follow commands bilaterally, but continued to be intermittently uncooperative, confused and tangential. Neuropsychological testing performed 5 months prior to TDRL placement indicated acquired impairment of higher cerebral functions in mental processing speed for visual material, left hand motor (non-dominant) performance, discrimination of audio tones, and general inhibition of attention to competing stimuli during the process of working on all types of tasks. At a psychiatry PEB consult on the same day (written with consideration of the neuropsychological testing), the CI denied any problems with mood, thinking, or anxiety, but had problems with disinhibition. He was able to do some minor tasks around the home and care for himself, but was not able to drive a car, return to work, balance the checkbook, or work on cars. The mental status exam (MSE) noted a normal affect, mood as “fine” linear thought process without psychotic symptoms. Insight was fair to good and judgment seemed intact. The Global Assessment of Functioning (GAF) was 35 (major impairment in social and occupational functioning). The examiner concluded that the CI had cognitive disorder manifested by problems with concentration, executive function, memory, visuo-spatial processing, and emotional lability. Impairment for further military duty was marked and impairment for social and industrial adaptability was considerable. “He is not competent to handle his own financial affairs.”

At a neurology MEB addendum 3 months prior to TDRL placement, the CI continued to have difficulties with short-term memory, had to be reminded of daily activities by his wife, and reported significant emotional lability and decreased patience. At the VA Compensation and Pension (C&P) neurology exam performed in August 2002 (7 months after placement on TDRL and 3 years prior to TDRL removal), the CI reported that he did not recall things as quickly as he did previously and occasionally forgot things at work. He was living independently with his brother, doing all his daily activities, and holding down a job. On examination, his MSE was unremarkable, he had fluent speech, but he had some difficulty calculating 12 times 15. There was no difficulty with speech. At his PEB neurology examination 4 months prior to TDRL removal, the CI noted difficulties with short-term memory, significant emotional lability, and decreased patience. He had an intact mini mental examination (30-point questionnaire to measure cognitive impairment). Neuropsychology testing by the VA in December 2004 (4 months prior to TDRL removal) demonstrated a mild residual cognitive disorder, flattened affect, and moderate difficulty in social functioning. The examiner noted a GAF of 60 (moderate symptoms), “… executive control disinhibition/distractibility which might at times serve to reduce ability to persevere at task and thereby reduce performance ....” The examiner stated: “It is expected that there would likely be slight to mild level of constraint in occupational performance, were he working. At home, he appears to be doing well in a simplified, structured environment.” Overall, his vulnerabilities were deemed to be likely to interfere with obtaining occupational performance at the same level as that prior to his MVA. It was recommended that the CI discuss important decisions with a trusted agent, and that he avail himself of assistive devices such as calendars and making lists.

At his TDRL reevaluation by a neurosurgeon performed in January 2005 (2 months prior to TDRL removal), the CI voiced no complaints and denied spine pain or any physical impairment. On examination he was noted to have normal gait, slight abnormal toe hopping on the left reflecting minimal lack of balance on that side, subtle weakness and external rotation of the left shoulder joint, and slight impairment of rapid alternating movements of the left foot. The examiner stated that he did not note the “subtleties of cognitive deficit” as described in the neuropsychology report, and that, “I felt that I was observing an entirely normal 26-year-old male and, not withstanding the subtle neurological deficits on his non-dominant side, I thought that he could resume his MOS as an Airplane Mechanic at any time without difficulty.” At his psychiatry TDRL reevaluation on the same day, the CI stated, “I want to be back in the Army.” While on TDRL, the CI had suffered a divorce from his spouse who could not tolerate the changes in his interpersonal style related to cognitive disorder, he became depressed and received care for a period of time from the VA, for a period of time drank an excessive amount of alcohol and used amphetamines, and was charged with driving under the influence (although he denied psychiatric symptoms at the time of his examination). The CI had worked at several low-level jobs, which he had found depressing and difficult, and had difficulty completing a course in mathematics. On MSE, the CI had large hoops in his lower earlobes and displayed some interpersonal disinhibition; but had normal speech, thought content, insight, and judgment. Neuropsychological testing showed improved IQ (from 2001), poor ability to retain information for a short period (delayed recall), impaired ability to learn and retain new information, exceptionally poor fine motor skills, worsened distractibility (ability to stay focused on a task). The diagnosis was cognitive disorder, NOS with “marked” impairment for military and social/industrial adaptability. Additional diagnoses were alcohol dependence in partial remission and methamphetamine dependence in early full remission. The GAF was 50 (serious symptom range) “with significant impairment in social and occupational functioning.” Approximately 7 years remote from TDRL removal, VA exam and treatment notes in 2012 were the basis for an increased (40%) cognitive disorder VA rating using the VA Schedule for Rating Disabilities (VASRD) criteria that were not in effect at the time of TDRL removal (new TBI criteria of 8045).

The Board directed attention to its rating recommendation based on the above evidence. Regarding rating at TDRL placement, both the PEB and VA rated the mental health aspects of the CI’s head injury using mental health rating criteria. The PEB pre-TDRL placement exams documented a more severe disability picture than the VA exam after the CI had been on TDRL for approximately 7 months. The VA exam was adjudged as representing post TDRL-placement improvement. The PEB’s 70% rating would align with the VASRD criteria indicating occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. When placed on TDRL, the Board adjudged that the CI did not have “total occupational and social impairment,” so there was no pathway to a higher rating for the head injury with cognitive disorder under §4.130 and the General Rating Formula for Mental Disorders. The provisions of VASRD §4.129 were adjudged as not applicable given this rating and TDRL placement.

Upon TDRL removal, the PEB rated the cognitive disorder condition at 10% citing “… functional industrial impairment is best described as mild” which indicated likely application of AR 635-40, B-107 or DoDI 1332.39 Encl 2. The VA neuropsychology exam in December 2004 and the psychiatry in January 2005 TDRL removal examinations presented a similar picture of the member’s cognitive status and were deemed to have equal probative value: the CI was not fully employed, had difficulty in his limited school experience, and demonstrated ongoing cognitive problems (especially poor fine motor skills, impaired executive function, and ability to learn and retain new information). The neurosurgery evaluation indicated fewer symptoms, but was deemed of lower probative value. The CI no longer had deficiencies in most areas (70% criteria) and was partially employed. The Board considered that the level of symptoms and work history indicated greater than mild or transitory symptoms and occupation and social impairment than that represented by the 10% rating criteria. The Board therefore deliberated on a 50% rating (“occupational and social impairment with reduced reliability and productivity”), versus 30% rating (“… occasional decrease in work efficiency …”). Even though the CI expressed an interest to return to the Army, the Board noted that he had not been able to find full-time employment while on TDRL, had difficulty in school, was deemed unfit to return to the Army, had learning/retention difficulties, and suffered significant distractibility. The Board determined that these issues created more than occasional difficulties in employment, and constituted ongoing occupational impairment with reduced reliability and productivity. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 50% for the cognitive disorder condition.

LUE and LLE Conditions. The CI was right handed. At the MEB exam 10 months prior to placement on TDRL (TDRL placement), the CI was clearly hemiparetic on the left, and had increased tone in the LUE. At a neurology MEB evaluation 3 months prior to TDRL placement, the CI demonstrated minimal abnormal (hemiplegic) gait of the LLE, mild increased muscle tone and pronator drift of the LUE, and normal strength throughout. At a neurosurgery consultation 3 months prior to TDRL placement, the CI had mild pronation drift of the LUE, a mild hemiplegic gait involving the LLE, poor rapid alternating movements of the LLE, and no sensory deficits. At the VA C&P exam performed 7 months after TDRL placement, the CI had normal gait, normal strength and sensation of the upper and lower extremities, and some mild difficulty with manual dexterity in the left hand. At a VA exam 13 months after TDRL placement and 25 months prior to TDRL removal, the CI had no essential residuals except he thought there might be some weakness on his left side, which was not demonstrated on examination. At a neurosurgery TDRL reevaluation 2 month prior to TDRL removal, the CI had normal gait, slight abnormal toe hopping on the left side reflecting minimal lack of balance, subtle weakness and external rotation of the left shoulder joint, and slight impairment of rapid alternating movements of the left foot compared to the right. The examiner concluded that the subtle weakness of the left shoulder, his non-dominant side, did not introduce a functional disability in his LUE; and that the LLE findings did not induce a functional disability.

The Board directed attention to its rating recommendation based on the above evidence. The initial PEB accomplished in June 2008 rated the LUE hemiparesis with analogous code 8599-8513 (all upper extremity radicular groups) at 30% (moderate incomplete paralysis), and the LLE with analogous code 8599-8520 (sciatic nerve) at 20% (moderate incomplete paralysis). However, the reconsideration PEB approximately 5 months later rated both extremities as mild for a 20% and 10% rating respectively for TDRL placement. The VA rated the LUE with analogous code 8516 (ulnar nerve) at 10% (mild incomplete paralysis) from an exam seven months after TDRL placement, and did not address the LLE. The Board concluded that the clinical findings were more widespread than just the ulnar nerve and that code 8513 best characterized the CI’s LUE disability. The record substantiated improvement in both the LUE and LLE to more closely approximate the mild level of impairment by the time of the reconsideration PEB and subsequent TDRL placement. In view of the definite neurological findings but normal strength, the Board found that the disability of the LUE and LLE were both best described as “mild.” 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 LUE/LLE conditions at the time of TDRL placement.

The Board next reviewed the LUE and LLE conditions at the time of TDRL removal. The PEB disability description for the unfitting cognitive disorder (discussed above) stated “(several areas) … and fine motor skills remained impaired sufficiently to prevent functioning in PMOS or basic soldiering skills” and also specifically found the LUE and LLE hemiparesis conditions as no longer unfitting. In view of the minimal objective neurologic findings, and the examiner’s conclusion that there was no associated functional disability, and 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 LUE and LLE conditions.


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, likely PEB reliance on AR 635-40 or DoDI 1332.39 for rating the cognitive disorder was operant in this case and the condition was adjudicated independently of that instruction by the Board. In the matter of the cognitive disorder and the LUE/LLE conditions at the time of placement on TDRL and IAW VASRD §4.124a and §4.130, the Board unanimously recommends no change in the PEB adjudication. At the time of TDRL removal, in the matter of the cognitive disorder condition, the Board unanimously recommends a disability rating of 50%, coded 8045-9304 IAW VASRD §4.130. At the time of TDRL removal, in the matter of the contended LUE and LLE 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; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

UNFITTING CONDITION
 VASRD CODE RATING
TDRL PERMANENT
Cognitive Disorder Condition 8045-9327-9305 70% 50%
Left Upper Extremity (LUE) Hemiparesis … 8599-8513 20% Not Unfitting
Left Lower Extremity (LLE) Hemiparesis … 8599-8520 10% Not Unfitting
COMBINED
 80% 50%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20130110, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans Affairs Treatment Record








                                   
XXXXXXXXXXXXXXXXX
President
DoD 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 XXXXXXXXXXXXXXXXX , AR20150007858 (PD201302607)


1. Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 50% effective the date of the individual’s original medical separation for disability with severance pay.

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:

         a. Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay.

         b. Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay.

         c. Adjusting pay and allowances accordingly. Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 50% effective the date of the original medical separation for disability with severance pay.

         d. Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.


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

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