RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD1301059
BRANCH OF SERVICE:  Army	BOARD DATE:  20140501
SEPARATION DATE:  20031017

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (95B/Military Policeman) medically separated for chronic cervical and headache conditions.  He required neurosurgery in 1999 for diagnosis and excision of a benign brain tumor and suffered persistent neck pain and headaches post-operatively.  These symptoms did not resolve or respond adequately to treatment over the ensuing years and were incompatible with his Military Occupational Specialty.  He was issued a permanent P4 profile and referred for a Medical Evaluation Board (MEB).  The headache condition, characterized as “chronic refractory migraine;” the neck condition, characterized as “cervicalgia;” and two other conditions (“imbalance secondary to cervicalgia” and “mild right cubital tunnel syndrome”) were forwarded to the Physical Evaluation Board (PEB) as failing retention standards.  No other conditions were forwarded by the MEB.  The PEB adjudicated “chronic neck pain” and “chronic headaches, occurring daily, non-prostrating” as unfitting, rated 10% and 0% respectively, referencing the US Army Physical Disability Agency (USAPDA) pain policy for the cervical condition and applying DoDI 1332.39 guidelines for rating headache.  The remaining conditions were determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “I received a 100% rating from DVA when I filed a claim with the Department of Veteran’s Affairs.  I was separated for surgery to my brain and have depression. I was found not competent to handle my affairs and appointed my Wife to handle them. I contend that DoD should have rated me for my depression and headaches as unfit to do my job.  DVA sent me a letter dated 5-25-2012, see attached.”

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.  In addition, the CI was notified by the Army that his case may eligible for review of the military disability evaluation of any mental health (MH) condition in accordance with Secretary of Defense directive for a comprehensive review of Service members who were referred to a disability evaluation process between 11 September 2001 and 30 April 2012, and whose MH diagnoses were changed or eliminated during that process.  As the CI responded to this mailing, and specifically contends for rating of a MH condition (depression), it assumed that he has elected PDBR review of that condition under the guidelines of the MH Review Project. In accordance with Secretary of Defense directive for a comprehensive review of mental health diagnoses that were changed during the Disability Evaluation System (DES) process, the applicant’s case file was reviewed regarding diagnosis change, fitness determination, and rating of unfitting mental health diagnoses in accordance with the VA Schedule for Rating Disabilities (VASRD) §4.129 and §4.130.  The CI is also eligible for PDBR review of other conditions evaluated by the PEB and has elected review by the PDBR.  Accordingly, the rating for the unfitting cervical and headache conditions are likewise addressed below.  The two conditions specified above, identified as not unfitting by the PEB, were not requested for review and thus are not within the defined scope.  Those and 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 Board for Correction of Military Records.

RATING COMPARISON:

Service IPEB – Dated 20030519	VA - (~4 Yrs. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Neck Pain	5099-5003	10%	No VA Entry	
Daily Non-Prostrating Headaches	8199-8100	0%	Migraine Headaches	8100	50%	20070727	
No DES Entry	Depression	9434	100%	20070719	
Imbalance Secondary to Cervicalgia	Not Unfitting	No VA Entry	
Mild Right Cubital Tunnel Syndrome	Not Unfitting	No VA Entry	
No Additional MEB/PEB Entries	Other x 3	20070727	
Combined:  10%	Combined:  100%	
Derived from VA Rating Decision (VARD) dated 20070831 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:  The Board notes the earliest VA evaluation was quite remote (3 years 9 months) from the date of separation.  DoDI 6040.44 provides for consideration of post-separation VA findings, particularly within 12 months of separation, although the Board’s recommendation is premised on the degree of disability at separation.  Therefore the Service record evidence was assigned the determinant probative value with respect to the Board’s recommendations.

Headache Condition.  The CI’s initial presentation in August 1999 was for Bell’s Palsy (facial paralysis from cranial nerve impairment) and subsequent imaging revealed a cerebellar tumor.  A neurosurgical note from that period documented a 2-year preceding history of “occasional headaches which are occasionally accompanied by nausea and/or vomiting for the past two years.”  He underwent intracranial surgery in November 1999; the tumor was benign by biopsy.  A post-operative note 5 weeks later noted “significant improvement” and “occasional headaches without nausea or vomiting.”  There are repeated entries in the service treatment record (STR) over the following year that characterizes the frequency of headaches as “occasional,” and none to the contrary.  An entry of June 2001 notes that the CI “denies any headaches,” but one from August 2002 states “migrainous headache intermittently post-surgery.”  A neurology consultation for the MEB was conducted in September 2002 (13 months pre-separation); and, described a “severe persistent headache with a pain rating of constant and moderate in nature secondary to his occasional narcotic use from the Emergency Room [ER].”  The last STR entry addressing headache severity prior to PEB proceedings was from February 2003 (8 months pre-separation), and documented “chronic daily headache … [with] … improvement … not in frequency but in intensity.”  The provider, however, was discontinuing the current medication (Pamelor) due to side effects and starting Prozac (an antidepressant sometimes useful for headaches).  There is no STR evidence for emergent treatment of headache from the ER (as referenced above in the neurology consult) or otherwise; nor, any documentation of release from duty or prescribed bed rest for headache.

The narrative summary (NARSUM) documented “significantly limiting … chronic refractory migraine headaches;” but, “a decreased intensity of his headaches and a decrease in the nausea attendant to these episodes” since starting Prozac.  In response to a PEB request for clarification regarding occurrence of prostrating episodes or work loss due to headache, an addendum to the NARSUM (5 months pre-separation) documented, “No prostrating headaches are reported nor [is] missed time from work described.”  The commander’s performance statement referenced impaired decision making and difficulties with equilibrium as limitations, but did not reference headaches.  The P4 profile specified only “intracranial tumor” without reference to headache or other specific associated condition.  As noted above, there was no temporally probative VA (or civilian) post-separation evidence.

The Board directs attention to its rating recommendation based on the above evidence.  The VASRD §4.124a rating schedule for 8100 (migraine) rests heavily on the frequency of “characteristic prostrating attacks … over last several months.”  The §4.124a language for a 10% rating under 8100 is “prostrating attacks averaging one in 2 months,” and the 0% rating is for “less frequent attacks.”  A 30% rating requires a once monthly average and the highest rating of 50% requires frequency and severity “productive of severe economic inadaptability.”  In the PEB request for clarification (see above), the DoDI 1332.39 definition of prostrating was specifically referenced and quoted, “The Soldier must stop what he is doing and seek medical attention.”  Under that definition, there can be no quarrel with the PEB’s 0% rating.  Although the Board has the latitude to adhere to this definition (since it is not prohibited by the VASRD), member consensus was that the Board obligation to render “fair and equitable” recommendations IAW DoDI 6040.44 justified flexibility with this fairly rigorous threshold.  Rather than require rigid proof of medical attention for each episode to characterize it as prostrating, it is reasonable to invoke sufficient evidence that rated attacks force the abandonment of work or current activity to treat the headache.  Self-management (medication and/or sleep) under medical supervision may therefore be accommodated within this threshold.  The Board carefully considered the frequency and nature of the CI’s headaches including objective evidence and corroborating subjective evidence.  There is no evidence disputing the conclusion reported in the NARSUM addendum that there was no significant interference with duties resulting from the occurrence or necessary treatment of headaches.  Although the neurology consultant suggested that ER treatment had been required, it is uncorroborated; and, member consensus was that it would require undue speculation to invoke it as a basis for establishing ratable episodes of headache.  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 headache condition.

Cervical Condition.  A post-operative complaint of “cervicalgia” repeatedly appears in the STR as a symptom accompanying the headache.  Several entries note grossly normal cervical range-of-motion (ROM), although some document spasm; but, there are no formal ROM evaluations in evidence from the file.  There are likewise no imaging studies in evidence.  There are numerous neurological examinations demonstrating both normal gait and also the absence of upper extremity radicular findings and there are no entries documenting abnormal contour.  The NARSUM did not address specific acuity or limitations for the cervical condition.  The physical examination documented cervical tenderness and painful motion and normal neurological findings, but did not address ROM.  The commander’s statement and profile, as elaborated for the headache condition, was not probative to the cervical condition; and, as noted, there is no probative post-separation evidence.

The Board directs attention to its rating recommendation based on the above evidence.  There is no evidence for ROM limitation or abnormal gait or contour which would meet VASRD §4.71a spine criteria for a 20% rating, and the PEB’s 10% rating is supported by VASRD §4.59 (painful motion) regardless of PEB application of the USAPDA pain policy.  There was no evidence of ratable peripheral nerve impairment or documentation of incapacitating episodes in this case which would provide for additional or higher rating.  After due deliberation, with deference to reasonable doubt, the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the cervical condition.

Contended Depression.  An STR entry from 1990 documents a Behavioral Health evaluation for a complaint of depression, but there are no follow-up notes or other MH entries from then until the 1999 neurosurgery.  The CI did not participate in any combat deployments during his enlistment.  A post-operative entry from August 1999 notes a complaint of “anxiety and boredom,” and indicates a referral was made to Behavioral Health.  A follow-up note a week later states that he had been seen (source record not in evidence) and was “feeling a little better.”  There are no subsequent MH related entries in the STR after that, although it is possible that MH records were sequestered and not merged with the available records.  Members agreed that this possibly missing evidence was not critical to these proceedings and would not warrant delay in attempting retrieval.  The CI reported symptoms of depression on the MEB physical examination, and the examiner entered a diagnosis of “depression secondary to medical condition” in Block 77 of the DD Form 2808 Summary of Defects.  The NARSUM made incidental note of an “overall improved mood and demeanor” along with the headache response to Prozac (as above).  The NARSUM neither documented any MH condition as past medical history, nor included an MH diagnosis in the final assessment.  The commander’s statement did not reference MH symptoms or conditions, although speculation would allow that the impaired decision making which was noted may have had MH implications.  The psychiatric profile was S1 throughout service.  The VA rating decision which provided a 100% rating for depression (effective on 14 April 2007, 3½ years post-separation) stated that “Medical Board Proceedings” following the surgery showed that the CI “suffered from severe depression”; a conclusion which cannot be corroborated by the service evidence.

The Board directs attention to its recommendation based on the above evidence; and, it’s first assessment with regard to the MH condition, under guidelines of the MH Review Project, is to judge (based on a preponderance of evidence) whether a MH diagnosis was changed or eliminated to the disadvantage of the CI, especially with consideration to posttraumatic stress disorder (PTSD).  The latter diagnosis is not applicable to this case.  Although it may be assumed from the STR that the CI suffered from some degree of depression in the aftermath of his medical crisis and a diagnosis of depression was listed on the MEB physical exam, there is no Axis I diagnosis of depression or other MH diagnosis by a service MH provider before the DES.  This case does not, therefore meet the inclusion criteria in the Terms of Reference of the MH Review Project.  Although ideally the MH condition would have been addressed directly and forwarded by the MEB, there is no evidence that the acuity was such that it was not a reasonable judgment call on the part of the MEB physician to not do so.  Members further agreed that even if a service diagnosis of depression was conceded for consideration, there would be insufficient evidence for recommending it as unfitting and eligible for service rating; noting the S1 profile, the lack of indication by the commander that there were MH limitations on performance, and the lack of any performance-based evidence in the service record suggesting that such limitations existed.  The psychiatric impairment suggested by the significantly remote post-separation VA rating of 100% was not in evidence at separation.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend the addition of any MH diagnosis for service disability 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 DoDI 1332.39 for rating the headache condition and on the USAPDA pain policy for rating the cervical conditions was operant in this case, and those conditions were adjudicated independently of that guidance by the Board.  In the matter of the cervical condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the headache condition and IAW VASRD §4.124a, the Board, by a vote of 2:1, recommends no change in the PEB adjudication.  In the matter of the contended MH condition (depression), the Board unanimously agrees that it cannot recommend it for additional service 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 recharacterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130725, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

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 XXXXXXXXXXXXXXXXXX, AR20140013379 (PD201301059)

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