RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	 	CASE: PD-2013-01780
BRANCH OF SERVICE:  ARMY		BOARD DATE:  20140806
SEPARATION DATE:  20050216

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (91G/Patient Administration Specialist) medically separated for chronic low back and migraine headache conditions.  The CI initially injured her back in 1999 when she fell off of a repelling tower.  She was treated with medication but continued to have frequent headaches.  Her conditions could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty or satisfy physical fitness standards.  She was issued a permanent P3L3 profile and referred for a Medical Evaluation Board (MEB).  The MEB also identified and forwarded six other conditions for Physical Evaluation Board (PEB) adjudication.  The Informal PEB adjudicated the low back and migraine headache conditions as unfitting, rated 10% and 0%, respectively.  The remaining conditions were determined to be not unfitting.  The CI made no appeals and was medically separated

CI CONTENTION:  “Posttraumatic stress disorder (PTSD) is severe and not acknowledged  or diagnosed by the Army.  My back is in constant pain.  Temporomandibular joint (TMJ) has made my jaw worse from surgery.  Extreme pain and sensitivity post surgery on jaw.  Migraines have increased in severity requiring injections from Neuro, they completely debilitate me.”

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 ratings for the unfitting low back and migraine headache conditions are addressed below.  Additionally the CI contended mental health condition and her TMJ conditions are within the Board’s defined DoDI 6040.44 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 Board for Correction of Military Records.

RATING COMPARISON:

Service IPEB – Dated 20041122	VA - (one day  Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Non-radiating Low Back Pain	5237	10%	Lumbar Spine Degenerative Disk Disease L4-L5 and L5-S1	5242	40%	20050215	
Migraine Headaches	8205-8100	0%	Migraine Headaches	8100	30%	20050215	
Depressive Disorder	Not Unfitting	PTSD	9411	30%	20050215	
Trigeminal Neuralgia	Not Unfitting	Temporomandibular Joint Dysfunction Status Post Surgery	9905	10%	20050215	
Other x 0 (Not in Scope)	Other x 5	20050215 	
Combined:  10%	Combined:  80%	
Derived from VA Rating Decision (VARD) dated 20050324 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Low Back Condition.  The narrative summary (NARSUM) prepared on 29 October 2004 notes a long history of low back pain (LBP) after the CI injured her back falling off a 30-foot tower while repelling.  Over the next few years, she had progressive back pain and medical evaluations.  A magnetic resonance imaging study performed in 2004, showed disk degeneration at L4-L5, and L5-S1, with possible right lateral disk protrusion contacting the L5 nerve root.  She was evaluated by neurosurgery who recommended an MEB.  At that evaluation, she reported persistent back pain and numbness of the bottoms of both feet with exercise.  Physical examination revealed normal muscle strength, normal sensation, normal reflexes, normal stance and gait and normal heel, toe and tandem walk, negative straight leg-raising test for radiculopathy.  There was tenderness of the lower lumbar spine.  Range-of-motion (ROM) measurements are summarized in chart below.

At the VA Compensation and Pension (C&P) exam performed on 15 February 2005, a day prior to separation, the CI reported daily pain described as achy and tightness and right-sided radicular symptoms.  She reported no incapacitating episodes.  Lifting was limited to 10 pounds, walking limited to about 1/2-mile.  Physical examination revealed tenderness of the lumbar paraspinous musculature bilaterally.  There was no abnormal curvature of the spine, no spasms, normal reflexes, motor exam normal, sensory exam normal and gait was normal.  On 27 April 2005, 2 months after separation, the CI was seen in the emergency room for a face rash.  While at the emergency room she reported her LBP.  The LBP was 8/10, dull constant aching pain.  She had some numbness of right foot and thigh.  Physical examination found some tenderness upon palpating the lower spinous processes.  Pain was noted when bending approximately 10 degrees (not measured with a goniometer) to attempt to touch her toes.   There was LBP when walking on heels and toes.  There was no redness and no edema.  An emergency room visit note 2 months after separation noted the CI had flexion limited to an estimated 10 degrees (not measured with a goniometer).  The Board members discussed the fact that the same emergency room visit notes stated that the CI was in “no apparent distress” and that with such severe limitation of motion there would most likely be some level of distress annotated, which lessened the probative value of this measurement.

The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Thoracolumbar ROM
(Degrees)	MEB/PT ~5 Mo. Pre-Sep
(20040920)	VA C&P ~1 day Pre-Sep
(20050215)	
Flexion (90 Normal)	95 (90)	20	
Extension (30)	25	10	
R Lat Flexion (30)	20	10	
L Lat Flexion (30)	25	10	
R Rotation (30)	25	10	
L Rotation (30)	35 (30)	10	
Combined (240)	215	70	
Comment	Limited by pain	Limited by pain	
§4.71a Rating	10%	40%	

The Board directed attention to its rating recommendation based on the above evidence.  The Board considered the VA Schedule for Rating Disabilities (VASRD) diagnostic code 5237 (lumbosacral or cervical spine strain) used by the PEB for a 10% rating, and code 5242 (degenerative arthritis of the spine) used by the VA for a 40% rating.  The Board found evidence a day prior to separation that met the 40% rating criteria of forward flexion of the thoracolumbar spine 30 degrees or less.  It is obvious that there is a clear disparity between these examinations, with very significant implications regarding the Board's rating recommendation.  The Board thus carefully deliberated the probative value assignment to these conflicting evaluations and carefully reviewed the entire file for corroborating evidence from the period preceding separation.  The Board found no evidence of exacerbation or injury that could possibly explain such an increase in limitation of motion, from what was previously measured as normal.  Using the VASRD §4.6 (evaluation of evidence) the element of weight was assigned to the goniometric measurements performed by physical therapy for the MEB NARSUM rather than the C&P examination.  The Board majority felt that the overall disability picture from self-reporting, clinical visits and the commander’s written evaluations, more nearly approximated the correctly administered goniometric ROM measurements performed by physical therapy for the MEB.  After 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 LBP condition.

Migraine Headache Condition.  The PEB associated the trigeminal neuralgia to the migraine headache condition and described as headaches associated with facial neuralgia.  After careful examination of the evidence the Board concluded that the migraine headaches were not associated with facial neuralgia (trigeminal nerve).  The jaw pain, right greater than left, occurring after TMJ oral surgery in 2001, was associated with the TMJ surgery rather than the onset with migraines.  Therefore, the TMJ and trigeminal neuralgia conditions were evaluated separately from the migraines.

The NARSUM notes the CI started having daily headaches and twice monthly migraines, for which she was treated with Midrin.  She had weekly migraines at the time of examination despite multiple medication trials.  She was required her to lie down for 5-6 hours at a time, thus interfering with her duty performance.

A neurologic MEB consultation on 27 September 2004 documented a history of mild headaches in her 20’s relieved by Tylenol.  During deployment to Iraq, they started to worsen.  She developed severe migraines two to four times per month.  The migraines starting with tingling sensation in the hands and mouth, followed by visual scotoma described a “holes in my vision” affecting her ability to read or operate a computer.  Within minutes she would have a severe throbbing headache accompanied by nausea, photophobia and phonophobia.  The note mentioned the CI had not missed any days of work due to headaches, but her job performance had suffered.  Neurological examination was normal.

At the VA C&P exam performed a day prior to separation, the CI claimed she missed work once a week due to headaches, that lasted 10 hours.  Neurological examination was normal.  The Board could not find evidence of missed work, emergent medical care for headaches, or prolonged hospitalizations for headaches, in the clinical record.

The Board directed attention to its rating recommendation based on the above evidence.  The VASRD §4.124a rating schedule for 8100 (migraine) is excerpted below for convenience:

8100 	Migraine (headaches):

		With very frequent completely prostrating and prolonged attacks 
			productive of severe economic inadaptability	50
		With characteristic prostrating attacks occurring on an average once 
			a month over last several months................................................	30
		With characteristic prostrating attacks averaging one in 2 months over 
			last several months	10
		With less frequent attacks	0

The VASRD §4.124a rating schedule for 8100 (migraine) rests heavily on the frequency of “characteristic prostrating attacks over last several months.”  The rating options under 8100 for migraine headaches, which are open to consideration in this case, rely on the frequency of “prostrating” attacks.  The DoDI 1332.39 (in effect at separation, but since rescinded) required that “the Service member must stop what he or she is doing and seek medical attention.”  However, VASRD §4.124a does not require seeking medical attention for an attack to be considered prostrating and a common (court-sanctioned) approach is to apply the clear English definition of prostrating.  The Board carefully considered the frequency and nature of the CI’s headaches including objective evidence and corroborating subjective evidence.  The Board particularly considered the commander’s statement, which did not document any loss of work due to migraine headaches.  The neurology consultation on 17 September 2004, stated the CI had “not missed any days of work due to headache but her job performance has suffered,” and the VA C&P examination in which she stated she missed work approximately once a week due to the headaches, was given less probative value since the clinical history did not support the statement.  There was however, documentation of classical migraine without prostration per documentation in the neurological consultation indicating no loss of work, but work had suffered.  Members agreed that the ratable threshold was not met for completely prostrating attacks for a 50% rating.  There was no additional evidence, such as seeking emergent medical care, leaving duty, relieved of duty by sick call, commander’s statement indicating severe economic inadaptability, or documented loss of productivity due to prostrating migraine headaches.  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 migraine headaches condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that TMJ and mental health conditions were 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.

Temporal-Mandibular Joint Pain/Trigeminal Neuralgia:  The NARSUM stated the CI noted progressive pain of the right and left TMJ since 1999.  The pain was accompanied by popping, clicking and locking of the jaw.  In 2001, she had surgical intervention which provided relief.  Two months prior to the NARSUM examination the pain recurred.  She was issued a mouth guard, which helped somewhat.  Physical examination of the jaw and face revealed tenderness over the maxilla and TMJ, left greater than right, with pain upon opening and closing her mouth.  Neurological evaluation on 17 September 2004 documented jaw and face pain and numbness bilaterally approximately 2 to 3 months after the surgery.  The sensation changed to a paroxysmal electric like pain brought on by drinking or eating cold or sweet items, or by touching her tongue to her teeth.  The right side somewhat more affected.  Neither the TMJ condition nor the trigeminal neuralgia condition was mentioned in the commander’s statement as duty impairing.  The Board did not find evidence of prolonged absence from work, emergent or urgent medical care, or hospitalization for the TMJ/trigeminal neuralgia condition that could otherwise indicate unfitness.

Mental Health Condition:  The MEB mental health consultation on 1 October 2004, 4 months prior to separation, noted the CI had a 4-to-5 year history of depression and anxiety symptoms.  The CI reported feeling isolated and more depressed during her deployment.  She was involved with coordinating medical evacuation flights.  She observed wounded and dead soldiers, which was stressful for her.  She had anxiety symptoms while deployed, bad dreams, inability to sleep and feeling very isolated for which she sought therapy for, and tried medications, which made her headaches significantly worse.  She was started on Wellbutrin anti-depressant medication and was working out “pretty well.”  Mental status examination revealed she was neatly groomed, alert and fully oriented.  She did not make a lot of eye contact during the interview and was pretty subdued throughout the interview.  Her speech was soft but otherwise normal in quantity and quality.  Affect was bland; mood was described as depressed and anxious.  Thought processes were linear, logical and goal directed.  Thought content revealed no suicidal or homicidal ideations.  There was no evidence of delusions, obsession or ruminations, memory was grossly intact, insight was fair and judgment was intact.  She was diagnosed with depressive disorder not otherwise specified which appeared to be reactive in nature for at least the past 4 to 5 years, with depression, anhedonia, anergia, irritability, low frustration tolerance, some social anxiety, especially in crowded situations and some distressing memories of her deployment.  The evaluation concluded she had minimal impairment for military duty and met retention standards.

The VA C&P examination on 15 February 2005, a day prior to separation, revealed a distraught, cooperative CI, who was frequently tearful when discussing her Iraq stressors.  Thought processes were logical, goal-directed and no there was evidence of psychosis or organic deficit.  She reported sleep problems, nightmares, night sweats and thrashing in bed.  She reported daily intrusive thoughts.  She could barely stand being around soldiers because it took her back to Iraq.  She had flashbacks about twice a week precipitated by loud noises or TV news about Iraq, which she tried to avoid.  She reported some emotional numbing, more “spacey,” difficulty focusing and frequently forgetful.  She had a strong startle response and feelings of hypervigilance, emotional lability and anger.  She had verbal outbursts and tried to control her anger through isolation.  She reported transient suicidal thoughts, but no attempts and was not suicidal the day of examination.  She was diagnosed with PTSD and adjustment disorder with mixed anxious and depressed moods, and given a Global Assessment of Functioning of 70 (some mild symptoms).

The Board did not find any evidence in the commander’s statement of psychiatric limitations and there were no profiled psychiatric limitations (S1).  The psychiatric examination deemed the CI as meeting retention standards.  The Board did not find any evidence such as prolonged absence from work due to psychiatric symptoms, prolonged psychiatric hospitalizations, or any profiled limitations such as no secrets, no weapons, or restricted duty, which might otherwise indicate unfitness.

The mental health and TMJ/trigeminal neuralgia conditions were not implicated in the commander’s statement and were not judged to fail retention standards.  All were reviewed by the action officer (AO) and considered by the Board.  There was no performance based evidence 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 so no additional disability ratings are recommended.

BOARD FINDINGS:  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 low back condition and IAW VASRD §4.71a, the Board recommends no change in the PEB adjudication by a majority vote.  The single voter for dissent submitted the appended minority opinion.  In the matter of the migraine headaches condition and IAW VASRD §4.124a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended mental health and TMJ conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.

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 20131022, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

				
MINORITY OPINION:

The minority voter in this case differed in the majority vote on the LBP condition.  The data for adjudication was gathered while the CI was on active duty and just a day prior to separation for a 40% rating recommendation.  When faced with making a recommendation for a rating, the minority considered the clinical history and the physical examinations.  To render a rating at the time of separation, the examination closest to separation is usually given higher probative value.  When faced with rating based on an examination 5 months prior to separation, versus a one day prior to separation examination, the AO chose the most proximal to separation for a rating recommendation at the time of separation.

The examinations considered were both goniometric and performed by trained physicians.  Regardless of the difference in numeric values, temporal association better answers the rating question, when all other factors such as quality of examination are equal.  Using 5-month-old data cannot be supported by the minority member.  Not accepting a physical examination performed just a day prior to separation questions the validity of the C&P examiner’s report and gives the appearance of impropriety.  In this particular case, there was confirmatory evidence just 2 months after separation of “severely” limited low back ROM of flexion 10 degrees during an emergency room visit, which was temporally closer to the DOS than the NARSUM and other prior clinical examinations in which ROMs were normal.

The minority additionally believes the VASRD §4.3 (reasonable doubt) applies.  It states: “It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant.”  Thus, a 40% rating for the LBP condition at the time of separation is recommended.

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, AR20150007048 (PD201301780)

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						    
						         
CF: 
(  ) DoD PDBR
(  ) DVA