RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2013-01875
BRANCH OF SERVICE:  Army	BOARD DATE:  20150407
DATE OF PLACEMENT ONTO TDRL:  20040818
DATE OF REMOVAL FROM TDRL:  20050922

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Food Service Specialist) medically separated for migraine headaches.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  He was issued a permanent P3 profile and referred for a Medical Evaluation Board (MEB).  The “migraine headaches” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB (IPEB) adjudicated “complicated migraine headaches, prostrating at least monthly” as unfitting, rated 30%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was placed on the Temporary Disability Retired List (TDRL).  Approximately 13 months later, the IPEB adjudicated the migraine headache conditions as unfitting, rated 0% with likely application of the VASRD.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Symptoms are not cured or rehabilitated Was not receiving care by Tennessee Dept. VA oar physician.  Did not have a job or funds to afford medical care and insurance.  U.S. Army 20% disability rating lowered with extreme predjudice and very little consideration.  Prematurely lowered and removed- Currently taking medication for all disabilities the U.S. Army medically discharged me for on 17 Aug 2014 migraines disorder anti seizure high blood pressure chronic pancreatitis”

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 PEB – 20050913	VA Rating Decision1 - 20041005	
TDRL Placement – 20040818	Code	Rating	Condition	Code	Rating
Proximate	
Condition		TDRL
Placement	TDRL Removal			TDRL2
Placement	TDRL3 Removal	
Migraine Headaches	8100	30%	0%	Migraine Headaches	8100	50%	50%	
Other x # (Not in Scope)	Other x 3	
RATING:  30% → 0%	RATING:  60%	
1. Most proximate to TDRL Placement
2. Rating derived from C&P exam dated 20040730, ~1 mos. pre-TDRL placement 
3. Rating derived from C&P exam dated 20040730, ~14 mos. pre-TDRL removal

ANALYSIS SUMMARY:

Migraine Headaches.  At the MEB examination on 6 April 2004, (4 months prior to TDRL placement), history indicated that the CI first experienced headaches since 1997 that were associated with “spell-like” or seizure activity.  There was no history of head trauma.  The episodic headaches would occur at any time with a frequency of 1-2 per week and duration of “up to a day.”  At a prior Neurology evaluation performed in March 2004, the CI’s diagnosis was classified as “most likely consistent with complicated migraine and less likely seizures.”  His history further noted that the spells were predictable and often occurred after having back pain or heavy exertion or anger.  Following the onset of headaches, the CI noted tearing of his left eye followed by twitching of both eyes and both sides of his body.  He reported that this twitching lasted for up to 4-5 minutes and resolved and the headache could persist for up to a day.  These episodes occurred day or night at a frequency of 1-2 per week.  His physical examination (PE) was detailed and normal.  His diagnosis was “spells” most consistent with complicated migraine cephalgia (headache) with pain classification of slight/occasional.  The MEB examiner’s assessment/condition/and prognosis is excerpted below.

“[The CI] suffers from spells most likely consistent with complicated migraines that have persisted despite therapy with a treatment trial with a medication commonly used to treat both migraines and seizures (Depakote).  He is currently pending deployment to Iraq and it is unlikely that we will be able to get his spells under adequate control so that he can perform in his current MOS.  Migraine headaches are often exacerbated by lack of sleep, stress and severe weather as he may experience in Iraq. He will receive symptomatic therapy during his MEB process.”  “An MEB is being initiated as [the CI] is scheduled to deploy on 15 April 2004 which is insufficient time to adequately control his headaches.”

At the request of the PEB, the Neurologist submitted an addendum report on 23 June 2004 specifically stating that the CI’s headaches were “…debilitating and occurring 3 or 4 times per week.”  His permanent profile of April 2004 noted the requirement for a “definitive care” facility and the commander’s statement acknowledged the CI’s inability to perform his military duties was due to being considered non-deployable.  Otherwise, the commander implied that the CI was fully capable of performing the tasks given to him as a soldier of the Army.

At the VA Compensation and Pension examination on 30 July 2004; 4 months after the narrative summary and 2 weeks prior to TDRL placement, the CI summarized prior spell-like events and currently endorsed headaches three times a day.  His examination was detailed and complete, and the examiner simply responded to the previously noted diagnosis of complicated migraine/seizures and stated, “more likely than not [his condition] is a likely result of his service rather than family history.”  The initial PEB adjudicated the complicated migraine headache condition as unfitting, rated at 30%, citing prostration at least monthly, and placed him on the TDRL beginning on 18 August 2004.

The TDRL examination conducted by Neurology on 19 August 2005 (a year after TDRL placement and a month prior to TDRL removal) where the CI reported recurring and worsening (throbbing or pounding) severe headaches at least 15 times per month where he reported the need to “go to bed” due to headaches.  Although “relieved by medication” was documented, the same encounter noted, “[The CI] currently is taking no medication” and “…has not been to the [emergency room] and has not been to a physician in over a year regarding headaches.”  There remained inconsistencies regarding the need and or use of anti-migraine medication during TDRL status.  His PE was detailed and normal.  The examiner’s impression included migraine as well as medical noncompliance and psychological factors affecting a medical condition.  The examiner’s summary of the CI’s status and prognosis is excerpted below.

“By [CI’s] report, he continues to experience debilitating headaches every second day.  However, he maintains no headache diary and there is no documentation.  He takes no medication for these and has not consulted a physician regarding his headaches since his MES Neurology consultation in April 2004.  He has been noncompliant with all treatment recommendations since that time.  With respect to migraine management, if one accepts that the history he provides is true, then he is not stable and has not reached maximal medical improvement due to medical noncompliance.  It is therefore premature to determine whether [the CI] would eventually meet retention standards IAW AR 40-501 as the headaches responded to treatment in the past according to patient report.”

The September 2005 final PEB (convened a month after the TDRL examination) rated 0% for the migraine condition citing findings as described above.

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:
		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
It is clear that the rating under 8100 hinges on the frequency of “prostrating” attacks; and, it is incumbent on the Board to apply DoDI 6040.44-compliant and uniform criteria which would define a recurrent migraine episode as “prostrating” and ratable.  Under DoDI 6040.44, the Board is directed to: “Use the VASRD in arriving at its recommendations, along with all applicable statutes, and any directives in effect at the time of the contested separation (to the extent they do not conflict with the VASRD in effect at the time of separation).”  Since the VASRD does not provide a definition of “prostrating,” it can be argued that the Board is directed to apply the DoDI 1332.39 definition which requires evidence that medical treatment is sought for each rated episode.  The Board, by precedence, has not required rigid proof of medical attention for each and every episode to characterize it as prostrating; but, does require reasonably convincing evidence that rated attacks force the abandonment of work or current activity to treat the migraine; although, self-management (medication and/or sleep) has been accommodated within this threshold.

At the time of TDRL placement, the PEB assigned a 30% impairment rating.  The Board first agreed that the 50% VASRD criteria level was clearly met with regards to headache frequency and duration as previously described as “1-2 per week” and lasting “up to a day;” however, members also examined the unanticipated and concurrent pain description of “slight and occasional” as an inconsistent finding within the same setting.  Members concluded that the level of “prostration” due to the migraine condition was not compatible with “slight and occasional” pain and, therefore, no solid evidence existed for a rating higher than the PEB’s current 30% upon TDRL placement.

The Board next considered if a rating higher than the 0% adjudicated by the PEB at the time of permanent separation was justified.  The 0% rating specifies no qualifying parameters in regards to prostration and or duration, but rather less frequency of headaches.  All members first conceded that the CI’s need to “go to bed” supported the VASRD migraine criteria of prostration.  Board members then carefully considered and reviewed the TDRL examiner’s excerpted note in regards to the CI’s status and prognosis and questioned the severity/intensity of the CI’s reported condition given evidence of not seeking medical attention during 12 months of TDRL coupled with non-compliance to prior recommended treatment.  Additional consideration included the significant decrease in headache frequency from multiple episodes per day to an episode every other day; thereby, indicating a vastly improved condition.  Such an improvement would clearly support “less frequent attacks” as described in VASRD 8100 0%-criteria level.  However, despite such improvement, the frequency of prostrating headaches persisted well above the 30% criteria of an average one per month, but below the 50% criteria which includes evidence of severe economic inadaptability.  Therefore, after extensive deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority recommends a disability rating of 30% for the migraine headache condition.

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 migraine headache condition and IAW VASRD §4.124a, the Board majority recommends no change in the PEB’s adjudication upon TDRL placement and a disability rating of 30%, coded 8100, upon permanent retirement.  The single voter for dissent did not elect to submit a minority opinion.  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:

CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
Migraine Headaches 	8100	30%	30%	
COMBINED	30%	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131021, 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 XXXXXXXXXXXXXXXXXXXX, AR20150012503 (PD201301875)

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 30% 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 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 30% 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						
						
CF: 
(  ) DoD PDBR
(  ) DVA