RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2013-01894
BRANCH OF SERVICE:  Army	BOARD DATE:  20150513
SEPARATION DATE:  20040329

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Healthcare Specialist) medically separated for obstructive sleep apnea (OSA) and migraine headaches.  The condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty.  The profile allowed for an alternate aerobic event to satisfy physical fitness standards.  She was issued a permanent P3/L2 profile and referred for a Medical Evaluation Board (MEB).  The OSA was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded asthma; bilateral symptomatic pes planus; allergic sinusitis; history of nasal polyp; migraine headaches; femoral patellar syndrome; and fatigue conditions for PEB adjudication.  The Informal PEB (IPEB) adjudicated OSA as unfitting, rated 0% with likely application of DoDI 1332.39.  The remaining conditions were determined to be not unfitting.  The CI appealed to the Formal PEB (FPEB) which adjudicated migraine headaches as unfitting, rated 10% with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The FPEB affirmed the remaining unfit and not-unfit findings and rating.  The CI made no further appeal and was medically separated.

CI CONTENTION:  The CI elaborated no specific contention in her 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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any condition 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 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:

FIPEB – Dated 20040106	VA* - (~2 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Migraine Headaches	8100	10%	Migraine Headaches	8100	50%	20040520	
Obstructive Sleep Apnea	6847	0%	Sleep Apnea	6847	50%	20040520	
Other MEB/PEB Conditions x 6 (Not In Scope)	Other x 14	
RATING:  10%	RATING:  90%	
*Derived from VA Rating Decision (VARD) dated 20040805 (most proximate to date of separation (DOS))

ANALYSIS SUMMARY:

Migraine Headaches.  Review of the MEB narrative summary (NARSUM) and the service treatment record (STR) detailed that the CI had the onset of headaches soon after entering active duty in 1989.  As of December 2002, the headaches were described as “infrequent.”  At a neurology visit in March 2003, a year prior to separation, the headaches occurred three to five times a month and were “incapacitating (can’t work, has to lay down)” two to three times a year.  The headaches were determined to be “c/w [compatible with] migraine w/ aura, some rebound-analgesic component.”  The CI was instructed to continue use of Imitrex (a “Triptan” drug used to treat and abort migraines in the early stages, which was reported to work “really well”), cut down on Acetaminophen and Excedrin, and return to neurology in a year.  In a memorandum dated 17 June 2003, 9 months prior to separation, the CI’s commander stated that the CI could perform her duties as a medic; “however there are some physical exercises that she is unable to perform such as running, walking and has to take an alternate APFT [physical fitness test].”  The IPEB (30 July 2003, 8 months pre-separation), did not find the headaches to be unfitting for duty.  In October 2003 (5 months prior to separation), the CI had the onset of a headache which felt like a typical migraine but was more severe and persisted (waxing and waning) for a month, and was refractory to Imitrex.  She was admitted to the hospital on 6 November 2003 for headaches, and obtained good result (control of headaches) with intravenous DHE (Dihydroergotamine, used to treat difficult-to-control, persistent, migraines).  Lumbar puncture revealed increased intracranial pressure (opening pressure of 400 mm H2O versus normal less than 180).  Evaluation by ophthalmology was negative for papilledema (blurring of the optic disc on eye exam, indicative of increased intracranial pressure), but the rest of the examination and visual field testing (mild superior peripheral deficient on the left with questionable enlargement of the blind spot) were not definitive.  The CI was given the additional diagnosis of idiopathic intracranial hypertension (IIH) and started on appropriate treatment (Acetazolamide).  The CI was “relatively headache free” until 28 November 2003 (4 months prior to separation) when the headache returned, along with visual blurriness and “seeing spots,” which had resolved after the DHE infusion.  The Acetazolamide dose was doubled, and she was started on Topamax (antidepressant drug used for migraine Prophylaxis) and DHE self-injections.  A neurological note (MEB Addendum), which was undated but written after 28 November 2004, called the headaches “medically unacceptable.”  No abnormalities were reported on neurological examination.  The CI was placed on quarters on 1 December 2003 for a 3-day history of headache, and a month later (5 January 2004) for an episode of sinusitis associated with a migraine headache.

At the VA Compensation and Pension (C&P) neurological exam performed on 15 July 2004, 4 months after separation, the CI reported that her headaches were “getting progressively worse despite the intense treatment,” and that she had been diagnosed with pseudotumor cerebri (another term for IIH).  Over the past 6 months (November 2003 to July 2004), she had several emergency room visits and received intravenous treatment for headaches, including the inpatient DHE treatment described above (November 2003), “when she was totally disabled.”  Her headache was constant and on a daily basis, and she was using Triptans every other day.  The examiner characterized her headaches as severe and refractory to current proper management and pharmacotherapy.  Examination showed a sharp optic disc but possible mild papilledema in the right eye, and bilateral symmetric mild ptosis (drooping of the eyelid, described in some previous reports), normal (5/5) muscle strength, normal gait, and no cerebellar or extrapyramidal signs (findings that could be associated with IIH).

The Board directed its attention to its rating recommendation based on the above evidence.  The FPEB rated the headaches with code 8100 (migraine) at 10%.  The VA rated the condition with code 8100 at 50%, citing very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability.  As of the date of her commander’s letter (17 June 2003), the CI could perform her duties as a medic except for inability to perform some physical exercises.  The character of her headaches changed in October 2003, requiring hospitalization in November 2003, when she was found to have IIH, and placement on quarters on 1 December 2003 and 5 January 2004.  These episodes constituted prostrating episodes and occurred on an average once a month over several months, which supported a rating of 30% under code 8100.  Although the VA C&P exam stated that the headaches were “getting progressively worse,” this was over an undefined period of time, and available records did not support a contention that the headaches were completely prostrating and productive of severe economic inadaptability while she was on active duty.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 30% for the migraine headaches condition.

OSA.  Review of the NARSUM and the STR disclosed that the CI first presented to the sleep clinic on 17 July 2002 (20 months prior to separation) for a 10-year history of unrefreshing sleep, excessive daytime somnolence, and loud snoring.  Overnight polysomnography (sleep study) in September 2002 revealed severe OSA (respiratory disturbance index of 36 respiratory events per hour) and treatment with continuous positive airway pressure (CPAP) device was prescribed.  At the time of a sleep clinic follow-up on 22 January 2003 the CI had continued sleepiness of moderately severe degree and was not using the CPAP regularly because she suffered from recurrent bouts of sinusitis despite medical treatment.  A physical profile written on 13 June 2003 listed OSA as an implicated diagnosis, but did not detail any duty limitations specific to OSA.  In another letter to the PEB, 17 June 2003, the CI’s new commander stated that the CI could perform her duties as a medic; however, there were some physical exercises that she was unable to perform.  She stated that the CI could be assigned as a medic to other duty stations that did not require her to violate her physical profile.  The pulmonary medicine (sleep medicine) MEB NARSUM addendum noted difficulty with compliance using the CPAP at the time of a January 2003 follow up appointment, however, there is no STR documentation relating to CPAP compliance in the year prior to the FPEB nor evidence stating the CPAP was no longer required.

At the VA Compensation and Pension (C&P) general exam performed on 20 May 2004, 2 months after separation, the CI reported that she had been using CPAP with some improvement in her fatigue, although there were times she had difficulty using her CPAP on account of her nasal congestion.  The examiner described her symptoms of OSA (snoring, non-refreshing sleep, lack of energy, daytime fatigue and drowsiness), and stated that she had mild OSA that was under control by the CPAP machine.

The Board directed its attention to its rating recommendation based on the above evidence.  The FPEB rated the OSA with code 6847 (sleep apnea syndromes) at 0%, noting that the impairment for civilian wage earning was rated as mild, that CPAP did help but the CI did not use it regularly due to sinusitis, and that the CI was not desirous of having any surgical procedure for the OSA.  The VA rated the condition with code 6847 at 50%, stating that a breathing assistance device, such as a CPAP machine was required.  At the time of her initial presentation, the CI had some symptoms of OSA for 10 years, yet had been able to perform her duties satisfactorily.  Her physical profile did not detail any duty restrictions referable to the OSA, and two letters from her commander did not suggest that her OSA prevented her from performing her duties.  Although the CI did not use her CPAP regularly in the initial months after diagnosis, there was no documentary evidence she did not use the CPAP as prescribed in the year prior to separation nor documentation stating she no longer required CPAP.  In view of her OSA diagnosis and CPAP requirement and use the Board majority concluded the 50% rating was supported in accordance with the VASRD code 6847.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority recommends a disability rating of 50% for the OSA 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.  PEB reliance on DoDI 1332.39 for rating OSA was operant in this case and the condition was adjudicated independently of that instruction by this Board.  In the matter of the OSA condition, the Board by majority vote recommends a disability rating of 50%, coded 6847 IAW VASRD §4.97.  In the matter of the migraine headaches condition, the Board unanimously recommends a disability rating of 30%, coded 6847 IAW VASRD §4.124a.  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 her prior medical separation:

CONDITION	VASRD CODE	RATING	
Obstructive Sleep Apnea	6847	50%	
Migraine Headaches	8100	30%	
COMBINED 	70%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130922, 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, AR20150012499 (PD201301894)

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 70% 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 70% 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