RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2013-01984
BRANCH OF SERVICE:  Army	BOARD DATE:  20150710
SEPARATION DATE:  20040404

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty O-3 (Signal Officer) medically separated for headache and back conditions.  The conditions 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 P3L3 profile and referred for a Medical Evaluation Board (MEB).  The “headaches” and “chronic low back pain,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB (IPEB) adjudicated “headaches” and “chronic low back pain” as unfitting, rated 10% and 10%, citing application of Department of Defense Instruction (DoDI) 1332.39.  The CI appealed to the Formal PEB (FPEB), which affirmed the IPEB findings and ratings.  The US Army Physical Disability Agency (USAPDA) issued an Administrative Correction that did not change the disposition or rating.  The CI made no further appeals and was medically separated.

CI CONTENTION:  “The physical evaluation board did not consider all evidence and evaluations and additional evidence shows the conditions were underrated.  Additional known conditions were substantiated but disregarded by the board.  Further exams have confirmed that the rated conditions were and are more severe than rated, and that additional disabling conditions were excluded without cause.”

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:

Admin PEB – Dated 20031024	VA* - (~4 Mos. Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Headaches	8045-9304	10%	Post-Concussion Migraines	8045-8100	10%	20031202	
Chronic Low Back Pain	5237	10%	Degenerative Disease Lumbar Spine	5242	20%	20031202	
Other x 0 (Not In Scope)	Other x 14	
RATING:  20%	RATING:  50%	
*Derived from VA Rating Decision (VARD) dated 20040811 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY: 

Headaches Condition.  The first document in the service treatment record (STR) was a neuropsychological evaluation, dated 10 June 2002, for assessment of cognitive function because the CI complained of short-term memory and concentration difficulties after he became “absent-minded” following a motor vehicle accident (MVA) in January 2000.  However, at the evaluation, the CI did not exhibit any objective cognitive impairment.  A CT scan of the paranasal sinus in July 2002 raised the possibility of a polyp, retention cyst, acute or focal ethmoid sinusitis.  In November 2002, his post-concussive syndrome with headaches, which were “severe/moderate,” required the medication, Depakote (divalproex sodium-an anticonvulsant also used for prevention of migraine headaches), dose to be increased.  A magnetic resonance imaging (MRI) of the brain performed on 9 May 2003 was reported to be normal.  Sporadic dizziness with a sensation of spinning was present since the time of the accident and was treated with meclizine (an antiemetic).  Because the headaches worsened and the CI noted weight gain, topiramate (Topamax-an anticonvulsant medication also used to prevent migraines) was instituted and the Depakote was discontinued.  During a follow-up neurology exam on 5 April 2004 (a day after separation), the CI reported that his headaches occurred about 4 times a week lasting 8 hours and were prostrating requiring him to lie down and to go to sleep and to take Imitrex (sumatriptan-for treatment of migraine headaches). A note, dated 4 June 2004, indicated the CI had not started the prescribed medication, but was taking Tylenol (acetaminophen) and was having daily headaches and a severe migraine 2-3 times a week.  Two new medications, Zonegran (zonisamide-an anticonvulsant for migraine prevention) to be taken daily and Axert (almotripan-to treat acute migraines) to be taken at the onset of a migraine were prescribed in June 2004.  

The MEB narrative summary (NARSUM), dated 12 June 2003, indicated the CI’s headaches occurred on or about January 2000 secondary to a MVA at which time he was rear-ended.  Treatment had been with Depakote, which made him drowsy.  Additionally, he developed a chronic postnasal drip and congestion after returning back from overseas.  An examiner opined that “Sinus surgery will not likely change his pain pattern.”  The CI underwent a septoplasty for a deviated septum to the left with a right spur and chronic congestion in 2003.  However, the CI noted “The sinus surgery is not related to the MEB in any way and should be disregarded except for the sake of completeness of medical history.”  At the MEB examination, dated 30 June 2003, the CI reported a concussion from the auto accident and short term memory loss since.  A permanent P3 profile was issued for headaches on 17 July 2003 with limitations of carrying no more than 10 pounds, no marching, and no physical fitness testing.  The commander’s statement, dated 22 July 2003, indicated the CI had been able to perform duties assigned to him within the limits of his profile and had been unable to perform his MOS due to his medical condition.  The CI gave his view in a letter dated 4 August 2003 about the headaches, which were “mild headaches every week” and “average of about two incapacitating headaches every month.”  The CI noted he “missed work due to headaches…not drowsiness.”

At the VA Compensation and Pension (C&P) examination, dated 2 December 2003 and performed 4 months prior to separation, the CI reported frequent headaches, which occurred every 2-4 days and were felt as a sharp pressure sensation with concurrent symptoms of pain, difficulty concentrating, photophobia, loud noise sensitivity, vertigo and dizziness that required him to stay in bed.  He noted that he was unable to do anything and lost time from work when these headaches occurred.  Neurologic examination was unremarkable and examination of the sinuses showed no sinus tenderness.  A headache log prepared by the CI, approximately 16 to 17 months post-separation from 20 August 2005 through 14 September 2005, documented prostrating headaches, which lasted for a couple of hours, while some lasted longer.  A log more than 2 years after separation quantitated headaches ranging from 2-9/10 (10 being the worse headaches) over a 2-month period.  A note dated 4 October 2006 from a psychiatrist indicated the CI was “impaired by frequent migraines which have caused mood disturbances . . . He has tried many medications for migraines also which have included Depakote, Tylox (acetaminophen and oxycodone [a narcotic]), Percocet (acetaminophen and oxycodone), Codeine [a narcotic], Imitrex, and others.  These have not been effective and some have been poorly tolerated.”  A note dated 28 February 2006, 22 months after separation, indicated employment was infeasible based on current psychiatric diagnoses and medical issues. 

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating using code 8045-9304 for headaches due to post-concussion syndrome.  The VA likewise assigned a 10% rating using code 8045-8100 for post-concussion migraines.  The Board sought a route for a higher rating using the VASRD in effect at the time of separation.  A 10% rating using code 8100 requires characteristic prostrating attacks averaging 1 in 2 months over the last several months, while use of code 8045, ratings in excess of 10% for brain disease due to trauma under diagnostic code 9304 are not assignable in the absence of a diagnosis of multi-infarct dementia associated with brain trauma.  A discussion favoring retention of a 10% rating was carried out at which time it was noted the STR had no mention of prostrating attacks until the CI’s letter in August 2003 referred to incapacitating headaches, while the spectrum of symptoms of his headaches were most clearly delineated in the VA C&P examination prior to separation.  Using code 8100 (migraine headaches) for a rating of 30%, requires characteristic prostrating attacks occurring on an average once a month over last several months.  The CI reported debilitating headaches and went to lie down and slept on occasion and noted in his aforementioned letter that they “average of about two incapacitating headaches every month.” Post-separation records indicated continued prostrating headaches, which provided very limited probative value relating to the CI’s status prior to separation.  A 50% rating requires very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.  While a note from 2006 was submitted that indicated employment was infeasible, it lacked specificity related to headaches, but rather noted “psychiatric issues and medical issues,” which is too overbroad to apply specifically for the use of code 8100.  

The Board then focused on and weighed the facts related to that which caused the CI’s separation from the service and whether the PEB rating should be changed.  The Board members did note that the CI was prescribed medications for the treatment of migraine headaches, although there was a dearth of timely corroborating independent medical or lay documentation as to the frequency of the prostrating headaches.  The Board also discussed the fact that the VA revised its rating to 30% retroactive to separation, albeit it used the CI’s post-separation subjective evidence relating to the frequency of the headaches.  The Board then discussed whether the CI’s headaches proximate to separation rose to a 50% rating that requires very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.  The Board members felt such was not the case based on the CI’s statements in the STR and his letter prior to separation as well as the commander’s statement, which indicated he performed his assigned duties within the limits of his profile.   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 headaches condition.  

Chronic Low Back Pain.  The CI was injured in a rear-ended MVA.  A lumbosacral spine series, dated 25 January 2000, was normal.  A week after the accident, the CI experienced spasms in the lower back.  By 18 December 2000, treatment by physical therapy (PT) did not help and spinal manipulation was instituted thereafter.  Tylox (Tylenol and oxycodone-a narcotic) was prescribed in April 2001.  A note, dated 19 May 2001, indicated a CT scan showed mild diffuse posterior [disc] bulge of L5-S1 with minimum compression of the thecal sac.  The option of an epidural steroid injection was discussed.  PT range-of-motion (ROM) measurements on 28 May 2002 showed flexion 70 degrees and extension 15 degrees and repeated flexion measurements increased or decreased by 5 degrees on subsequent examinations.  The CI made an emergency care visit on 20 September 2002 for back spasm and a refill of Valium (diazepam-muscle spasm reliever).  Percocet (acetaminophen and oxycodone), a narcotic pain reliever, and Flexeril (cyclobenzaprine), a muscle relaxant, were prescribed, but the CI limited their use due to a sleepy feeling.  An MRI, dated 23 January 2003, revealed a right lateral disc bulge that narrowed the foramen (nerve opening) and likely impinged the L5 nerve.  The CI reinjured his lower back on a short walk and was seen in an emergency room on 5 March 2003.  Trigger-point injections and physical therapy were discussed at a pain management consultation on 23 June 2003, while additional chiropractic treatments and PT were carried out.  PT ROM measurements on 3 October 2003 revealed flexion 25 degrees and extension 8 degrees; and due to “tight muscles,” the CI limited his ROM.  A lumbar spine series, dated 26 November 2003, showed a mild retrolisthesis of L5 on S1 of doubtful significance, but was otherwise unremarkable.  On 10 November 2003, electro-diagnostic studies were normal and without any evidence to suggest a right L2-S2 motor radiculopathy.

The MEB NARSUM, dated 12 June 2003, noted the CI’s low back pain (LBP) worsened going up and down stairs and when standing for more than a couple of minutes; and the CI denied bowel or bladder discomfort and radicular symptoms.  Examination of lumbar spine demonstrated a normal lordotic curve and normal paravertebral musculature.  He was able to touch his toes with equal side bending and had a negative seated straight leg raise (to determine nerve root irritation) with normal reflexes.  The MEB physical examination, performed on 1 July 2003, noted a decreased ROM of the lumbar spine and discomfort with dorsiflexion and a negative straight leg raise, while the CI noted on the DD 2807-1, Report of Medical History, that he had pain/weakness of the back and that use of “back brace and canes provide temporary stabilization.”  A permanent L3 profile was issued on 17 July 2003 for chronic LBP with the same limitations as noted above.

At the VA C&P examination, dated 2 December 2003, performed 4 months prior to separation, the CI reported pain located in the low back that was characterized as aching, pressing and sharp with pain 10/10 (10 being the worst pain) when he was involved in physical activity or stressed.  The ROMs of the thoracolumbar spine were all painful with flexion 0-60 degrees, extension 20 degrees, right and left lateral flexion 20 degrees each, and right and left rotation 30 degrees each.  “Range of motion was not limited by pain, fatigue, weakness and lack of endurance, but not by incoordination.”  After separation, an acupuncture trial was commenced for 6/10 for chronic back pain and minimal headache discomfort on 29 April 2004.  Temporally remote (30 and 53 months after separation) VA C&P examinations were reviewed; however, they offered very limited or no probative post-separation evidence of any significant value.

The 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)	PT ~21 Mo. Pre-Sep
	PT ~9 Mo. Pre-Sep
	PT ~6 Mo. Pre-Sep
	VA C&P ~4 Mo. Pre-Sep
	
Flexion (90 Normal)	65	Full LROM (lumbar ROM)with complaint of moderate pain in flexion/extension	25	60	
Extension (30)	25		8	20	
R Lat Flexion (30)	30		30	20	
L Lat Flexion (30)	25		25	20	
R Rotation (30)				30	
L Rotation (30)				30	
Combined (240)	-		-	180	
Comment			Unable to move past the ROMs secondary to CI’s reported tight muscles; all motions were painful	DeLuca negative; limp; cane for balance	
§4.71a Rating	20%		40% (but incomplete exam)	20%	

The Board directed its attention to its rating recommendation based on the above evidence.  The FPEB applied a 10% rating using code 5299-5295 for chronic LBP without neurologic abnormality or documented chronic paravertebral muscle spasms.  The CI rebutted the findings for which the PEB found no change and indicated coding using 5299-5295 (lumbosacral strain--coding under old spine rules) was appropriate.  The USAPDA sustained the PEB findings and rating but administratively changed the code to 5237 (lumbosacral strain).  The VA assigned a 20% rating using code 5242 for degenerative disease of the lumbar spine based on a limited ROM.  The VA ROM measurements included all motions and were the closest measurements to separation and have a higher probative value than the partial PT measurements performed 2 months earlier that were limited based on the CI’s report of tight muscles and were inconsistent with prior measurements.  The Board must establish a functional impairment linked to fitness in order to recommend a separate rating for a radiculopathy associated with unfitting spine conditions; a threshold clearly not reached by the evidence in this case since there was no sensory component with any significant functional implications and no motor weakness was in evidence.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a, which states that “rating is performed with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.”  Therefore, the radiculopathy could not be recommended for additional disability rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the low back 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.  As discussed above, PEB reliance on DoDI 1332.39 for rating chronic LBP was operant in this case and the condition was adjudicated independently of that instruction by this Board.  In the matter of the headache condition and IAW VASRD §4.214a, the Board by majority vote recommends a disability rating of 30%, coded 8045-8100 IAW VASRD §4.124a.  In the matter of the LBP condition, the Board unanimously recommends a disability rating of 20%, coded 5237 IAW VASRD §4.71a.  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	
Headaches	8045-8100	30%	
Low Back Pain	5237	20%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131015, 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, AR20150012478 (PD201301984)

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 40% 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 40% 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:

						
CF: 
(  ) DoD PDBR
(  ) DVA