RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXX	CASE:  PD-2013-02014
BRANCH OF SERVICE:  NAVY	BOARD DATE:  20150107
SEPARATION DATE:  20050201

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PO3/E-4 (SK3/Storekeeper) medically separated for lumbar spine and headache conditions.  The conditions could not be adequately rehabilitated to meet the physical requirements of her Rating or satisfy physical fitness standards.  She was placed on limited duty and referred for a Medical Evaluation Board (MEB).  The conditions, characterized as “chronic non-radiating back pain, S/P L4-L5 laminotomy and discectomy” and “migraine type headaches,” were forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “status post L4-L5 laminotomy and discectomy” and the “migraine type headaches” as unfitting, rated 10% each, with likely application of the VA Schedule for Rating Disabilities (VASRD).  The condition “chronic non-radiating back pain” was adjudicated as Category II (contributing to unfit).  The CI made no appeals and was medically separated.

CI CONTENTION:  “I have had a second back surgery back on Aug of 2008 due to complications.  I have recurring back and hip pain.  Plus my right ankle has given me constant pain.”

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 lumbar and migraine conditions are addressed below; the associated Category II back pain condition will, by its nature, be subsumed in the Board’s recommendation for the overall lumbar spine condition.  The requested hip and ankle conditions were not identified by the PEB and are not within the DoDI 6040.44 defined purview of the Board.  Those, and any conditions or contention not requested in this application, remain eligible for future consideration by the Board for Correction of Naval Records.

RATING COMPARISON:

Service IPEB – Dated 20040812	VA (3 Mo. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Surgical Residuals, Lumbar Spine	5237	10%	Surgical Residuals, Lumbar Spine	5243-5242	10%	20041001	
Chronic Non-radiating Back Pain	Category II					
Migraine Type Headaches	8100	10%	Migraine Headaches	8100	10%	20041001	
Other x 0  (Not in Scope)	Other x 7 	
Combined:  20%	Combined:  30%	
Derived from VA Rating Decision (VARD) dated 20050825 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY: The Board acknowledges the CI’s contention regarding the significant impairment with which her service-connected condition continues to burden her; but, must emphasize that the Disability Evaluation System has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.

Lumbar Spine Condition (Subsuming Category II Non-radiating Back Pain).  An entry in the service treatment record (STR) dates the onset of low back pain to an injury in November 2001 (fell off bunk in boot camp).  The first clinical record in evidence is from October 2002, which noted continuing pain with left leg radiation since that incident; and, documented range-of-motion (ROM) as “100%” flexion and rotation, but “25%” extension and lateral bending.  Neurological findings were normal.  Imaging (magnetic resonance imaging) revealed disc herniation at L4-5 without nerve root compromise and degenerative disc disease at L3 to L5.  The CI underwent surgical intervention in September 2003 (L4/5 laminotomy and discectomy).  There are multiple STR entries documenting normal bilateral lower extremity strength (5/5) and neurological findings; none noting any deficits.  The last STR entry from July 2004 (7 months prior to separation) documented “full” ROM and there are no entries that suggest significant ROM limitation.  There are no post-surgical entries documenting antalgic gait or abnormal spinal contour.  Other than a 3-day period of rest in quarters in January 2003 (pre-surgery), there are no documented periods of incapacitation.  The narrative summary (NARSUM) was conducted 12 April 2004 (10 months prior to separation) and documents “complete resolution of her leg pain [following surgery] and has been left with a residual back pain that is exacerbated by prolonged sitting, standing and bending, lifting and twisting or doing any running or situps.”  The physical exam detailed normal neurological findings but did not comment on gait, physical findings, or ROM.

At the VA Compensation and Pension (C&P) exam (3 months pre-separation), the examiner documented non-radiating pain rated 6/10 with flares to 8/10; and, noted limitations of prolonged sitting and standing, “walking for 30 minutes,” lifting, and stair climbing.  The physical exam noted a normal gait, “mild tenderness,” and normal neurological findings.  Measured ROM was flexion to 70 degrees (normal 90 degrees) with combined ROM of 190 degrees (normal 240 degrees), documenting painful motion.

The Board directed attention to its rating recommendation based on the above evidence.  Both the PEB and VA 10% rating were consistent with VASRD §4.71a criteria for the ROM in evidence.  There was no evidence for abnormal gait or contour to achieve a higher rating, no ratable peripheral nerve impairment which would provide for additional rating, and no documentation of incapacitating episodes (within 12 months) which would provide for a higher rating under that formula.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause recommend a change in the PEB adjudication of the lumbar spine condition (code change offering no advantage).

Migraine Headache Condition.  The only mention of headaches in the STR prior to the MEB period for the lumbar condition is from September 2003 during the post-operative period from the back surgery.  This noted headaches of “1-2 hour” duration (frequency illegible) without further elaboration.  The MEB’s DD Form 2807-1, Report of Medical History, listed “frequent headaches” without further elaboration.  The NARSUM noted an incidental complaint of non-positional headaches with a prodrome (lip numbness) that were “helped with Midrin,” without further elaboration; and, noted that the CI was being referred to neurology for evaluation.  Neurological consultation was obtained in June 2004 (8 months prior to separation) and documented a 2-year history of headaches worsening over recent months; characterized as “daily” at that time, without associated symptoms, unresponsive to over the counter medication, and “usually will lay [sic] down.”  The CI was prescribed prophylactic (Pamelor) and rescue (Imitrex) medications.  There is no follow-up note from neurology in evidence.  There is a memorandum to the PEB from the CI on 8 May 2004 requesting a 30% rating for headache under VASRD code 8100 (migraine headache).  There is a sick call entry from October 2004 (5 months prior to separation) for rescue treatment of a headache (14 hours duration) unresponsive to Imitrex.  There are no other STR entries documenting acute treatment.  The commander’s non-medical assessment did not mention headache, recording overall work loss for medical reasons as “1 hour every three months;” and, stated that the CI “is not limited by her medical condition while on shore duty.”  The VA C&P examiner (3 months prior to separation) documented “good response” to the regimen prescribed by neurology, noting “recurrent episodes of migraine every 2 weeks, and last episode 10 days ago.  Was controlled by medication.”

The Board directed attention to its rating recommendation based on the above evidence.  The rating options under 8100 rely on the frequency of “characteristic prostrating attacks … over last several months.”  The DoDI 1332.39 definition of prostrating (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.  Members agreed that the latitude under the DoDI 6040.44 “fair and equitable” standard permits characterization of a migraine episode as prostrating if there is sufficient evidence that it forced the abandonment of work or current activity to treat the headache (with or without acute medical intervention).  The VASRD §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 a frequency and severity which is “productive of severe economic inadaptability.”  Neither the PEB nor the VA rater elaborated a clear rationale for their 10% ratings; and, members agreed that the only headache easily conceded as prostrating by the evidence at hand was the one for which treatment was sought.  Especially considering the commander’s comments, it would be overly speculative to conclude that the headaches as documented by the evidence most proximate to separation (the C&P examiner) forced any work loss.  It might therefore be argued, with strict adherence to the 8100 rating language, that only the 0% rating was supported; although the Board will not (and IAW DoDI 6040.44, may not) recommend a rating lower than the PEB rating.  After due deliberation, considering all evidence and with deference to reasonable doubt, the Board concluded that there was insufficient cause recommend a change in the PEB adjudication of the 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 lumbar spine condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the migraine headache condition and IAW VASRD §4.124a, the Board unanimously recommends no change in the PEB adjudication.  There were no other conditions within the Board’s scope of review for consideration.

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 20130918, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

		

MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW
               BOARDS 

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS
 
Ref:   (a) DoDI 6040.44
       (b) CORB ltr dtd 11 May 15

      In accordance with reference (a), I have reviewed the cases forwarded by reference (b), and, for the reasons provided in their forwarding memorandums, approve the recommendations of the PDBR that the following individual’s records not be corrected to reflect a change in either characterization of separation or in the disability rating previously assigned by the Department of the Navy’s Physical Evaluation Board:

- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN