RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00221
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20071028

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Shower/Laundry and Clothing Repair Specialist) medically separated for migraine headaches.  The condition could not be adequately rehabilitated to meet the requirements of her Military Occupational Specialty (MOS).  She was issued a permanent P3 profile and referred for a Medical Evaluation Board (MEB).  The diagnosis “chronic migraine headaches” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also referred “allergic rhinitis” as medically acceptable for PEB consideration.  The Informal PEB adjudicated “migraine headaches” as unfitting, rated 10%, with likely application of Army Regulation (AR) 635-40.  The remaining condition was determined to be not unfitting.  The CI made no appeals and was medically separated.  

CI CONTENTION:  The CI made no specific contention in her application.  Her complete submission is at Exhibit A. 

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 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:  

IPEB - Dated 20070725	VA* - (~6 Mos. Post-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Migraine Headaches	8100	10%	Migraine Headaches	8100	30%	20080422	
Other MEB/PEB Conditions x 1 (Not In Scope)	Other x 25	
RATING:  10%	RATING:  60%	
*Derived from VA Rating Decision (VARD) dated 20080709 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:  

Migraine Headaches.    The earliest entry in the available service treatment record (STR) for headache is an emergency room (ER) visit in June 2005 (2 years pre-separation).  Magnetic resonance imaging from that period revealed no inter-cranial pathology.  A neurology evaluation from October 2005 (24 months pre-separation) documented “headaches 2 times per week which last 1-2 days ... able to work only occasionally when the headaches occur.”  The CI was deployed to Iraq from November 2005 to October 2006 (ending 12 months pre-separation).  There are multiple STR entries during the period of deployment documenting frequent treatment and quarters assignment for headaches.  There is no documentation in the STR of acute treatment or quarters assignment after re-deployment except for two back-to-back ER visits in May 2005 (5 months pre-separation); and, the only other clinical entry in the STR from the 12-month period preceding separation is a Neurology consult in December 2006 (10 months pre-separation).  This documented the escalating course of headaches during deployment, and related the CI’s history of recurrent headaches “rated 6-10/10 ... typically last 3 days ... occurring 3 times per month ... has been going to the ER approximately twice a month ... will frequently go to sick call ... [or] ... go to a dark room and lay down.”  A very detailed and normal neurological examination was recorded.  Although STR clinic notes document various medication trials for the headaches, the military pharmacy log (March 2005 – Separation) documents that the only dispensing of migraine related medications was a month supply of Topamax (non-narcotic for migraine prophylaxis) in December 2006 (corresponding with the neurology referral 10 months pre-separation).  

The narrative summary (NARSUM) was conducted 11 May 2007 (5 months pre-separation) and the examiner replicated the history and probative content (severity, frequency, duration of headaches, etc.) of the preceding neurology consult; noting headaches “several times a month” rendering the CI “unable to perform basic soldier skills nor her MOS” and requiring “at least monthly” ER visits.  The examiner stated that headaches had “improved minimally with multiple medication trials” and specified numerous medications (as did the neurologist) which had failed; recording that the CI “has been compliant with treatment recommendations.”  The commander’s performance statement documented that migraines had “severely affected her ability to perform her MOS” and referenced five specific dates for ER visits.  These, however, started in 2005 and only one (same as cited above) was within six months of separation.  A commander’s statement from December 2006 (6 months earlier from same command) cited only physical limitations without reference to headaches.

A VA Compensation and Pension (C&P) examination was conducted 22 April 2008 (6 months post-separation) and documented headaches with which the CI “has to stay in bed and is unable to do anything” occurring “average of 2 times per month...lasting for 2 days.”  A detailed neurological examination was normal.

The Board directed attention to its rating recommendation based on the above evidence.  The §4.124a rating for headaches (code 8100) rests on the presence and frequency of “characteristic prostrating attacks...over the last several months.”  The VASRD does not provide a definition of “prostrating,” but members agreed that ratable headaches require reasonably convincing evidence that they force the abandonment of work or current activities.  The 10% rating under 8100 is for an average frequency of “one in two months,” and that for 30% is “once a month.”  All members agreed that the criteria for the highest rating of 50%, “frequent completely prostrating and prolonged attacks productive of severe economic inadaptability,” were not supported; but, deliberations ensued for a 10% (unchanged) versus a 30% rating recommendation.  The PEB’s DA Form 199 decision conceded that the “Soldier requires frequent days off;” but, added “There is no evidence that the Soldier has used abortive or prophylactic headache medications.”  It is assumed that this references the evidence from the military pharmacy log as detailed above (which was included in the same packet as the DA Form 199).  The VA’s 30% decision quoted the C&P evidence from above.  Members agreed that the evidence from the MEB neurologist, NARSUM examiner, and post-separation VA C&P examiner all supports the 30% rating criteria.  After due deliberation, considering all of the evidence and deferring to VASRD §4.3 (reasonable doubt), the Board’s consensus recommendation is a 30% rating for the migraine headache condition under code 8100.

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 noted above, PEB reliance on AR 635-40 for rating was operant in this case and it was adjudicated independently of that regulation by the Board.  In the matter of the migraine headache condition, the Board by a majority vote recommends a disability rating of 30%, coded 8100, 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	
Migraine Headaches 	8100	30%	
RATING	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131230, 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 XXXXXXXXXXXXXXXXXXXXXX, AR20160000433 (PD201400221)

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 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 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:

			      
						      					
Enclosure
					
CF: 
(  ) DoD PDBR
(  ) DVA