RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXX	 CASE:  PD-2014-00276	
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20070503		 

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated Army National Guard E-6 (Motor Transport Operator) medically separated for cervical pain and headaches.  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 P3U3 profile and referred for a Medical Evaluation Board (MEB).  The conditions, characterized as “chronic neck pain…secondary to degenerative disc disease (DDD)” and “neuralgia occipital headaches” were forwarded to the Physical Evaluation Board (PEB).  The MEB also identified five other conditions (history of transient ischemic attack [TIA], atypical chest pain, hyperlipidemia, nicotine dependence, and obstructive sleep apnea), as medically acceptable, and forwarded them for PEB adjudication IAW AR 40-501.  The informal PEB adjudicated “neuralgia occipital headaches” and “chronic neck pain” as unfitting rated 10% and 0%, respectively, with application of the US Army Physical Disability Agency (USAPDA) pain policy.  The remaining conditions were determined to be not unfitting.  The CI made no appeals, and was medically separated.  

CI CONTENTION:  His conditions continue to worsen, he was not rated for TIA, and he was given a higher rating for his conditions by the VA. His 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 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:  

Service IPEB – Dated 200704418	VA - 6 Mos. Post-Separation  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Neuralgia Occipital Headaches	5099-5003	10%	Occipital Neuralgia with Migraine Component Headache	8100	10%	20061127	
Chronic Neck Pain	5299-5237	0%	DDD…Cervical Spine	5242	20%	20061127	
Transient Ischemic Attack	Not Unfitting	Status Post Right Transient Ischemic Attack	8008	10%	20061127	
Other x 4  (Not in Scope)	Other x 6  (Not in Scope)	
Combined:  10%	Combined:  50%	
Derived from VA Rating Decision (VARD) dated 20070811 (most proximate to date of separation [DOS]).   

ANALYSIS SUMMARY:  

Occipital Neuralgia Headaches.  The service treatment record (STR) indicated that the CI developed right-sided occipital (posterior) headaches that radiated anteriorly, while loading vehicles for deployment in July 2006 (during his initial month of military service; 10 months prior to separation).  When the pain was severe (rated 11/10), it was associated with tearing and photophobia (light sensitivity, similar to migraines).  Radiographic evaluation in August 2006 documented normal head imaging.  By October 2006 (7 months pre-separation), he had been treated with nerve injections, physical therapy consultation, and medication adjustment and felt “much better than he did when he came…[and… was] slowly improving.”  The commander’s statement, dated 18 January 2007, indicated that the CI had “been unable to perform his MOS…due to his medical condition,” but did not elaborate further.  

At the VA Compensation and Pension (C&P) exam dated 11 August 2007 (6 months pre-separation), the CI reported…having recurring headaches described as “migraines… [with] nausea, headache, photo and sound sensitivity,” that occurred once daily and lasted “one day.”  When the headaches occurred, he was “able to go to work but required medication;” and his functional impairment was stated as “blurry vision” and “work loss 2 times per month.”  

The neurologist’s Narrative Summary (NARSUM) exam was performed 23 January 2007 (3 months pre-separation).  The CI reported his headaches to be “persistent, waxing and waning in intensity;… low grade during the day [with] 4/10 pain, but they can get as intense as 7-8/10, if he missed any medications.”  He denied missing work due to headaches, but noted several days where he felt “poorly” all over and did not report for duty.  The examiner documented that he was “exquisitely tender over both his greater occipital nerves,” and opined that “while [he] had made improvement…he still had significant headaches….”  There was no documentation of physician-prescribed bed rest.  

The Board directed attention to the rating recommendation based on the above evidence.  The PEB rated the headache condition at 10%, coded as 5099-5003 for slight and constant pain IAW the pain policy.  The VA rated the headaches at 10%, coded 8100 (migraines) citing characteristic prostrating attacks averaging one in 2 months over the last several months.  

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.  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 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.  The commander’s statement and the VA C&P examination both implicated the headaches as resulting in workplace impairment and missed work days, respectively, however there was no documentation of prostrating attacks and no evidence of physician-prescribed bed rest.  The CI also admitted to not missing work for headaches, but rather to feeling “poorly.” The Board carefully considered the historical and subjective data presented, but was ultimately confronted by the complete absence of objective evidence or corroborating subjective evidence that this threshold was met for any occurrence of migraine or prostrating headache within 1 year of separation in this case.  Members agreed that there was inadequate support to achieve a higher rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the headache condition.  

Chronic Neck Pain Condition.  

During evaluation for headaches, magnetic resonance imaging in September 2006 documented “minor cervical spondylitic [osteoarthritic] changes with C3-C4 and C5-C6 central disc bulge and minor C6-C7 central disc bulge and osteophytic lipping.  No [spinal] cord compromise at any level.”  The STR was silent for neck pain until October 2006 (7 months pre-separation).  The CI had described the neck pain as “mild in comparison to his headaches,” with pain rated at a 4/10, and with “numbness” of the left upper extremity in a “nondermatomal [atypical] distribution.”  At a neurology visit dated 18 October 2006, painful motion of the neck was documented.  

The VA Compensation and Pension (C&P) exam was dated 27 November 2007 (6 months pre-separation).  The CI reported that the pain was “constant” and rated a 6 [of 10]; the neck was “stiff;” and that the upper extremities were “hard to move.”  He further stated that he could function with medication and that it did not cause incapacitation.  The examiner documented painful motion of the cervical spine during examination with normal curvature.  Cervical ranges-of-motion (ROM) were as documented as flexion of 30 degrees (normal 45); 5 degrees each of extension, right and left lateral flexion (normal 45 degrees each); and 30 degrees of both right and left rotation (normal is 80 degrees) with total cervical ROM at 105 degrees.  The examiner further stated that repetition “additionally limited the joint function by 5 degrees”… with “no signs of intervertebral disc syndrome…or nerve root involvement.”  Radiographs documented a normal cervical spine series with “no fracture, subluxation, or significant arthritic change,” and normal height and alignment of the vertebral bodies, disc spaces, and the spinous processes.  

The MEB NARSUM was based upon a physical examination performed on 16 January 2007 (4 months pre-separation).  The CI reported “chronic” neck pain that “waxes and weans in intensity” that was particularly bothersome while he drove any vehicle and worsened with “exertional activity or overhead work.”  On the DD Form 2807-1, Report of Medical History, dated 17 January 2007, the CI did not elaborate regarding his neck condition.  The MEB examiner documented a “moderate” decrease in the cervical spine ROM.  

The most proximate ROM measurements were performed by occupational therapy on 29 January 2007 (3 months pre-separation).  Cervical flexion was 20 degrees, extension of 40 degrees, left lateral flexion of 25 degrees, and right lateral flexion of 20 degrees; with left and right lateral rotation each at 30 degrees (total was 165 degrees).  Painful motion was documented throughout.  

The Board directed attention to the rating recommendation based on the above evidence.  The PEB rated the neck condition at 0% analogously coded as 5299-5237 (cervical strain) for ROM limited by pain.  The VA rated 20% citing painful motion and limitation in ROM for the cervical DDD.  There was clear STR evidence of arthritic changes of the cervical spine with painful and decreased ROM.  Several exams documented cervical flexion to 20 degrees.  Only the single VA C&P exam documented a ROM of 30 degrees, however it was specifically stated that repetition caused additional limitations of the cervical spine.  The evidence sufficiently supported a 20% rating coded as 5299-5237 (cervical strain).  There was no documentation of ankylosis, cervical flexion less than 15 degrees, incapacitating episodes, or evidence of peripheral neuropathy to warrant a higher rating under any other VASRD codes.  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 neck condition.  

Contended Condition: 

Transient Ischemic Attack.  The Board’s main charge with respect to this condition was an assessment of the fairness of the PEB’s determination that the TIA was not unfitting.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The TIA was profiled in September 2006 and January 2007 (4 months pre-separation); and identified by the MEB.  However, it was not specifically implicated in the commander’s statement or the NARSUM; and, it was not judged by the PEB to fail retention standards.  It was reviewed and considered by the Board.  There was no performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance.  After due deliberation, and in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the TIA; thus no disability rating can be recommended.  

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 the USAPDA pain policy for rating the headache condition was operant in this case and the condition was adjudicated independently of that policy by the Board.  In the matter of the headache condition and IAW VASRD §4.124a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the cervical spine condition, the Board unanimously recommends a disability rating of 20%, coded 5237 IAW VASRD §4.71a.  In the matter of the contended transient ischemic attacks condition, the Board unanimously recommends no change from the PEB determination as not unfitting. 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 recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:  

UNFITTING CONDITION	VASRD CODE	RATING	
Occipital Neuralgia	8199-8100	10%	
Degenerative Arthritis of the Cervical Spine	5237	20%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140103, 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, AR20160000437 (PD201400276)

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