RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00413
BRANCH OF SERVICE:  Army 	
DATE OF PLACEMENT ONTO TDRL:  20040501	
DATE OF REMOVAL FROM TDRL:  20060425

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E6, Medical Equipment Repairman, medically separated from the Temporary Disability Retired List (TDRL) for “migraine headaches” and “chronic bilateral knee pain,” rated 0% and 0%, respectively, with a combined disability rating of 0%.

CI CONTENTION:  His conditions were rated higher by the VA than the PEB.  The CI’s complete submission, with attachments, is at Exhibit A.  

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  It is limited to those conditions determined by the Physical Evaluation Board (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 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 PEB – 20060412	VARD - 20060802	
Condition	Code	Rating	Condition	Code	Rating
	
		TDRL
Placement	TDRL Removal				
Migraine Headaches	8100	30%	0%	Migraine Headaches…	8100	30%	
Chronic Bilateral Knee Pain	5099-5003	10%	0%	Right Knee Tendonitis	5024-5260	10%	
				Left Knee Degenerative Joint Disease	5010-5260	10%	
Left Ankle Pain	Not Unfitting	Chronic Left Ankle Sprain	5271	10%	
Sensorineural Hearing Loss		Bilateral Hearing Loss	6100	0%	
		Tinnitus	6260	10%	
Seasonal Allergic Rhinoconjunctivitis		Allergic Rhinitis	6522	NSC	
COMBINED RATING:  40% → 0%	COMBINED RATING OF ALL VA CONDITIONS:  60%	
ANALYSIS SUMMARY:  

Migraine Headache Condition.  The service treatment record (STR) noted that the CI had a long history of vascular type headaches that became much worse and more frequent after sustaining a concussion in 2001.  Initial brain imaging scans were normal.  Neurology diagnosed severe migraine headaches.  The headache complaint was addressed in numerous STR entries at a near daily frequency.  On 17 February 2006, the neurology provider stated, “[The CI] typically has four to five headaches a month where he becomes totally incapacitated.”  There were no STR entries for emergent treatment.  The narrative summary (NARSUM) leading to TDRL placement documented (by history) a prostrating headache “…approximately 2 times per month on average”.  The physical examination (PE) as documented on the DD Form 2808, 25 November 2003, was normal in regards to a neurological condition.  His DD Form 2808 diagnosis was listed as post-traumatic headaches.  On 1 May 2004, the CI was placed on the TDRL at 30% impairment according to VASRD rating guidelines.  The TDRL re-evaluation examination was performed on 7 December 2005 (19 months after TDRL entry) whereby the CI endorsed weekly (on average) prostrating headaches which were “…unresponsive to various treatment modalities.”  His PE was normal.  The provider noted medication did help his symptoms.  His diagnosis remained as migraine headache, incapacitating 4 to 5 times per month.  The corresponding IPEB of 12 April 2006 permanently separated the CI at 0% impairment citing less than one prostrating attack in several months.  Additionally, the PEB listed “No significant change in management in the past interval.”  

The Board directed attention to its rating recommendation based on the above evidence.  Both the PEB and VA utilized the same VASRD code of 8100 (migraine) and rated 30% upon TDRL placement.  Rating guidance under diagnostic code 8100 is based on the frequency of “prostrating attacks” over the “last several months.”  The VASRD does not further define prostrating attacks however commonly accepted definitions include “utter physical exhaustion or helplessness” (Webster's New World Dictionary of American English), “complete physical or mental exhaustion” or “extreme exhaustion or powerlessness” (Dorland's Illustrated Medical Dictionary).  The Board noted that the CI’s self-reported history in terms of headache frequency had not significantly changed over the course of TDRL and actually worsened well after TDRL removal.  The Board clarifies that subjective symptom improvement or worsening during the period of TDRL does not provide the basis for its disability rating recommendation at the time of permanent separation.  The Board assesses the fairness of the TDRL rating decision based on the evidence proximate to temporary retirement; and, assesses the fairness of the permanent rating decision based on the evidence proximate to final separation. The Board, IAW DoDI 6040.44, may not recommend a lower rating than that conferred by PEB; and, the TDRL rating is not considered a benchmark for the Board’s permanent rating recommendation.  It is recognized that, in practice, PEBs may liberalize the TDRL rating (to the extent allowable) to meet the requisite 30% threshold permitting a period of TDRL.  This is in the member’s best interest at the time of temporary retirement, and does not mean that a lower rating at the time of permanent separation was necessarily unfair, even if perceived as incongruent with the subjective severity from one rating to the next.  Therefore, the sole basis for the Board’s permanent recommendation is its assessment of disability based on evidence proximate to the date of permanent separation compared to VASRD criteria in effect on that date.  Board members first agreed that the presented evidence did not support a rating higher than the 30% at TDRL placement.  Board members then focused their attention on finding evidence for a §4.117 rating higher than the 0% permanent rating adjudicated by the PEB at TDRL removal.  Members extensively considered and deliberated over the numerous reports of prostration in reference to the headache condition and acknowledged that all reports were subjective and self-reported by the CI without objective verification.  Despite the number of attacks, Board members agreed that absent objective evidence of prostration does not support any positive rating at TDRL removal.   

Bilateral Knee Condition.  The CI had a long history of bilateral knee pain; left greater than right.  Within a 2 year period, he underwent multiple surgeries to his left knee and non-surgical therapy to his right knee.  X-rays revealed minimal degenerative changes in the left knee and normal findings in the right knee.  Due to persistent bilateral pain, he was permanently profiled and referred to a MEB.  At the MEB examination, the CI described constant bilateral knee pain that required daily use of pain medication.  His PE revealed compressive tenderness upon the right knee and a greater degree of tenderness/pain on the left.  Both knees had full range of motion.  His pain was assessed as ‘moderate’ and ‘constant.’  In reference to the knee conditions, the TDRL evaluation appeared to be a copy of the PE findings from the prior MEB/TDRL entrance examination.        

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB bundled the knee conditions and analogously coded under 5003 (degenerative arthritis) and rated 10% at TDRL placement and 0% upon permanent separation.  The VA separately coded each knee at 10%.  The evidence makes it clear that the left knee was associated with more disability than the right in this case and the disparity was such that the question was raised of whether the right knee was reasonably justified as separately unfitting.  Upon deliberation, Board members acknowledged that both knees were considered to fail retention standards; both were implicated by the NARSUM; and, both were permanently profiled.  Since the disability attendant to the right knee could not be isolated by the reported clinical evidence, or extricated from the fitness implications of the bilateral limitations; members concluded that the right knee condition should be likewise conceded as reasonably unfitting.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that each knee be separately unfitting and analogously coded under 5003 at 10% upon TDRL placement and 10% at permanent retirement.    

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the left ankle condition, sensorineural hearing loss and seasonal allergies were not unfitting.  Although the left ankle and sensorineural hearing loss conditions were profiled, they were not implicated in the commander’s statement and were not judged to fail retention standards.  All were reviewed and considered by the Board.  There was no performance based evidence from the record that neither of these conditions significantly interfered with satisfactory duty performance.  After due deliberation 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 and no additional disability ratings are recommended.

BOARD FINDINGS:  In the matter of the migraine headache condition and IAW VASRD §4.117a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the bilateral knee pain condition, the Board unanimously recommends separate ratings for both the left and right knee with a disability rating of 10% at TDRL placement and 10% at TDRL removal for both knees, coded 5099-5003 IAW VASRD §4.71a.  In the matter of the contended left ankle pain, sensorineural hearing loss and seasonal allergic rhinoconjunctivitis conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.  There were no other conditions within the Board’s scope of review for consideration.  The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
Migraine Headaches	8100	30%	0%	
Left Knee Pain	5099-5003	10%	10%	
Right Knee Pain	5099-5003	10%	10%	
RATING	40%	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140109, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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 XXXXXXXXXXXXXXXXXX, AR20160009863 (PD201400413)

1.  I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual.  Under the authority of Title 10, United States Code, section 1554a, accept the Board’s recommendation to modify the individual’s disability rating to 20% without re-characterization of the individual’s separation.  This decision is final.  

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.   

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