RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2014-00905
BRANCH OF SERVICE:  Army	BOARD DATE:  20141021
SEPARATION DATE:  20080729

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (35P10/Cryptologic Linguist) medically separated for migraine headaches condition.  This condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty.  She was issued a permanent P3 profile and referred for a Medical Evaluation Board (MEB).  Migraine headaches condition was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB (IPEB) adjudicated migraine headaches as fit for duty.  The CI appealed and a Reconsideration IPEB adjudicated the migraine headaches as unfitting, rated 10% with presumed application of the DoDI 1332.39.  The CI made no further appeals and was medically separated.

CI CONTENTION:  “I was diagnosed with migraine headaches.  My headaches occur multiple times a week and last for hours, sometimes days.  This was the case when I was separated from the Army as well.  The doctor who performed my review either misunderstood what I was saying or misquoted what I said.  He claimed that my headaches lasted for fifteen minutes.”

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 rating for the unfitting migraine headaches condition is addressed below.  Any other condition or contention not requested in this application, remain eligible for future consideration by the Board for Correction of Military Records.  

RATING COMPARISON:

Service Recon IPEB – Dated 20080521	VA* - (2 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Migraine Headaches	8100	10%	Migraine Headaches	8100	10%	20080908	
Other x 0 (Not in Scope)	Other x 23 (Not in Scope)	20080826	
Combined:  10%	Combined:  20%	
*Derived from VA Rating Decision (VARD) dated 20090225 (most proximate to date of separation (DOS))

ANALYSIS SUMMARY:  The Board acknowledges the CI’s assertions that the duration of her migraine headaches was either misunderstood or misquoted.  It is noted for the record that the Board has no jurisdiction to investigate or render opinions in reference to such allegations.  IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations.  The Board’s role is thus confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VA Schedule for Rating Disabilities (VASRD) standards, based on ratable severity at the time of separation.

Migraine Headaches.  The record indicated that the CI’s migraine-type headaches began in 2007 with increasing frequency and severity despite medications.  The commander’s statement dated 31 January 2008 noted in past history that headaches caused the CI to “consistently miss classes due to sick call and quarters” at language school, worsened in October 2007 and in December 2007 was hospitalized in Germany due to severe migraine attack.  The present condition section noted “She endured unspeakable pain and still achieved her marksmanship on the rifle range” and indicated the CI “has been good a soldier despite her capabilities.”  Permanent P3 profile for “headaches and depression” comments stated “This soldier is not in condition for deployment.  The headaches are provoked by exertion of any type.  Furthermore they are incapacitating and prevent soldier from performing her military duties.”  The P3 profile noted “incapacitating headaches.”

The treatment record and neurologic consult indicated that the CI was a reliable historian.  Neurology consult dated 5 February 2008 stated that since the last visit which was approximately 2 months ago, (the CI) reports that the “headaches have significantly improved, and she attributes this to a reduction in stress.  An MEB is due to start later this month.  Current headache frequency is approximately two per month lasting one to two hours.  Imitrex has been exceptionally effective at terminating a headache.”  On 25 February 2008 the CI was placed on 24 hours quarters for headache.  At the MEB narrative summary examination dated 5 March 2008, approximately 4 months prior to separation she reported that headaches were one to two per week with nausea.  She treated her headaches with medication (Imitrex or Zomig) and “even when I take one of those I can't do anything else”; therefore “for at least a few hours I have to be in a dark room by myself and it knocks me out.”  She reported she had to leave work when these headaches came on.  Headaches were reported as triggered by some smells, motion, certain foods, irregular sleep stress and exercise.  Neurologic examination and brain imaging (magnetic resonance imaging) were normal.  The CI comments, dated 19 May 2008, 2 months prior to separation, were made for appeal of the April 2008 IPEB that found her fit for duty.  The CI’s statement indicated the headache frequency and severity with medication use (Imitrex and Zomig) not always alleviating the pain and having side effects that “leave me weak, drowsy, dizzy, and with a soreness throughout my body.  I am left inoperative in my room oblivious to the world around me.  Headaches were noted to decrease in severity and frequency until beginning of April, while home on leave, the headaches began to increase in occurrence again.  I was forced to cancel family activities to stay in my dark room until the pain went away.”  In late April, “For a week and a half, straight I had a headache every single day.  There were a few times when I had to call my superior to let him know that I was not even capable of showing up to formation.”

At the VA Compensation and Pension exam approximately 2 months after separation, the CI reported headaches lasting “for 15-20 minutes to half an hour usually.  The headaches are of migraine quality (throbbing quality of headaches), which can last briefly to half an hour on average.  She gets the headaches about two to three times per week.  The headaches are associated with nausea, no vomiting, and associated with some phonophobia and photophobia.  The headaches in the pain and intensity scale on average are 5/10 to 7/10.  She was given Imitrex and Zomig, which have been helping.  She also takes Ibuprofen and other pain medications as needed which also alleviate the headaches.  She also takes Amitriptyline p.r.n. (as needed) for headaches.  The patient also takes bed rest on a p.r.n. basis.”  The neurologic examination was normal.  The physician’s concluding comments were:  “The headaches are moderately severe and recurrent from time to time.  If the patient gets a recurrent headache, the patient takes migraine medications which alleviate the headache.  Also she takes rest in a quiet, dark room, and after the headache is alleviated, she can continue her daily activities and routine.  The patient is not working at this point and not employed.  The headache is not severe and not prostrating in nature.”

The Board directs attention to its rating recommendation based on the above evidence.  The rating options under 8100 for migraine headaches, which are open to consideration in this case, rely on the frequency of “prostrating” attacks.  The DoDI 1332.39 (in effect during the CI’s Disability Evaluation System evaluations, but rescinded prior to her PEBs) 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.  The Board carefully considered the frequency and nature of the CI’s headaches including objective evidence and corroborating subjective evidence.

Another matter of deliberation in this case was the VASRD-intended duration of the “last several months” cited in the rating language under code 8100.  The majority of VASRD codes, which specify the historical interval for rating, provide quantified periods - typically 6 months or 12 months.  It is logically inferred that “several” in the context of the other coding descriptions would refer to an interval shorter than 6 months, since that is the lower range of the quantified codes.  Certainly to define a window described as “several months” to mean a period of one year, or only 2 months, is to ignore the greater VASRD context and requires a stretch of the English language.  This deliberation concluded with member agreement that the appropriate interval for ratable prostrating episodes in this case should be limited to 6 months.  The CI was considered a reliable historian with a diagnosis of migraine and mixed headaches.  The record indicated multiple occasions of the CI having to curtail activity and lay down with some headache episodes within the 6 months prior to separation.  The Board discussed the mixed assessment from the VA physician who documented moderately severe recurrent headaches with a need to lay down in a dark room until the headache was alleviated and his assessment that the headaches were not severe and not prostrating in nature.  Members agreed that the ratable threshold was met for characteristic prostrating attacks occurring on an average once a month over the last several months.  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 migraine 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.  As discussed above, PEB reliance on DoDI 1332.39 for rating the migraine headache condition may have been operant in this case and the condition was adjudicated independently of that instruction by the Board.  In the matter of the migraine headache condition, the Board unanimously 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 recharacterized to reflect permanent disability retirement, effective as of the date of her prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Migraine Headaches	8100	30%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140219, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

				

SAMR-RB									

MEMORANDUM FOR Commander

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 
for XXXXXXXXXXXXXXXXX, AR20150007095 (PD201400905)

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:

Encl						     
						
CF: 
(  ) DoD PDBR
(  ) DVA