RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01032
BRANCH OF SERVICE: Army	SEPARATION DATE:  20060109

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-6 (Tracked Vehicle Mechanic) medically separated for chronic right ankle pain and instability and migraine headaches, rated 10% and 0%, respectively.

CI CONTENTION: The CI contends other medical conditions were not considered by the MEB/PEB.  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 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:  
   
Service IPEB – Dated 20051121	*VA - 1 and 3 Months Post-Separation	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Right Ankle Pain	5099-5003	10%	Right Ankle Pain	NSC	20060426	
Migraine Headaches	8100	0%	Migraine Headaches	8100	0%		
Hearing Loss	Not Unfitting	Bilateral Hearing Loss	6100	0%	20060214	
Other MEB/PEB conditions x 0 (Not in Scope)	Other x 10		
COMBINED RATING:  10%	COMBINED RATING:  50%	
*Derived from VA Rating Decision (VARD) dated 20060525 (most proximate to date of separation [DOS]).   

ANALYSIS SUMMARY: 

Right Ankle. According to service treatment records and the MEB narrative summary (NARSUM), the CI’s right ankle pain and instability began in February 2005 after stepping into a hole during physical training.  Radiographic studies showed sprain or partial tearing with scarring of the anterior talofibular ligament and two small signal changes in the talar dome implying contusion and a small effusion.  He was evaluated by orthopedic surgery and determined to be a candidate for a lateral ligament reconstruction.  The CI was undergoing an MEB and therefore the surgery was delayed until discharge from the military. The goniometric range-of-motion (ROM) evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Right Ankle ROM
(Degrees)	MEB ~3 Mo. Pre-Sep
	VA C&P ~3 Mo. Post-Sep
	
Dorsiflexion (20 Normal)	15	0	
Plantar Flexion (45)	45	40	
§4.71a Rating	10% 	0%	

At the NARSUM examination performed 2 months prior to separation, the CI reported 5/10 right ankle pain with use of an ankle brace for stability.  The examiner referenced orthopedic examination findings from October 2005 of marked tenderness over the lateral ligament, positive laxity testing, and normal sensation and muscle strength.  At the VA Compensation and Pension (C&P) exam performed 3 months after separation, the CI reported  ankle instability and swelling with twisting  of his right ankle 2-3 times per week.  He wore high-top boots for support.  The right ankle examination showed tenderness to palpation, but no evidence of painful motion, edema, effusion, instability, weakness, abnormal movement, guarding of movement.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the right ankle condition at 10%, coded 5099-5003, analogous to degenerative arthritis, citing “pain slight, frequent.”  The VA did not service-connect the right ankle condition.  There was no limitation of dorsiflexion or plantar flexion that supported a minimum rating under the VASRD diagnostic code 5271 for limitation of motion.  However, there was evidence of painful motion and instability causing functional loss supporting the 10% rating (based on §4.59, §4.40 and §4.45).  The Board concurred that a 10% rating for functional loss (§4.40, §4.45) due to instability and pain was appropriate as adjudicated by the PEB.  The Board considered alternative VASRD ankle and analogous codes, but all were less applicable and not advantageous to a higher rating. Considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), members agreed that a disability rating of 10% for the right ankle condition was appropriately recommended in this case

Migraines.  According to service treatment records and the MEB narrative summary (NARSUM), the CI had a history of migraine headaches since 2003 treated with Verapamil, Neurontin, and Maxalt.  Beginning approximately June 2005, the CI experienced worsening headaches occurring 3-4 times per week.  Despite treatment, the CI’s migraine headache condition could not be adequately treated to meet the physical requirements of the CI’s military specialty and he was referred for a Medical Evaluation Board (MEB).  The NARSUM and the VA C&P neurologic examinations were normal. Review of treatment records reveals two emergency department encounters of care for headache in the 12 months before separation.  

The Board directed attention to a rating recommendation based on the above evidence.  The PEB rated the headache condition at 0% using migraine code 8100, citing prostrating attacks averaging 1 in 2 months over the past several months.  The VA rated the headache condition 0% using code 8100, citing insufficient medical evidence of prostrating attacks.  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).  Review of service treatment records in the 12 months prior to separation does not show prostrating headaches occurring on average 1 in 2 months or more frequently to support a rating higher than the 0% adjudicated by the PEB.  Considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), members agreed that a disability rating of 0% for the migraine headache condition was appropriately recommended in this case.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that hearing loss 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 hearing loss condition was profiled, but was not implicated in the commander’s statement and not judged to fail retention standards.  All were considered by the Board.  There was no performance based evidence from the record that hearing loss condition 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 for the contended condition and therefore no additional disability rating is 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.  The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised.  As discussed above, PEB reliance on the USAPDA pain policy for rating right ankle condition was operant in this case and the condition was adjudicated independently of that policy by the Board.  In the matter of the right ankle pain and instability 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.  In the matter of the contended hearing loss 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. 

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 20140225, with attachments
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 XXXXXXXXXXXXXXXXXXXXXXXXX, AR20160002570 (PD201401032)

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,   I accept the Board’s recommendation and hereby deny the individual’s application.  
This decision is final.  The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

 BY ORDER OF THE SECRETARY OF THE ARMY:

Enclosure

CF: 
(  ) DoD PDBR
(  ) DVA