RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01125
BRANCH OF SERVICE:  Army	Separation Date:  20080327

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Metal Worker, medically separated for “migraine headaches,” with a disability rating of 10%.  

CI CONTENTION:  Her migraines and back pain have worsened and negatively impact her daily activities, and she has fibromyalgia.  The applicant’s complete submission 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 - 20080220	VARD - 20081008	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Migraine Headache	8100	10%	Migraines	8100	30%	STR	
Low Back Pain	Not Unfitting	Spondylosis Lumbar Spine	5240	0%	STR	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Migraine Headaches.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI had a history of headaches prior to Service that were treated with Midrin.  Beginning approximately November 2005, the CI experienced worsening headaches that were eventually diagnosed as migraine headaches.  Beginning in November 2005, the CI experienced an episode of a worsening headache and required injectable medications for both headache pain and vomiting.  She was restricted to Quarters for 24 hours.  She was again seen for a 3 day migraine headache in June 2006 and prescribed Midrin.  Radiographs of the brain showed no acuter processes.  
At the time of the neurology clinic appointment on 8 November 2007 the examiner recorded that the CI had “headaches that occur on a near daily basis with a few severe ones a month” and that she had been to the ER several times in the last month because every time she wore Kevlar she got an incapacitating headache.  The examiner noted that the CI “cannot wear Kevlar without suffering a severe headache requiring an ER visit.”  Despite treatment, with multiple medications (failed therapy), the CI’s migraine headache condition could not be adequately treated to meet the physical requirements of the CI’s military specialty and was referred for an MEB.  Review of treatment records reveals 6 encounters of care for headache in the 8 months before separation.  Of these, four were for acute headache and at least three were ER visits requiring injected medication.  

At the MEB NARSUM examination on 12 February 2008, approximately 2 months prior to separation, the examiner documented that “once or twice a month she has a migraine.  These headaches are prostrating, requiring her to stop whatever she is doing and get treatment.  If she treats the pain early enough, it does not interfere with sleep.”  The examiner further noted that the CI had failed all migraine medication therapy prescribed by her neurologist.  Under the section - details of reported missed duty - the examiner documented “for medical appointments, quarters.”  There was no physical exam performed.  There was no VA Compensation and Pension exam performed.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the migraine headache condition 10% (code 8100 migraine), citing migraine headaches were aggravated by wearing of Kevlar and working with welding and noting three ER visits and that headaches were rated as averaging one in 2 months over the last several months.  The VA rated the headache condition 30% (code 8100) citing the STR for evidence of prostrating attacks that occurred on an average of once a month over the last several months.  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 deliberated if the frequency of the CI’s prostrating headaches at the time of separation merited a disability rating of 30% (average of once a month) or a 10% (averaging one in 2 months) over the last several months.  Although there was an average of ER visits of only 1 in 2 months, the VASRD criteria do not include the older (rescinded the month prior to the PEB) DoDI 1332.39 prostrating definition that required seeking medical attention for each event.  The Board adjudged that the MEB examiner’s description of prostrating headaches “once or twice a month” most closely matched the 30% criteria of characteristic prostrating attacks occurring on an average once a month over 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.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that low back pain was not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The low back pain was not profiled or implicated in the commander’s statement and was not judged to fail retention standards.  All were reviewed and considered by the Board.  The CI was seen for back pain in 2006 and evaluated for complaints of chronic back pain treated with medication in January 2008.  Radiographs (MRI) documented degenerative changes (spondylosis) and no evidence of disc herniation.  There was no performance-based evidence from the record that low back pain 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 contended low back pain condition and so no additional disability rating are recommended.  

BOARD FINDINGS:  In the matter of the migraine headache condition, the Board unanimously recommends a disability rating of 30%, coded 8100 IAW VASRD §4.124a.  In the matter of the contended low back pain 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 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 prior to 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 20140303, 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 XXXXXXXXXXXXXXXXXXXX, AR20160005817 (PD201401125)

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 re-characterize 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