RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01391
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20050322

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E6, Military Police, medically separated for “chronic subjective low back pain;” “posttraumatic stress disorder, (PTSD)” and “migraine headaches,” rated 10%, 10% and 0% respectively, with a combined disability rating of 20%.  

CI CONTENTION:  The CI requested that the Board review his unfitting conditions.  The CI’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 based upon a 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 - 20050308	VARD - 20050818	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain (LBP)	5299-5237	10%	Degenerative Disc Disease with Herniated Nucleus Pulposus (HNP) at L5-S1	5237	20%	20050510	
PTSD	9411	10%	PTSD	9411	10%		
Migraine Headaches	8100	0%	Migraine Headaches	8100	30%		
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Low Back Pain.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s low back pain condition began in November 2003 while removing a door from a HMMWV during training.  At eight separate appointments between December 2003 and August 2004, 7 to 15 months pre-separation, the examiners described the thoracolumbar range of motion as “full,” “good,” or “within normal limits.”  At an orthopedic consultation in February 2004, the examiner further documented normal gait, spinal curvature, and posture with tenderness at L5-S1 in the midline and in the paralumbar musculature.  Radiographic imaging (MRI) in February and June 2004, 13 and 9 months pre-separation, both showed L5-S1 degenerative disc disease with protrusion vs herniation.  There was no surgical indication, and conservative treatment did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “low back pain,” for PEB adjudication.  

At a neurosurgery appointment in July 2004, 8 months pre-separation, the CI reported persistent pain radiating to the right lower extremity with associated numbness.  The examiner documented normal (5/5) strength with “slightly decreased” reflexes in the right lower extremity with evidence of radiculopathy (straight leg raise testing) bilaterally.  Electrophysiologic testing in August 2004, 7 months pre-separation, documented no evidence of radiculopathy.  

At the MEB examination on 6 December 2004, 4 months pre-separation, the CI reported constant low back pain with right lower extremity paresthesias; and pain aggravated by lifting, prolonged sitting/standing, and wearing military gear.  The examiner noted tenderness of the paraspinal muscles, flexion to 45 degrees (normal 90), and extension to 10 degrees (normal 30).  The physical examination showed there was a normal gait with normal lower extremity strength and reflexes and no evidence of radiculopathy.  There was paraspinal tenderness and spasms.  The examiner referred to ranges of motion (ROM) performed by physical therapy (PT) with trunk flexion limited by pain to 55 degrees (normal 90).  Assistance was needed at the PT examination for the CI to move from sitting to standing.  A neurology addendum in December 2004 documented a normal gait.  

At the 10 May 2005 VA Compensation and Pension (C&P) neurological evaluation, 2 months post-separation, the CI reported that his condition was “progressively worse.”  The examiner documented a normal gait, normal strength, with no muscle atrophy or spasm.  There was painful motion beginning at 60 degrees, with flexion to 90 degrees.  There was slightly decreased sensation to light touch at the right lateral foot.  

The Board directed attention to the rating recommendation based on the above evidence.  The PEB rated the low back pain condition 10%, coded analogously to 5299-5237 (low back strain), citing degenerative disc disease with chronic subjective pain, and pain-limited range of motion, without evidence of neurologic deficit.  The VA rated the low back pain condition 20% coded 5237 (low back strain), based on the VA C&P examination 2 months after separation, citing “painful motion with flexion from 60 to 90 degrees…”  An additional 10% rating was assigned for a right lower extremity radiculopathy, coded 8720 (neuralgia, external popliteal nerve), citing VA examination findings of decreased pain and light touch sensation.  

The Board considered the evidence for a higher than 10% rating for the low back pain condition.  The DD Form 2808 Report of Medical Examination and the PT measurements documented for the MEB examination both showed a flexion of 45 and 55 degrees, respectively, that would support a 20% rating at separation.  There was no evidence of flexion to 30 degrees or less to support a higher than 20% rating.  There was no documentation of incapacitating episodes requiring bed rest prescribed by a physician.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority recommends a 20% rating coded 5237 (lumbosacral strain) for the low back pain condition.  The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI had radiographic evidence of a herniated disc and there were symptoms of radiating pain documented in the treatment records; however, examinations indicated normal strength, reflexes and gait, and the sensory changes did not affect his job.  Electrophysiologic studies did not provide evidence of radicular involvement, and physical examinations proximate to separation revealed no objective findings of radiculopathy that would impact duty performance.  The presence of functional impairment with a direct impact on fitness is the key determinant in the Board’s decision to recommend any condition for rating as additionally unfitting.  While the CI may have suffered additional pain from the nerve involvement, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  Therefore the critical decision is whether or not there was a significant motor weakness which would impact military occupation-specific activities.  There was no evidence in this case that motor weakness existed to any degree that could be described as functionally impairing.  The Board therefore concluded that an additional disability rating was not justified on this basis.  

Migraine Headaches.  According to the STRs and the MEB NARSUM, the CI had a history of headaches since September 2004, 6 months pre-separation, following his return from Iraq.  Treatment did not result in improvement sufficient to allow unrestricted duty and the CI was referred for an MEB.  The MEB forwarded “migraines without aura” for PEB adjudication.  At a neurology consultation in December 2004, 4 months pre-separation, the CI reported “prostrating” headaches, associated with photo and phonophobia, that occurred once a week and lasted a couple of hours.  Preventive medicine was initiated and his abortive medicine was continued.  A neurology addendum to the NARSUM, written on 8 February 2004, 2 months pre-separation, noted no change in the frequency or duration of the headaches.  A medication profile from March 2003 through March 2005 listed refills of the abortive medications obtained in August and September of 2004, and February 2005.  

The commander’s statement on 29 November 2004 did not address the migraine headache condition or the impact on his duty performance.  The record contained two separate memorandums from his first line supervisor and from his operations Sergeant Major (SGM), commenting on lost duty time due to headaches.  His first line supervisor reported 3 missed duty days in the two months pre-separation and that he was sent home early on 2 other work days one in January and one in February 2005.  The operations SGM recalled the CI missing 2 days of work and being sent home early 2 days in the 2 months pre-separation.  

At the 10 May 2005 VA C&P examination the CI reported having 2-3 headaches per month described as “prostrating,” and continued taking abortive and preventive medications for his headaches.  The examiner noted significant negative effects on his occupational ability, to include decreased concentration and mobility, vision and hearing difficulties, lack of stamina, and pain, resulting in increased absenteeism.  

The Board directed attention to the rating recommendation based on the above evidence.  The PEB rated the headache condition 0% coded 8100 (migraine) citing DoDI 1332.39.  The VA rated the headache condition 30% coded 8100 (migraine) based on VA C&P examination 2 months after separation, citing prostrating headaches 2-3 times per month.  The rating options under 8100 for migraine headaches, which are open to consideration in this case, rely on the frequency of “prostrating attacks” over the “last several months.”  The DoDI 1332.39 (in effect at separation but since rescinded) 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.  The Board carefully considered the results of the neurology consultation and addendum along with the written statements from the CI’s supervisors to accurately assess the overall disability picture (§4.2) at the time of separation.  Review of the record supported a conclusion that, during the several months prior to separation, the ratable threshold was met for characteristic prostrating attacks occurring on an average of once a month over the last several months.  A rating of 30% was therefore justified.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a separation rating of 30% for the migraine headache condition coded 8100.  

Posttraumatic Stress Disorder (PTSD).  According to the United States Court of Federal Claims, the CI elected to opt-in as a participant in the class-action Posttraumatic Stress Disorder (PTSD) lawsuit (Sabo, et al v. United States).  Under the provisions of the settlement agreement and stipulation of order of dismissal, the disability rating assigned for the PTSD condition is final and may not be subject to further review by any military review board or court; and so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the chronic LBP pain, the Board majority recommends a disability rating of 20%, coded 5237 IAW VASRD §4.71a.  In the matter of the migraine headaches condition, the Board unanimously recommends a disability rating of 30%, coded 8100 IAW VASRD §4.71a.  In the matter of the contended PTSD condition, the Board unanimously agrees that it cannot recommend it for additional disability rating.  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 of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Low Back Pain	5237	20%	
PTSD	9411	10%	
Migraine Headaches	8100	30%	
COMBINED	50%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140317, 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 XXXXXXXXXXXXXXXXXXXXX AR20160016540 (PD201401391)

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 50% 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 50% 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