RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX		CASE:  PD-2014-01559
BRANCH OF SERVICE:  Army	DATE OF PLACEMENT ONTO TDRL:  20060209
		DATE OF REMOVAL FROM TDRL:  20081230

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Administrative NCO) medically separated by the Informal from the Temporary Disability Retired List (TDRL) for “migraines” and “left ankle pain” rated at 10% each, with a combined disability rating of 20%.  

CI CONTENTION: Her migraine and left foot conditions continue to worsen.  She was not evaluated for a back condition.  Her 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 condition 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 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 – 20051021/20081113	VARD – 20060307	
TDRL Placement – 20060209	Code	Rating	Condition	Code	Rating
Proximate	
Condition		TDRL
Placement	TDRL Removal			TDRL
Placement	TDRL Removal	
Migraine Headaches Monthly	8100	30%	10%	Migraine Headaches	8100	30%	30%	
Chronic Pain, Left Ankle	5099-5003	10%	10%	Osteoarthritis, L Ankle	5010	10%	10%	
				Surgical Scars, L Ankle	7802	0%	10%	
COMBINED RATING:  40% → 20%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:

Migraine Headaches.  The service treatment record (STR) supplements and substantiates the MEB narrative summary (NARSUM) based upon a physical examination dated 17 July 2005.  On 24 May 2001, the CI developed heat stroke with rhabdomyolysis (breakdown of muscle tissue) and disseminated intravascular coagulation (blood clots in small vessels) following a 5K race. Hospitalization in the ICU (Intensive Care Unit) and vigorous intravenous fluid resuscitation was carried out.  She subsequently recovered, but developed migraine headaches and was treated with multiple migraine preventative and abortive medications, nonsteroidal anti-inflammatory drugs (NSAIDs), over-the-counter pain relievers, a beta blocker, an antidepressant used for nerve pain, a barbiturate combination, and allergy sinus medication without significant relief.  Neurological evaluation in July 2004 raised an association with her menses and heat.  Treatment with zolmitriptan (a selective serotonin receptor agonist) was instituted.  Topiramate (an anticonvulsant), was introduced when other medications failed to provide relief, but nighttime dyspnea (shortness of breath) limited its use and Depakote ER (divalproex) was prescribed for migraine prophylaxis.  In the interim allergies and sinusitis contributed to the worsening of the headaches.  Allergy testing revealed sensitivity to several species of trees, grass pollens, and dust mites and allergy shots (desensitization) was discussed.  A CT scan of the paranasal sinuses in May 2005 demonstrated small polypoid lesions in the left maxillary sinus.  With treatment the headaches decreased in frequency to several days a week.  Gabapentin (for nerve pain) and promethazine (an antihistamine) were added to the medical regimen along with Imitrex (sumatriptan) to treat the migraine.  An MRI of the brain was normal in August 2005.  X-rays of the sinuses showed no evidence of sinusitis in October 2005.  Prior to separation the CI had both regular headaches and migraine headaches associated with nausea, vomiting, photosensitivity and throbbing pain once a month.  While the Depakote was associated with fewer headaches, the CI still had difficulty functioning optimally and she was allowed to put her head down in a darkened room at work when she had headaches.  Neurologic examination was unremarkable.  Multiple medications had not offered significant relief and the CI felt she was not functioning at her adequate level in her soldiering activities or in her home life.

A permanent P3 profile was issued in June 2005 for the migraine headaches with allowances for rest in a darkened room when the migraines occurred.  She also received an L3 profile for left ankle pain (discussed below) with the limitations presumably related more to that condition rather than the migraine headaches.  The commander’s statement dated 13 June 2005 indicated the CI was physically capable of performing duties as an Administrative NCO, but frequent migraines prevented her from deploying and from participating in the mandatory rigorous training as well as sometimes requiring her to leave work early or miss work days completely.  At the MEB examination the CI noted on DD Form 2807-1 dated 17 June 2005 that she experienced headaches several times a week, woke up with headaches, and had severe migraines at least twice a month.  The MEB examiner checked off a normal neurological physical examination on DD Form 2808 dated 18 July 2005 (7 months pre-TDRL placement) and listed migraine headaches in the significant or disqualifying defects section.

At the VA Compensation and Pension (C&P) General examination dated 27 September 2005 (5 months pre-TDRL placement) the CI reported recurrent migraine headaches, which when attacks occur, she had to stay in bed and was unable to do anything.  The headache attacks averaged once every 2 months and each attack lasted for 3 days.  Treatment consisted of Depakote, Gabapentin (Neurontin), promethazine (Phenergan), and Imitrex injections.  Functional impairment was severe nausea, vomiting with impaired vision, blurred sight, and dizzy spells.  The CI claimed she had to be in bed at least 2 days before she felt any relief.  Neurologic evaluation was unremarkable.

Post-separation in April 2007, she continued to have a constant headache that “never goes away” and in the background “most all the time.”   The headache was most intense about three to four times a week and was bad enough to slow her down.  Migraines occurred two to three times a month, bad enough that she had to lie down and stay in bed for “a couple of days.”  An MRI of the brain demonstrated no significant abnormalities.  In July 2008 at the TDRL re-evaluation it was noted that she was no longer having a chronic daily headache, but had incapacitating headaches three times per week associated with nausea, photo/phonophobia (light and sound sensitivity) and the need to lie down and take the Imitrex and hydrocodone (a narcotic).  Botox (a muscle paralytic agent) and behavioral therapies were discussed and the topiramate (Topamax) dose was increased.  In a letter dated 24 November 2008, her English professor wrote the CI missed several days of class due to her migraines.

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB assigned a 30% rating using code 8100 for migraine headaches monthly for TDRL placement.  The VA likewise assigned a 30% rating using code 8100 for the migraine headaches.  The Board sought a route for a higher rating for the TDRL placement, but in the absence of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, a higher rating could not be obtained.  TDRL removal was delayed from 24 August 2007 because the CI’s prophylactic medications were altered.  The PEB assigned a 10% rating using code 8100 for migraine headaches (non-prostrating) at the TDRL removal.  The PEB noted the CI reported her severe headaches occurred three times a month and she had not gone to the Emergency Room.  However, a note dated 17 July 2008 indicated she had incapacitating headaches three times of a week.  Therefore, a 30% rating for TDRL separation is not unreasonable and is consistent “with characteristic prostrating attacks occurring on an average of one a month over last several months.”  To seek care in an ER or acute setting is not required for a 30% rating using code 8100 and while her regular headaches had diminished with treatment, the migraine headaches still occurred with a severity and frequency as when the CI was on active duty.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (Reasonable doubt), the Board recommends no change to the rating assigned at TDRL placement for the migraine headaches condition and a permanent disability rating of 30% upon TDRL removal for the migraine headaches condition.

Chronic Pain, Left Ankle.  The service treatment record (STR) supplements and substantiates the MEB NARSUM based upon a physical examination dated 17 October 2005. The CI sustained a medial malleolus fracture of her left ankle in a motor vehicle accident on 1 May 2003 and underwent the first of several surgeries on 7 May 2003.  Post hardware removal she still had pain in the posterior medial aspect of her left ankle and underwent conservative care consisting of casting, nonsteroidal anti-inflammatory drugs and injections as well as a subsequent exploration and debridement of the posterior tibial tendon of the left foot on 14 June 2004.  She then underwent lateral column lengthening of the left foot for a symptomatic flat foot deformity in March 2005.  Initially, she noted improvement, but felt her symptoms were worse than before surgery and they have not responded to conservative therapy with physical therapy and iontophoresis (to deliver medication through the skin).  She took Celebrex (Celecoxib, an NSAID) and Lortab (Hydrocodone, a narcotic and Acetaminophen, a pain reliever) for pain control and used a cane for assistance with ambulation.  X-rays of the left ankle on 12 October 2005 revealed fragments of metal imbedded within the medial malleolus and early arthritic changes in the talotibial joint of the ankle.  The CI no longer wore a supportive boot, but instead she wore a soft shoe and rated her pain as 4-5/10 (10 being the worst pain).  In November 2005 the CI had a new and different type of pain, which was sharp on the medial aspect of her midfoot.  Orthopedic range-of-motion (ROM) measurements were dorsiflexion 10 degrees, plantar flexion 50 degrees, inversion 20 degrees and eversion 10 degrees.  On physical examination she had an antalgic gait and was tender to touch over the hardware and in the medial portion of her ankle/foot.  NARSUM examination ROM measurements of the left ankle were plantar flexion 33 degrees, dorsiflexion 2 degrees, inversion 6 degrees, eversion 4 degrees compared to right ankle plantar flexion 50 degrees, dorsiflexion 6 degrees, inversion 25 degrees, and eversion 15 degrees.

A permanent L3 profile with limitations of no running, marching, and rucking as well as all military functional activities except carrying and firing a  weapon and wearing a protective mask and all chemical defense equipment was issued on 10 June 2014 and approved 4 days later.  At the MEB examination the CI reported on DD Form 2807 dated 17 June 2005 some tingling and numbness around the operative sites of the left ankle and she noted three surgical dates of surgery on the left ankle.  The MEB examiner noted on DD Form 2808, dated 18 July 2005 (7 months pre-TDRL placement) noted the CI was wearing a left ankle reinforced brace and had decreased ROM of the left ankle plantar and dorsiflexion as well as surgical scars of the left ankle.  The commander’s statement indicated that chronic ankle pain prevented her from deploying.

At the VA Compensation and Pension (C&P) examination dated 27 September 2005 (5 months pre-TDRL placement) the CI reported swelling with prolonged walking.  She had a prosthetic implant of the left ankle joint since March 2005 and there was painful motion where the screws and plate were placed.  Functional impairment included prolonged walking, standing, running, and riding bicycles.  The condition resulted in 60 times lost from work per year after the surgery.  On examination the left ankle had an inversion deformity and ROM measurements were 20 degrees dorsiflexion and plantar flexion 45 degrees with pain at the end of the motions.  Joint function was limited with repetition by pain and lack of endurance.

Post-separation X-rays dated 11 January 2007 demonstrated a stable examination status post calcaneal osteotomy, which was performed as part of the lateral column lengthening procedure.  Physical therapy ROM measurements on 23 July 2008 were dorsiflexion 10 degrees, plantar flexion 35 degrees, inversion 10 degrees and eversion 8 degrees.  X-rays dated 20 August 2008 demonstrated osteopenia (early bone resorption) with stable postoperative changes.

The TDRL removal NARSUM, based on a physical examination performed on 20 August 2008, indicated the CI’s foot symptoms had not changed at all in the prior 18 months.  The CI noted an occasional limp with significant activity and used padded insoles and a heel lift in her shoe as well as a left sided ankle stability orthosis for high strain activities.  Examination revealed well healed surgical scars both medially and laterally about her foot.  Sensation was normal and she had normal strength.  ROM measurements at the ankle were 10 degrees of dorsiflexion, 30 degrees of plantar flexion, 10 degrees of inversion and approximately 5 degrees of eversion.  There was good subtalar motion and all ROMs were without pain and no tenderness to palpation over the posterior tibial tendons or peroneal tendons or over lateral ankle/heel bones.  She had a mild planovalgus (flatfoot) and a normal gait with no significant change in her functional status or symptoms in the prior 18 months; and, she compensated well for her foot pain with orthotic use as well as ankle braces for activity.  No further orthopedic interventions were offered; and, she felt that she was at a plateau and not significantly improving or worsening.

The Board directed its attention to its rating recommendation based on the above evidence. The PEB assigned a 10% rating using code 5099-5003 for chronic pain of the left ankle rated as slight. The VA assigned a 10% rating using code 5010 for osteoarthritis of the left ankle status post fracture and multiple surgeries.  The Board sought a route to a higher rating, but in the absence of ankylosis, more persistent limited motion (the Board did note dorsiflexion was decreased 6 months pre-TDRL, but normalized within a month), malunion, or status post astragalectomy (removal of the talus bone), a route to a higher rating could not be found.  A PEB in August 2007 indicated the CI’s impairment had not sufficiently stabilized to permit final adjudication.  At TDRL removal the PEB assigned a 10% rating using code 5099-5003 for left ankle pain following multiple procedures including a lateral column lengthening.  Dorsiflexion was 10 degrees and plantar flexion was 35 degrees.  The Board sought a route to a higher rating and noted that marked limited motion of the ankle (code 5271) offered a 20% rating option, but the dorsiflexion of 10 degrees and plantar flexion of 35 degrees did not rise to the level of marked limited motion, although X-rays did demonstrate osteoarthritic changes in the talotibial joint.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (Reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the chronic left ankle pain condition.

BOARD FINDINGS:  In the matter of the migraine headaches condition, the Board unanimously recommends no change to the rating assigned at TDRL placement and a disability rating of 30%, coded 8100 IAW VASRD §4.124a upon TDRL removal.  In the matter of the chronic pain, left ankle condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  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 recharacterized to reflect permanent disability retirement, effective as of the date of her prior medical separation:

CONDITION	VASRD CODE	RATING	
		PERMANENT	
Migraine Headaches	8100	30%	
Chronic Pain, Left Ankle	5099-5003	10%	
RATING	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140319, w/atchs
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 XXXXXXXXXXXXXXXXXX, AR20160003153 (PD201401559)

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 40% 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 40% 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