RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01757
BRANCH OF SERVICE:  Army 	
DATE PLACED ON TDRL:  20040826	
DATE REMOVED FROM TDRL:  20050921

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E1, Trainee, medically separated from the Temporary Disability Retired List (TDRL) for “migraine headaches” and “low back pain,” rated 10% and 0%, respectively, with a combined disability rating of 10%.

CI CONTENTION:  The CI contends that her medical conditions had not resolved when she was removed from TDRL, she was just not able to make it to her doctor appointments because of personal circumstances.  She asserts that one of her conditions was worse than it was when she went onto the TDRL, but she did not specify which condition.  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 –20040830/20050920	VARD - 20050315	
Condition	Code	Rating	Condition	Code	Rating
Proximate	
		TDRL
Placement	TDRL Removal			TDRL
Placement	TDRL
Removal	
Migraine Headaches	8100	30%	10%	Migraine Headaches	8100	0%	0%	
Low Back Pain	5299-5237	10%	0%	Lumbar Strain	5237	20%	20%	
COMBINED RATING:  40% → 10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:
  
Migraine Headaches.  According to the service treatment record (STR), the Medical Evaluation Board (MEB), and TDRL narrative summaries (NARSUM), the CI had a history of migraine headaches since May 2003.  Medication treatment did not result in improvement sufficient to allow unrestricted duty and the CI was referred for MEB.  The MEB forwarded “migraine headache with weekly incapacitation” for PEB adjudication.  The PEB found the migraine headaches unfitting, rated 30%, and placed the CI on the TDRL.  At the VA evaluation (2 months after TDRL placement), the CI reported throbbing behind the eye with headaches occurring 4-5 times per month with an 8-hour duration each episode.  Her central neurologic examination was normal and the provider noted that the CI’s headaches were related to stress, lack of sleep, and caffeine.  A TDRL evaluation was performed on 3 May 2005 (5 months prior to TDRL removal) whereby the CI’s headache frequency was unchanged, but with varying duration from hours to 3 days.  A complete neurologic examination was normal. 

The Board directed attention to its rating recommendation based on the above evidence.  Upon TDRL placement, the PEB rated the headache condition at 30% (coded 8100; migraine headache) citing weekly incapacitation.  Upon removal from the TDRL, the PEB rated the same condition at 10%, citing a historical summary of the condition.  The VA rated the headache condition at 0% both upon TDRL placement and removal, citing no evidence of prostrating attacks.  The unequivocal code for rating headache is 8100, and the VASRD §4.124a rating schedule rests heavily on the frequency of “characteristic prostrating attacks … over last several months”.  Board members first deliberated if the CI’s 30% rating was appropriate going into TDRL.  Board members agreed that although the CI’s headaches may have been long-lasting per each episode, the higher criterion of “very frequent completely prostrating headache attacks” was not supported.  Therefore, the Board concluded that there was insufficient cause to recommend a change in the PEB’s 30% adjudication for the migraine headache condition at TDRL placement.  The Board next deliberated if the CI’s 10% rating was appropriate upon permanent disposition.  After due deliberation, considering all of the evidence, the Board concluded that in the absence of the ‘prostration’ criterion, there was no support for any degree of impairment above the PEB’s current 10% at TDRL removal.

Low Back Pain.  According to the STR, MEB, and TDRL NARSUMs, the CI’s back condition began in June 2003 after a fall in basic training.  Radiologic studies revealed a bi-level disc protrusion of the lower lumbar spine.  An orthopedic physical examination (PE) was normal.  Despite conservative treatment, the back condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and she was referred for MEB.  The MEB forwarded “non-radicular low back pain (LBP), pain is moderate and constant” for PEB adjudication.  Pursuant to another primary diagnosis, the CI was placed on the TDRL with the unfitting back condition rated at 10% impairment.   

The MEB examination was performed 11 months prior to TDRL placement and was reported as normal with non-painful range of motion (ROM) of the thoracolumbar spine.  Five months prior to TDRL placement, the CI complained of constant LBP and a pain clinic evaluation revealed “good ROM with pain” as well as tenderness in the lumbar spine.  All other PE parameters were normal.  At the 18 October 2004 VA Compensation and Pension (C&P) evaluation, performed 2 months after TDRL placement, the CI reported discomfort along her lumbar spine which worsened with prolonged standing/walking or running.  Additionally, she reported radicular pain (associated with numbness and tingling) extending into her left leg.  She maintained the ability to perform “activities of daily living or work-related responsibilities.”  Her PE revealed a normal gait and posture.  There was thoracolumbar tenderness as well as decreased and painful ROM.  Flexion was significantly decreased at 30 degrees (normal = 90) whereas all other directional ROM parameters were near normal.  A TDRL evaluation was performed on 20 June 2005 (3 months prior to TDRL removal) whereby the CI’s spinal-focused PE (excepting ROM measurements) was normal despite having persistent low grade back pain.  Physical therapy (PT) measured thoracolumbar ROM on 12 July 2005, (2 months prior to TDRL removal) which revealed a global decrease in all directions with painful motion.  Forward flexion was measured at 60 degrees and the combined ROM was 165 degrees.

The Board directed attention to its rating recommendation based on the above evidence.  Upon placement on the TDRL, the PEB rated the back condition at 10% (coded 5299-5237; lumbosacral strain) citing localized tenderness.  Upon TDRL removal, the PEB rated the same condition at 0% indicating a normal physical examination on the 20 June 2005 examination.  The VA rated the back condition at 20% at the time of TDRL placement and removal despite the fact ROM flexion evidence cited by the VA equated to a VASRD rating of 40%.  

Board members first considered and agreed that in the absence of an interim additional injury or worsening spinal pathology, the documented 30 degrees of forward flexion at 2 months after TDRL placement was not consistent with the majority of other examinations contained in the case file and therefore, probative examinations that revealed painful motion and or tenderness supported a 10% impairment rating near the time of TDRL placement.  With regards to TDRL removal, the Board majority agreed that the continued limited ROM of the low back to 60 degrees of forward flexion supported a 20% impairment.  There was no evidence of intervertebral disc syndrome (IVDS) which resulted in incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under the alternate VASRD formula (for IVDS).  There was also no evidence of an associated unfitting radiculopathy for consideration of a separate peripheral nerve rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), all Board members recommend no change in the impairment rating upon TDRL entry and a modification rating of 20% for the back condition, coded 5237, upon TDRL removal.    

BOARD FINDINGS:  In the matter of the migraine headache condition and IAW VASRD §4.124a, the Board unanimously recommends no change in the PEB adjudication at TDRL placement or at TDRL removal.  In the matter of the low back condition, the Board unanimously recommends no change in the PEB’s adjudication at TDRL entry and the Board majority recommends a modification to 20%, coded 5237 IAW VASRD §4.71a upon TDRL removal.  The single voter for dissent recommended to change to the 10% rating for the low back pain condition at TDRL removal and did not elect to submit a minority opinion.   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	RATING	
		PERMANENT	
Migraine Headaches  	8100	10%	
Low Back Pain	5237	20%	
COMBINED	30%	

The following documentary evidence was considered:
Exhibit A.  DD Form 294, dated 20140422, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record
SAMR-RB
												
14 NOV 2016						

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, AR20160016543 (PD201401757)

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 suspense date]:

	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