RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02276
BRANCH OF SERVICE:  Army 	
DATE PLACED ON TDRL:  20030910	
DATE REMOVED FROM TDRL:  20060315

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Multichannel Transmission System Operator, medically separated from the Temporary Disability Retired List (TDRL) for “low back pain without neurologic abnormality;” “migraine headaches,” and “bilateral knee pain,” rated 10%, 0%, and 0% respectively, with a combined disability rating of 10%.

CI CONTENTION:  The CI contends the severity of her migraine headaches have increased.  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 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 – 20030925/20060223	VARD - 20040204	
Condition	Code	Rating	Condition	Code	Rating
Proximate	
		TDRL
Placement	TDRL Removal			TDRL
Placement	TDRL
Removal	
Low Back Pain without Neurologic Abnormality	5299-5237	0%	10%	Lumbosacral Strain	5237	0%	0%	
Migraine Headaches	8100	30%	0%	Chronic Migraine Headaches	8100	30%	30%	
Bilateral Knee Pain	5099-5003	0%	0%	Right Knee Strain and Retropatellar Pain Syndrome	5299-5010	10%	0%	
				Left Knee Strain and Retropatellar Pain Syndrome	5299-5010	10%	10%	
COMBINED RATING:  30% → 10%	COMBINED RATING OF ALL VA CONDITIONS:  50%	
ANALYSIS SUMMARY:  

Migraine Headaches.  According to service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI received a diagnosis of migraine headaches in April 2000.  Diagnostic imaging of the brain was normal.  Her initial headache frequency was 2-3 per week in 2000 and through various medication regimes, she reported an improved frequency of one headache every 2-3 weeks as of 5 September 2003.  Despite treatment, the migraine headache condition could not be completely resolved and the CI was referred for a MEB.  

At the MEB NARSUM examination in April 2003, 5 months prior to placement on TDRL, the CI reported having 3 to 4 migraine headaches per week lasting 1 to 2 hours per day.  “The only way she can get relief is to lay down in a quiet room and try to sleep.”  She has no Emergency Room visits but frequently seeks medical treatment at the Troop Clinic.  Under the care of a Neurologist, the CI was taking four separate medications.  Her neurologic-focused physical examination (PE) was normal.  

At the VA Compensation and Pension (C&P) examination performed 3 months prior to placement on TDRL, the CI reported having migraine headaches every 2-4 days lasting 4-8 hours each episode.  She reported that during headache flare-ups, she needs to “…lie in bed and rest and not do anything.”  “During the period of severe flare-up of migraine headache, she is unable to do any work-related activities.”  Activities of Daily Living (ADLs) were essentially unaffected.  Her VA PE was normal.  The examiner listed the diagnosis as ‘chronic migraine headaches’ with the following note:  “This is a diagnosis of exclusion and clinical features in the veteran are supportive of migraine headaches.  The diagnosis of chronic migraine headaches is upheld. “At the TDRL re-evaluation examination (17 November 2005), performed 3 months prior to TDRL removal the CI endorsed continued headaches at a rate of two per week with a 24 hour duration.  Specifically, the examiner stated, “In the last year, [the CI] has had four prostrating headaches requiring acute care.”  
    
The Board directed attention to its rating recommendation based on the above evidence.  Upon placement on the TDRL, the PEB rated the headache condition 30% (coded 8100) citing at least monthly prostrating headaches.  Upon removal from the TDRL, the PEB rated the headache condition at 0% citing prostrate headaches averaging less than one in 2 months.  The VA rated the headache condition at 30% upon TDRL placement as well as proximate to removal from the TDRL and citing frequency of prostrating headache 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.”  The VASRD provides no working definition for ‘prostrating’, and it is likely that the PEB applied prior Department of Defense Instruction that required “the Service member must stop what he or she is doing and seek medical attention.”  Although the Board has the latitude to adhere to this definition (since it is not prohibited by the VASRD), member consensus was that the Board obligation to render “fair and equitable” recommendations IAW DoDI 6040.44 justifies flexibility with this fairly rigorous threshold.  Rather than require rigid proof of medical attention for each episode to characterize it as prostrating, it is reasonable to invoke sufficient evidence that rated attacks force the abandonment of work or current activity to treat the headache.  Self-management (medication and/or sleep) under medical supervision may therefore be accommodated within this threshold.  Board members agreed that the CI’s inability to perform any work-related activities coupled with the requirement to lie in a quiet room at a frequency of at least once a month clearly supported a maximum of 30% upon TDRL placement.  The higher 50% rating was not supported because of the lack of associated severe economic inadaptability.  Board members then focused their attention as to the degree of impairment caused by the headache condition at or near the time of permanent separation.  As noted at the TDRL re-evaluation, the CI’s frequency of “prostrating” headaches was 4 in the last 12 months; equating to an average of one prostrating headache every 3 months.  The minimum positive rating under code 8100 is prostrating headache attacks averaging one in 2 months over the last few months.  Board members agreed that near the time of permanent separation, the headache attacks were considered less frequent without the minimal average of prostration.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends no change in the PEB’s adjudication of 30% for the headache condition during the period of TDRL and a rating of 0% at permanent separation.

Low Back Pain.  According to STR and the MEB NARSUM, the CI’s low back pain (LBP) condition began without direct trauma in June 2002.  There was no extension of pain or altered sensation into the lower extremities.  Diagnostic imaging and electro-diagnostic studies were normal.  Conservative treatment to include physical therapy (PT) did not relieve her back pain.  At the MEB NARSUM examination, the CI endorsed activity limiting LBP 1-2 days per month.  Her lumbar spine focused PE revealed “full forward side bending and extension.”  All other PE parameters to include gait were normal.   

At the VA C&P examination, the CI reported intermittent LBP averaging about 5 times a week with a duration of 2-4r hours each episode.  Pain radiated into both hips.  She endorsed difficulty with heavy lifting and or prolonged standing.  Her VA PE revealed low back tenderness.  Lumbar range of motion (ROM) was normal excepting flexion of 80 degrees (normal 90).  Painful motion was present.  The diagnosis was lumbosacral strain.  

At the TDRL re-evaluation examination, the CI endorsed infrequent LBP without bowel or bladder incontinence, lower extremity weakness, or radicular pain.  Her PE revealed lumbosacral tenderness with normal ROM excepting extension of 20 degrees (normal 30).  There was no evidence of painful motion.    

The Board directed attention to its rating recommendation based on the above evidence.  Both the PEB and VA coded the back condition under the primary code of 5237 (lumbosacral strain) and rated 0% upon TDRL entry.  Only the VA maintained 0% upon permanent separation whereas the PEB rated 10% at permanent separation.  Board members agreed that painful motion IAW VASRD §4.59 was supported at 10% near the time of TDRL entry and that the evidence of tenderness at the lumbosacral spine supports 10% IAW VASRD §4.71a near permanent separation. After due deliberation, considering all of the evidence and mindful of VASRD §4.3, the Board recommends a 10% rating for the low back condition at TDRL placement and no change in the rating at permanent separation.  

Bilateral Knee Pain.  Without inciting event or history of direct trauma, the CI developed bilateral knee pain in June 2002.  The STR indicated conflicting periods where one knee was worse in pain than the other with a predominance of the right greater than the left.  X-rays of both knees remained normal.  The MEB NARSUM PE revealed minimal joint line tenderness about both knees.  There was full ROM and no evidence of instability.  The CI’s diagnosis was listed as “bilateral knee pain (slight/intermittent) no objective findings.”  

At the VA C&P examination the CI endorsed constant and severe bilateral knee pain aggravated by squatting, running, jumping, and prolonged standing.  The CI’s PE revealed normal but painful ROM in both knees.  There was no evidence of locking, crepitus, or effusion about either knee.  The TDRL re-evaluation examination revealed normal ROM and joint line tenderness on the inner aspect of both knees.  There was no instability or effusion present.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB bundled the bilateral knee condition under the primary code of 5003 (degenerative arthritis) and rated 0% both upon TDRL placement as well as at permanent disposition whereas the VA separately rated each knee at 10% going into TDRL and 10% for the right knee and 0% for the left knee at permanent separation.  The STR evidence did not provide any information which would permit the Board to discriminate the performance limitations attributable to either knee over the other.  Since undue speculation would be required to conclude that impairment from either would not have unacceptably interfered with her military duties, members agreed that each knee was reasonably justified as separately unfitting.  

Board members further agreed that the totality of the CI’s knee conditions did not rise to a level of any positive impairment noting the overall and consistent normality of serial examinations both upon TDRL placement and removal.  Therefore, after due deliberation, and 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’s adjudication for the bilateral knee condition. 

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.  In the matter of the low back condition, the Board unanimously recommends a disability rating of 10%, coded 5237 IAW VASRD §4.71a upon TDRL placement and no change at permanent separation.  In the matter of the bilateral knee pain condition, the Board unanimously recommends no change in the PEBs 0% rating upon TDRL placement or upon permanent separation.  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, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
Migraine Headaches	8100	30%	0%	
Low Back Pain	5237	10%	10%	
Left Knee Pain	5099-5003	0%	0%	
Right Knee Pain	5099-5003	0%	0%	
RATING	40%	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140520, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20160010919, XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX

I accept the recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) to constructively place you on the Temporary Disability Retired List (TDRL) at 40% disability rather than 30% for the period December 10, 2003 to March 14, 2006 and then following this period no recharacterization of your separation or modification of the permanent disability rating of 10%.  Enclosed is a copy of the Board's recommendation and record of proceedings for your information.

The constructive TDRL period will result in an adjustment to your pay providing you 40% retired pay from the date of your original medical separation and then no recharacterization of your separation or modification of the permanent disability rating of 10% following the TDRL period.

The accepted DoD PDBR recommendation has been forwarded to the Army Physical Disability Agency for required correction of records and then to the U.S. Defense Finance and Accounting Service to make the necessary adjustment to your pay and allowances. These agencies will provide you with official notification by mail as soon as the directed corrections have been made. Due to the large number of cases in process, please be advised that it may be several months before you receive notification that the corrections are completed and pay adjusted.  Inquiry concerning your correction of records should be addressed to the U.S. Army Physical Disability Agency, (AHRC-DO), XXXXXXXXXXXXXXXXXXX.

A copy of this decision has also been provided to the Department of Veterans Affairs.

Sincerely,

Enclosure
 
XXXXXXXXXXXXXXXXXXX
Deputy Assistant Secretary of the Army
XXXXXXXXXXXXXXXXXXX