RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02377
BRANCH OF SERVICE:  Army	BOARD DATE:  20150629
SEPARATION DATE:  20090302 

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4, Combat Engineer, medically separated for migraine headaches, which could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty (MOS).  He was issued a permanent P3 profile and referred for a Medical Evaluation Board (MEB).  The condition “disabling headaches (migraine)” was forwarded as the sole submission to the Physical Evaluation Board (PEB) IAW AR 40-501.  The Informal PEB adjudicated “migraine” as unfitting, rated 10% (specifying no deduction for a pre-existing condition), citing criteria of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.  

CI CONTENTION:  “Member condition persists.  Veteran also was never rated for PTSD or Sleep Apnea.  Sleep Apnea diagnosis was not discovered until sleep study was performed.  Please consider all conditions.”  

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 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/Naval 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:  

IPEB – Dated 20090116	VA* (~2 Mo. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Migraine	8100	10%	Migraine Headaches	8100	10%	20090423	
Other x 0	Other x 13	
RATING:  10%	RATING:  50%	
*Derived from VA Rating Decision (VARD) dated 20090820 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:  

Migraines.  The service treatment record (STR) documented that the CI had headaches that were “infrequent and not disabling” and “initially managed …with over the counter medications” prior to entering the service, but had become worse after entry.  Imaging and ancillary evaluations were normal, as were multiple neurologic examinations.  Various medication trials (prophylactic and treatment) were met with limited success.  There was STR documentation of headache episodes which required emergent medical care in February, March, June, October, and December of 2008; and, two additional visits for the same in January and February of 2009.  

The narrative summary (NARSUM) was performed on 13 November 2008 (4 months prior to separation).   The examiner (a neurologist) documented “headaches 2-3 times a week” which were “severe ... can last all day ... [with] ... nausea ... [and] ... occasional vomiting” and sometimes with reported “blackouts ... which cause him to forget what he is doing.”  The assessment was “frequent headaches that are incapacitating and interfering with his duty ... consistent with migraine ... has tried multiple agents which have not been successful.”  The commander’s performance statement noted that the CI was “doing what is expected of him ... [and] ... could be useful in another MOS;” and, did not document any work loss due to migraines (“yes” for query “works an 8-hour duty day”).  

At the VA Compensation and Pension (C&P) exam performed 23 April 2009 (2 months after separation) the CI was not yet employed, and reported headaches “about three to four times per week ... [stating that] ... he cannot function…just goes to bed…or lays on the couch.”  The VA file documents a positive response to a different treatment regimen soon after separation, and there are no documented visits for rescue treatment until the second year after separation.  

The Board directed attention to its rating recommendation based on the above evidence.  The §4.124a rating for headaches (code 8100) rests on the presence and frequency of “characteristic prostrating attacks ... over the last several months.”  The VASRD does not provide a definition of “prostrating,” but member consensus was that ratable headaches require reasonably convincing evidence that they force the abandonment of work or current activities.   The 10% rating under code 8100 is for an average frequency of “one in two months,” that for 30% is “once a month,” and that for 50% requires frequency and severity “productive of severe economic inadaptability.”  The Board considered whether the STR evidence met the criteria for a 50% rating.  Although there were frequent episodes with potentially incapacitating features by subjective report, the commander’s statement does not suggest that the CI was forced to abandon work with great frequency; and, member consensus was that only those episodes with documented treatment encounters were reasonably characterized as prostrating.  The PEB’s DA Form 199 decision cited documentation of four such episodes between November 2007 and October 2008, and the VA rating decision listed the same four episodes.  This evidence was consistent with the 10% criteria, although it did not capture all of the encounters identified in the STR as elaborated above.  This STR reflects seven “prostrating” (as agreed above) episodes over a 13-month period preceding separation, with none (captured at least) in the post-separation interval probative to rating frequency; but, four of these were in the preceding 6 months and was consistent with the 30% rating of “once a month” in the 3-month interval leading up to separation.  As specified above, the Board’s recommendation was premised on disability in evidence at the time of separation.  The once per month frequency of prostrating episodes in the interval at separation, which reasonably comports with the 8100 descriptor “over the last several months,” meets criteria for a 30% rating.  After due deliberation, considering all of the evidence and conceding VASRD §4.3 (reasonable doubt), the Board recommends a 30% rating for the migraine condition under code 8100.  

BOARD FINDINGS:  IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication.  The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised.  In the matter of the migraine condition, the Board unanimously recommends a disability rating of 30%, coded 8100 IAW VASRD §4.124a.  There were no other conditions within the Board’s scope of review for consideration.  

RECOMMENDATION:  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 his prior medical separation:  

CONDITION	VASRD CODE	RATING	
Chronic Migraine Headaches 	8100	30%	
COMBINED	30%	

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

	

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, AR20160000277 (PD201402377)

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 recharacterize 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