RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02709
BRANCH OF SERVICE:  Army	BOARD DATE:  20150623
SEPARATION DATE:  20080827

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Operating Room Specialist) medically separated for lumbar degenerative arthritis with back pain and migraine headaches.  The conditions could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty (MOS).  She was issued a permanent P3L3 profile and referred for a Medical Evaluation Board (MEB).  The “inter vertebral disc degeneration” and “headaches, migraine, intractable” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition (anxiety disorder) for PEB adjudication.  The Informal PEB adjudicated lumbar degenerative arthritis with back pain and migraine headaches as unfitting rated 10% and 0%, respectively; with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) for the back condition and citing Department of Defense Instruction (DoDI) 1332.39 for the migraine condition.  The remaining condition was determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Please review 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 20080721	VA* - (~4 Yrs, 11 Mos. Post-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lumbar Degenerative Arthritis with Back Pain…	5299-5242	10%	Degenerative Arthritis, Lumbar Spine	5242	10%	20130725	
Migraine Headaches, Posttraumatic	8199-8100	0%	Traumatic Brain Injury (TBI) with Headaches	8045	0%	20130724	
Anxiety Disorder	Not Unfitting	Posttraumatic Stress Disorder (PTSD) to Include Bipolar Disorder II 	9411	70%	20130724	
Other x 0 (Not In Scope)	Other x 5 	
RATING:  10%	RATING:  80%	
*Derived from VA Rating Decision (VARD) dated 20130923 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Back Condition.  The narrative summary (NARSUM) noted the CI fell in January 2008 and reported radiating low back pain (LBP).  Lumbar magnetic resonance imaging noted degenerative changes of the spine and degenerative disc disease with mild neuroforaminal (bony tunnel through which spinal nerves exit the spine) narrowing at L4-5, without direct nerve impingement or spinal canal stenosis.  Notes in the service treatment record (STR) indicated the CI had intermittent right lower extremity (RLE) pain and numbness/tingling (N/T).  A neurological evaluation dated 14 February 2008 noted no evidence of radiculopathy on exam and the electro-diagnostic (EMG) studies  of the lower extremities (LE) were normal.  Orthopedic evaluation did not recommend surgery.  The CI was referred to a pain management specialist and had multiple epidural steroid/nerve root injections for possible radiculitis (lumbar nerve irritation) and disc related pain, as well as facet joint injections for arthritis type pain, with partial benefit.  At an orthopedic evaluation on 10 June 2008 the CI reported reduced, but at times still significant back pain, with occasional pain radiation down the RLE and/or N/T into the thigh.

At the MEB examination on 28 June 2008, 2 months prior to separation, the CI reported constant LBP.  The MEB physical exam noted a normal gait.  There was right side LBP with mild muscle spasm.  The CI was able to toe and heel walk and toe walking caused radiating pain to the RLE,  but straight leg raise testing (SLR) was negative.  Strength and sensation of the LEs were normal and reflexes were present bilaterally.  Back range-of-motion (ROM) was reported as “essentially normal, except for mild (15-20 degrees) decrease in forward flexion.”  The MEB examiner noted the CI “appeared to have pain” with flexion.  Physical therapy measured ROM on 20 May 2008, 3 months prior to separation, noted 70 degrees of forward flexion (normal 90) and combined ROM of 195 degrees (normal 240).

There was no VA Compensation and Pension (C&P) examination performed within 12 months of the DOS.  The first C&P examinations, performed 5 years after separation, addressed the back, but only indicated that thoracolumbar back pain was more likely than not related to military service.  There was no evidence in record that examination of the back was performed at that time.  There were after separation treatment notes in the record, but none earlier than June 2010.  At a primary care visit on 21 June 2010, 22 months after separation, the CI reported increased LBP.  The exam noted a normal gait and tenderness of the lumbar region, with negative SLR testing and normal LE strength, sensation, and reflexes.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5299-5242 (analogous to degenerative arthritis of the spine).  The remote VARD dated 23 September 2013 rated the back condition 10%, coded 5242 (spine arthritis).  The Board agreed that the evidence in record supports a 10% rating, coded as 5242, according to current VASRD rules for rating the spine in effect on the separation date for thoracolumbar flexion “greater than 60 degrees but not greater than 85 degrees.”  The Board noted there was no evidence in record of “muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour” for the next higher evaluation of 20%.  The Board reviewed to see if coding as 5243 (intervertebral disc syndrome) based upon incapacitating episodes provided a higher rating, but there was no documentation of incapacitating episodes in record due to the back condition, defined by the VASRD as “a period of acute signs and symptoms…that requires bed rest prescribed by a physician.”  The Board also considered if additional disability rating was justified for peripheral nerve impairment related to the back condition.  Although the CI reported radiation of pain to the RLE, with occasional N/T, repeated exams of the LEs were normal, the LE EMG was normal, and nerve impingement was not noted on magnetic resonance imaging (MRI).  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a and there was no evidence of a LE sensory or motor deficit related to the back condition that could reasonably be considered separately unfitting in this case.  Therefore, the Board cannot support a recommendation for additional rating based on peripheral nerve impairment.  After due deliberation in consideration of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication the back condition.

Migraine Headaches (HA) Condition.  The NARSUM noted the CI was involved as a passenger in a motor vehicle accident (MVA) on 25 July 2007.  Notes in the STR indicated the CI’s head hit the window just above her jaw, with loss of consciousness for seconds and poor memory for a few hours.  The CI was evaluated by neurology on 10 October 2007 for recurrent headaches since the MVA, and reported right side HA every 3 to 4 days.  The exam noted no neurological abnormalities and indicated the CI was having problems with right jaw pain and muscle spasm as well.  The CI had been tried on some medications for the headaches, but all treatment options had not been exhausted.  The neurologist indicated that “after discussion with this soldier, it is clear that she [the CI] does not wish to pursue any more time with the military and she has asked for an MEB” and noted that IAW 40-501, the CI may be referred directly to an MEB “if the neurologist feels the Soldier is unlikely to respond to therapy.”  At a primary care visit on 21 November 2007 the CI reported daily headaches, with severe incapacitating migraine HA every 2 to 3 days, with no change with preventive migraine medication and unsuccessful use of abortive migraine medication.  A brain MRI on 27 November 2007 was normal.  According to the NARSUM, the CI was transferred to the Warrior in Transition Unit (WTU) in December 2007, due to inability to perform in her MOS secondary to the headache condition.  Subsequently, additional headache medications were tried without benefit and the CI was referred to a second neurologist for help with headache management.  The neurologist noted the presence of two types of headaches - migraine headaches and constant tension headache , present most of the time and continued to adjust medications, eventually with some benefit.  Neurology follow-up notes dated 13 June and 18 July 2008 indicated significant improvement in the migraine headache with medication.  Three headaches per month were reported, with use of a common migraine medication (Midrin) for “bad” breakthrough headaches, with continued daily tension headaches from stress.  The commander’s statement on 25 February 2008 indicated that the CI had been excused from work and sent home several times due to the headache condition and had also missed training and being in the field to avoid further aggravation of her condition.

At the MEB examination on 28 June 2008, 2 months prior to separation, the CI reported migraine headaches.  The CI reported incapacitating headaches three to four times per week that required her to stop work activities, take headache medication and lay down, but noted she had “severe” headaches two times per month, only partially relieved by abortive medications.  The MEB physical exam referred to the DD Form 2808, Report of Medical Examination, dated 5 May 2008, which noted a normal neurological exam.

At the remote VA C&P examination on 24 July 2013, 5 years after separation, the CI reported frequent prostrating dull, non-migraine headaches more frequently than once per month, and prostrating migraine headaches less than once every 2 months.  The CI was pregnant at the exam and reported no significant problem with headaches during the 6 months of the pregnancy.  The CI reported in the 4 years after separation and prior to she was pregnant, she had experienced migraine headaches once per month, that lasted 2 days, that caused her to stop working, but elsewhere the VA examiner noted prostrating migraine headaches less than once every two months and also headaches a couple times per week triggered by lighting at school that caused the CI to have to go home.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the migraine headache condition 0%, coded 8199-8100 (analogous to migraines) and cited DoDI 1332.39.  The remote VARD rated the headaches at 0%, coded as 8045, as a consequence of traumatic brain injury secondary to the MVA.  The Board first reviewed DoDI 1332.39 E2.A1.4.1.4 excerpted below.

8100.Migraine. “Prostrating" means that the Service member must stop what he or she is doing and seek medical attention.  The number of prostrating attacks per time period (day, week, month) should be recorded by a neurologist for diagnostic confirmation.  Estimation of the social and industrial impairment due to migranious attacks should be made.

The Board noted that although the PEB indicated on the DD Form 199 that the 0% rating was assigned IAW with the above DoDI rating criteria, it was not apparent to members that an accounting of the number of prostrating headaches, or an estimation of the associated social and industrial impairment had been considered.  The Board considered that the PEB may have found none of the CI’s attacks prostrating as defined in the DoDI, because current available medications allow patients to have the medical treatment at their disposal and it is no longer necessary to “seek medical attention” for every “prostrating attack.”  The Board noted that rating criteria of VASRD code 8100 are also based upon the number and frequency of “prostrating” headaches “over the last several months.”  “Prostrating headaches” refers to headaches which causes the CI to cease work activity for a significant period of time and usually is associated with use of prescribed medications, but as noted, does not necessarily require emergency medical treatment or a physician visit for treatment.

The Board noted the PEB’s DD Form 199 also indicated that maximal medical treatment with medications had not been achieved yet.  The Board considered that in this case the CI was referred for an MEB before headache treatment was maximized, based upon the CI’s preference, as noted above.  However, the evidence in record supports that despite management of her headache medications by a neurologist after the MEB exam, the CI continued with frequent headaches.  Following the referral to the second neurologist in mid - May 2008, the medication regimen was adjusted with significant reduction in the frequency and severity of headaches noted around the time of the MEB examination, but the number and frequency of prostrating HA following the improvement was not clearly documented.  The remote VA C&P exam referred to the timeframe of the year following separation and noted prostrating headaches with varying frequency documented as less than once every 2 months or once per month, with more frequent headaches only noted when subjected to a lighting trigger in a specific place.  The Board concluded from the evidence that the 0% VA rating was due to the remission of the CI’s headaches during pregnancy in the 6 months prior to the remote VA exam.

Based on the totality of the evidence, the Board agreed that the disability due to the headache condition at the time of separation exceeded the 10% rating, specified as “prostrating attacks occurring one in two months over the last several months” and most closely met the 30% rating for prostrating headaches “…occurring on average once per month.”  Members agreed that the evidence at separation did not provide sufficient support for the next higher evaluation of 50%, specified as “very frequent completely prostrating and prolonged attacks productive of severe economic inadapability.”  The Board considered if coding the headache condition as 8045 (Residuals of traumatic brain injury) as did the VA, resulted in a higher evaluation.  However, based on rating TBI residuals according to current VASRD TBI “facets” criteria, there was no evidence in record of “three or more subjective symptoms” (for example headaches, dizziness, tinnitus, insomnia, blurred vision, etcetera) that moderately interfered with work “on most days” to support a higher rating of 40%.  Therefore, the Board concluded that the evidence supports a 30% rating and no higher for the headache condition.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 30% for the migraine headaches condition, coded 8199-8100.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the anxiety disorder was not unfitting.  The Board’s threshold for countering fitness determinations-requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.

Anxiety Disorder.  There were no behavioral health (BH) notes in the available records, but mental health (MH) diagnoses of bulimia nervosa, purging type, depression, adult sexual abuse, and adjustment disorder with depressed mood were among the autocited diagnoses beginning in 2006.  Limited medical treatment notes in record referenced BH treatment.  A neurology visit on 10 October 2007 noted the CI was seeing BH; an internal medicine treatment note dated 16 January 2008 noted the CI reported fatigue, feeling depressed and easily agitated and an antidepressant was prescribed; and a WTU note on 18 January 2008 indicated the CI was referred for a psychology consult.  At a psychiatry visit on 22 January 2008, the CI reported improved mood and irritability since her previous clinic visit, which she related to being transferred to the WTU and not to the effect of medications, and she also reported decreased short term memory since her MVA.  The mental status examination noted an irritable mood and constricted affect, with decreased concentration and attention, without cognitive deficits or other abnormality noted.  The MH diagnosis was adjustment disorder.  The CI had neuropsychological (NP) testing performed and reported difficulties with her memory, manifested by forgetting appointments and conversations.  She also reported being more irritable, impatient, less friendly, and more isolated.  In the NP report dated 15 April 2008, the examiner noted the CI was being treated for depression.  The NP examiner indicated the CI met DSM-IV criteria for major depression and had symptoms of post-traumatic stress disorder.  The examiner referred generically to traumatic events the CI experienced in the past and indicated they were still causing distress and producing anxiety.  The NP testing indicated average intellectual function with some decreased speed of processing information.  The testing was deemed valid by the examiner, but the examiner indicated the large number of positive responses on the testing suggested exaggeration of problems.  The examiner noted that although concussion due to the MVA could be contributing to the cognitive difficulties, the psychological problems were also likely contributing, and recommended continued psychiatric treatment.  A BH memorandum for the MEB 12 May 2008 is excerpted below.

SPC Lagattuta does not have a psychiatric condition that would warrant
processing through medical channels (i.e., medical board). Service member has
been treated for Anxiety Disorder Not Otherwise Specified in the Department of
Behavioral Health but her symptoms are not service limiting and have responded
fairly well to pharmacotherapy. Service member meets retention standards so a
NARSUM is not required.

The anxiety disorder was not profiled or implicated in the commander’s statement and was not judged to fail retention standards.  There was no performance based evidence from the record that the anxiety disorder, or any MH condition, significantly interfered with satisfactory duty performance.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the anxiety disorder or recommend any MH condition as unfitting, and so no additional disability rating is recommended.

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.  As discussed above, PEB reliance on DoDI 1332.39 for rating the migraine condition was operant in this case and the condition was adjudicated independently of that instruction by this Board.  In the matter of the back condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the migraine headache condition, the Board unanimously recommends a disability rating of 30%, coded 8199-8100 IAW VASRD §4.124a.  In the matter of the contended anxiety disorder condition, the Board unanimously recommends no change from the PEB determination as not unfitting, and there is insufficient cause to recommend any MH condition as unfitting.

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 her prior medical separation:

CONDITION	VASRD CODE	RATING	
Lumbar Degenerative Arthritis Condition	5299-5242	10%	
Posttraumatic Migraine Headaches	8199-8100	30%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140429, 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 AR20160003430 (PD201402709)

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