RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02946
BRANCH OF SERVICE:  AIR FORCE	Separation Date:  20020929

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated Air National Guard E-8 (Education and Training) medically separated for peripheral vestibular disorder associated with panic attacks, rated at 10%.  

CI CONTENTION:  “The applicant has asked for consideration of all his conditions.  His 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 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 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 20020730	VA* - (~3 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Peripheral Vestibular Disorder Associated with Panic Attacks	6204-6299	10%	Meniere's Syndrome	6205	30%	20021223	
			Adjustment Disorder with Anxiety and Depression	9440	10%	20021223	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 9 (equals SC, NSC & deferred)	
RATING:  10%	RATING:  40%	
*Derived from VA Rating Decision (VARD) dated 20030623 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  The Physical Evaluation Board (PEB) rated the peripheral vestibular disorder associated with panic attacks condition under the single analogous code 6204-6299 (Peripheral vestibular disorders) code.  IAW DoDI 6040.44 if the PEB combined adjudication is not compliant with the VASRD rating criteria, each condition subsumed under the single disability rating must be reasonably justified as separately unfitting in order to remain eligible for rating.  The Board’s initial charge in this case was directed at determining if the PEB’s combined adjudication was justified in lieu of separate ratings.

The Board first considered whether the panic attacks condition could be reasonably justified as separately unfitting. The MEB psychiatric examination approximately 19 months prior to separation indicated that panic attacks and anxiety symptoms occurred with the onset of disequilibrium symptoms in January 2000.  The CI related his symptoms of shortness of breath, increased heart rate, sweating, feelings of loss of control, and feeling like he was going to die to the disequilibrium.  The CI stated that following his “official diagnosis” the panic attacks worsened.  He also reported panic attacks while driving with development of fear when driving on congested highways and bridges.  He was treated with biofeedback training and cognitive behavioral therapy. The CI reported that he was without panic attacks for 2 months prior to the MEB examination.  He continued to report residual anxiety; however he discontinued formal behavioral health therapy because he felt that his symptoms were controlled.  He denied suicidal and homicidal ideations and hallucinations.  The Global Assessment of Functioning (GAF) was 65 (some mild symptoms or some difficulty in social, occupational, or school functioning, but generally functioning pretty well and has some meaningful interpersonal relationships).  

The psychiatrist rendered a diagnosis of specific phobia, situational type, in partial remission (diminished symptoms with treatment).  The panic attacks condition was not profiled.  The Mental Health VA Compensation and Pension (C&P) examination approximately 3 months after separation documented that the CI’s reporting of symptoms was very superficial.  The mental status examination demonstrated a restricted anxious affect, “OK” mood, sometime evasive thought process, generally fair judgment and poor insight.  The examiner opined that the CI did not have an anxiety disorder.  The examiner rendered a diagnosis of adjustment disorder with anxiety and depression and a GAF of 70 (mild symptoms).

After due deliberation in consideration of the totality of the evidence, members agreed that the panic attacks condition was not reasonably justified as separately unfitting and no additional disability rating can be recommended.  

Peripheral Vestibular Disorder Condition.  The CI developed a sudden onset of dizziness in July 2000.  He continued with symptoms of intermittent imbalance, nausea without vomiting and bilateral tinnitus with the left ear worse than the right.  An audiogram done on 28 July 2000 documented a bilateral high frequency sensoneural hearing loss with a bilateral discrimination score of 88%.  He underwent an electronystagmogram (ENG) (to assess balance function) on 7 September 2000, which was normal.  In October 2000, the otolaryngologist diagnosed chronic disequilibrium disease (Meniere’s).  The CI was treated with medication which failed to resolve his symptoms.  The physical therapist who evaluated the CI for imbalance problems documented that the CI was able to stand without difficulty with his eyes open, but was unable to tandem stand for 15 seconds and fell to the left with his eyes closed.  On 17 December 2001, the physical therapist documented that the CI was still unable to do a single leg stance.  The CI was evaluated in the emergency department on 31 January 2002 for vertigo.  At that time he reported episodes of vertigo lasting 20 minutes and relieved by lying down.  The physical examination demonstrated vertigo with quick movements, a negative Romberg test (a positive test demonstrates increased unsteadiness with eyes closed), and intact cerebellar functioning (no cerebellar gait abnormality).  The MEB Narrative Summary (NARSUM) examination performed approximately 3 months prior to separation documented that the CI had chronic imbalance with episodes of vertigo.  He also had bilateral tinnitus which lasted for hours.  The examiner noted that there was no associated ataxia (lack of control of muscles on voluntary movement like walking).  He failed treatment with medication as well as a low salt diet.  The physical examination findings were normal.  The examiner opined that the CI’s symptoms of chronic disequilibrium (imbalance) were most consistent with atypical Meniere’s.  He further noted that the episode of vertigo became more severe as well as the increased underlying disequilibrium which affected his ability to work.  On 2 August 2002, the primary care provider (PCP) documented that the CI had daily disequilibrium and vertigo.  He had seconds of disequilibrium with head turns of right or left, which was relieved by lying down.  On physical exam, the Romberg test was positive, cerebellar testing was intact, and gait was narrow based without veering.  The VA Compensation and Pension (C&P) exam approximately 7 months after separation documented that the CI had a constant low pitched buzzing tinnitus, bilateral, constant which increased in frequency at times.  Speech recognition scores showed both 88% bilaterally.  The examiner diagnosed a bilateral mild sensorineural loss. 

The Board first considered whether the peripheral vestibular disorder could be reasonably justified as separately unfitting.  Multiple treatment notes evidenced that chronic disequilibrium and episodes of vertigo resulted in the CI’s inability to perform the duties.  The condition was profiled.  Members agreed that the evidence supports that the peripheral vestibular disorder could be reasonably justified as separately unfitting. The Board then directed its attention to its rating recommendation.  The PEB coded the peripheral vestibular disorder condition 6299-6204 (peripheral vestibular disorders) and rated at 10% for occasional dizziness.  The VA coded the condition as 6205 (Meniere's syndrome) and rated at 30% for hearing impairment with vertigo less than once a month, with or without tinnitus.  A VA decision review dated 29 January 2004 increased the Meniere’s disease rating to 60% effective 30 September 2002.  The Board considered whether the evidence supported a higher than 10% rating.  The Board noted that multiple treatment notes documented chronic disequilibrium or chronic imbalance, vertigo, and bilateral tinnitus (ringing in the ear).  Audiogram evaluations performed during service and by the VA demonstrated mild hearing loss.  The Board determined that the evidence met criteria for a 30% rating under VASRD codes 6205 and 6204.  The Board noted that the CI was diagnosed with Meniere’s disease and recommends a change to VASRD code 6205 to accurately reflect the CI’s diagnosis.  There was no evidence of a cerebellar gait (wide-based gait with lateral veering, unsteadiness, and irregularity of steps) for than a 30% rating under VASRD code 6205.  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 Meniere’s syndrome.  

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 Meniere’s syndrome condition, the Board unanimously recommends a disability rating of 30%, coded 6205 IAW VASRD §4.87.  In the matter of the panic attacks condition the Board unanimously determined that is was not separately unfitting.  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 his prior medical separation:  

UNFITTING CONDITION	VASRD CODE	RATING	
Meniere’s Syndrome	6205	30%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140614w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAF/MRB
1500 West Perimeter Road, Suite 3700
Joint Base Andrews, MD  20762

Dear XXXXXXXXXX:

Reference your application submitted under the provisions of DoDI 6040.44 (Section 1554, 10 USC), PDBR Case Number PD-2014-02946.

After careful consideration of your application and treatment records, the Physical Disability Board of Review determined that the rating assigned at the time of final disposition of your disability evaluation system processing was not appropriate under the guidelines of the Veterans Affairs Schedule for Rating Disabilities.  Accordingly, the Board recommended your separation be re-characterized to reflect disability retirement, rather than separation with severance pay.

I have carefully reviewed the evidence of record and the recommendation of the Board.    I concur with that finding, accept their recommendation and determined that your records should be corrected accordingly.  The office responsible for making the correction will inform you when your records have been changed.

As a result of the aforementioned correction, you are entitled by law to elect coverage under the Survivor Benefit Plan (SBP).  Upon receipt of this letter, you must contact the Air Force Personnel Center at (210) 565-2273 to make arrangements to obtain an SBP briefing prior to rendering an election.  If a valid election is not received within 30 days from the date of this letter, you will not be enrolled in the SBP program unless at the time of your separation, you were married or had an eligible dependent child, in such a case, failure to render an election will result in automatic enrollment.

Sincerely,

Attachment:
Record of Proceedings

cc:
SAF/MRBR
DFAS-IN