RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02966
BRANCH OF SERVICE:  Navy 	SEPARATION DATE:  20060728

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E3, Aviation Electronics Technician, medically separated for “degenerative joint disease at L4-L5” with a disability rating of 10%.

CI CONTENTION:  Migraines and major depression are associated to the CI’s unfit back condition but were not considered by the Informal or Reconsideration Physical Evaluation Boards and she still suffers from the conditions.  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 - 20060504	VARD - 20080117	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Degenerative Joint Disease at L4-L5	5242	10%	Lumbar Spine Sprain	5237	10%	20070904	
Degenerative Disc Disease	Cat II					
Pain Disorder Associated with Both Psychological Factors and Degenerative Disc Disease	Cat III	Depressive Disorder	9434	0%	STR	
Depressive Disorder	Cat III					
Dysthymia and Anxiety	Cat III					
Migraine Headaches	Cat III	Migraine Headaches	8100	50%	STR	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Degenerative Joint Disease (DJD) at L4-L5.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s DJD at L4-L5 (low back) condition began in August 2004 after running during physical training.  Magnetic resonance imaging (MRI) studies in August 2005 showed mild degenerative disc bulging and a small central herniated disc at L4-5 vertebra, without compression of the nerve root at that location.  All other disc levels were unremarkable.  The CI underwent conservative treatment for her low back condition, to include chiropractic manipulation and a series of steroid injections into her low back for pain management.   A neurosurgery clinic examination on 24 August 2005 declared the CI had exhausted non-operative measures and recommended against surgery given CI’s age, symptoms and MRI results.  Given there was no surgical indication, and conservative treatment (as elaborated) did not result in improvement sufficient to allow unrestricted duty, the MEB forwarded “degeneration of lumbar or lumbosacral inter vertebral disc” for PEB adjudication.

At the MEB NARSUM examination on 24 August 2005, 11 months prior to separation, the CI complained of constant back pain of intensity 3 to 4/10.  She also experienced tingling into her left buttock and occasionally to her midleg.  Physical examination range of motion (ROM) testing showed full forward flexion with extension to 10 degrees.  Lateral bending to the left was approximately 10 degrees and all remaining planes of motion were intact.  Neurologic examination to include motor strength and sensory testing was normal.  

At the MEB examination on 30 September 2005, 10 months, prior to separation, the CI reported tingling and pain down the back of her left leg and buttocks and pain in her hips related to her low back condition.  She experienced numbness in her feet as well.  Physical examination showed tenderness to palpation over the L4-L5 vertebrae.  Straight leg raise was negative in all dimensions (no sign of neurologic abnormality in lower extremities.)  The NARSUM addendum examination (specifically for the spine condition) on 28 November 2005, 8 months prior to separation, showed tenderness to palpation over the CI’s L4-L5 vertebrae, with negative straight leg raising (no neurologic deficit).  ROM testing demonstrated full forward flexion and severely limited extension.

At the chiropractic clinic examination on 26 January 2006, 7 months prior to separation, the CI complained of constant low back pain, most noticeable when first arising in the morning, but improving as the day went on.  Physical examination demonstrated normal reflexes and strength in lower extremities.  The CI could heel and toe walk normally.  Kemps test (for intervertebral disc disease) was positive.  Ely test (assessment for muscle spasm in the hip/low back region) was negative.  A Nachlas test was positive at L4-L5 (test to discriminate between sacroiliac vs. lumbar disorder).  Palpation elicited marked pain along the lower spine. 

At the VA Compensation and Pension (C&P) examination in September 2007, performed 13 months after separation, the CI reported constant pain in the right side of her lower back.  Pain intensity was 6/10.  Physical activity and stress elicited the pain while medication and rest relieved it.  The CI denied incapacitating episodes due to her low back condition.  Functionally, she was limited in her ability to sit or stand for extended periods of time and in her ability to walk or bend. Physical examination showed the CI’s gait and posture were within normal limits.  Her spine evidenced normal curvature.  She did not require any assistive devices for ambulation.  There was no evidence of radiating pain on movement.  Muscle spasm was absent.  Straight leg raise testing was negative bilaterally.  The spine evidenced no ankylosis.  Neurologic testing including strength, sensation and motor function, was normal.  ROM measurements showed 90 degrees of forward flexion with a combined ROM of 230 degrees. 9 Pain had the major functional impact after repetitive ROM testing.  Other factors to include fatigue, weakness, lack of endurance and incoordination were not limited after repetitive use.  Spine function had 0 degrees ROM loss after repetitive use.

The Board directed attention to its rating recommendation based on the above evidence. The PEB assigned a 10% rating under the 5242 code (degenerative arthritis of the spine). The PEB also listed degenerative disc disease as a related Category II condition (a condition that contributed to the primary unfitting condition but was not separately ratable).  The impairment from the degenerative disc disease was properly subsumed under the overall rating for the degenerative joint disease (DJD) at L4-L5 condition IAW §4.14 (avoidance of pyramiding; more than one rating based on the same impairment is prohibited).  The VA also assigned a 10% rating using the  5237 code (lumbosacral strain) based on the VA C&P examination 13 months after separation, citing pain limited ROM.

The Board agreed that a 10% rating, but no higher, was justified for combined ROM (greater than 120 degrees but not greater than 235 degrees) reported on all examinations proximate to separation.  Although not reported as goniometric measurements, the MEB NARSUM examinations cited above were similar to the VA C&P examination in terms of forward flexion.  Where noted, combined ROM was intact with the exception of extension.  The Board attached probative value to the CI’s functional presentation during in service examinations, minimal diagnostic imaging evidence that would indicate a more severe spine pathology and no other hallmarks of rating criteria at the next higher rating level (normal gait, no spasms, and normal spine contour) in support of the combined ROM assessment as stated.  In addition, there was no muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  There was no documentation of intervertebral disc syndrome (IVDS) with incapacitating episodes which would provide for a higher rating under that formula (for IVDS), or evidence of ratable peripheral nerve impairment which would provide for additional rating.  After due deliberation, 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 adjudication for the degenerative joint disease (DJD) at L4-L5 condition.  

Contended PEB Conditions: Depressive Disorder; Pain Disorder Associated with Both Psychological Factors and Degenerative Disc Disease; and Dysthymia and Anxiety.  The Board’s main charge is to assess the fairness of the PEB’s determination that depressive disorder; pain disorder associated with both psychological factors and degenerative disc disease; and dysthymia and anxiety were not unfitting.  The depressive disorder; pain disorder associated with both psychological factors and degenerative disc disease; and dysthymia and anxiety were not profiled and were not judged to fail retention standards.  The commander’s statement did note the CI was undergoing psychiatric outpatient monitoring.   The PEB assigned a Category III rating, indicating the conditions were not separately unfit and did not contribute to the unfitting condition.  All were reviewed and considered by the Board.  There was no performance-based evidence from the record that these conditions significantly interfered with satisfactory duty performance at separation.  After due deliberation, and 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 these conditions and so no additional disability ratings are recommended.  

Migraine Headaches.  Migraine headaches were not profiled and were not judged to fail retention standards.  The commander’s statement did not specifically implicate the headaches.  The PEB assigned Category III rating, indicating the conditions were not separately unfit and did not contribute to the unfitting condition.  However, STR revealed the CI was seen initially in November 2004 with a long history of weekly headaches since age 13 and having some relief with aspirin and coffee.  There are over 30 progress notes that document follow-up visits September 2004-May 2006 for management of migraines.  She reported the headaches were becoming more frequent and intense.  She had several treatment trials with different medications, some of which resulted in negative side effects.  The MEB Neurological Addendum, dated November 2005, noted she had one severe headache with nausea/vomiting and photophobia once per week.  She also had two less severe headaches per week.  Her new medication resulted in a good response with a reduction in headache frequency but side effects.  The examiner noted she had well controlled migraine headaches. The January 2006 Headaches Addendum noted treatment with manipulation to the cervical spine had positive short term effects (1-4 days) and then gradual return of the headaches.  However, there were multiple ER visits (1/11; 1/27; 2/7; 2/17; 3/24/ 4/11 and 5/1) for migraines in record AFTER the MEB (Dec ’05) and aforementioned Neuro NARSUM.  At times she was treated with intravenous medications.  Board members agreed that a migraine headache requiring treatment in the ER is appropriately regarded as a “prostrating attack.”  The CI had on average one prostrating attack a month over the last several months prior to separation.  After due deliberation, the Board majority agreed that the preponderance of the evidence with regard to the functional impairment of migraines condition favors its recommendation as an additionally unfitting condition for disability rating.  It is appropriately coded 8100 and meets the VASRD §4.124a criteria for a 30% rating. 

BOARD FINDINGS:  In the matter of the degenerative joint disease (DJD) at L4-L5 condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the depressive disorder, pain disorder associated with both psychological factors and degenerative disc disease, and dysthymia and anxiety contended conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.  

In the matter of the contended migraine headaches condition, the Board majority agrees that it was unfitting and  recommends a disability rating of 30%, coded 8100 IAW VASRD §4.130.  The minority member 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	PERMANENT RATING	
Degenerative Joint Disease	5242	10%	
Migraine Headaches	8100	30%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140617, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MEMORANDUM FOR DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS	
	                          
Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS          

Ref:  (a) DoDI 6040.44
	(b) PDBR ltr dtd 03 Nov 16 ICO XXXXXXXXXXXXXXXXXX    
	(c) PDBR ltr dtd 03 Nov 16 ICO XXXXXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 24 Oct 16 ICO XXXXXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 21 Oct 16 ICO XXXXXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 21 Oct 16 ICO XXXXXXXXXXXXXXXXXX
	(g) PDBR ltr dtd 28 Oct 16 ICO XXXXXXXXXXXXXXXXXX
	(i) PDBR ltr dtd 21 Oct 16 ICO XXXXXXXXXXXXXXXXXX

1.  Pursuant to reference (a), the recommendations of the Physical Disability Board of Review set forth in references (b) through (i) are approved.

2.  The official records of the following individuals are to be corrected to reflect the stated disposition:
     
     a. XXXXXXXXXXXXXXXXXX, former USN: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 10 percent) effective date of discharge.  

     b. XXXXXXXXXXXXXXXXXX, former USN: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 20 percent) effective date of discharge.  

     c. XXXXXXXXXXXXXXXXXX, former USMC: Retroactive placement on the Permanent Disability Retired List with a 50 percent disability rating (increased from 20 percent) effective date of discharge.  

     c. XXXXXXXXXXXXXXXXXX, former USN: Retroactive placement on the Permanent Disability Retired List with a 40 percent disability rating (increased from 10 percent) effective date of discharge.  

     d. XXXXXXXXXXXXXXXXXX, former USN: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 10 percent) effective date of discharge.   

     e. XXXXXXXXXXXXXXXXXX, former USN: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 10 percent) effective date of discharge.  

     f. XXXXXXXXXXXXXXXXXX, former USMC: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 0 percent) effective date of discharge.
 
3.  Please ensure all necessary actions are taken to implement these decisions, including the recoupment of disability severance pay, if warranted, and notification to the subject members once those actions are complete.