RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03473
BRANCH OF SERVICE:  Army
DATE OF PLACEMENT ONTO TDRL:  20041231
DATE OF REMOVAL FROM TDRL:  20060425

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5, Fire Control Repairer, medically separated from the Temporary Disability Retirement List (TDRL) for “migraine headaches” and “chronic pain left shoulder and right ankle,” rated at 0% and 10%, respectively, with a combined disability rating of 10%.

CI CONTENTION:  The CI elaborated no specific contention in his application.  

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 – 20041130/20060413	VARD - 20050928	
Condition	Code	Rating	Condition	Code	Rating
Proximate	
		TDRL
Placement	TDRL Removal			TDRL
Placement	TDRL
Removal	
Migraine Headaches	8100	30%	0%	Migraine Headaches	8100	30%	30%	
Chronic Left Shoulder and Right Ankle	5099-5003	0%	10%	Left Shoulder…	5201	0%	0%	
				Residuals R Ankle…	5271	0%	0%	
				Scar, Right Ankle	7804	10%	10%	
COMBINED RATING:  30% → 10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Left Shoulder Condition.  The record shows that the CI first injured his left shoulder in 1999 playing football.  His examination was essentially normal and he was returned to duty.  However, he had persistent pain and further evaluations over the next few months determined that he had a mild (Grade I) separation of the acromio-clavicular joint (ACJ), the junction between the collar bone and shoulder.  He was treated with duty limitations and apparently did well.  Over 2 years later, on 24 October 2002, the CI was the driver in a vehicle which was struck by another car on the right side, near the rear passenger door.  The CI was restrained and the airbag did not deploy.  He reported that he struck his left shoulder on the door and subsequently had pain.  The examination of his shoulder was unremarkable other than pain with lifting it over 90 degrees in abduction.  The next record in evidence is a primary care note dated 25 July 2003.  He reported pain after “rucksacking” and was found to have a “pop” when he performed a throwing motion.  Active abduction was limited to 160 degrees (180 is normal) due to pain.  X-rays showed some degenerative changes to the left ACJ.  He was evaluated in physical therapy (PT) and thought to have a possible shoulder impingement and rehabilitation was begun.  At an evaluation for an unrelated gastro-intestinal condition on 14 July 2004, the CI also reported left shoulder pain.  He was evaluated later that same day in the emergency room for back pain, but did not report shoulder problems.  At the MEB examination on 5 August 2004, the CI reported shoulder pain since the car accident.  A prominent bony process was noted on examination, but the range of motion (ROM) was full.  The narrative summary (NARSUM) was dated 8 September 2004, 4 months prior to TDRL placement.  The CI reported that he had problems with the use of his left arm especially with overhead activity.  On examination, he was noted to have normal ROM and discomfort with resistance.  Signs of impingement were absent and painful motion was not documented.  Occasional crepitus (audible or sensible sensation of grinding) was present.  X-rays were normal.  An MRI (not otherwise in evidence) showed very minimal changes consistent with injury to the rotator cuff and cartilage lining of the shoulder joint.  At the VA Compensation and Pension (C&P) examination performed on 15 March 2005, approximately 3 months after TDRL placement and 13 months prior to TDRL removal, the CI reported that his shoulder pain began in 2000 after a football injury.  He currently treated the shoulder with topical ointments and activity modification.  On examination, the ROM was full and pain free.  There was neither tenderness nor atrophy.  The neurological examination was also normal.  X-rays were normal.  

The TDRL removal examination was dated 16 November 2005, 5 months prior to TDRL removal.  The CI reported continued pain with repetitive lifting and that his symptoms were essentially unchanged.  He no longer took medications for the shoulder though.  Motion was painful, but full.  He also noted some pain to palpation and was thought to have an impingement syndrome.  

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB bundled the left shoulder and right ankle for rating purposes and rated the bundled left shoulder condition at 0% for TDRL placement and 10% at TDRL removal, coded 5099-5003 (analogous to degenerative arthritis).  The US Army pain policy, subsequently rescinded, was used in the rating determination.  The VA rated the left shoulder at 0%, coded 5201 (limitation of motion).  This rating was maintained on future rating decisions.  The Board considered if the left shoulder was separately unfitting and ratable.  The most proximate examination to TDRL placement was the VA C&P 3 months after TDRL placement and it was essentially normal, providing no route to a separate compensable rating.  The MEB NARSUM examination also showed minimal pathology.  The evidence does not support a finding that the left shoulder was separately unfitting at TDRL placement.  The examination at TDRL removal showed painful motion, but otherwise no ratable criteria.  The 5099-5003 code employed by the PEB satisfies the mandate of VASRD §4.59 (painful motion) which is to ensure that at least the minimum compensable rating is applied in the presence of painful motion.  No route to a higher separate rating was available from the evidence.  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 or the rating for the left shoulder condition at TDRL placement or removal.  

Right Ankle Condition.  The first record in evidence for the right ankle is dated 13 May 2001.  The CI was treated for a sprain and returned to duty.  He was seen for right ankle pain several more times over the next 2 years and was referred to orthopedics for possible surgery.  The CI apparently had this in 2002, but the records are not in evidence.  At the orthopedic evaluation on 30 June 2003, the CI was noted to have a 3-year history of ankle pain and degenerative changes on an X-ray.  The CI was not a candidate for additional surgery and continued rehabilitation was recommended.  The CI was also issued a permanent L3 profile and MEB was recommended.  The MEB examination on 5 August 2004 noted full ROM.  An injection in podiatry on 2 September 2004 provided 100% relief of his pain.  The initial NARSUM was dated 8 September 2004.  The ROM was slightly reduced, but the ankle was stable and without swelling.  On 13 September 2004, right ankle arthroscopy was performed.  Post-operative podiatry evaluations showed that the ankle was healing well.  A neurology evaluation for the MEB (for headaches, below) on 8 November 2004, recorded that the CI had normal motor function and a normal gait.  At the VA C&P examination performed on 15 March 2005, approximately 3 months after TDRL placement and 13 months prior to TDRL removal, the CI reported that he continued to have bilateral ankle pain controlled with medications and activity modification.  On examination, his gait was normal as was the ROM.  Motion was pain free, but the scar was slightly tender.  The neurological examination was normal.  A TDRL neurology re-evaluation on 16 December 2005 documented a normal examination including gait.  An MRI of the right ankle on 17 December 2005 was essentially normal.  The CI was seen in podiatry 10 days later and noted to have ankle instability although no examination was documented.  He was then issued an arch support.  The TDRL orthopedic re-evaluation was accomplished on 10 April 2006, 15 days prior to TDRL exit.  The CI reported global ankle pain for which he used inserts with improvement.  Flexion was full but painful.  The ankle was stable.  Tenderness was not present.  

The Board directed its attention to its rating recommendation based on the above evidence.  As discussed above, the PEB bundled the left shoulder and right ankle for rating purposes and rated the bundled right ankle condition at 0% for TDRL placement and 10% at TDRL removal, coded 5099-5003 (analogous to degenerative arthritis).  The US Army pain policy was used in the rating determination.  The VA rated the right ankle at 0%, coded 5271 (limitation of motion).  This rating was maintained on future rating decisions.  It also rated the scar at 10%, coded 7804 (scars).  The Board considered if the right ankle was separately unfitting and ratable.  The most proximate examination to TDRL placement was the VA C&P 3 months after TDRL placement and it was essentially normal, providing no route to a separate compensable rating.  The examination at TDRL removal showed painful motion, but otherwise no ratable criteria.  As discussed above for the left shoulder, the 5099-5003 code employed by the PEB satisfies the mandate of VASRD §4.59 (painful motion) which is to ensure that at least the minimum compensable rating is applied in the presence of painful motion.  No route to a higher separate rating was available from the evidence.  Although the ankle was noted to be tender on the VA examination, there is no evidence in the record that this impaired duty performance after the initial recovery from surgery.  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 or rating recommendation for the right ankle condition at TDRL placement or removal.  

Migraine Headaches.  The CI was evaluated on 20 October 2003 in primary care for a 2-year history of headaches.  He reported that he was in the MEB process and requested a referral to neurology.  He was begun on medication to both prevent the headaches and to treat break through headaches.  On follow-up on 9 February 2004, he reported that he had daily headaches despite treatment.  The CI was seen several more times for headache management over the next few months.  A primary care summary dated 30 August 2004, accomplished for a gastrointestinal complaint, noted that headaches had been present for 3-4 years.  On 8 November 2004, the CI was evaluated in neurology and noted to have a normal neurological examination.  He reported prostrating headaches for 3 hours 3 times/week.  He was issued his initial profile for migraine headaches that day.  The neurology NARSUM was dated the same day and referenced the clinical note.  He had been taking Zomig (a triptan, an abortant for migraine headaches), but this was not successful as he had to take it too frequently.  He was changed to Imitrex, a different triptan.  A review of the medication list shows that the Zomig was last filled on 7 July 2004 and that the Imitrex was filled on 9 November 2004 and then refilled while on TDRL.  At a neurology follow-up appointment on 9 December 2004, the CI reported that he had stopped the prophylactic medication.  His medications were resumed and an additional prophylactic medication added.  At the VA C&P examination performed on 15 March 2005, approximately 3 months after TDRL placement and 13 months prior to TDRL removal, the CI reported that he continued to have headaches 2-3 times a week which lasted all day.  He was on a daily prophylactic medication as well as an abortant.  He had good relief from his medications and no side effects.  The examiner noted that the CI was using Zomig, but, in fact, the CI had been prescribed Imitrex for prophylaxis for a number of months at that point.  Prostration was not recorded.  The neurological examination was normal.  

The neurology TDRL examination was dated 16 December 2005.  The CI reported that his headaches were better since a change in medications the previous October.  He still had headaches once a week, but these resolved within 15 minutes of using Imitrex.  However, he reported nausea afterwards which he treated with an anti-emetic (Phenergan).  The nausea was previously not reported from Imitrex although it had been first prescribed over a year earlier.  The CI reported drowsiness for 16 hours after taking Phenergan and that he was unable to function.  His medication regimen was changed (from Imitrex to Fiorinal) and follow up requested in 3-6 months.  There is no record of the follow-up visit, but the Fiorinal was filled on 19 December 2005.  No further evaluation of the migraines was in evidence until a C&P dated 29 May 2009, over 3 years after TDRL removal.  

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB and VA both rated the migraine headache condition at 30%, coded 8100 (migraine headaches), at TDRL placement.  The PEB rated the headaches at 0% at TDRL removal noting that the headaches resolved in 15 minutes and were not prostrating.  The VA did not re-evaluate the headaches proximate to TDRL removal.  The Board found no route to a rating higher than 30% at TDRL placement.  It then considered the evidence for the rating at TDRL removal.  The CI reported that he had rapid resolution of his headaches with Imitrex, but that the medication caused nausea which was treated with Phenergan.  This caused drowsiness which he reported was incapacitating.  These medications were discontinued and he was placed on a new medication.  There is no record of the efficacy of this new medication (Fiorinal) or a record of any side effects from it.  The record most proximate to TDRL removal, the ankle evaluation on 10 April 2006, is silent for headache condition.  The Board carefully considered the findings.  The evidence clearly showed that the CI had headaches which responded rapidly and completely to Imitrex, but that the side effects from the medication required treatment which itself impaired function.  However, the evidence is also clear that the CI was advised to stop this medication regimen and a new medication was prescribed.  The CI filled this prescription 3 days later.  The Board majority determined that it is reasonable to conclude that the CI did in fact change the medication regimen and no longer took the medication (Phenergan) which lead to the reported incapacitation.  Regardless, it found no evidence to support a contention that the CI did still use the Phenergan at TDRL removal and, accordingly, consideration of a rating based on previously reported side-effects was not supported.  In fact, the record is silent as the status of the CI after the prescription change.  The Board majority determined that absent evidence proximate to TDRL removal to support a change the PEB adjudication, no change can be recommended.  After due deliberation in consideration of the preponderance of the evidence, the Board majority concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the headache condition at TDRL placement or removal.  

BOARD FINDINGS:  In the matter of the left shoulder condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication at TDRL placement or removal.  In the matter of the right ankle condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication at TDRL placement or removal.  In the matter of the migraine headache condition and IAW VASRD §4.124a, the Board, by a majority vote, recommends no change in the PEB adjudication at TDRL placement or removal.  The single voter for dissent submitted the appended minority opinion.  There were no other conditions within the Board’s scope of review for consideration.  

The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.  

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140627, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MINORITY OPINION:  The minority member disagrees with the majority’s recommendation that migraine headaches be assigned a 0% rating coded 8100 at TDLR removal.  The minority recommends a 30% rating.

Applicable VASRD 8100 (migraine headaches):
		With characteristic prostrating attacks occurring on an average once 
			a month over last several months................................................	30
		With characteristic prostrating attacks averaging one in 2 months over 
			last several months	10
		With less frequent attacks	0

The VASRD does not further define prostrating attacks however commonly accepted definitions include "utter physical exhaustion or helplessness" (Webster's New World Dictionary of American English), “complete physical or mental exhaustion” or "extreme exhaustion or powerlessness" (Dorland's Illustrated Medical Dictionary) and the Board unanimously agreed to this general description of prostrating for its deliberations.

At the TDRL Neurological examination in December 2005, 4 months before TDRL removal, the examiner opined the CI “continued to have migraine headaches despite therapy…however due to medication side effects, he is debilitated [prostrated] by them for up to 16 hours once per week.”  The minority voter’s position is this effect of treatment or medication induced sedation occurred (as documented by the neurologist for the TDRL period) with every migraine headache episode and therefore supports a 30% migraine headache rating.  This effects of treatment for migraine headaches has been recognized and supported by PDBR precedence.

The minority concedes the neurologist, cited above, prescribed a different medication to the CI to prevent the CI’s consequential sedation following migraine headaches, however, there is no evidence in the record to determine the actual effects of the newly prescribed medication.  Undue speculation would be required to determine the CI’s post migraine headache sedition was resolved and of no disability consequence at the time of TDRL removal.

Based on 4.3 (reasonable doubt), the degree of the CI’s on-going and prostrating migraine headaches at the time of TDRL removal should be resolved in favor of the CI at 30%.

RECOMMENDATION:  The Board minority, therefore, 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	
		TDRL	PERMANENT	
Migraine Headaches	8100	30%	30%	
Chronic Left Shoulder and Right Ankle	5099-5003	0%	10%	
RATING	30%	40%	

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 XXXXXXXXXXXXXXXXXXXXX AR20160014204 (PD201403473)

I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual.  Under the authority of Title 10, United States Code, section 1554a, I accept the Board’s recommendation and hereby deny the individual’s application.  

This decision is final.  The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

 BY ORDER OF THE SECRETARY OF THE ARMY:

Enclosure

CF: 
(  ) DoD PDBR
(  ) DVA