RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03551
BRANCH OF SERVICE:  Navy 	SEPARATION DATE:  20080317

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E4, Electrician’s Mate, medically separated for “chronic headaches (post-concussive and migraine)” and “chronic low back pain with left lower extremity radiculopathy,” rated 10% and 10%, respectively, with a combined disability rating of 20%.

CI CONTENTION:  His headache/migraine conditions continue to hinder him and his mental health condition should be considered.  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 based on 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 - 20080115	VARD - 20081007	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Headaches (Post-Concussive and Migraine)	8045-9304	10%	Chronic Migraine Headaches	8100	NSC	20080509	
Chronic Lower Back Pain with Left Lower Extremity Radiculopathy	5242-8720	10%	Lumbar Spine Bulging Discs with Left Leg Radiculopathy	5242	0%	20080509	
COMBINED RATING: 20%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Headaches.  The service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM) reflect an onset after a concussion (motor vehicle accident) a few months prior to enlistment, with escalation in service.  According to VA records, the CI had a history of “migraine” headaches from his teens.  The first STR entry for the complaint was 6 months after enlistment.  The condition was followed by neurology and treated with various medication trials.  Some STR entries reflect improvement, but others indicate no improvement or worsening, with no clear trend identified.  Although descriptions varied, the balance of the outpatient STR evidence indicated the presence of a baseline daily headache with more severe episodes averaging twice a week.  There was one STR entry (primary care, same provider as NARSUM) which documented that more severe episodes (twice weekly of 3-4 hours duration, rated 7-8/10) required “patient to go into a dark room and sleep.”  There was no other outpatient documentation from multiple entries (including neurology) opining that the headaches were prostrating or describing them as such.  There was no STR evidence of emergent visits for rescue treatment of headache.  The headaches did not respond adequately to treatment and the CI was referred for an MEB.  The MEB forwarded “migraine, unspecified, without intractable migraine” for PEB adjudication.  

The MEB NARSUM examination on 7 December 2007 (4 months prior to separation) duplicated the description documented in the same provider’s note of 2 months earlier (above); e.g., twice weekly headaches, lasting 3-4 hours, rated 7-8/10, and requiring sleep in a dark room; and, added “he says it is debilitating and causes him an inability to continue his work.”  The NARSUM detailed normal neurological findings and reported normal magnetic resonance imaging (MRI) of the brain.  The commander’s non-medical assessment (NMA), encompassing the headache and back conditions, documented “the frequent use of medications to control his condition seriously hinders his ability to perform at optimum level.”  For “the average number of work hours per week that the member's condition has required the member to be away from current duties for treatment, evaluation, and/or recuperation,” however, the commander listed “2 hours per week;” and, did not specify whether this was for treatment or appointments or apportion time lost between the headache or back conditions.  

The CI failed to report for a scheduled VA Compensation and Pension (C&P) for the headache and lumbar conditions; but, did undergo a VA mental disorders C&P examination on 9 May 2008 (7 weeks after separation).  The latter reported a chronic history (quoting CI “since age 12 or 13”) of migraines with a contemporary frequency of twice per week; and, documented full time employment as a supervisor for the past 45 days with 2 days “off work ... because of headaches.”

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating, coded 8045-9304 (brain disease due to trauma rated as dementia).  The PEB’s rating was compliant with the VASRD in effect for this code.   The VA coded under 8100 (migraine headaches) but did not service connect the condition, citing the pre-existing history and injury, and opining that it was not service aggravated.  Members first deliberated whether the headache condition was more appropriately and fairly rated under the 8100 code, rather than under the PEB’s 8045-9304.  Given the questionable association with head injury, especially considering that the latter was prior to service, members agreed that VASRD §4.7 (higher of two evaluations) favored application of the (potentially) more favorable code 8100.  Furthermore the Board’s recommendation in this case was subject to application of the VA training (“FAST”) letter TL07-05, issued 31 August 2007, which would oblige separate rating of the headache component of traumatic brain injury if favorable to 8045-9304.

Having so concluded, members considered whether a higher rating was supported under 8100.  The VASRD §4.124a rating for 8100 code rests on the presence and frequency of “characteristic prostrating attacks ... over the last several months.”  The 10% rating is for an average frequency of “one in two months;” that for 30% is “once a month;” and, for 50% “very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.”  The VASRD does not provide a definition of “prostrating” or quantify the rating window of “last several months.”  A common (court-sanctioned) approach is to apply the clear English definition of prostrating with dictionary examples including “utter physical exhaustion or helplessness” (Webster's) or “extreme exhaustion or powerlessness” (Dorland's); and, members agreed that, at minimum, ratable headaches should require reasonably convincing evidence that they forced the abandonment of work or current activities.  Members agreed that the above 50% criteria were not supported, given the evidence from the NMA and the C&P occupational history; and, deliberated whether the 30% rating under 8100 was supported by the evidence.  It was considered that if the reported twice weekly requirement to abandon activities for treatment of the headache, as reported in the NARSUM (and clinical note by the same provider), were conceded; those episodes would be fairly characterized as prostrating and would satisfy the 30% criteria.  Members agreed, however, that the probative value of this evidence was compellingly mitigated by the totality of the record.  It was not corroborated by any other provider and there was no indication that the CI ever sought acute medical treatment for such frequent and severe headaches.  The commander’s NMA specifically addressed work loss and that documentation is inconsistent with losing 2, 1/2-days of work weekly in order to treat the headache.  The C&P documentation of work loss over the immediate post-separation period was compatible with the commander’s report.  Based on this more objective evidence, the 10% criteria of 8100 might be supported, but the 30% criteria are not; thus, members agreed that the 8100 rating option was not favorable.  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 of the headache condition. 

Chronic Lower Back Pain with Left Lower Extremity (LLE) Radiculopathy.  The STR documented an atraumatic onset of low back pain with LLE radiation in 2006 soon after enlistment.  Several STR entries documented the absence of subjective weakness or sensory complaints, and documented normal neurological findings with 5/5 strength in all LLE groups; although, a few (all by the NARSUM provider) recorded “slight” left knee extensor weakness and 4+/5 plantar flexion with no sensory or reflex deficits.  An MRI demonstrated mild diffuse degenerative disc disease (L3-S1 without significant bulging or nerve root compromise).  Electrodiagnostic studies (EMG) were interpreted as an equivocal (“quite modest ... confounded by patient guarding”) left “mild chronic” L5/S1 radiculopathy.  There was ample STR documentation of normal range of motion (ROM) with the single exception of one examiner who recorded flexion as 70% of normal.  There was ample STR documentation of normal gait and spinal contour, with no contrary entries, and no documentation of incapacitating episodes.  Surgery was not recommended.  Despite conservative treatment, the back condition could not be adequately rehabilitated to meet the physical requirement of the CI’s military specialty and the CI was referred for an MEB.  The MEB forwarded “lumbago” for PEB adjudication.  

The MEB NARSUM examination on 7 December 2007 (3 months prior to separation) documented “daily” low back pain with LLE radiation (no mention of weakness or sensory complaints) rated 4/10 with flares to 8/10.  Functional limitations were not elaborated.  The physical examination recorded a normal gait and spinal contour, tenderness, normal neurological findings except for the mild LLE motor findings noted in the provider’s outpatient notes (as above), and “full [ROM] to flexion, extension, rotation, and lateral bending.”  There was no STR or NARSUM documentation with regard to painful motion.  There was no probative post-separation VA evidence (as above).

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10% coded 5242-8720 (degenerative arthritis of the spine – sciatic neuralgia), citing the criterion of tenderness and subsumed the radiculopathy with the spine rating.  The VA rated the back condition 0% coded 5242 (degenerative arthritis of the spine), citing service evidence (not conceding painful motion) and cited the lack of VA examination evidence.  There was no ROM evidence supporting a rating higher than 10%, no evidence for abnormal gait or contour to support a 20% rating, and no documentation of incapacitating episodes which would provide for a higher rating under that formula.  The Board considered if an additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The presence of functional impairment with a direct impact on fitness is the key determinant in the Board’s decision to recommend any condition for rating as additionally unfitting.  While the CI may have suffered additional pain from the nerve involvement, this is subsumed under the §4.71a general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  There was no sensory involvement and the intermittently documented LLE motor deficits were mild at most, as would be expected from the imaging and EMG findings.  There was no evidence in this case that motor weakness existed to any degree that could be reasonably described as functionally impairing.  The Board therefore concluded that an additional disability rating was not justified on this basis.  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 lumbar spine (and subsumed LLE radiculopathy) condition.  

BOARD FINDINGS:  In the matter of the headache condition and IAW VASRD §4.124a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the lumbar spine condition (with associated left lower extremity radiculopathy) and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  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 20140725, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

	
MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW
               BOARDS 

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS
 
Ref:   (a) DoDI 6040.44
       (b) CORB ltr dtd 21 Jun 16

      In accordance with reference (a), I have reviewed the cases forwarded by reference (b), and, for the reasons provided in their forwarding memorandums, approve the recommendations of the PDBR that the following individual’s records not be corrected to reflect a change in either characterization of separation or in the disability rating previously assigned by the Department of the Navy’s Physical Evaluation Board:

		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USN

						XXXXXXXXXXXXXXXXXXXX
	     				 	Assistant General Counsel
						(Manpower & Reserve Affairs)