RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-04277
BRANCH OF SERVICE:  Navy 	SEPARATION DATE:  20050211

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Ear Nose and Throat (ENT) Technician, medically separated for “migraine associated dizziness” with a disability rating of 10%.  

CI CONTENTION:  The CI contended dizziness, tinnitus, GERD, depression and anxiety.  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 upon a 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 - 20050104	VARD - 20050421	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Migraine Associated Dizziness	8900-8100	10%	Migraine Headaches with Vertigo	8100	30%	20041123	
Tinnitus	Cat III	Tinnitus	6260	NSC		
Panic Disorder without Agoraphobia		Panic Disorder	9412	10%		
Major Depressive Disorder		No VA Placement	
Status Post Bacterial Meningitis		Meningitis	8019	0%	20041123	
Sensorineural Hearing Loss		Hearing Loss	6100	NSC		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Migraine Associated Dizziness:  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s migraine headaches (HAs) with associated dizziness condition began in February 2001 after a bout of meningitis.  He was evaluated by neurology and ear nose and throat (ENT) specialists.  Specialized testing in a vestibular balance laboratory was performed in May 2001 and repeated in November 2004.  Both evaluations showed a mild abnormal vestibular – balance evaluation and “challenge gait” testing demonstrated a gait deviation to the left with vertical head movements.  An MRI of the brain in October 2001 was normal.  The CI was diagnosed with vestibular migraines (migraines with associated dizziness) with symptoms that included HAs, nausea, vomiting, a sense of fullness and ringing in the ears bilaterally with abnormal gait and loss of balance.  He was treated with a variety of different treatment regimens that failed to resolve the migraines and dizziness.  His current medication regimen was Midrin (acute migraine treatment) and Topamax (migraine prevention).  The undated Non-Medical Assessment (NMA) reported that the CI “frequently needs to be relieved from his tasks in order to rest, either due to the severe headaches he is experiencing or from the side effects of the medications” and that the CI’s medical problems were “becoming progressively debilitating.”  The CI was noted to be working outside of his military specialty and was missing approximately eight hours work per week.  

At the MEB NARSUM examination dated 3 October 2004, approximately 5 months prior to separation, the MEB examiner noted that the CI’s migraines had worsened.  He also noted that and ENT neurologic examination indicated bilateral hearing loss and vestibular dysfunction.  After a variety of treatments the CI’s walking was slightly improved; however, he still had significant disequilibrium at all times, which was worse with exertion.  The episodes of vertigo continued to be disabling.  There was no physical examination done at that time.  

At the neurology MEB examination dated 17 November 2004, approximately 3 months prior to separation, the examiner noted that at the time of the MEB NARSUM the CI’ HAs occurred on a daily basis and he experienced severe debilitating HAs at least 3 times per week.  The HAs were associated with pressure in the head, dizziness and photophobia.  His current medication regimen was Midrin and Topamax.  The CI had a normal gait and balance.  He was able to toe and heel walk without difficulty.  A full neurological examination was normal.  The diagnosis noted was migraine HAs.  

A memorandum from the CI’s Division Officer dated 16 December 2004 indicated that the CI’s migraines “render him so incapable that he must immediately cease what he is doing.”  The Division Officer also made the point that the migraines impaired the CI’s ability to perform in both his primary military specialty as a surgical technician and his alternate position as the Department Information Systems and Security Officer.  

At the VA neurology Compensation and Pension (C&P) examination in December2004, performed approximately 3 months before separation, the CI reported daily HAs since the meningitis and that approximately 3 times per month they became unbearable with nausea, vomiting, vertigo and light sensitivity.  He remained on Midrin and Topamax, which the CI indicated was somewhat helpful, but not completely.  The CI reported that at least 3 days per month he was unable to work.  The physical examination showed normal gait and balance.  The CI was able to heel and toe walk.  A full neurological exam was normal.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the migraine condition 10%, analogously coded 8900-8100 (migraine).  The VA rated the migraine condition 30% coded 8100 (migraine), based on the VA C&P examination 3 months before separation, citing characteristic prostrating attacks occurring on an average of once a month over the last several months.  Rating guidance under diagnostic code 8100 is based on the frequency of “prostrating attacks” over the “last several months.”  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).  There was clear documentation in the record, including the NMA, JDETS, memorandums to the record by supervisors, the MEB NARSUM, the MEB neurological examination, and VA C&P neurological examinations, that the CI had migraine HAs associated with vestibular dysfunction which at least 3 times per month forced him to “cease what he was doing.”  The Board concluded this was sufficient evidence of prostrating headaches.  The Board agreed that the evidence exceeded the 10% rating criteria of “with characteristic prostrating attacks averaging one in 2 months over last several months” and more closely matched the criteria for a 30% rating, specified as “with characteristic prostrating attacks occurring on an average once a month over last several months.”  The CI was working and missing one day per week and this was judged not to rise to the threshold for the 50% rating, specified as “with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability under VA Code 8100 at the time of separation.”  

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 HA associated dizziness condition, coded 8100.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that tinnitus, panic disorder without agoraphobia, major depressive disorder (MDD), S/P bacterial meningitis, and sensorineural hearing loss were not unfitting.  The hearing loss, tinnitus, and status post meningitis conditions were intertwined with the unfit condition of migraines with associated dizziness.  During migraines the CI reported a sense of fullness in his ears with tinnitus, at times described as pulsating.  Serial audiograms in record noted normal hearing or mildly decreased hearing.  The status post meningitis condition referred to the constellation of related symptoms the CI developed after the meningitis condition, including the migraine HAs.  All three of these conditions are subsumed in the rating for the unfitting migraine with associated dizziness condition.  There was no performance based evidence that either the level of hearing impairment or the tinnitus significantly interfered with satisfactory duty performance.  The Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for contended tinnitus S/P bacterial meningitis, or sensorineural hearing loss conditions and so no additional disability ratings are recommended.  

Panic d/o, without Agoraphobia, MDD, NOS.  The mental health (MH) NARSUM dated 15 September 2004 indicated the CI had received treatment for Panic Disorder without Agoraphobia and MDD, not otherwise specified (NOS) since July 2002, after meningitis in 2001.  He was treated with antidepressant medication and therapy.  He responded well and stopped psychiatric treatment.  He was doing well until middle of 2003, when he returned to his primary care physician due to increased anxiety and was again treated with antidepressant medications.  The CI’s medications had been adjusted approximately 4 months earlier and since that time he reported a significant decrease in his anxiety attacks.  He was being seen for an addendum for his MEB initiated by the neurology clinic.  The mental status examination noted a mildly anxious mood with a congruent affect and was otherwise unremarkable.  The Global Assessment of Functioning (GAF) assignment was 65 to 70, which is in the mild impairment range on this scale.  The MH examiner noted that the CI was not fit for military duty due to a medical illness.  There was no evidence in the record that the CI was ever given duty limitations due to the MH conditions.  The NMA did not implicate any MH condition as impairing the CI’s ability to adequately perform his duties.  There was no performance-based evidence from the record that any MH condition 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 the contended  panic disorder without agoraphobia and major depressive disorder conditions and so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the migraine associated dizziness condition, the Board unanimously recommends a disability rating of 30%, coded 8100 IAW VASRD §4.124.  In the matter of the contended tinnitus, panic disorder without agoraphobia, major depressive disorder MDD, S/P bacterial meningitis, and sensorineural hearing loss conditions, the Board unanimously recommends no change from the PEB determinations as not 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 re-characterized to reflect permanent disability retirement, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Migraine Associated Dizziness	8100	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20141020, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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

Ref:  (a) DoDI 6040.44
	(b) PDBR ltr dtd 29 Aug 16 ICO XXXXXXXXXXXXXXXXXXXX  
	(c) PDBR ltr dtd 29 Aug 16 ICO XXXXXXXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 29 Aug 16 ICO XXXXXXXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 29 Jul 16 ICO XXXXXXXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 12 Sep 16 ICO XXXXXXXXXXXXXXXXXXXX
	(g) PDBR ltr dtd 28 Aug 16 ICO XXXXXXXXXXXXXXXXXXXX
	(h) PDBR ltr dtd 29 Aug 16 ICO XXXXXXXXXXXXXXXXXXXX
	(i) PDBR ltr dtd 29 Aug 16 ICO XXXXXXXXXXXXXXXXXXXX
	(j) PDBR ltr dtd 12 Sep 16 ICO XXXXXXXXXXXXXXXXXXXX
	(k) PDBR ltr dtd 12 Sep 16 ICO XXXXXXXXXXXXXXXXXXXX

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

2.  The official records of the following individuals are to be corrected to reflect the stated disposition:
     
     a. XXXXXXXXXXXXXXXXXXXX, former USMC: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 20 percent) effective date of discharge.  

     b. XXXXXXXXXXXXXXXXXXXX, 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. XXXXXXXXXXXXXXXXXXXX, former USMC: Retroactive placement on the Permanent Disability Retired List with a 50 percent disability rating (increased from 10 percent) effective date of discharge.  

     c. XXXXXXXXXXXXXXXXXXXX, former USMC: Placement on the Temporary Disability Retired List for six months with a 50 percent disability rating effective date of discharge followed by transfer to the Permanent Disability Retired List with a final disability rating of 30 percent. 

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

     e. XXXXXXXXXXXXXXXXXXXX, former USMC: Placement on the Temporary Disability Retired List for six months with a 50 percent disability rating effective date of discharge followed by transfer to the Permanent Disability Retired List with a final disability rating of 30 percent.
Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS          

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

     g. XXXXXXXXXXXXXXXXXXXX, former USN: Retroactive placement on the Permanent Disability Retired List with a 50 percent disability rating (increased from 10 percent) effective date of discharge.

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

     i. XXXXXXXXXXXXXXXXXXXX, former USMC: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 20 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.

	XXXXXXXXXXXXXXXXXXXX
	Assistant General Counsel
	(Manpower & Reserve Affairs)