RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00246
BRANCH OF SERVICE:  Navy 	
DATE PLACED ON TDRL:  20060907	
DATE REMOVED FROM TDRL:  20080619

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E3, Gas Turbine System Technician Fireman, medically separated from the Temporary Disability Retired List (TDRL) for “chronic imbalance” with a disability rating of 10%.

CI CONTENTION:  The CI's contends the PEB should have assigned a 30% rating for his unfitting condition.  The CI’s complete submission, with attachments, 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 – 20060602/20080220	VARD – 20061218/20070719	
Condition	Code	Rating	Condition	Code	Rating
Proximate	
		TDRL
Placement	TDRL Removal			TDRL
Placement	TDRL
Removal	
Chronic Imbalance	8199-6204	30%	10%	Chronic Imbalance with Migraine Associated Dizziness	8199-6204	10%	30%	
Migraine-Associated Dizziness	Cat II					
Chronic and Episodic Dizziness	Cat II					
COMBINED RATING:  30% → 10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Chronic Imbalance.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s chronic imbalance condition began in January 2005 after his first assignment to sea duty.  Despite treatment, the chronic imbalance could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and the CI was referred for MEB.  The MEB forwarded “abnormality of gait, dizziness and giddiness, and other forms of migraine” for PEB adjudication.  At the MEB NARSUM examination dated 16 February 2006, 7 months prior to separation, the CI reported symptoms of episodic and chronic imbalance, especially in low light environments or with his eyes closed.  Physical examination was normal.  The CI was placed on the TDRL effective on 6 September 2006.  At the 14 July 2006 VA Compensation and Pension (C&P) evaluation, performed 2 months before separation, the CI reported headache attacks characterized by sharp pain in the head followed by dizziness, vertigo and vomiting, inability to focus, especially on moving objects.  The CI stayed in bed unable to do anything until symptoms resolved.  Physical examination showed normal neurological findings.  At the 23 May 2007 VA C&P evaluation, performed 8 months after separation, the CI reported headaches described as constant and dizziness that was variable throughout the day depending on activity.  He experienced dizziness if he moved quickly, and at other times dizziness occurs for no reason.  Attacks occurred three times per week lasting from 2 hours to three days.  Given the above symptoms, functionally the CI reported he was working for a fire suppression system company.  Stated he installed, maintained and sold fire prevention systems.  His job was described as active, full-time requiring him to drive, he was in/out of vehicles, communicating with customers and installing fire suppression systems.  The CI stated that he had missed work as a result of his headaches however his employer would allow him to leave early if he made up the time.  Physical examination showed CI only had difficulty with the six cardinal positions of gaze.  He closed his eyes to regain composure.  

The Board directed attention to its rating recommendation based on the above evidence.  At TDRL placement, the PEB rated the chronic imbalance condition 30%, analogously coded 8199-6204 (peripheral vestibular disorders).  The VA rated the chronic imbalance condition 10% analogously coded 8199-6204 (peripheral vestibular disorders), based on a Compensation and Pension (C&P) examination conducted 14 July 2006, 2 months prior to separation citing symptoms involving occasional dizziness.  The VA later rated the chronic imbalance condition 30% analogously coded 8199-6204 (peripheral vestibular disorders), based on a C&P reexamination conducted 23 May 2007, 8 months after separation citing symptoms involving persistent dizziness.  The Board first considered its rating recommendation at the time of placement on TDRL.  Board members agreed that the VASRD §4.97 threshold for a 30% rating was reasonably satisfied in this case on the basis of dizziness and occasional staggering under peripheral vestibular disorders (6204).  There is no higher rating available under the 6204 code.  There was no evidence in the STR that the migraine headaches were very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability to justify a 50% rating (8100).  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 adjudications for the chronic imbalance condition at TDRL placement.  

The Board next considered its recommendation for permanent disability rating at the time of removal from the TDRL.  The CI was removed from TDRL with a permanent disability disposition of separation with severance pay at 10%, analogously coded 8199-6204 (peripheral vestibular disorders), citing his stable symptoms and his ability to work and go to school.  The MEB NARSUM examination on 8 January 2008, 5 months before TDRL removal noted that his symptoms had not changed and he continued to have imbalance worse on uneven conditions or poor light and present all the time.  He continued to have episodes of vertigo which were disabling and lasted several hours and were accompanied by severe headache.  The examiner noted that the nature of his conditions made it very difficult for the patient to maintain civilian employment because he was restricted from many particular jobs due to these symptoms and many of the jobs create or reproduce the symptoms when the CI was at work.  His neurological examination was normal.  Final assessment was migraine headaches and dizziness preventing his return to the military.  

Board members agreed that the VASRD §4.97 threshold for a 30% rating was reasonably satisfied in this case on the basis of dizziness and occasional staggering under peripheral vestibular disorders (6204).  There is no higher rating available under the 6204 code.  Though there was some evidence of limitation of his ability to perform some physically active occupations, however there was no evidence in the STR that the migraine headaches were very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability to justify a 50% rating (8100) at the time of TDRL removal.  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 chronic imbalance condition at the time of TDRL placement, and 30% at TDRL removal.  

The Navy PEB listed the migraine-associated dizziness and chronic and episodic dizziness conditions as related diagnoses (Category II) that contributed to the disability in this case.  The association of vertigo and migraine is specific and one-half to two-thirds of migraineurs suffer motion sickness.  The Board agreed that the migraine-associated dizziness and chronic and episodic dizziness were the underlying diagnoses causing the chronic imbalance and were not separate conditions which could be separately rated IAW §4.14 (avoidance of pyramiding; more than one rating based on the same impairment is prohibited).  

BOARD FINDINGS:  In the matter of the chronic imbalance condition, the Board unanimously recommends a disability rating of 30% at the time of placement on the TDRL and a rating of 30% at the time of removal from TDRL and permanent disability disposition, coded 8199-6204 (peripheral vestibular disorders) IAW VASRD §4.71a.  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	RATING	
		TDRL	PERMANENT	
Chronic Imbalance	8199-6204	30%	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150406, 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.

	XXXXXXXXXXXXXXXXXX
	Assistant General Counsel
	(Manpower & Reserve Affairs)