RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-01869
BRANCH OF SERVICE:  Army	DATE OF SEPARATION:  20061106

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E6, Health Care Specialist, medically separated from the Temporary Disability Retired List (TDRL) for “migraine headaches,” and “fibromyalgia associated with Sjogren’s syndrome,” rated 0% each, with a combined disability rating of 0%.

CI CONTENTION:  The CI requested a review of all conditions.  The complete submission is at Exhibit A.

SCOPE OF REVIEW:  The panel’s scope of review is defined in DoDI 6040.44.  It is limited to review of disability ratings assigned 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 or non-compensable.  Any conditions outside the panel’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 panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The panel’s assessment of the PEB rating determination 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(s) at the time of separation.  The panel 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 panel 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 - 20061109	VARD - 20070404	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Migraine Headaches…	8100	0%	Chronic Intractable and Prostrating Migraine Headaches	8100	10%	STR	
Fibromyalgia Associated with Sjogren’s Syndrome	5025	0%	Fibromyalgia Syndrome	5025	10%	STR	
Seizures…	Not Unfitting	Seizure Disorder	8999-8910	NSC	STR	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:

Migraine Headaches.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI had a 4-year history of recurrent migraine headaches prior to placement on the TDRL.  There was no VA examination or treatment during the 1 year period of TDRL.  There were outpatient STR entries that documented requests for medication refills every few months during that period, but none that addressed frequency or severity of attacks.  There were no emergent visits for rescue treatment of headache.

A TDRL reevaluation and a neurology consultation were conducted on 28 September 2005, 5 weeks before permanent separation.  The TDRL examiner noted marked overall improvement with elimination of multiple stressors and stated that the CI “feels healthy enough to return to active duty.”  She was working full time and there was no indication of any work loss.  The neurologist documented a headache frequency of “one to two times a month” and indicated that at least some of them were treated with “a quiet room and sleeping;” although, the CI reported that she required only modest doses of medication to relieve them (approximately three Fioricet for a day or two at a time).  The neurologist expressed concern that the CI’s refill requests for Fioricet did not correlate with the reported frequency of use which “raises the question of medication overuse.”

The panel directed attention to its recommendation with regard to the rating at final separation.  The evidence at final separation made clear that the above 50% criteria were no longer supported.  The remaining ratings under 8100 rest on the presence and frequency of “characteristic prostrating attacks ... over the last several months.”  For a 30% rating, VASRD §4.124a stipulates an average frequency of “once a month;” for 10%, “one in two months;” and, for 0%, “less frequent attacks.”  The VASRD does not provide a definition of “prostrating” or quantify the rating window of “last several months.”  A common and court-sanctioned approach is to apply the clear English definition of prostrating with dictionary examples that include “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.  

The PEB’s 0% final rating decision cited “less than one prostrating headache in two months over the past several months,” without elaboration of a rationale.  The CI did not make a VA claim until after she was medically separated from TDRL.  The VA conferred a 10% rating (8100) based on the STR evidence, quoting the above 10% criteria without elaboration of a rationale.  

The frequency of headaches reported to the TDRL neurologist (1-2 per month) satisfied the above 30% criteria if all of them were conceded as prostrating; and, members considered that the necessity for a period of quiet and sleep for at least some of them was an argument favoring that concession.  It was noted, however, that all of the remaining evidence was contradictory to such a concession.  The CI appeared to have no occupational impairment or work loss consistent with any frequent need to abandon work because of her headaches, and her own conclusion that she was able to return to active duty was not consistent with any significant frequency of prostrating headaches.  The modest requirement for headache medication that she reported was also not consistent with poorly controlled headaches and frequent prostrating attacks.  Members ultimately agreed that it would be overly speculative (despite deference to reasonable doubt) to conclude that any of the headaches reported at the time of permanent separation should be conceded as prostrating for rating purposes.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded that there was insufficient cause to recommend a change in the PEB adjudication for the migraine condition.

Sjogren’s and Fibromyalgia Syndromes.  The available evidence documented an onset in 2002 of diffuse myalgias and arthralgias associated with dry eyes and dry mouth (sicca).  The CI was subsequently diagnosed (parotid biopsy, serology) with Sjogren’s syndrome (an autoimmune disease associated with other rheumatoid disorders and fibromyalgia).  Her symptoms escalated and she was subsequently diagnosed with fibromyalgia (by a rheumatologist with requisite trigger points).  Clinical STR entries documented that the sicca symptoms were well controlled, as were subsequent finger arthralgias also attributed to Sjogren’s syndrome.  Even with escalating treatment with narcotic analgesics (as per the migraine evidence), however, the CI continued to complain of the myalgias and arthralgias attributed to fibromyalgia.  Sjogren’s and fibromyalgia syndromes were separately listed in the MEB’s DA Form 3947 submission to the PEB.  As with the migraine condition, there was no VA evidence from the period of TDRL.  There were outpatient STR entries that documented requests for medication refills as per the migraine evidence, and all of them indicated that the fibromyalgia pain continued, but with no elaboration of constancy or severity.  

The TDRL reevaluation (same as above for the migraine condition) documented “no complaints” with regards to the Sjogren’s symptoms.  With regard to the fibromyalgia symptoms, the examiner documented “remarkable improvement” and opined that the CI was in “near remission in terms of her pain, fatigue, sleep, and functional capability.”  The examiner, however, documented the continued presence of “diffuse myalgias” with pain rated 2-3/10 that was still being treated with medication.

The panel directed attention to its recommendations.  With regards to Sjogren’s syndrome, the PEB at final separation confusingly both subsumed it in the nomenclature “fibromyalgia associated with Sjogren’s syndrome, now in near remission” rated as below under code 5025; but, separately stated that it was not eligible for rating since it “was not considered as an unfitting condition on your original [PEB].”  This was not technically accurate given that the condition was submitted by the initial MEB and not addressed by the PEB (see above); but, members agreed that this was moot since the TDRL examiner established that Sjogren’s syndrome was asymptomatic at the time of final separation; thus, clearly not defensible as separately unfitting and ratable at that time.  Since any alteration in the final PEB’s treatment of the condition (either as subsumed or ineligible) would be of no practical consequence, the panel agreed that no recommendation for any change in the PEB adjudication was justified with respect to Sjogren’s syndrome.

The final PEB rating under code 5025 was 0%, referencing AR 635-40, B-15 (zero percent ratings and minimum ratings).  No 0% criteria are provided using code 5025 under VASRD §4.71a, and the 10% rating specifies “widespread musculoskeletal pain and tender points...that require continuous medication for control.”  The 20% criteria are for the same symptoms “that are episodic, with exacerbations often precipitated by environmental or emotional stress or by overexertion, but that are present more than one-third of the time,” and the highest rating of 40% is for symptoms “that are constant, or nearly so, and refractory to therapy.”  The VA conferred a 10% rating under code 5025 based on the STR evidence.

Members agreed that the higher 20% or 40% criteria were not satisfied by the evidence since either would require symptoms that were uncontrolled in order to surmount the 10% criteria.  The functional evidence as elaborated above for the migraine condition and the examiner’s opinion that the fibromyalgia was in near remission made a compelling case that the symptoms were well controlled.  Although the PEB’s 0% rating might be justified under the latitude offered by AR 635-40, the panel must adhere to VASRD §4.31 (no-percent rating) that stipulates a 0% rating is only warranted when “the requirements for a compensable evaluation are not met.”  Since the evidence indicated that the CI still had some symptoms and still remained on medication for them, members agreed that the above 10% criteria were supported.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the fibromyalgia condition, coded 5025.

Contended PEB Condition:  Seizure Disorder.  The available evidence documented that the CI experienced a first-time grand mal seizure (witnessed and confirmed by EEG) in March 2005.  She experienced a break-through seizure 6 weeks later, but no further confirmed seizures ensued after she was stabilized on anti-convulsant medication (Keppra).  The NARSUM neurologist opined the seizures were “idiopathic” and “well controlled.”  The rheumatology addendum expressed a possible association of the seizures with the Sjogren’s and fibromyalgia complex.  

There were no STR entries relevant to the seizure condition during the period of TDRL.  The neurology consult for the TDRL reevaluation indicated that there had possibly been a third (unwitnessed) seizure in September 2005 (shortly before entry in TDRL, 14 months before final separation), although this was not captured in the STR.  The CI had remained seizure free since that time, although she remained on Keppra; and, the neurologist opined the CI’s “history of seizure is suspect at this point.”  Of note, the TDRL examiner reported positive urine drug screens for cocaine and amphetamines (both known to trigger seizures).  The final PEB at separation determined that the seizure condition was no longer unfitting and ratable, specifically pointing out that the CI had remained seizure free in spite of the challenges posed by cocaine and amphetamines.

The panel directed attention to its recommendation based on the above evidence; and, its main charge was an assessment of the fairness of the PEB’s determination that the seizure condition was not unfitting at the time of final separation.  Members agreed that there was insufficient performance-based evidence that indicated the condition interfered with duty requirements to an extent that would have prohibited further military service.  The CI had been seizure free for a 14-month period in spite of the above pharmacologic challenges, and the neurologist’s opinion suggested that she may have no longer required anti-convulsant medication.  After due deliberation, the panel concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the seizure condition and so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the migraine headache condition and IAW VASRD §4.124a, the panel recommends no change in the PEB adjudication.  In the matter of the fibromyalgia syndrome (subsuming Sjogren’s syndrome), the panel recommends a disability rating of 10%, coded 5025 IAW VASRD §4.71a.  In the matter of the contended seizure condition, the panel recommends no change from the PEB determination as not unfitting.  There are no other conditions within the panel’s scope of review for consideration.

The panel recommends that the CI’s prior determination be modified as follows, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Migraine Headaches	8100	0%	
Fibromyalgia (Subsuming Sjogren’s Syndrome)	5025	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150623, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170009227, XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found that your disability rating should be modified but not to the degree that would justify changing your separation for disability with severance pay to a permanent retirement with disability.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed) and I accept its recommendation.  This will not result in any change to your separation document or the amount of severance pay.  A copy of this decision will be filed with your Physical Evaluation Board records.  I regret that the facts of the case did not provide you with the outcome you may have desired.
  
	This decision is final.  Recourse within the Department of Defense or the Department of the Army is exhausted; however, you have the option to seek relief by filing suit in a court of appropriate jurisdiction. 

	A copy of this decision has also been provided to the Department of Veterans Affairs.

Sincerely,	
Enclosure