RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01671
BRANCH OF SERVICE:  Air Force 	SEPARATION DATE:  20040128

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Paralegal Journeyman, medically separated for “post concussive headaches” with a disability rating of 10%.   

CI CONTENTION:  “The combination of therapy and medication that is required to lead a productive life is difficult to balance.”  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 - 20031202	VARD - 20040831	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Post Concussive Headaches	8199-8100	10%	Chronic Headaches	8100	10%	20040608	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  70%	

ANALYSIS SUMMARY:  

Post Concussive Headaches.  According to the service treatment record (STR) and Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s post concussive headaches began in April 2002 after falling on a basketball floor and hitting the back of his head.  There was no loss of consciousness and he sought care 4 days later reporting mild dizziness and headaches with no nausea or vomiting.   The examiner noted no acute distress and a normal neurologic examination, and the CI was diagnosed with a concussion.  At an 8 May 2002 follow-up visit, he reported feeling better, but had persistent headaches; neurologic findings were normal.  A head CT scan on 9 July 2002 was normal and the CI was subsequently prescribed multiple preventive headache medications without benefit.  He was referred to behavioral health for relaxation techniques, which helped reduce tension and stress, but did not relieve the headaches.  

At a 1 November 2002 neurology evaluation, the CI reported headaches with lightheadedness, but no dizziness, nausea, vomiting visual changes, difficulty swallowing, or weakness.  He did report some difficulty speaking but denied seizures.  His headaches increased with stress and decreased with relaxation, and he experienced irritability and diminished concentration and memory.  The review of systems noted a history of anxiety disorder and mood swings, and the examiner documented the CI to be in no acute distress with normal neurological findings.  A mental status examination showed fluent speech, normal naming, repetition, comprehension, and calculation abilities.  Memory was 2/3, remote memory was intact, and fund of knowledge was normal.  Brain magnetic resonance imaging and magnetic resonance angiography were normal.  Another preventive medication was prescribed but also did not provide any benefit.  

On 14 February 2003, the CI was evaluated by physical medicine and underwent an unsuccessful trial of traction for possible cervical facet joint restriction.  At the 12 March 2003 physical therapy visit, the CI reported constant headaches with pain level graded at 4-6/10.  At a 29 September 2003 neurology follow-up, the CI complained of headaches without dizziness, nausea, vomiting, or weakness.  He was taking a pain medication and the provider noted no acute distress, an unremarkable examination, and recommended referral to the pain management clinic. 

The 24 March 2003 MEB NARSUM examination, 10 months prior to separation, recorded CI complaints of headaches graded at 4/10 with difficulty concentrating at work.  He was not on any profile restrictions nor taking any medications.  Physical examination was normal and documented that he was in no acute distress.  

The 13 May 2003 commander’s statement noted there had been a decline in the CI’s duty performance, productivity and effectiveness, but that he was able to work full shifts.  He did not have duty profile restrictions to that point and the commander stated the headaches caused “infrequent periods of missed work.”  On average, the CI missed work for a medical appointment once per month, but in February-March 2003, he missed work 3 times per week for half-hour physical therapy sessions.  

A 7 July 2003 NARSUM addendum, 7 months before separation, noted the CI’s MEB was delayed due to a requirement to process a line of duty determination, but that there was no change in his medical condition in the interim.  

On 25 July 2003, the Informal PEB (IPEB) adjudicated the post-concussive headache condition as unfitting and assigned a 10% rating, analogously coded 8199-8100 (migraines).  The CI appealed to the Formal PEB (FPEB) on 18 September 2003 which upheld the findings of the IPEB.  In its remarks, the FPEB noted that based on testimony and medical evidence, the CI had missed 6-8 full days and 6-8 partial days of work.  He had not had any urgent or emergent treatment for severe headaches and reported “some limitations in activities of daily living, citing lack of concentration and easy fatigability.”  The FPEB noted that the CI asked for a 30% rating based on headaches and cognitive impairment, but there was no medical documentation [objective] of such impairment.  The CI appealed to the Secretary of the Air Force Personnel Council (SAFPC).  The SAFPC concurred with the decision of the previous Boards for disposition of separation with severance pay and a 10% disability rating.  In its decision letter to the CI, the SAFPC explained that given the mechanism of the initial onset of the headaches was due to a head injury with concussion, consideration was given to rating the CI’s disability under VASRD code 8045 (brain disease due to trauma), but that 8045 criteria states “purely subjective complaints such as headache, dizziness, insomnia, etc…will be rated 10 percent and no more under diagnostic code 9304.”  The SAFPC noted that 8100 was an appropriate alternative code and found “no compelling objective basis upon which to justify an increase in the member’s disability rating.”  

At the 8 June 2004 VA Compensation and Pension (C&P) evaluation, 4 months after separation, the CI reported headaches with blurred vision and some memory loss.  Physical examination showed normal gait, stance and coordination.  Neurological examination showed normal cranial nerve function and orientation. The VA examiner stated, “There are no neurological disorders except that the veteran’s memory is fair, not good.”  

The panel directed attention to its rating recommendation based on the above evidence.  The FPEB rated the post concussive headaches condition 10%, coded analogously as 8100, citing no medical documentation regarding cognitive impairment and normal brain tests.  The FPEB also noted the CI’s subjective complaints regarding lack of concentration during headaches but attributed it to the headaches and not any organic deficit.  The VA also rated the chronic headaches condition 10%, coded 8100, based on the C&P examination 4 months after separation, citing characteristic prostrating attacks averaging 1 in 2 months over the last several months.   

Panel members noted that its rating recommendation must be based upon the VASRD rating rules in effect on the date of the CI’s separation.  VASRD diagnostic code 8100 rating criteria are based on the frequency of prostrating attacks.  The VASRD does not define “prostrating,” therefore, the panel applied a common (court-sanctioned) approach which is to apply the clear English definition.  Examples of online dictionary definitions include: Oxford Dictionaries (oxforddictionaries.com), “completely overcome or helpless, especially with distress or exhaustion” or according to the Merriam Webster dictionary (merriam-webster.com), “completely overcome and lacking vitality, will, or power to rise.”  Although the FPEB noted periods of absence from work, the commander’s statement indicated the CI was working full days with “infrequent” missed work due to medical appointments, not due to the prostrating nature of the headaches.  In the 12 months before separation, there were no evaluations in the STR at which the CI was appeared in distress or documentation of urgent or emergent treatment for prostrating headaches.  The panel agreed there was no evidence in the record of “characteristic prostrating attacks occurring on an average once a month over last several months” to support a 30% rating under code 8100.  The panel next considered a rating under code 8045, noting the 2004 VASRD rating criteria states that “purely neurological disabilities, such as hemiplegia, epileptiform seizures, facial nerve paralysis, etc.” should be rated under the applicable diagnostic codes (in this case appropriately analogous to 8100).  The only alternative to this code is the second approach as elaborated by the SAFPC, to rate the headaches and subjective cognitive symptoms 10% under 9304.  At the time, this 10% rating could not be combined with any other disability rating due to brain trauma, and no higher than 10% could be provided under 9304 without evidence of “a diagnosis of multi-infarct dementia.”  Therefore, there was no rating higher than a 10% available for the CI’s post-concussive headaches condition under any applicable VASRD code.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded there was insufficient cause to recommend a change in the PEB adjudication for the post concussive headaches condition.  

BOARD FINDINGS:  In the matter of the post concussive headaches condition and IAW VASRD §4.124a, the panel unanimously recommends no change in the PEB adjudication.  There are no other conditions within the panel’s scope of review for consideration.  Therefore, the panel recommends no modification or re-characterization of the CI’s disability and separation determination. 

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20161031, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

SAF/MRB
1500 West Perimeter Road, Suite 3700
Joint Base Andrews, MD  20762

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

		Reference your application submitted under the provisions of DoDI 6040.44 (Section 1554, 10 USC), PDBR Case Number PD-2016-01671

After careful consideration of your application and treatment records, the Physical Disability Board of Review determined that the rating assigned at the time of final disposition of your disability evaluation system processing was appropriate.  Accordingly, the Board recommended no re-characterization or modification of your separation.

I have carefully reviewed the evidence of record and the recommendation of the Board.  I concur with that finding and their conclusion that re-characterization of your separation is not warranted.  Accordingly, I accept their recommendation that your application be denied.

						Sincerely,

		

								XXXXXXXXXXXXXXXXXX
								Director
								Air Force Review Boards Agency

Attachment:
Record of Proceedings