RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX.	CASE:  PD-2017-03342
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20061014

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Infantryman, medically separated for “migraine headaches” and “vertigo and dizziness,” rated 0% each, with a combined disability rating of 0%.  

CI CONTENTION:  The CI was given a higher rating by the VA for his 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 Medical Evaluation Board (MEB), but determined by the PEB 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.  The panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections when appropriate.  The panel’s assessment of the PEB rating determination is based on review of medical records and all available evidence relevant to application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards for 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, which operates 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 disability at the time of separation.  

RATING COMPARISON:  

SERVICE PEB - 20060825	VARD - 20061101	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Migraine Headaches	8100	0%	Migraine Headaches	8100	50%	20070215	
Vertigo and Dizziness	6204	0%	Vertigo 	6299-6204	10%	20070215	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  70%	

ANALYSIS SUMMARY:  

Migraine Headaches and Vertigo.  Although the PEB adjudicated migraine headaches and vertigo as separate conditions, the close relationship in time of presentation, evaluation, diagnosis and treatment overlapped sufficiently to warrant evaluation jointly rather than individually.  However, separate ratings will be recommended for each condition.  

According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s migraine condition began in November 2004, a few weeks after his first episodes of vertigo.  The CI reported to the emergency room (ER) on 3 November 2004 with the complaint of onset of dizziness with a syncopal episode the prior evening.  He had a headache and mild neck stiffness.  A computerized tomography (CT) examination dated 3 November 2004 showed a simple fluid attenuating lesion within the posterior fossa.  A lumbar puncture yielded a grossly bloody tap.  Magnetic resonance imaging (MRI) and magnetic resonance angiography (MRA) were reported to be normal and a repeat lumbar puncture was normal.  His headaches, which started as pressure, lasted from a few hours to all day with throbbing or pounding.  Treatment included amitriptyline (for nerve pain) and Fioricet (acetaminophen, butalbital, and caffeine).  

On 2 December 2004 the CI reported daily headaches that were worse with exertion.  On 6 December 2004 the CI had an EEG (electroencephalogram) which was normal.  On 10 January 2005 the CI was prescribed gabapentin (for nerve pain) and was referred to otolaryngology for vertigo evaluation.  Head and T-bone (of the temporal bones) CT scans dated 7 February 2006 were normal.  On 28 March 2006, the CI reported vertiginous attacks that were sporadic, and he knew of no precipitating triggers.  Vestibular evaluation with recording of spontaneous nystagmus was normal.  There was also normal testing for positional nystagmus test, optokinetic nystagmus, caloric testing, and oscillating tracking.  An MRI on 16 February 2006 demonstrated mild prominence of the cisterna magna, but was otherwise unremarkable.  The CI reported Imitrex (sumatriptan, a migraine headache abortive medication) only brought the headaches down to a pain scale of 7/10 (10 being the worst pain) and Inderal (propranolol, a beta blocker) did not provide much relief either.  Treatment then consisted of rizatriptan (for headache relief).  All ENG (electronystagmography-to test whether or not dizziness may be due to inner ear disease by measuring eye movement when the balance system is stimulated in different ways) findings were within normal limits on 28 March 2006.  On 2 May 2006, the CI complained of dizziness.  Comprehensive audiometry at all thresholds were in the 10 to 15 dB range. There were no retrocochlear signs noted.  Tympanometry, acoustic reflex testing, and acoustic reflex decay testing were normal.  An EEG performed on 2 May 2006 was normal.  On 12 May 2006, topiramate was prescribed for treatment of the migraine headache.  On 18 May 2006, the neurologist noted the CI was started on migraine prophylaxis to dissect apart the migraine from the vertigo and ensure his vertigo was not a manifestation of acephalgic migraine (without a headache).  Otolaryngology consultation was requested to exclude peripheral etiologies.  The CI maintained a headache log from March to June 2006 that noted the length of the headache, dizziness, and medication(s) taken.  A multitude of headaches were documented as well as a headache that lasted as long as 27 hours and was disabling.  Dizziness with vomiting and dizziness with a loss of consciousness were also recorded in the headache log. 

The 10 July 2006 MEB NARSUM examination, 3 months prior to separation, noted complaints of headaches and vertigo without frequent falls while walking; however, the CI reported poor coordination and sensory disturbances.  The CI reported upon returning from deployment, he was having three to five prostrating headaches per month and was tried on propranolol, Maxalt (rizatriptan), Zomig (zolmitriptan for migraine relief), and Relpax (eletriptan for migraine headache relief).  He continued to have headaches once or twice a week.  He also continued to have vertigo impairing his sense of balance.  Physical examination was performed in coordination with the VA physical examination (see below).   

At the 12 July 2006 VA Compensation and Pension (C&P) evaluation, 3 months before separation, the CI reported migraine headaches with 10/10 pain and vertigo with symptoms of dizziness and nausea.  Physical examination showed the CI to be alert, oriented and responding appropriately to questions.  Gait, stance and coordination were normal.  The Romberg test (for balance) was negative.  His head, eyes, and ears were normal.  Cranial nerves II-XII were grossly intact.  Deep tendon reflexes were brisk 2+ in the extremities.  No sensory defects were noted. 

At the 15 February 2007 VA Compensation and Pension (C&P) evaluation, 4 months after separation, the CI reported migraines (once or twice a week) and vertigo (more than once a month).  He also had episodes when he passed out, the last one 2 months earlier.  On examination he was neatly groomed and appropriately dressed.  He was restless and his speech was soft or whispered.  He was cooperative and friendly.  Affect was full and his mood was anxious.  He had a short attention span and orientation was intact to person, time and place.  Thought process and content were unremarkable.  Judgment and insight were intact and his intelligence was above average.  He had a sleep impairment, but no delusions, hallucinations, obsessive behavior, or homicidal or suicidal thoughts.  Impulse control was good and memory was normal.  The CI was working as a correctional officer.

Migraine Headaches.  The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the migraine condition 0%, coded 8100 (migraine [headaches]), citing headaches that were not prostrating IAW DOD 1332.38 para E4.12.  The VA also initially rated the migraine condition 0%, coded 8100, based on the C&P examination done 3 months before separation, citing no documentation of a prostrating attack.  The VA, 7 months after separation, changed the rating to 50%, coded 8100, based on the C&P examination 4 months after separation, citing medical findings that showed very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability.  

Panel members noted that the CI was noted to have prostrating attacks in the NARSUM and the CI’s headache log noted several that were “disabling.”  Panel members observed that there was no evidence of characteristic prostrating attacks within the last several months prior to separation.  A 10% rating using code 8100 requires “characteristic prostrating attacks averaging one in 2 months over the last several months,” while a 30% rating requires “characteristic prostrating attacks occurring on average once a month over the last several months.”

After reviewing the evidence in the STR and VA records, the panel majority agreed that although there was no evidence of characteristic prostrating attacks within the last several months prior to separation, the CI’s headache condition most closely matched the criteria for a 10% rating under VASRD Code 8100 at the time of separation.  A 50% rating was not warranted in the absence of “very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.”  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 migraine condition, coded 8100.  

Vertigo and Dizziness.  The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the vertigo condition 0%, coded 6204 (peripheral vestibular disorders) citing no objective findings.  The VA also initially rated the vertigo condition 0%, analogously coded 6204, based on the C&P examination, citing no symptoms of occasional dizziness.  The VA, 7 months after separation, changed the rating to 10%, based on the C&P examination done 4 months after separation, citing medical findings that showed symptoms involving occasional dizziness.  

Members noted code 6204 for a 10% rating requires “occasional dizziness,” while a 30% rating requires “dizziness and occasional staggering,” and objective findings supporting the diagnosis of vestibular disequilibrium are required before a compensable evaluation can be assigned under this code.  Members noted that the CI underwent extensive evaluation to determine the etiology of both the headaches and dizziness; and no distinct cause was identified.  However, the CI did document occasional episodes of dizziness on his headache log, although on examination Romberg’s test was negative.  While vertigo is subjective, there were no objective findings documented to meet the rating criteria, albeit the VA rated the vertigo 10% based on symptoms.  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 vertigo condition.  

BOARD FINDINGS:  In the matter of the migraine condition, the panel majority recommends a disability rating of 10%, coded 8100 IAW VASRD §4.124a.  The single voter for dissent submitted the appended minority opinion.  In the matter of the vertigo condition and IAW VASRD §4.87, the panel recommends no change in the PEB adjudication.  There are no other conditions within the panel’s scope of review for consideration.  

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

CONDITION	VASRD CODE	PERMANENT RATING	
Migraine Headaches	8100	10%	
Vertigo and Dizziness	6204	0%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170201, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

	

Minority Opinion.  The minority voter recommends a 30% rating using code 8100 for the unfitting migraine headaches.  By voting for a 10% rating the majority, for all intents and purposes, conceded that there were “characteristic prostrating attacks averaging one in 2 months over the last several months” in contradistinction to the PEB, which indicated the headaches were not prostrating despite the clear evidence in the NARSUM as well as the CI’s headache log.  The minority voter also agrees there were prostrating attacks, whether or not they were consistent with the definitions of “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) since the VASRD does not define prostrating.  However, what is unique in this case is that the CI kept a headache log in which he recorded his severe headaches as “disabling.”  Since the CI used his own words to define the severity of his headaches, it is not difficult to understand that he meant he was “out of action,” which is not disparate at the end of the day from the aforementioned dictionary definitions and is listed as a synonym of prostrating in Microsoft Word.  The next point is also semantic in nature since a 30% rating requires “characteristic prostrating attacks occurring on average once a month over the last several months.”  The key word “several” is likewise not defined in the VASRD.  However, once again the majority by offering a 10% rating conceded that the CI had at least one characteristic prostrating attack in 2 months over the last several months.  The minority voter relies on the CI’s headache log, which has entries over a 3 month period beginning in March 2006 through June 2006, which was approximately 5-7 months prior to separation.  Whether there were other pages of the headache log is speculative since no additional pages were found in the STR.  Among the many dictionary definitions of several is one on point from the online Merriam-Webster Dictionary, which defines several as “more than two but fewer than many,” while many is defined as “being one of a large but indefinite number.”  Therefore, a 30% rating is unequivocally reasonable for the migraine headaches, which were not only documented to be semantically equivalent to prostrating and occurred once a month over the last several months.

The minority voter recommends the Board Findings be modified as follows:

In the matter of the migraine condition, the panel recommends a disability rating of 30%, coded 8100 IAW VASRD §4.124a.  

The panel recommends 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 the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Migraine Headaches	8100	30%	
Vertigo and Dizziness	6204	0%	
COMBINED	30%	

AR20180006640, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

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 XXXXXXXXXXXXXXXXXX.

Sincerely,					      
Enclosure