RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW
NAME:  XXXXXXXXXXXXXXXX	CASE: PD-2017-04372
BRANCH OF SERVICE: ARMY	SEPARATION DATE: 20070316

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was a National Guard E5, Abrams Tank Systems Maintainer, medically separated for “chronic neck pain” and “migraine headaches,” rated 10% and 0%, respectively, with a combined disability rating of 10%.

CI CONTENTION: He sustained a neck injury, headaches and dizzy spells after a motor vehicle accident (MVA) in Iraq in June 2004.  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 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 - 20060911	VARD - 20070605	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Neck Pain	5237	10%	Cervical Spine Arthritis		20%	20061006	
Migraine Headaches	8100	0%	Migraines		0%	20061006	
COMBINED RATING: 10%	COMBINED RATING OF ALL VA CONDITIONS: 20%	

ANALYSIS SUMMARY:

Chronic Neck Pain. According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s neck condition began during a rear-end MVA in June 2004. The CI was treated by neurology and received medication, physical therapy (PT), epidural steroid and facet injections, and acupuncture without improvement. A neurosurgical note dated 25 January 2006 referred to an MRI that showed cervical spondylosis with multilevel degenerative disc disease and foraminal stenosis with C5/6/7 most affected. No surgical intervention was planned; however, there was a potential for a future C4-7 ACDF (anterior cervical discectomy and fusion).

The 10 March 2006 MEB NARSUM examination, 12 months prior to separation, noted complaints of chronic neck pain. Physical examination showed cervical spine spasm. The CI underwent osteopathic manipulation and acupuncture on 16 March 2006. Cervical spine range of motion (ROM) PT measurements with repetition on 16 March 2006 were flexion 20 degrees (normal 45)

and combined ROM 190 degrees (normal 340) with pain. In April 2006 the CI underwent chiropractic manipulative therapy.

At the 6 October 2006 VA Compensation and Pension (C&P) general and joint examinations, 5 months before separation, physical examination revealed the CI’s gait and posture were within normal limits. Flexion was 20 degrees and combined ROM was 195 degrees with pain-limited motion. There was no cervical spine tenderness or spasm present. X-rays demonstrated degenerative changes of the cervical spine most pronounced at C4/C5 resulting in mild bilateral neuroforaminal narrowing at that level.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the neck condition 10%, coded 5237 (lumbosacral strain), citing limitation of motion, and spinal spasm and tenderness. The VA rated the neck condition 20%, coded 5242 (degenerative arthritis of the spine), based on the C&P examination, citing limitation of flexion. The panel agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 15 degrees but not greater than 30 degrees), as reported on the MEB PT and VA examinations. There was no documentation of intervertebral disc syndrome (IVDS) with incapacitating episodes which would provide for a higher rating under that formula. After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 20% for the neck condition, coded 5237.

Migraine Headaches (MHAs). According to the STR and MEB NARSUM, the CI was diagnosed with cluster MHAs in 1995 and was treated with Elavil (for nerve pain) and sumatriptan (for acute migraine relief); however, the HAs were aggravated during the aforementioned MVA in 2004. The CI reported a pain level of 8/10 and he would recluse himself to a dark-quiet room. At a clinic visit on 15 November 2005, he was prescribed Zomig (for acute migraine relief). At a neurology clinic visit 2 days later he was assessed to have a common migraine without aura with a frequency of two to three times a month. Elavil was continued for prophylaxis and Zomig was to be used as an acute agent. On 11 January 2006 he was placed on quarters for a moderate to severe migraine.

The MEB NARSUM examination noted the CI’s present condition as having recurrent MHAs and a constant occipital headache with a unilateral hemispheric headache. He reported having constant occipital headaches 3-6/10 superimposed by weekly MHAs at 8/10 pain since the 2004 MVA and “[h]e was not able to work for 1 to 2 days.” Treatment consisted of migraine- preventative medication. The physical examination did not address the headache condition; however, the examiner opined that the “MHAs rendered the CI unable to work during headaches.”

A document, verified by the case manager, listed the days the CI missed work from 11 January 2006 through 9 August 2006 and indicated he called in “sick migraine headache” 19 times (some dates which were duplicates were not counted). “Quarters” was noted ten times and “Sick Call” was noted nine times. A neurology note dated 26 August 2006 indicated the CI was seen on 17 November 2005 for a history of intermittent headaches with a frequency of two to three per month with maximal pain lasting 1 ½ days on average, while at a visit on 11 July 2006, it was felt that the headache was more reflective of an exacerbation of his neck pain. The neurology note further referenced a visit of 4 August 2006 where the CI was “counseled on migraine” and Elavil was to be discontinued due to consideration for a possible medication adverse effect. The CI noted on 28 August 2006 that his headache frequency was one to two per month before deployment and up to four to five per month post deployment. He described difficulty performing work-related duties about 8-10 days per month due to pain and light sensitivity, and the light sensitivity prevented his seeking in-person medical visits for documentation. The examiner noted when the CI had an acute migraine, he should utilize his acute-regimen of either Zomig  or Imitrex  (for  acute migraine  relief).   Additionally,  the examiner noted  that  if    work

permitted, he should recluse himself to a quiet-dark area and try to take a nap and try to notify his primary care manager or chain-of-command for documentary frequency and subjective degree of debilitation and/or prostration. In a separate neurology note on 6 September 2006, 6 months before separation, the CI reported poor efficiency with the Zomig and continued MHAs 3 to 4 days a month, with each lasting 3 days and the HAs were functionally limiting 4-6 days per month. There was no physical examination performed. Elavil was restarted and Imitrex was to be used for acute therapy; Zomig was discontinued. Family members sent supporting statements to the PEB indicating the CI had severe headaches, and one dated 2 September 2006 noted the CI had debilitating headaches one or two times a week.

At the C&P general examination, the CI reported experiencing headaches once or twice a monthly over the prior few months and most recently one headache weekly. If on occasion the headaches did not respond to oral Imitrex, then he would use an injectable form of Imitrex. The headaches could interfere with his [military] occupation, and he was diagnosed with MHAs that intermittently interfered with his occupation. Neurological examination was within normal limits. The panel noted there was no VA or civilian treatment evidence of prostrating headaches within 1 year after separation.

The panel directed attention to its rating recommendation based on the above evidence. The PEB and the VA both rated the MHAs 0%, coded 8100 (migraine). The PEB cited that the headaches did not meet the criteria for prostrating IAW DoDI 1332.39 paragraph E2.A1.4.1.4. The VA based the rating on the C&P general examination, citing assignment of a noncompensable examination unless there are characteristic prostrating attacks averaging one in 2 months over the last several months.

The panel first considered if the CI had characteristic prostrating headaches while in service. The VASRD does not 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). The panel agreed that the MEB NARSUM, neurology, and VA examinations in addition to an MHA log all documented the presence of prostrating headaches while the CI was in service. Panel members noted that DoDI 1332.39 paragraph E2.A1.4.1.4 was rescinded, and VASRD §4.124a does not require seeking medical attention for an attack to be considered prostrating.

The panel next considered a rating recommendation for the prostrating headaches. Review of the record did not show prostrating headaches occurring on average once every 2 months, or more frequently, over the last several months prior to separation to support a rating higher than the 0% adjudicated by the PEB. Panel members noted there was no documentation of the prostrating headaches in the STR or VA evidence, or from civilian treatment, 6 months prior to separation and 1 year after separation. Therefore, the panel would be speculating as to how many prostrating headaches occurred “over the last several (more than two but fewer than many according to Merriam-Webster dictionary) months” prior to separation, albeit the most proximate one point statement was one or two debilitating headaches a week, 6 months prior to separation. At the VA examination, 5 months prior to separation, the CI reported one headache weekly with medication modification to the use of injectable Imitrex, but whether the headache was prostrating or debilitating was not specified. After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel majority concluded there was insufficient cause to recommend a change in the PEB adjudication for the migraine headaches condition.

BOARD FINDINGS: In the matter of the neck condition, the panel recommends a disability rating of 20%, coded 5237 IAW VASRD §4.71a. In the matter of the migraine headaches condition and IAW VASRD §4.124a, the panel majority recommends no change in the PEB adjudication. The single voter for dissent submitted the appended minority opinion. There are no other conditions within the panel’s scope of review for consideration.

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

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Neck Pain	5237	20%	
Migraine Headaches	8100	0%	
	COMBINED	20%	

The following documentary evidence was considered:

Minority Opinion. The panel agreed the CI had migraine headaches, which were well documented prior to the PEB adjudication. The VASRD does not 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 is no doubt that the MEB NARSUM, neurology and VA examinations along with the MHA log, all documented the presence of prostrating headaches while the CI was in service. Panel members noted that DoDI 1332.39 paragraph E2.A1.4.1.4 was rescinded, and VASRD §4.124a does not require seeking medical attention for an attack to be considered prostrating. However, although the case file did not provide evidence of examinations within 5 months prior to separation through no fault of the CI, he had many documented significant migraine headaches with one supporting statement, 6 months prior to separation. This statement indicated one or two debilitating headaches a week, the facts of which were not taken into account by the FPEB, which actually revoked the 10% rating adjudicated by the PEB for functional impairment, or in the terminology of the VASRD, for prostrating headaches. Of interest, VASRD §4.121 (identification of epilepsy) permits lay testimony. While the pain from a migraine headache is subjective, a non-medical individual can report whether a CI does in fact seek a dark environment to rest until the headache is more tolerable or passes.

While it would be speculative to presume the migraine headaches continued at approximately the same frequency up to separation, nevertheless, taking into account VASRD §§4.1 (essentials of evaluative rating), 4.2 (interpretation of examination reports), 4.3 (resolution of reasonable doubt), 4.6 (evaluation of evidence), and 4.7 (higher of two evaluations), the minority voter reasonably favors at least a 10% rating using code 8100, which requires “characteristic prostrating attacks averaging one in 2 months over last several months.” Of note is the statement by the VA examiner, 2 months prior to separation, who indicated the CI “was diagnosed with migraine HAs that intermittently did interfere with his occupation.” If the headaches did interfere with his occupation, they were more likely than not either debilitating or prostrating headaches.

Furthermore, the FPEB indicated the CI was “currently having two to eight headaches a month lasting from 60 minutes (if terminated by Imitrex or Zomig) to 2 to 3 days. [Headaches do] not meet the criteria for prostrating …, but [they] interrupt his functioning. The PEB’s description of the headaches interrupting his functioning, which is what prostrating headaches do, is clearly the reason to warrant a rating, especially since the PEB rating relied on the rescinded DoDI 1332.39 paragraph E2.A1.4.1.4, and VASRD §4.124a does not require seeking medical attention for an attack to be considered prostrating. As noted previously, the record was silent on migraine headaches for several months prior to separation, but within several months prior to the FPEB, which was adjudicated 4 months prior to separation, the CI had prostrating or debilitating headaches that unquestionably interfered with his ability to work.

Therefore, the minority voter clearly and unequivocally recommends the ROP be modified as follows:

After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the migraine headaches condition, coded 8100.

BOARD FINDINGS: In the matter of the neck condition, the panel recommends a disability rating of 20%, coded 5237 IAW VASRD §4.71a. In the matter of the migraine headaches condition, the panel recommends a disability rating of 10%, coded 8100 IAW VASRD §4.124a. There are no other conditions within the panel’s scope of review for consideration.

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Neck Pain	5237	20%	
Migraine Headaches	8100	10%	
	COMBINED	30%	

DEPARTMENT OF THE ARMY
ARMY REVIEW BOARDS AGENCY 251 18TH STREET SOUTH, SUITE 385
ARLINGTON, VA 22202-3531

AR20200000185, 

Dear XXXXXXXXXXXXXXX:

The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and by majority vote, recommended no re-characterization of the separation or modification of your combined disability rating previously assigned. I have reviewed the Board’s record of proceedings, majority recommendation, and minority opinion. I reject the Board’s recommendation and I accept the Board’s minority opinion to re-characterize your separation as a permanent disability retirement with the combined disability rating of 30% effective the date of your medical separation for disability with severance pay. Enclosed is a copy of the Board’s recommendation, minority opinion and record of proceedings for your information.

The re-characterization of your separation as a permanent disability retirement will result in an adjustment to your pay providing retirement pay from the date of your original medical separation minus the amount of severance pay you were previously paid at separation.

The accepted DoD PDBR recommendation has been forwarded to the Army Physical Disability Agency for required correction of records and then to the U.S. Defense Finance and Accounting Service to make the necessary adjustment to your pay and allowances. These agencies will provide you with official notification by mail as soon as the directed corrections have been made and will provide information on your retirement benefits.  Due to the large number of cases in process, please be advised that it may be several months before you receive notification that the corrections are completed and pay adjusted. Inquiry concerning your correction of records should be addressed to the U.S. Army Physical Disability Agency, (AHRC-DO)