RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXX	CASE:  PD-2017-05865
BRANCH OF SERVICE:  Air Force 	SEPARATION DATE:  20040809

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Medical Services Journeyman, medically separated for “migraine headaches” and “foot injuries,” each rated 10%, with a combined disability rating of 20%.   

CI CONTENTION:  “Disabilities were more severe than rated.”  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 - 20040602	VARD - 20050526	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Migraine Headaches	8100	10%	Migraine Headaches Without Aura	8100	10%	20041127	
Foot Injuries	5284	10%	Right Heel Spurs	5284	10%		
			Left Heel Spurs	5284	10%		
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  80%	

ANALYSIS SUMMARY:  

Migraine Headaches.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s headaches began in May 1995 with no precipitating event identified.  A NARSUM examination on 8 November 2001 indicated the CI was placed on Depakote (valproic acid) and did well; however, the migraine headaches increased and the serum valproate level was sub-therapeutic.  The CI was found fit for full duty and Depakote and Migranal (dihydroergotamine) were continued.  A neurology evaluation on 25 April 2002 indicated the CI had severe incapacitating headaches that were one-sided and throbbing and were associated with nausea, vomiting, and “spots” in her vision during and after the attacks.  Depakote and Elavil (amitriptyline) were continued and Imitrex (sumatriptan) was to be used for abortive therapy.  The CI went to the ER for the migraines in August and November 2002 and January, April, June and October 2003.  A CT scan of the head in October 2003 showed a small calcification in the left occipital cortex without evidence of a mass and an MRI in November 2003 confirmed the calcification, which was felt to be a sequela of old trauma or hemorrhage.  There was also a probable prominent Virchow-Robin space (an indicator of microvascular disease) in the left periventricular white matter.  The CI had another neurology opinion on 14 November 2003 where Keppra (levetiracetam, an anticonvulsant) and nortriptyline (for nerve pain) were recommended.  Chiropractic therapy was added to the treatment regimen and some improvement was noted at a follow-up neurology visit. 

The 22 December 2003 MEB NARSUM examination, 8 months prior to separation, noted complaints of multiple migraine headaches in the past year resulting in multiple absences, quarters and hospitalizations.  Her current medications were Naprosyn (naproxen, a nonsteroidal anti-inflammatory drug), Relpax (eletriptan, a migraine abortive medication), Phenergan (promethazine for nausea), nortriptyline and Keppra.  Physical examination showed a well-developed, well-nourished female in no distress with a blood pressure of 133/80 and pulse 76 beats per minute.  She was alert and oriented times three and had normal speech and affect.  Her cranial nerves were intact and her pupils were 2 mm and equal.  Strength was normal in all extremities and sensation was intact. Her gait was normal.  The remainder of the neurologic evaluation was unremarkable and the remainder of the physical examination was within normal limits.

At the 27 November 2004 VA Compensation and Pension (C&P) examination, less than 4 months after separation, the CI reported typical left-sided headaches with throbbing that were associated with nausea, vomiting, photophobia and phonophobia.  The headache intensity was typically 9-10/10.  She was unable to function during the headaches.  She noted she had two to three headaches a month.  If not controlled with medication, the headache could have lasted several days.  Records related to physical examination findings, diagnosis and prognosis were not in the case file.  The CI had an ER visit for a migraine headache on 29 December 2004, less than 5 months after separation.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the migraine headaches 10%, coded 8100 (migraine) citing two to three migraines per month requiring at least one ER visit monthly over the past 6 months.  The VA also rated the migraine headaches 10%, coded 8100, based on the C&P examination, citing control of migraines with prescription medication.  A 30% rating was not warranted because there was no evidence showing characteristic prostrating attacks occurring on an average of once a month over the last several months.

During the several months prior to separation, the CI experienced prostrating headaches occurring on average once per month.  This is based on the CI’s testimony at the PEB hearing and review of her clinic visits in 2004 at one of which in July 2004 she reported getting over a severe headache the day before and the neurologist indicated she continued to have significantly disabling headaches.  The CI also had two ER visits in May 2004 and one ER visit in April 2004.  The panel also noted despite improvement from the past the CI reported severe headaches 2-3 days a month.  While the record was silent on ER visits during June, July or August 2004, the CI did have a documented ER visit 3 months after separation.  The panel then discussed the nuances in the wording of a 30% rating (“with characteristic prostrating attacks occurring on an average once a month over last several months”) including the meaning of characteristic prostrating attacks, the frequency of the attacks, and the meaning of several months.  In short, because of the documentation in the record, the panel majority favored a 30% rating since there was a preponderance of evidence and sufficient justification to support the criteria needed to recommend a 30% rating whereas the minority voter noted the commander’s statement was silent about whether the CI left work or went to a darkened room at the time of the migraine headaches, albeit the commander clearly noted the CI missed work as a result of very frequent medical visits and quarters, which the panel noted were not all for the migraine headaches.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel majority recommends a disability rating of 30% for the migraine headaches, coded 8100.  

Foot Injuries.  The PEB combined the left and right foot injuries as a single unfitting condition coded 5284 (foot injuries, other) and rated 10%.  The approach by the PEB not uncommonly reflected its judgment that the constellation of conditions was unfitting, and there was no need for separate fitness adjudications or implied adjudication that each condition was separately unfitting.  The panel’s initial charge in this case was therefore directed at determining if the PEB’s approach of combining conditions under a single rating was justified in lieu of separate ratings.  When considering a separate rating for each condition, the panel considers each bundled condition to be reasonably justified as separately unfitting unless a preponderance of evidence indicates the condition would not cause the member to be referred into the DES or be found unfit because of physical disability.  When the panel recommends separate fitness recommendations in this circumstance, its recommendations may not produce a lower combined rating than that of the PEB.  The evidence for the foot injuries is presented together, with attendant recommendations regarding separate unfitness, and separate ratings, if indicated.  

According to the STR and MEB NARSUM, the CI’s bilateral foot condition began in 2001.  X-rays showed a small inferior calcaneal bony osteophyte and a mild degree of hallux valgus deformity of both feet.  A note dated 26 March 2003 indicated the heel pain was worse despite trigger point injections, orthotics and heel cups.  At a podiatry visit on 31 March 2003, the CI was given injections of a combination steroid/anesthetic to both heels for fasciitis.  Weight bearing X-rays of the feet in March 2003 showed a small, inferior calcaneal bony osteophyte on both the left and right foot.  On 29 April 2003, the CI reported improvement after the injections.  X-rays of the left foot and toes on 3 February 2004 showed a hallux valgus deformity without associated degenerative changes of the toe.  An electrophysiology study of the left lower extremity was normal without evidence of a tarsal tunnel syndrome.  

A podiatry note dated 19 March 2004 indicated the CI had bone spurs in the heels and big toe pain since November 2003.  She was given orthotics for calcaneal spurs and was told the heel spurs had gotten bigger.  The left toe started swelling, then sharp pain was followed by a sensation of pins and needles/numbness.  She put additional pressure on the left heel to mitigate the pain of the left great toe.  Physical examination showed palpable pulses, no edema and no erythema.  Protective sensation was intact.  There was a pes planus foot type with a mild bunion deformity on the left and some abduction of the hallux.  There was pain at the left hallux starting at the interphalangeal joint and continuing distally to the tip of the toe dorsally.  There was no swelling, redness or ecchymosis and no nail deformities were noted.  The bilateral plantar heels had pain upon palpation and at the posterior left heel there was pain with no swelling.  Upon dorsiflexion of the ankle there was pain along the left posterior heel.  There was no Achilles tendon tightness.  X-rays showed planter and posterior heel spurs.  The posterior spur appeared to lie in the Achilles tendon.   The examiner’s assessment was plantar fasciitis bilaterally, a posterior heel spur on the left, and chronic toe pain, left hallux.  A plantar fasciitis orthotic was recommended and the CI was given an Achilles cushion pad sock to wear.    An MRI of the left great toe dated 15 April 2004 demonstrated degenerative arthropathy.

At the 27 November 2004 VA Compensation and Pension (C&P) examination, less than 4 months after separation, the CI reported bilateral heel pain not responsive to non-operative treatments.
Physical examination of the bilateral feet showed the CI walked with a normal appearing gait and was able to toe raise and heel raise.  She had a significant amount of tenderness along the posterior aspect of her heels at the Achilles insertion and at the bottoms of her heels.  She had an equinus contracture (tightness of the Achilles tendon) of both ankles with only 5 degrees of dorsiflexion bilaterally.  She had good movement of her toes of the right lower extremity and had some mild ankle swelling bilaterally.  She had no callus formation of the plantar aspect of the toes.  Her right lower extremity appeared to be neurovascularly intact.  She had 2+ deep tendon reflexes of the knees and ankles and full muscular strength of the lower extremities; however, she was unable to wiggle the toes on the left as much as she could on the right.  She had some dysesthesia on the tips of the toes of the third, fourth and fifth toes on the left side and they appeared to be hypersensitive compared to the toes on the right.  She had no corrective devices and had no abnormal weight bearing or functional limitations.  There was normal alignment of the Achilles tendons and no pain on manipulation of the feet.  She had no flat foot deformity or any significant hind foot valgus deformity.  The examiner’s impression was bilateral symptomatic heel spurs.  X-rays showed evidence of heel spurs on both heels and a mild Haglund’s deformity (bony enlargement of the heel with soft tissue inflammation) of both Achilles insertions.  At a podiatry clinic visit on 4 January 2005, 5 months after separation, a right plantar fasciotomy with a heel spur resection was planned.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the foot injuries 10%, coded 5284 (foot injuries, other), citing the CI was scheduled for left foot surgery in June 2004 and the left foot condition was best described as moderate in severity.  The VA rated the right foot injury 10% and the left injury 10%, both coded 5284, based on the C&P examination, citing an equinus contracture of both ankles with only 5 degrees of dorsiflexion bilaterally and a significant amount of tenderness along the posterior aspect of the heels at the Achilles insertion.

Panel members determined that each foot injury was individually unfitting, albeit the left foot additionally had a symptomatic hallux valgus with arthritic changes.  The panel first noted that code 5003 (arthritis, degenerative) is applicable to the foot conditions since the spurs (osteophytes) were located at the heels at the site of the Achilles tendon insertions, which are involved in ankle motion.  Motion was painful on the left and limited bilaterally.  Therefore, use of an analogous code 5099-5003 offers a 10% rating for X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, although in the absence of occasional incapacitating exacerbations, a 20% rating is not warranted.  However, a 10% rating using code 5099-5003 offers no additional benefit to the CI and does not take into account separate unfitness of the left heel spur and the right heel spur.  The panel then considered use of code 5284 for the left foot.  The left foot heel spur limited the CI’s performance and was symptomatic while she was in service as did the right heel spur, although because of the left hallux valgus, the left foot was more symptomatic.  Nevertheless, the panel determined the left foot disability did not rise above a moderate level of impairment thereby reasonably warranting a 10% rating, and the right foot disability condition was closer to a moderate level than a mild or slight level, likewise reasonably warranting a 10% rating.  Use of an analogous muscle code (5399-5310 Group X) was considered since the CI did have some symptoms and limitations related to plantar fasciitis; however, although it was initially raised as a diagnostic possibility, the bilateral heel spurs rather than bilateral plantar fasciitis were addressed by the PEB.  Therefore, use of code 5399-5310 was not applicable.  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 left foot injury, coded 5284 and a disability rating of 10% for the right foot injury, coded 5284. 

BOARD FINDINGS:  In the matter of the migraine headaches, the panel majority recommends a disability rating of 30%, coded 8100 IAW VASRD §4.124a.  The single voter for dissent recommends no change but does not elect to submit a minority opinion.  In the matter of the foot injuries, the panel recommends a disability rating of 10%, coded 5284 IAW VASRD §4.71a for the left foot injury and a disability rating of 10%, coded 5284 IAW VASRD §4.71a for the right foot injury.  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; 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%	
Foot Injuries, Heel Spurs, Left Foot	5284	10%	
Foot Injuries, Heel Spurs, Right Foot	5284	10%	
COMBINED 	50% 	

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

Dear XXXXXXXXXX:

		Reference your application submitted under the provisions of DoDI 6040.44 (Section 1554, 10 USC), PDBR Case Number PD-2017-05865.

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 not appropriate under the guidelines of the Veterans Affairs Schedule for Rating Disabilities.  Accordingly, the Board recommended your separation be re-characterized to reflect disability retirement, rather than separation with severance pay

I have carefully reviewed the evidence of record and the recommendation of the Board.  I concur with that finding, accept their recommendation and determined that your records should be corrected accordingly.  The office responsible for making the correction will inform you when your records have been changed.

As a result of the aforementioned correction, you are entitled by law to elect coverage under the Survivor Benefit Plan (SBP).  Upon receipt of this letter, you must contact the Air Force Personnel Center at (210) 565-2273 to make arrangements to obtain an SBP briefing prior to rendering an election.  If a valid election is not received within 30 days from the date of this letter, you will not be enrolled in the SBP program unless at the time of your separation, you were married or had an eligible dependent child, in such a case, failure to render an election will result in automatic enrollment.