RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY CASE NUMBER: PD12-00480 SEPARATION DATE: 20030107 BOARD DATE: 20130227 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (92A20 / Warehouse and Supply), medically separated for chronic migraine headaches and chronic pain (in the) neck, left shoulder, upper back and both knees. The chronic neck, left shoulder, upper back and bilateral knee pain and chronic migraine headaches conditions did not improve adequately with treatment to meet the physical requirements of her Military Occupational Specialty (MOS) or satisfy physical fitness standards. She was issued a permanent U3L3 profile and referred for a Medical Evaluation Board (MEB). Chronic neck pain, myofascial pain syndrome, chronic upper back pain, chronic left shoulder rotator cuff tendonitis, chronic migraine headaches and bilateral retropatellar pain syndrome (RPPS) conditions, identified in the rating chart below, were forwarded to the Physical Evaluation Board (PEB) as medically unacceptable. The PEB adjudicated the chronic pain (of the) neck, left shoulder, upper back and both knees and chronic migraine headache (after heavy lifting) conditions as unfitting, rated 20% and 0% respectively, with application of the US Army Physical Disability Agency (USAPDA) pain policy. The CI appealed to the Formal PEB (FPEB), which downgraded the IPEB 20% rating for the chronic pain condition to 10%. The CI made no further appeals and was then medically separated with a 10% disability rating. CI CONTENTION: The CI elaborated no specific contention in her application. SCOPE OF REVIEW: The Board wishes to clarify that the scope of its review as defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2) is limited to those conditions which were determined by the PEB to be specifically unfitting for continued military service; or, when requested by the CI, those condition(s) “identified but not determined to be unfitting by the PEB”. The Service ratings for unfitting conditions will be reviewed in all cases. Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Army Board for the Correction of Military Records (BCMR). RATING COMPARISON: Service FPEB – Dated 20020920 VA (8 Mos. Pre-Separation) – All Effective Date 20030107 Condition Code Rating Condition Code Rating Exam Chronic Pain, Neck, Lt Shoulder, Upper Back & Both Knees 5099-5003 10% TOS w/ CTS & LUE radiculopathy 8599-8510 20% 20030128 Lt Shoulder Tendinitis… 5024-5201 20% 20030128 Rt Knee PFS 5099-5014 10% 20030128 Lt Knee PFS 5099-5014 10% 20030128 DJD and DDD Cervical Spine 5010-5290 10% 20030128 Chronic Migraine HAs 8100 0% Migraine Headaches 8100 50% 20030128 .No Additional MEB/PEB Entries. TOS w/ CTS & RUE radiculopathy 8599-8510 20% 20030128 MPS, Lumbar Spine 5299-5295 10% 20030128 Post-op Residuals Rt Great Toe… 5299-5280 10% 20030128 0% X 4 / Not Service-Connected x 3 Combined: 10% Combined: 90% ANALYSIS SUMMARY: The PEB combined the chronic pain of the neck, left shoulder, upper back and both knees as a single unfitting condition, coded analogously to degenerative arthritis and rated 10%. The PEB apparently relied on the USAPDA pain policy for not applying separately compensable VASRD codes. If the Board judges that two or more separate ratings are warranted in such cases, however, it must satisfy the requirement that each ‘unbundled’ condition was unfitting in and of itself. The Board must apply separate codes and ratings in its recommendations if compensable ratings for each condition are achieved IAW VASRD §4.71a. Not uncommonly, this approach by the PEB reflects its judgment that the constellation of conditions was unfitting and that there was no need for separate fitness adjudications rather than a judgment that each condition was separately unfitting. Thus, the Board must exercise the prerogative of separate fitness recommendations in this circumstance, with the caveat that its recommendations may not produce a lower combined rating than that of the PEB. Neck and Upper Back Condition. The CI first developed neck and upper back pain in January 1991 after she had been in a motor vehicle accident (MVA) while deployed. Her pain persisted despite conservative treatment. A cervical spine x-ray was normal and a MRI in May 1991 showed minimal degenerative disease without herniated discs. She was in a second MVA in June 1991 with exacerbation of her symptoms. Electrodiagnostic studies that fall were consistent with a chronic left C6-7 radiculopathy. She was seen regularly over the next five years for her neck and upper back pain. In 1996, she was lifting heavy objects repetitively as part of her duties and developed significant pain in the neck and upper back with numbness and tingling in her left arm. A MRI showed an Arnold Chiari malformation with a C7-T1 syrinx (congenital conditions). The narrative summary (NARSUM) was dictated on 19 April 2002, a little over eight months prior to separation, noted that the CI was involved in a second (? Third) MVA in December 2001 and had further aggravation of her symptoms. The CI reported that the pain was a constant cramping aching tightness and that she also had left upper back pain. On examination, she was noted to have normal reflexes, 4/5 strength of the left supraspinatus and also with external rotation and reduced sensation from C5-T1 on the left. A MEB neurology examination done specifically for migraine headaches four months later, on 4 August 2002, was significant for a normal motor examination, normal reflexes and a sensory loss on the left attributed to a carpal tunnel syndrome. The VA Compensation and Pension (C&P) examination was on 28 January 2003, three weeks after separation. The CI reported 9/10 sharp, dull achy pain which was constant and did not benefit from medications or chiropractic treatment. On examination, gait, posture, motor and reflex testing was normal. Sensation was reduced on the radial aspect of the left forearm. The examiner noted that ulnar neuropathy of the right arm had been diagnosed in October 2002. The Board considered if the neck and upper back pain was a separately unfitting condition. It noted that the motor and reflex examinations were typically normal and the sensory examinations most consistent with a peripheral neuropathy. The findings on x-ray and MRI were minimal and not atypical for someone her age. The MEB examiner noted that the cervical symptoms were acceptable for retention in isolation from her other symptoms. The Board determined that the preponderance of evidence did not support a presence of a separately unfitting condition due to the neck and upper back pain. Left Shoulder Condition. According to the NARSUM, the CI suffered a dislocation of the left clavicle during the initial MVA and it was not successfully reduced. She was transferred out of theater for treatment, but still suffered permanent nerve damage to her left arm. Review of contemporaneous records does not support this history. X-rays of the left shoulder, done for a history of popping and pain with abduction, were normal two months after the MVA and again on 17 September 1999. A MR arthrogram on 7 September 2001 was normal. The ROM was noted by an orthopedist three weeks later to be normal. Examination by a physical therapist three weeks after the orthopedic examination showed full ROM for both upper extremities. At the time of the NARSUM, the CI noted that she had moderate pain of the left arm and shoulder associated with weakness. As noted, the NARSUM examination showed weakness in left rotation and of the supraspinatus, but the subsequent motor examinations by the neurologist and C&P examiners were normal. On the NARSUM examination, the CI also had a positive Hawkins, Neer and Cross Arm test on the left, for impingement and subluxation. The VA C&P examiner documented a history of restrictions in daily activities and a limitation of 20 pounds for lifting. She was noted to have tenderness bilaterally and painful, but full, motion bilaterally as well. The Board considered if the left shoulder condition was a separately unfitting condition. The ROM and motor examinations were typically normal. The findings on x-ray and MRI were normal. The Board determined that the preponderance of evidence did not support a presence of a separately unfitting condition due to the left shoulder. Bilateral Knee Condition. The CI first was seen for left knee pain during training in August 1986, two months after accession. She was treated with duty modification and crutches and was able to continue duty. The NARSUM noted that a MRI showed a patellar fracture; however, this was not found in the contemporaneous records available for review. An arthrogram on 18 February 1987 was negative. In 1989, the CI requested a downgrade in her profile from a P3 to P2. Per the NARSUM, this was to allow her to reenlist. There were no further entries for the left knee or any for the right knee until she entered the DES process. At the NARSUM, she reported left greater than right knee pain which was daily and aggravated by activity. It was intermittent and slight. On examination, a patellar grind was positive bilaterally; this is a non-specific test. Both knees were tender to palpation on the medial and lateral aspects. Testing for instability and meniscal irritation was negative bilaterally. The ROM was normal. No x-rays were accomplished. At the VA C&P examination, she noted bilateral knee pain since 1986 and that she had had arthroscopy in 1987. The Board found no evidence of this in the record, but did note foot surgery. Her gait was noted to be normal. All motion was painful, but full. Testing for meniscal irritation was positive bilaterally. However, she was able to heel, toe and heel to toe walk as well as hop on one foot. She was thought to have bilateral patello-femoral pain syndrome. The Board considered if the chronic pain of either knee was a separately unfitting condition. It noted that the ROM was normal, that the CI had not been seen solely for her knees the last few years of service and had an essentially normal examination. An arthrogram of the left knee was normal four years prior to separation and no x-rays were repeated by either the military or VA clinicians. The Board determined that the preponderance of evidence did not support a presence of a separately unfitting condition due to either knee. The Board directs attention to its rating recommendation based on the above evidence. The PEB rated the bundled conditions at 10% citing the USAPDA pain policy. The Board did not rely upon the pain policy, but did determine that none of the conditions was separately unfitting or ratable. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the chronic pain of the neck, left shoulder, upper back and both knees. Migraine Headache Condition. The CI endorsed a long history of migraine headaches that increased after her MVA, aggravated by another MVA five months prior to separation. At the time of separation, she was undergoing changes to her medical regimen in an attempt to achieve better control. Her commander did not specifically comment on her headaches, but the record contained formal statements from the PltSgt that she had to be taken home numerous times a week for major headaches, that resulted in her having to be placed in a quite dark room. The neurology NARSUM, accomplished to address the migraine headache condition, noted that the CI reported that she needed to leave work every other week due to a flare in her pain. The neurologists letter to the FPEB indicated that following the PEB determination indicating “no severe HA since initiation of Fluoxetine” (trade name Prozac), that the CI had been in an MVA attributed to medication side effects, was hospitalized, and had her HA medications significantly limited (Fluoxetine stopped) due to concerns over side effects. The neurologist stated the CI’s migraine HAs were severe and that decreasing the medications due to the side effects of mental status changes indicated the CI was “between the proverbial rock and a hard place.” The FPEB determination was that the CI had “Chronic migraine headaches occurring only after heavy lifting in excess of physical profile limits. (MEBD DIAG 5, NARSUM, NEUROLOGY ADDENDUM, 4 AUG 02, SWORN TESTIMONY AND EVALUEE EXHIBITS)” [profile lifting restriction was 20 pounds]. At the VA C&P examination, the CI reported headaches 2-3 times a week that included “spots in front of her eyes, nausea, vomiting, light sensitivity, and noise sensitivity;” were treated with Indocin, Percocet, and Phenergan as needed; and would last anywhere from 2-3 days. The examiner did not specifically comment on prostration. The Board directs attention to its rating recommendation based on the above evidence. The PEB and VA both coded the migraine headaches as 8100, migraine headaches, but rated it at 0% and 50% respectively. The VA awarded a 50% rating noting that the record showed very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability. The rating options under 8100 Migraine, which are open to consideration in this case, rely on the frequency of ‘prostrating’ attacks. The DoDI 1332.39 (in effect at separation, but since rescinded) required that “the Service member must stop what he or she is doing and seek medical attention.” However, VASRD §4.124a does not require seeking medical attention for an attack to be considered prostrating and a common (court-sanctioned) approach is to apply the clear English definition of prostrating. The Board carefully considered the frequency and nature of the CI’s headaches including objective evidence and corroborating subjective evidence. The Board carefully considered the frequency of prostrating headaches following the MEB and the changes in medication, neurologist statement of severity/medication side-effects, and the FBEB exhibits and determination, as well as the post-separation VA exam indicating continued migraine HAs. The Board majority resolved the disparity between the FPEB determination that there were no prostrating headaches absent heavy lifting, with the short timeframe of medication changes, the neurologists exhibit, as well as the VASRD 8100 criteria for rating over the last several months in the favor of the CI. The entirety of the record supported the CI’s condition as closest to that envisioned under the 30% criteria of “With characteristic prostrating attacks occurring on an average once a month over last several months.” After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority recommends a disability rating of 30% for the migraine headache condition. BOARD FINDINGS: IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication. PEB reliance on the USAPDA pain policy for rating the chronic neck, upper back, left shoulder and bilateral knee pain conditions was operant in this case and the condition was adjudicated independently of that policy by the Board. In the matter of the chronic neck, upper back, left shoulder and bilateral knee pain conditions and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the migraine headache condition, the Board by a 2:1 vote recommends a disability rating of 30%, coded 8100 IAW VASRD §4.124a. The minority voter, who recommended a 10% rating, did not elect to submit a minority opinion. There were no other conditions within the Board’s scope of review for consideration. RECOMMENDATION: The Board recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of her prior medical separation: UNFITTING CONDITION VASRD CODE RATING Chronic Pain – Neck, Left Shoulder, Upper Back & Both Knees 5099-5003 10% Chronic Migraine Headaches 8100 30% COMBINED 40% The following documentary evidence was considered: Exhibit A. DD Form 294, dated 20120604, w/atchs Exhibit B. Service Treatment Record Exhibit C. Department of Veterans’ Affairs Treatment Record XXXXXXXXXXXXXXXXX, DAF Acting Director Physical Disability Board of Review SFMR-RB MEMORANDUM FOR Commander, US Army Physical Disability Agency (TAPD-ZB / XXXXXXXXX), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXX, AR20130005519 (PD201200480) 1. I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual. Under the authority of Title 10, United States Code, section 1554a, I reject the Board’s recommendation and hereby deny the individual’s application. There is insufficient justification to support the Board’s recommendation in accordance with Army and Department of Defense regulations. 2. The Board’s recommendation to increase the rating for migraine headaches from 0% to 30% is not supported by a preponderance of the evidence. I concur with the assessment of the minority member that the totality of the evidence provides ample support for a conclusion that the Physical Evaluation Board’s (PEB) adjudication of the unfitting migraine headache condition was neither unreasonable nor unfair. Accordingly, I also reject the minority member’s unsupported recommendation to change the 0% rating to 10%. 3. This decision is final. The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail. BY ORDER OF THE SECRETARY OF THE ARMY: Encl XXXXXXXXXXXXXXXXXXX Deputy Assistant Secretary (Army Review Boards)