RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD1201387
BRANCH OF SERVICE:  AIR FORCE	BOARD DATE:  20130612
SEPARATION DATE:  20010921

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SRA/E-4 (3S051/Personnel Journeyman) medically separated for migraine headaches and low back pain (LBP).  She relates all of her current medical problems to a lumbar puncture performed during a September 1998 Emergency Room visit which was the first medical attention sought for severe headaches.  She began seeking treatment for her LBP in November of 1998, but claims that it also began at the time of the puncture.  Both conditions could not be adequately rehabilitated to meet the physical requirements of her Air Force Specialty (AFS) or satisfy physical fitness standards.  She was issued a temporary L4 profile and referred for a Medical Evaluation Board (MEB).  The migraine headache and low back conditions, characterized as “classic migraine headache, mild-moderate severity” and “mechanical low back pain-refractory,” were forwarded to the Physical Evaluation Board (PEB) IAW AFI 48-123.  Intermittent right sided action tremor and subjective right sided tingling and paresis conditions were identified by the MEB and also forwarded as failing retention standards.  The Informal PEB (IPEB) adjudicated the migraine headaches and LBP as unfitting, rated 10% and 10%, referencing the Department of Defense Instruction (DoDI) 1332.39 and Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be Category II, conditions that can be unfitting but are not currently compensable.  The CI appealed to the Formal PEB (FPEB) and the Secretary of the Air Force Personnel Council (SAFPC) which both affirmed the IPEB findings and ratings and the CI was then medically separated.

CI CONTENTION:  “I believe my case was not fairly reviewed and my counselor was not prepared.  A board member was falling asleep during my testimony and I felt rushed to try to explain years of problems I had in a few minutes.  My conditions were caused by improperly trained doctors.”

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e. (2).  It is limited to those conditions determined by the PEB to be unfitting for continued military service and those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The ratings for the unfitting migraine and low back conditions are addressed below.  Of the conditions determined to be not unfitting by the PEB, members judged that the intermittent right sided tremor and the tingling/paresis conditions were specified sufficiently in the application to meet the DoDI 6040.44 scope requirements; and are accordingly addressed below.  The Board has no jurisdiction to investigate or render opinions in reference to alleged improprieties during the PEB process and, redress in excess of the Board’s scope of recommendations (as noted above) must be addressed by the Board for the Correction of Military Records (BCMR) and/or the United States judiciary system.  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 BCMR.

RATING COMPARISON:

Service FPEB – Dated 20010618	VA - (4 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Classic Migraine Headaches	8100	10%	Tension Headaches	8100	10%	20020124	
Chronic Lower Back Pain – Mechanical	5295	10%	Lumbosacral Strain	5295	40%	20020125	
Intermittent Rt Sided Tremor	CAT II	No VA Entry	
Hx of Tingling and Paresis	CAT II	Rt Sided Numbness & Facial Droop	8299-8207	NSC	20020124	
No Additional MEB/PEB Entries	Other x 6	20020124	
Combined:  20%	Combined:  80%	
Derived from VA Rating Decision (VARD) dated 20020626 (most proximate to date of separation [DOS]).   

ANALYSIS SUMMARY:  The Disability Evaluation System (DES) is responsible for maintaining a fit and vital fighting force.  While the DES considers all of the member's medical conditions, compensation can only be offered for those medical conditions that cut short a member’s career, and then only to the degree of severity present at the time of final disposition.  The DES has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation nor for conditions determined to be service-connected by the Department of Veteran Affairs (DVA) but not determined to be unfitting by the PEB.  However the DVA, operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service-connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time.  The Board’s role is confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VASRD standards, based on severity at the time of separation.

Migraine Headache Condition.  According to the narrative summary (NARSUM), the CI started complaining of intermittent mild headaches in 1998.  In September 1998, the CI had a severe headache episode associated with slurred speech and weakness of the right side which required evaluation in the emergency room.  Computer imaging exam of the head and lumbar puncture performed during this examination were both normal.  Neurology evaluation conducted the same month mentioned recurrent headaches associated with nausea, photophobia and visual scotoma occurring anywhere from once/month to once/day.  Additional investigation (electroencephalogram and magnetic resonance imaging [MRI]) excluded seizures or brain abnormalities.  A December 1998 neurology follow up appointment concluded with diagnosis of mixed type headaches with vascular component and recommended follow as needed for symptoms.  The next appointment in the neurology clinic was in October 1999 at which time the CI complained of worsening headaches occurring daily, in the afternoon, associated with blurry vision and photosensitivity.  She also mentioned shaking and numbness of the right arm occurring twice per month.  The following neurology appointment in February 2000, noted a decrease in headache frequency.  The CI did not continue her medical appointments in the neurology clinic for the rest of the year, however, the first available subsequent neurology encounter report on 20 December 2000, noted the migraine frequency was decreased (“not as frequent as previously”) and symptoms remitted with Tylenol.  There were no associated vision or speech problems.  The neurology MEB NARSUM, dictated 12 March 2001, noted the headaches were controlled with Tylenol.  The examination noted a well appearing female in no apparent distress.  Neurologic exam evidenced normal muscular power, bulk and tone.  Cranial nerves were intact.  There was a slight action tremor on the right side.  Coordination, gait, reflexes and sensory exam were all normal.  At the time the MEB evaluation the neurologist repeated the head MRI which was again normal.  At a follow up neurology appointment on 25 April 2001, the neurologist placed the CI on a temporary profile for half duty days due to symptoms other than headache that expired 1 June 2001.  A commander’s letter dated 10 May 2001, stated the CI’s working schedule was reduced to half days due to her medical appointments.  After 1 June 2001, the CI resumed working full duty days and the updated commander’s letter stated she worked full time and missed only 2 hours per week for medical appointments.  The letter also stated the CI was able to perform all assigned duties in her specialty and had not shown any reason to be removed from her current AFS.  The IPEB found the CI unfit for continued military service.  The CI did not agree with the IPEB decision and submitted a rebuttal letter requesting higher ratings for her headache and back conditions.  The CI’s testimony during the FPEB included the fact that her headaches varied in frequency but were not totally incapacitating.  At the VA Compensation and Pension (C&P) exam performed on 24 January 2002, 4 months after separation, the CI reported daily headaches, lasting from a few hours to the whole day, alleviated by Motrin.  She denied associated photophobia, nausea, blurred vision.  She stated the headaches were accompanied by nose bleeds which remitted spontaneously or after applying ice packs.  Neurologic exam was normal, with intact cranial nerves, normal ocular exam.  

The Board directs attention to its rating recommendation based on the above evidence.  The PEB adjudicated a 10% disability rating under migraine code 8100, upheld by the SAFPC.  VA rated the CI headaches condition 10% considering prostrating episodes averaging one in 2 months over the last several months.  When rating headaches under the diagnostic code 8100, migraine headaches, VA guidance uses the clear English definition of prostrating.  The standard lexicon definition of "prostration" is "utter physical exhaustion or helplessness."  Under code 8100 a rating of 10% requires characteristic prostrating attacks averaging one in 2 months over a several month period.  A rating of 30% requires characteristic prostrating attacks averaging once a month over a several month period.  The Board noted that review of the treatment record finds no clinic encounters mentioning prostrating headaches episodes during the 12-month period prior to separation.  It was also noted that during the neurology exam from December 2000, the CI stated the migraines were decreased in frequency and were alleviated by Tylenol.  The NARSUM examiner rated the severity of migraines as moderate and questioned the CI compliance with medication regimen.  The CI testimony before the FPEB noted the headaches episodes were not totally incapacitating.  The updated commander letter noted the CI was satisfactorily working full time in her specialty and needed only 2 hours weekly for medical appointments.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (Reasonable doubt) the Board concluded that the chronic headache condition more nearly approximated the 0% rating under the VASRD code 8100.  All evidence considered, there is not reasonable doubt in the CI’s favor supporting a change from the PEB’s (upheld by SAFPC) rating decision for the headache condition.

Low Back Pain Condition.  The service treatment records in 1997 document care for occasional lower back pain without any trauma event.  At a neurology clinic appointment in February 2000, the CI complained of LBP that she attributed to a spinal tap performed in 1998.  She complained of non radiating lower back pain, exacerbated by activity and increased in intensity towards the end of the day.  She stated that medication management and physical therapy were not effective.  Exam of the back evidenced “good” range of motion.  An MRI exam of the lumbosacral spine performed in June 2000 was normal.  A second neurology encounter note, dated 26 July 2000, mentioned continuation of the back pain.  Primary care physician exam from August 2000 mentioned lower back pain radiating to right arm and leg, associated with occasional numbness and tingling but no swelling.  The pain was associated with the CI “sitting too long” and lasted 10-15 minutes.  A few days later, a second primary care consult noted decreased flexibility-flexion, without radicular signs.  Strength and deep tendon reflexes were normal.  Legs had equal length.  A December 2000 neurology report noted ongoing LBP which occasionally radiated to the buttocks.  Pain was aggravated by prolonged sitting and was increased at the end of the day.  The MEB NARSUM physical exam performed on 12 March 2001, noted a normal neurologic exam, intact motor exam with normal muscular bulk, power and strength, normal coordination and gait, and normal sensory exam.  The neurologist did not recommend surgical intervention and could not find any objective cause for the pain.  He did mention that occurrence of back pain after a spinal tap is a rare complaint and could not elaborate further.  On 25 April 2001, a neurology consult was requested for worsening low back pain, numbness and pain in the right leg.  One month later (23 May 2001) primary care note evidenced increased low back pain.  At the recommendation of neurologist, the CI was working temporarily half days until 1 June 2001 when she resumed full working schedule.  Primary care note dated 5 July 2001 mentioned pain located on mid upper back, not the spine or low back.  There was no radicular pain.  At the VA neurology Compensation and Pension (C&P) examination on 24 January 2002, 4 months after separation, the CI reported continued low back pain aggravated by prolonged sitting and activity.  She stated she did not recall undergoing an MRI scan of the back.  On examination there was tenderness of the lumbar spine.  Range of motion of the lumbar spine was stated to be “mildly decreased on forward flexion to 45 degrees and right lateral flexion to 25 degrees.  There was no muscle spasm.”  Gait was described as slow due to pain but without coordination problem.  At the C&P examination performed the next day on 25 January 2002, the CI reported daily, sharp back pain not related to activity.  She stated the right leg was giving up one time/week (especially after taking a shower) and she fell down four times.  Physical exam noted the patient was walking with a wide based gait and staggered several times.  She was able to tip toe but heel walked with difficulties on the right.  Trendelenburg signs were negative (no abductor muscle weakness).  Lumbar flexion was 20 degrees and extension 0 degrees.  There was no tenderness or muscle spasm, no sensory loss in all four extremities.  Deep tendon reflexes were normal; the feet had good strength, no radicular signs.  The examiner diagnosed the condition as conversion disorder.  At a subsequent C&P exam on 14 May 2003, the CI was walking without a cane, could walk one block, 20 minutes.  Lumbar spine flexion was 50 degrees, extension 10 degrees, left lateral flexion 20 degrees, right lateral flexion 18 degrees, left and right rotation 34 degrees each.

The Board directs attention to its rating recommendation based on the above evidence.  In accordance with DoDI 6040.44, the Board is required to recommend a rating IAW the VASRD in effect at the time of separation.  The Board notes that the 2002 VASRD standards for the spine, which were in effect at the time of separation, were changed to the current §4.71a rating standards in 2004.  The Board must correlate the above clinical data with the 2002 rating schedule (applicable diagnostic codes include: 5292 limitation of lumbar spine motion; 5293 intervertebral disc syndrome; and 5295 lumbosacral strain).  The PEB rated the CI’s back pain condition at 10%, coded 5295 (lumbosacral strain) citing mechanical lower back pain.  The VA rated the back condition 40% (also coded 5295) citing VA examinations from January 22nd, 24th, and 25th 2002 which evidenced mildly decreased forward flexion of 45 degrees, right lateral flexion of 25 degrees without paraspinal muscle spasm.  The Board considered the rating under the VASRD diagnostic code 5292, limitation of lumbar motion.  There was no evidence of limited ROM documented at the time of the MEB examination.  The Board noted the differing lumbar ROM examinations at the January 2002 C&P examinations.  The Board noted that the markedly decreased ROM at the time of the 25 January 2002 C&P examination was not consistent with previous examinations, normal MRI, the absence of spasm, and otherwise unexplained by any cause for worsening.  The preceding examination on 24 January 2002 reported mildly decreased lumbar motion and the subsequent examination in May 2003 reported similar lumbar ROM.  The Board noted the post-separation C&P examinations reported “lumbar spine” ROM, and further noted this examination occurred prior to the current VASRD guidelines that utilize combined thoracolumbar ROM.  Under the VASRD guidelines in effect at the time, there were separate codes for limitation of motion of the lumbar spine and dorsal (thoracic) spine, therefore the Board concluded the VA examiner was performing the examination consistent with the VASRD in effect at that time and reported lumbar motion and not combined thoracolumbar motion which was introduced into the VASRD in September 2003.  Lumbar flexion was reported as 45 degrees compared to a normal of 60 degrees for the lumbar spine and is consistent with the neurology examiner’s characterization of “mildly decreased.”  The CI had a chronic condition, and the preponderance of evidence more nearly approximated the slight limitation than moderate or severe limitation of motion.  The Board next considered whether a higher rating was warranted under the guidelines for intervertebral syndrome, code 5293, however there were normal MRI exams without any evidence of this condition.  The Board also considered the rating under the code, 5295, lumbosacral strain but concluded the preponderance of evidence did not support a rating higher that the 10% rating assigned by the FPEB.  There was characteristic pain on motion but no muscle spasm, or unilateral loss of lateral motion, or evidence of severe strain with listing or marked limitation of motion.  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 LBP condition.

Contended PEB Conditions.  The contended conditions adjudicated as not unfitting by the PEB were intermittent right sided action tremor and history of subjective right sided tingling and paresis.  The Board’s first charge with respect to these conditions is an assessment of the appropriateness of the PEB’s fitness adjudications.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (Reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The CI was evaluated several times by neurology and primary care providers.  She complained of intermittent tremor and paresthesia on the right side, with variable occurrence.  Neuro-imaging investigations failed to reveal any cause for those symptoms and medical exams failed to corroborate the CI complains with objective findings.  The conditions were not implicated in the commander’s statement and were not judged to fail retention standards.  All were reviewed and considered by the Board.  There was no performance based evidence from the record that any of these conditions significantly interfered with satisfactory duty performance.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for intermittent right side tremor and tingling and paresis conditions and so no additional disability ratings are recommended.

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.  The Board did not surmise from the record or SAFPC ruling in this case that any prerogatives outside the VASRD were exercised.  In the matter of the classic migraine headaches condition and IAW VASRD §4.124a, the Board unanimously recommends no change in the PEB/SAFPC adjudication.  In the matter of the chronic lower back pain, mechanical condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB/SAFPC adjudication.  In the matter of the contended, intermittent right sided tremor and history of tingling and paresis conditions, the Board unanimously recommends no change from the PEB/SAFPC determinations as not unfitting.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows:

UNFITTING CONDITION	VASRD CODE	RATING	
Classic Migraine Headaches	8100	10%	
Chronic Lower Back Pain, Mechanical	5295	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120615, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

XXXXXXXXXXXXXXXXXXXXXXXX, DAF
President
Physical Disability Board of Review

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

Dear XXXXXXXXXXXXXXXXXXXX:

	Reference your application submitted under the provisions of DoDI 6040.44 (Title 10 U.S.C. §  1554a), PDBR Case Number PD-2012-01387.

	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,

XXXXXXXXXXXXXXXXXXXX
Director
Air Force Review Boards Agency

Attachment:
Record of Proceedings