RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2013-00171
BRANCH OF SERVICE:  Army	BOARD DATE:  20140821
Date of SEPARATION:  20040610

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (11B10/Infantryman) medically separated for chronic headaches.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent P3 profile and referred for a Medical Evaluation Board (MEB).  The headache condition was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded three other conditions (maxillary sinusitis, gastro-esophageal reflux disease [GERD] and pineal gland cyst), judged to meet retention standards.  The Informal PEB adjudicated “chronic headaches” as unfitting, rated 10%, referencing the VA Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be not unfitting and therefore not rated.  The CI made no appeals and was medically separated.

CI CONTENTION:  “I was hit by a IED on 23-July-03 and suffer from traumatic brain injury (TBI).  AT the time the Army didn’t know about TBI injurys.  I was awarded for valour for that day, and started getting Headaches while on Guard in Mosul IRAQ.  The Army only gave me 10% not knowing about cluster Headaches or TBI yet.  I have a Purple Heart and Im not with Wounded Warriors Program cause of 10% Army Rating.  My Headaches have been hell since 03 and posttraumatic stress disorder (PTSD) has driven me to try to kill myself check VARD.”

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 rating for the unfitting headache condition is addressed below.  The requested TBI and PTSD conditions were not identified by the PEB and thus are not within the DoDI 6040.44 defined purview of the Board.  The Board acknowledges the CI’s assertions that the PEB did not consider that the headaches might be part of a broader TBI disability picture.  It is noted for the record that the Board has no jurisdiction to investigate or render opinions in reference to such allegations 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.

The Board also acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues to burden him; but, must emphasize that the Disability Evaluation System has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  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 IPEB – Dated 20040421 | VA - (4 Mos. Post-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
Chronic Headaches | 8045-9304 | 10% | Cluster Headaches | 8100 | 30%* | 20041020
Other x 0 (Not in Scope) | Other x 9 (Note in Scope) | 20041020
Combined:  10% | Combined:  80%
Derived from VA Rating Decision (VARD) dated 20041118 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Chronic Headache Condition.  The CI sustained shrapnel wounds to the face and arm from an improvised explosive attack against his vehicle July 2003 and had a possible 2-minute loss of consciousness.  He began to experience left sided headaches and in September 2003 was returned from deployment to home station due to his headaches.  His headaches received evaluation by a neurologist who ordered a magnetic resonance imaging (MRI) and computer aided tomogram (CT) of his head performed in October 2003.  The imaging studies identified severe maxillary sinus swelling with fluid collection and a small incidental brain cyst (an anecdotal pineal gland cyst reported as of no consequence), but showed no frank evidence of TBI due to blast exposure.  The CI was examined by an ear nose and throat specialist and treated for his sinus inflammation and returned to his deployed unit in October 2003.  The sinusitis resolved; however, his headaches continued and he was returned again to home station for the headaches in October 2003.  Repeat imaging studies performed in October 2003 demonstrated resolution of the sinusitis and otherwise no evidence of brain tissue or skull trauma.  The MEB neurologist performed on 2 February 2004 4 months prior to separation characterized the headache symptoms as consistent with common cluster headaches, but noted the daily pattern and duration of the headache cycle were unusual.  The CI’s headaches lasted 20 minutes to 2.5 hours in a cycle of 1 to 2 per day for 2 weeks then up to 9 to 10 times per day for 2 weeks.  The headaches were responsive to home prescription medication treatment.  The CI was seen in the emergency department for headaches on 18 October 2003, 30 October 2003 and 1 January 2004 for running out of headache medication and was admitted to the hospital for 2 days (13 January 2004) and discharged after showing he could abort his headaches with home medication therapy.  The headaches have remained responsive to home prescription medication treatment.  The service treatment record (STR) to this point remained silent as to any finding of clinical evidence of actual brain tissue injury or skull fracture requiring direct intervention.  The commander’s comment signed 25 February 2004 stated that the CI’s medical condition prevented him from fulfilling his mission requirements being unable to run, carry a ruck, carry a rifle or wear a helmet.  The NARSUM based on the examination of 1 March 2004, 2 months prior to separation, described the headaches as severe and prostrating, reiterating the repeating cycle of headaches described above noting an average of approximately 2,000 headaches per year.  The NARSUM was silent as to clinically documented tissue injury of the brain and noted that the MEB history and physical recorded on the DD Form 2808 (completed on 1 March 2004) the neurological examination was normal.  The neurologist examinations of the STR, the MEB neurology examination the MEB history and physical and the NARSUM were all silent as to establishing a finding of brain injury caused by trauma as a condition or a connection between the headaches and the explosion experienced while deployed.  The final permanent profile prepared on 22 March 2004 listed the chronic headaches as the P3 permanent medical condition referring the CI to the MEB and preventing him from doing any of his mission required functional activities.  The  VA Compensation and Pension (C&P) neurological examination completed on 20 October 2004, 4 months after separation, was consistent with the NARSUM examination noting the repetitive cyclic nature of the left sided headaches.  The VA C&P psychiatric examination completed 20 October 2004 documented that the CI was able to drive, manage his own finances, had no abnormalities of memory or cognition and his memory was well preserved; and in contradiction then noted moderate impairment of memory and attention.  During a C&P neurology examination on 13 August 2004, 2 months after separation, the CI related a headache in 1997 evaluated by a spinal tap and similar headaches in 1999.  The service treatment record is tacit as to further headaches until the deployment in 2003.

The Board directs attention to its rating recommendation based on the above evidence.  The Informal PEB rated the chronic headache condition using code 8045 brain disease due to trauma, rated analogously as 9304 dementia due to head trauma and adjudicated a rating of 10%.  The VA, using code 8100 migraine, found the CI met the criteria of characteristic prostrating attacks averaging once per month over the last several months and ruled a rating of 30%.  The STR, MEB neurology examination, MEB history and physical and the NARSUM were all silent as to whether the headaches etiology was more likely a reoccurrence of a condition preexisting to military service, the incidental brain cyst found on MRI, a direct result of the explosion while deployed, sinusitis or a newly developed condition of unknown etiology.  The Board noted the absence of neurophysiological clinical evidence or imaging of brain tissue damage after the explosion to suggest brain injury.  The Board further noted that the neurology examinations extant in the STR, the MEB neurology examination and the NARSUM all did not establish a cause of the headaches but all consistently discuss the progression and treatment of headaches as a diagnosed condition.  The Board unanimously agreed that while it could not definitively establish a cause of the headache condition, that the application of code 8045-8100, headaches, for rating was fair, equitable and prudent.  The Board opined that the chronic headache condition had evolved to a level of stability in response to immediate application of appropriate home medical treatment and that the CI’s level of function as established by the VA psychiatry C&P met the criteria of moderate limitation due to headaches.  The Board determined that there were characteristic prostrating attacks occurring on an average at least once a month during a 2-week period over the last several months meeting the criteria for a 30% rating using code 8045-8100.  The Board agreed that the headache condition did not meet the criteria for severe economic inadaptability to adjudicate a rating of 50% under code 8045-8100s.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a 30% rating under VASRD code 8045-8100 for the chronic headache condition at separation.

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 PEB ruling in this case that any prerogatives outside the VASRD were exercised.  In the matter of the chronic headaches condition, the Board unanimously recommends a disability rating of 30%, coded 8045-8100  IAW VASRD §4.124a.  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 his prior medical separation:

UNFITTING CONDITION | VASRD CODE | RATING
Chronic Headaches | 8045-8100 | 30%
COMBINED | 30%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130411, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

XXXXXXXXXXXXXXXXXXXX
President
Physical Disability Board of Review

SAMR-RB

MEMORANDUM FOR Commander, US Army Physical Disability Agency
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXXXX, AR20150001230 (PD201300171)

1. Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to recharacterize the individual's separation as a permanent disability retirement with the combined disability rating of 30% effective for disability with severance pay.

2. I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum:

a. Providing a correction to the individual's separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay. 

b. Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay.

c. Adjusting pay and allowances accordingly. Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 30% effective the date of the original medical separation for disability with severance pay.

d. Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options. 

3. I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures.

BY ORDER OF THE SECRETARY OF THE ARMY:

Encl						     XXXXXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary
						         (Army Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA

PD-2013-00171