RECORD OF PROCEEDINGS
PHYSICAL DISABILITY REVIEW BOARD
NAME: BRANCH OF SERVICE: ARMY
CASE NUMBER: PD0900020 COMPONENT: ACTIVE
BOARD DATE: 20090609 SEPARATION DATE: 20070930
________________________________________________________________
SUMMARY OF CASE: This covered individual (CI) was an active duty NCO medically separated from the Army in 2007 after 12 years of service. The medical basis for the separation was cervical disk disease and migraine headache. He injured his neck in 2004 during OIF deployment. He suffered continued pain, was diagnosed with disc disease and underwent surgical fusion for the condition in 2006. There was improvement, but continued pain and profile restrictions resulted in a MEB referral. The CI suffered an increase in chronic migraine headaches associated with the cervical condition. He was placed on chronic medication for them, and the headaches were deemed medically unacceptable by the MEB. Additionally the CI was evaluated by the MEB for obstructive sleep apnea (OSA), requiring a continuous positive airway pressure (CPAP) nocturnal device. The OSA was deemed medically unacceptable by the MEB, citing AR 40-501, 3-41c.
He was referred to the PEB and found unfit for the cervical condition and migraine headaches, rated 10% and 0% respectively. The PEB did not find the OSA unfitting, and the CI was separated at 10% combined disability. He underwent evaluation by the VA one month after separation and received a combined rating of 90%. The cervical condition was rated 20% by the VA, and additional associated peripheral nerve ratings were applied for the radiculopathies associated with primary disc condition. The headaches were rated 30%, and OSA requiring CPAP rated at 50%. The CI, citing the great disparity between the contemporaneous ratings, contends that he was rated unfairly by the PEB and that his additional conditions should have been considered as well.
______________________________________________________________
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 PDBR to the extent they were inconsistent with the VASRD in effect at the time of the adjudication. There were several elements for consideration by the PDBR in this case.
First, the rating of 10% vs. 20% for the cervical disc disease was examined. Both the PEB and the VA applied the same code and VASRD rating formula. The difference in ratings was a product of different range-of-motion measurements by the Army and by the VA. A common issue with these cases is whether the Army engaged its prerogative of applying the service-specific ‘pain rule’ which tempers its rating vs. the strictly-applied VASRD. Language in the record and in the PEB adjudication raised this question, although there was no clear evidence that it influenced the rating. It was also noted that the VA exam was more proximate to the date of separation than the MEB exam. Given the uncertainty of ‘pain rule’ influence and more closely timed VA exam, reasonable doubt exists as to which decision has the higher probative value. IAW VASRD §4.3, reasonable doubt was resolved in favor of the CI by this Board, resulting in the recommendation below. The PDBR likewise considered whether the associated peripheral nerve ratings for the radiculopathy component of the unfitting cervical disc condition merited addition to the combined separation rating. Several entries in the service treatment record (STR) indicated, however, that the radicular components were clinically silent at the time of separation. The Board judged, therefore, that they were not sufficiently involved with the CI’s unfitting condition to justify separate adjudication or rating by the PEB.
Next, the PDBR evaluated the accuracy of the 0% PEB rating for the migraine headache. The coding and VASRD rating formula cited was equivalent to those applied by the VA in arriving at its 30% rating. The ratings flowed from the frequency of prostrating episodes attributed by each. The PEB specifically cited that its rating was based on ‘less than one prostrating headache each 2 months’. Separate entries in the STR, the MEB examiner’s summary, the CI’s wife and the VA examiner all cite a frequency of at least one prostrating headache per month (=30%). The PEB appeared to rely heavily on ER treatment as the requirement for ‘prostrating’. In patients with established diagnoses of migraine, home treatment with prolonged rest and prescribed rescue medications are commonly recognized as prostrating by the VA and most clinicians. The PDBR, therefore, ascribed a higher frequency of prostrating episodes and applied the commensurate higher VASRD rating in its decision.
Finally, the PDBR considered the appropriateness of the PEB conclusion that the OSA was not separately unfitting. Despite the contrary opinion of the MEB examiner, the PEB conclusion was supported by: a) the CI’s MOS as supply sergeant was unlikely to mandate extremely austere duty conditions, b) the CI’s unit ‘does not deploy’ per commander’s statement and c) general precedent and common practice across the services would not medically separate a member on this basis only. The PDBR, therefore, unanimously concurred with the PEB expertise in the determination that the OSA in this case was not unfitting.
The PDBR membership was unanimous in all of the conclusions noted above, with the exception of one dissenting vote for sustaining the PEB 10% rating of for the neck. This member elected not to submit a minority opinion.
________________________________________________________________
RECOMMENDATION: The PDBR therefore recommends that the CI’s prior determination be adjusted as follows, effective as of the date of his prior medical separation.
| Unfitting Condition | VASRD Code | Rating |
|---|---|---|
| Migraine headaches | 8100 | 30% |
| Neck pain/diskectomy | 5241 | 20% |
| Combined | 40% |
________________________________________________________________
The following documentary evidence was considered:
Exhibit A. DD Form 294, dated 20090115, w/atchs.
Exhibit B. Service Treatment Record.
Exhibit C. Department of Veteran's Affairs Treatment Record.
AF | PDBR | CY2011 | PD2011-01138
The PEB adjudicated the chronic neck pain and migraine headaches conditions as unfitting, rated 10% and 0% respectively, with likely application of AR 635-40 and/or the US Army Physical Disability Agency (USAPDA) pain policy. The conditions, right carpal tunnel syndrome and OSA as requested for consideration meet the criteria prescribed in DoDI 6040.44 for Board purview; and, are addressed below, in addition to a review of the ratings for the unfitting neck pain and migraine headache...
AF | PDBR | CY2009 | PD2009-00249
The medical basis for the separation was a back condition. A subsequent neurology follow-up note stated, ‘SM does not feel HA’s interfere significantly with duty, though acknowledges that he would be unable to use weapons if he should develop a significant HA with associated visual dysfunction.’ A month later a civilian consultant note stated, ‘Symptoms are now described as moderate to debilitating; when he is afflicted with the most severe symptoms he is incapacitated.’ Specifically, AR...
AF | PDBR | CY2010 | PD2010-00121
The Board cannot find any evidence to support an opinion that the headache condition had risen to the level of an unfitting impairment at the time of separation. There are therefore no additional conditions in this case appropriate for Board recommendation as additionally unfitting for separation rating. In the matter of the neck condition (cervical spine fusion with radiation of pain in the upper extremity), and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB...
AF | PDBR | CY2009 | PD2009-00182
The Informal PEB (IPEB) determined he was unfit for continued military service and he was then separated with a 10% disability for 5242 Chronic Neck Pain Secondary to Degenerative Joint Disease associated with Vagal Response Syncopal Episodes, Right Upper Extremity Paresthesias, Migraine Headaches, and Mood Disorder using the Veterans Affairs Schedule for Ratings Disabilities (VASRD) and applicable Air Force and Department of Defense regulations. Therefore, the IPEB rates the condition that...
AF | PDBR | CY2011 | PD2011-00557
The PEB adjudicated the cervical spine and OSA conditions as unfitting; assigning a disability rating of 10% to the cervical condition citing criteria of the Veterans Administration Schedule for Rating Disabilities (VASRD); and, 0% to the OSA condition referencing Department of Defense Instruction (DoDI) 1332.39. Other PEB Conditions . The other conditions forwarded by the MEB and adjudicated as not unfitting by the PEB were lumbar spondylosis (pain dating to same fall as for the cervical...
AF | PDBR | CY2012 | PD 2012 01595
After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends no change in the rating for placement onto TDRL, however for the permanent rating recommends separate disability ratings of 10% for the migraine headache condition and 10% for the atypical facial pain condition. The Board unanimously recommends to decouple the migraine headache condition from the atypical facial pain condition and further unanimously recommends separate...
AF | PDBR | CY2011 | PD2011-01004
None of the commander’s statements in evidence indicated a loss of duty time from the headaches and the final statement on 10 October 2007 documented that he was working “40-45 hours a week.” The Board first considered the coding option for 8100, migraine headaches. The contended conditions adjudicated as not unfitting by the PEB were TBI with memory impairment, HFHL left ear, right hand paresthesias, cervical disc disease, and mental health condition diagnosed as anxiety disorder prior to...
AF | PDBR | CY2012 | PD 2012 00480
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. At the VA C&P examination, she noted bilateral knee pain since 1986 and that she had had arthroscopy in 1987. RECOMMENDATION: The Board recommends that the CIs prior determination be modified as follows; and,...
AF | PDBR | CY2011 | PD2011-00833
The PEB adjudicated the “chronic neck, back, shoulder, knee, tibial, hip and shoulder pain” as a single unfitting condition rated at 20% with specified application of the USAPDA pain policy; and adjudicated the OSA condition as unfitting, rated 0% with application of DoDI 1332.39. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), in regards to the chronic neck, back, knee, tibia, hip, shoulder pain joint conditions combined under a single...
AF | PDBR | CY2011 | PD2011-00216
The PEB adjudicated the chronic neck pain, left shoulder pain and left knee pain conditions as unfitting, rated 0% each. Left Knee Condition . The limitation of extension of 15 degrees as reported in the NARSUM evaluation supports a 20% rating under the 5261 code.