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AF | PDBR | CY2013 | PD 2013 00419
Original file (PD 2013 00419.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX    CASE: PD-2013-00419
BRANCH OF SERVICE: Army  BOARD DATE: 20140804
DATE OF PLACEMENT ON TDRL: 20020605
Date of Permanent SEPARATION: 20051205


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (91B2O/Wheeled Vehicle Mechanic) medically separated for headache and pulmonary conditions following a period on the Temporary Disability Retirement List (TDRL). These conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards. She was issued a permanent P3/S1 profile and referred for a Medical Evaluation Board (MEB). Aneurysm of carotid artery, persistent severe headache and dyspnea of exertion conditions, characterized as not meeting retention standards, were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. No other condition was submitted by the MEB. The Informal PEB (IPEB) adjudicated persistent serve headache and dyspnea on exertion as unfitting, rated 30% and 10% respectfully, with application of the VA Schedule for Rating Disabilities (VASRD). The remaining condition s (aneurysm of carotid artery [MEB #1] , and “MEB diagnosis #4” which appeared to correspond to the narrative summary (NARSUM) diagnosis #4 of “ depression and anxiety secondary to the aneurysm repair and continuing headaches ” (not listed on the MEB) were determined to be not unfitting. The CI made no appeals and was placed on the TDRL with a 40% combined rating. After re-evaluation, the IPEB readjudicated dyspnea on exertion and chronic migraine headaches as unfitting, rated 10% and 0% respectfully, with likely application of DoDI 1332.39 for rating the migraine headaches. The PEB reviewed additional medical information and then reaffirmed its findings and ratings. The applicant did not appeal and was medically separated.


CI CONTENTION: “Continuation of treatment by Veteran Administration for service conditions.”


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 applicant. The ratings for conditions meeting the above criteria are addressed below. In addition, the Secretary of Defense directed a comprehensive review of Service members with certain mental health conditions referred to a disability evaluation process between 11 September 2001 and 30 April 2012 that were changed or eliminated during that process. The applicant was notified that she may meet the inclusion criteria of the Mental Health Review Terms of Reference. The mental health condition was reviewed regarding diagnosis change, fitness determination and rating in accordance with VASRD §4.129 and §4.130. Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, may be eligible for future consideration by the Board for Correction of Military Records.

The Board acknowledges the CI’s contention that she is still being treated by the Department of Veterans Affairs (DVA) for her service conditions; but, must emphasize that the Military Disability Evaluation System (DES) 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 DVA, operating under a different set of laws.


 RATING COMPARISON :
Final Service PEB – 20051118
 VA (3 Mo. After TDRL Entry) - Effective 20020606
On TDRL – 20020605
 Code Rating Condition Code Rating Exam
Condition
 TDRL Sep.
Persistent Severe Headaches 8199-8100 30% 0% Migraine Headaches 8100 30% 20020829
Dyspnea on Exertion 6699-6602 10% 10% Heart Murmur, Dyspnea… 7099-7000 NSC STR
Aneurysm of Carotid Artery Not Unfitting S/P Craniotomy… 7199-7110 0% 20020911
Residual Scar R Clavicle… 7804 0% 20020911
Residual Scar L Temporal 7804 0% 20020911
Residual Scar L Side Neck 7804 0% 20020911
Depression and Anxiety… Not Unfitting Major Depression … 9440 10% 20020906
Other x 0 (Not in Scope)
 Other x 18 20020911
Combined: 40% → 10%
 Combined: 60%*
*Reflects VA rating exam proximate to TDRL placement; no VA rating evidence pr oximate to permanent separation


ANALYSIS SUMMARY:

Persistent Severe Headaches. The record documented increasing left-sided headaches and vision disturbance leading to discovery and surgical correction of a left ophthalmic artery aneurysm in April 2001. Headaches were described as debilitating and severe. Headaches were noted to continue following surgery and the examiner stated that the CI was “unable to complete a full duty day secondary to severe headaches.” The NARSUM and MEB Medical Examination (DD Form 2808), completed approximately 6 months prior to TDRL entry, did not describe any focal neurologic deficits or further describe the headache frequency or severity.

At the VA Compensation and Pension (C&P) exam, approximately 3 months after TDRL entry, the CI reported improvement in left-sided headaches following surgical aneurysm repair. Headaches continued as left-sided, throbbing with exacerbation with light or noise (photophobia and phonophobia). Intensity was 7/10 and duration was about 30 minutes with a frequency of 3 times a week to twice a day. Relieving factors was medication of Midrin. The examiner stated that since the CI was not currently working, no occupational functioning could be evaluated. There were no visual or neurologic deficits noted.

At the TDRL reevaluation exam, approximately 14 months prior to TDRL removal, the CI was pregnant and had increased frequency and duration of headaches. They were left-sided, occurred 3-4 times a week, and lasted an hour. “If it is possible she lies down with the headache. If she is driving she must often pull over to the side of the road.” Medications included a narcotic (Tylenol #3) as needed. At the TDRL consult on 21 June 2005, approximately 6 months prior to TDRL removal, the note indicated the CI was currently pregnant. Headaches were noted in the history listed as “Headache chronic episodic without change in character or quality,” and the assessment listed “Headache Syndromes” with little detail of headache frequency, duration or severity. The TDRL evaluation on 21 July 2005, approximately 5 months prior to TDRL removal was for a chief complaint of “TDRL reevaluation of dyspnea on exertion.”

Civilian neurologist clinic note from approximately 4 months prior to TDRL removal was while the CI was still pregnant. Headache were considered less severe than during her prior pregnancy, but with recent onset of “seeing little multicolored round spots or lights during a headache … will persist during the entire time of a headache which lasts for about thirty minutes.” Subsequent neurologist note dated 3 October 2005 from the same provider approximately a month prior to TDRL removal was 6 weeks following delivery and described the CI’s left-sided headaches as no longer having associated nausea and vomiting. She still had exacerbation with light or noise, and headaches were 1-2 per week and lasted 1-3 hours. The “seeing multi colored lights before headaches with dizziness” was considered suggestive of migraine headaches [there was no description of headache severity]. The provider recommended decreased duration of breastfeeding (down to 3 months from anticipated 6 months) so she could have additional brain imaging and additional migraine medications.

The VA exam in January 2013, greater than 7 years after TDRL removal, documented three types of headaches with the predominate being a left-sided throbbing of 4-5/10 lasting 3-4 hours, occurring 3-4 times a week with blurred vision, photo and phonophobia, and irritability and “is bad enough that she has to lie down and shift household responsibilities to her husband. This started about a year prior to her aneurysm diagnosis. It is helped by acetaminophen (Tylenol), darkness, napping.” The two other types of headaches were not described with any prostrating features. The VA increased their headache rating to 50% based on this exam, effective in 2013.

The Board directs attention to its rating recommendation based on the above evidence. The rating options under 8100 for headaches, 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. For TDRL entry rating, both the Service and VA ratings were 30% using the criteria from disability code 8100. There was no indication that the CI’s headache’s approached the higher 50% rating level of “very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability” and the Board recommends no change in the PEB’s 30% adjudication at TDRL entry.

At the time of TDRL removal, the Board discussed the limited evidence related to the CI’s headaches proximate to TDRL removal and the remote detailed history of a chronic continued course of prostrating headaches. The Service TDRL evaluations were while the CI was pregnant (known to make headache symptoms more severe) indicated little change in headaches, but were insufficient in depth or details of headaches for rating. The civilian neurologist notes following the TDRL summary were carefully reviewed. The single note while the CI was no longer pregnant did not address the headache severity by either a pain scale or address occupational impact and appeared to be treatment based, versus addressing rating elements. The treatment plan to curtail breastfeeding, increase headache medications and obtain additional imaging was duly considered as beyond that for routine headache management.

The PEB disability description stated “Chronic Migraine Headaches, Occurring One Or Two Times Per Week, Lasting About 30 Minutes. Not Considered Prostrating.” The 30 minute timeframe appears to be from the August 2005 neurologist note while the CI was still pregnant, as the later note from October 2005 noted duration as 1-3 hours. There was no evidence that the CI had to seek medical attention for her headaches (IAW rescinded DODI 1332.39 guidance); however, the Board considered that the evidence of the single post-pregnancy evaluation contained neither positive nor negative information regarding headache severity or “prostration” type symptoms. The absence of information cannot be interpreted either in-favor of or against the CI's favorable rating position. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 30% for the headache condition.

Dyspnea on Exertion. The record indicated the CI had two episodes of post-operative flash pulmonary edema requiring two emergent intubations in April 2001 (surgery for aneurysm – see above). She developed marked shortness of breath (dyspnea) on exertion. Evaluation by pulmonary specialists found no identifiable reason for the dyspnea. Pulmonary function testing indicated normal spirometry (FEV1 90% of predicted; and FEV1/FVC at 100% of predicted). The NARSUM indicated testing “revealed potential extra thoracic obstruction/tracheal malacia (upper airway constriction linked to intubation), though this was not confirmed by a bronchoscopy” [bronchoscopy was reported as negative in later notes]. Lung exam was normal and the examiner indicated that “profound dyspnea on exertion” limited her activities. The CI was using a Proventil inhaler and had normal lung radiographs.

At the VA C&P exam, approximately 3 months after TDRL entry, the CI claimed heart murmur, dyspnea, pulmonary edema and bronchitis was not comprehensively evaluated as the CI failed to show for a scheduled exam in September 2002. Other (non-pulmonary-focused) VA exams during that timeframe indicated reported dyspnea on exertion and occasional use of Proventil inhaler. There was no heart murmur and lungs were clear without abnormal breath sounds. The VA rating decision indicated no evidence of a chronic disability and no service-connection (NSC). The VA NSC continued through all VASRDs in the record through 2013.

At the TDRL reevaluation exam, approximately 14 months prior to TDRL removal, the CI was pregnant and felt that there was no change in her pulmonary symptoms. Her inhaled Albuterol (Proventil) was “helpful when she takes it. She does become short of breath when there is a lot of moving around at work. Climbing stairs is very bothersome.”

The TDRL evaluation(s) (June and July 2005), approximately 5 months prior to TDRL removal was for a chief complaint of “TDRL reevaluation of dyspnea on exertion.” The CI was pregnant and evaluation noted chronic dyspnea on exertion with dyspnea with walking upstairs and occasional episodes of shortness breath at times while at rest. She had a dry cough and had awakening at night due to shortness-of-breath about 2-3 times per week and denied wheezing. She used inhaled Albuterol as needed. Pulmonary exam was normal and repeat pulmonary function tests were normal (FEV1 82% of predicted; and FEV1/FVC at 83% of predicted).

The Board directs attention to its rating recommendation based on the above evidence. The PEB rated the dyspnea on exertion as analogous to asthma (6602) at 10% at both entry into TDRL and removal from TDRL, while the VA did not find any pulmonary disability in the face of a missed VA examination. The CI’s dyspnea on exertion was not diagnosed as asthma or any other specific pulmonary condition and rating under 6602 criteria IAW VASRD §4.97—Schedule of ratings–respiratory system was considered appropriate. There was no evidence of productive cough, no recorded lung diffusion capacity and no abnormal volume or flow findings on testing. Pulmonary function tests were essentially normal and would rate no higher than 0%. The 6602 criteria allowed consideration of medication use (occasional inhaled bronchodilator – Albuterol/Proventil) and a 10% rating. Alternative coding using 6600 (chronic bronchitis), 6601 (bronchiectasis), 6603 (pulmonary emphysema) or 6604 (chronic obstructive pulmonary disease - COPD) offered no benefit, and there was no avenue to any rating higher than 10%. 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 dyspnea on exertion condition.

Contended PEB Conditions (Aneurysm of Carotid Artery and Anxiety and Depression [Secondary to Aneurysm Repair and Continuing Headaches]). The Board’s main charge is to assess the fairness of the PEB’s determination that aneurysm of carotid artery and anxiety/depression (or any MH diagnosis) conditions were not unfitting. 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.

Aneurysm of Carotid Artery: The aneurysm had been surgically repaired and the post-surgical residual conditions with potential duty impairment were separately evaluated (see headache and pulmonary above) and adjudicated. History of repaired carotid artery aneurysm, absent any residuals was not duty limiting. The profile and commander’s restriction from helmet wear was not specifically related to a single condition, but scars were not noted as interfering on profile or treatment notes. 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 the contended aneurysm of carotid artery condition.

Anxiety/Depression: The NARSUM stated that the CI had been evaluated by psychiatry for her profound dyspnea on exertion, although the source psychiatry notes are not in the record. The NARSUM indicated a MH diagnosis of “#4. Depression and anxiety secondary to the aneurysm repair and continuing headaches.” The MEB history and physical approximately 7 months prior to TDRL entry, indicated the CI’s positive responses under #17 (Nervous trouble of any sort) were due to surgery with a question of PTSD. The psychiatry exam was checked as normal. The profile was S1 with depression listed as a medical condition. The NARSUM did not indicate that any MH condition was judged to fail retention standards. The commander’s statement did not indicate any MH-related duty limitations. The MEB did not list any MH condition, and the PEB indicated diagnosis #4 (NARSUM MH diagnosis) was not unfitting.

The VA C&P exam approximately 3 months after TDRL entry, the CI described depressive symptoms starting in 2001 at the time that her aneurysm was discovered. She was placed on an antidepressant medication (Effexor) with some side-effects and little relief. She decreased her medication dose after separation, but was still taking Effexor. She described symptoms of stress including sleep problems with fears of not waking up and aneurysm recurrence. She had panic and anxiety with headaches as headaches reminded her of her aneurysm. The examiner stated: “results of the current evaluation reveal evidence of symptoms of mild to at times moderate anxiety and distress clearly secondary to the veteran s aneurysm. The most appropriate diagnosis is adjustment disorder with mixed emotional features.” The Global Assessment of Functioning (GAF) was 67 (mild range) and the occupational functioning was considered “mildly impaired.” The VA rated this exam at 10% (as depression). The VA exam dated May 2012 was nearly 10 years after TDRL removal noted the MH diagnosis of major depression, recurrent, moderate was a new Axis I MH diagnosis with occupational and social impairment with reduced reliability and productivity. The VA rated this exam at 50% effective in 2012.

The Board noted that the MH diagnoses within the MEB physical and NARSUM were depression and anxiety secondary to aneurysm repair. The MH diagnosis was not changed during processing through the DES and therefore this case does not meet the inclusion criteria in the Terms of Reference of the MH Review Project. The Board considered that the evidence strongly supported the VA MH diagnosis of adjustment disorder with mixed emotional features as the only MH diagnosis supported by detailed evaluation, but did not recommend a change of MH diagnosis.

There was scant performance based evidence from the record that any MH condition significantly interfered with satisfactory duty performance at the time of TDRL entry. As no MH condition was unfitting at TDRL entry, there is no unfitting MH condition at TDRL removal. 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 the anxiety and depression [secondary to aneurysm repair and continuing headaches] condition, or any MH condition regardless of diagnosis, 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. As discussed above, PEB reliance on the DoDI 1332.39 for rating the headache condition was likely operant in this case and the condition was adjudicated independently of that instruction by the Board. In the matter of the headache condition, the Board unanimously recommends a disability rating of 30%, coded 8199-8100 IAW VASRD §4.124a. In the matter of the dyspnea on exertion condition and IAW VASRD §4.97, the Board unanimously recommends no change in the PEB adjudication. In the matter of the contended aneurysm of the carotid artery and MH (depression and anxiety) conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting. 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
PERMANENT
Persistent Severe Headaches 8199-8100 30%
Dyspnea on Exertion 6699-6602 10%
COMBINED 40%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20130514, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record





                                   
XXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXX, AR20140018674 (PD201300419)
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 40% effective the date of the individual’s original medical separation 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 40% 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                                                  XXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary of the Army
                                                      (Review Boards)
                                                     
CF:
( ) DoD PDBR
( ) DVA

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