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AF | PDBR | CY2013 | PD-2013-01176
Original file (PD-2013-01176.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXX  CASE: PD-2013-01176
BRANCH OF SERVICE: Army  BOARD DATE: 20140805
SEPARATION DATE: 20020403


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (88H/Cargo Specialist) medically separated for low back pain (LBP) and migraine headaches. These conditions could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty (MOS) or satisfy physical fitness standards. She was issued a permanent P3/L3 profile and referred for a Medical Evaluation Board (MEB). Migraine headaches, asthma, allergic rhinitis and undifferentiated spondyloarthropathy were forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW AR 40-501. The Informal PEB (IPEB) adjudicated the chronic LBP condition as unfitting, rated 0%. The remaining conditions were determined to be not unfitting . The CI appealed to the Formal PEB (FPEB) which adjudicated chronic LBP and headaches as unfitting, rated 20% and 0% respectfully; applying the Veterans Affairs Schedule for Rating Disabilities (VASRD) to the LBP condition and Department of Defense Instruction (DoDI) 1332.39 to the headache condition. The remaining two conditions were determined to be not unfitting. The CI made no appeals and was medically separated.


CI CONTENTION: “Mitral valve prolapse w/out treatment, resulting in heart failure. Heart issue notated at Final Physical. I was not rated accordingly for medical retirement nor temporary retirement. Depression/posttraumatic stress disorder (PTSD) issues were also overlooked but annotated throughout active duty medical records. PTSD/Depression also denied by Department of Veteran’s Affairs. Right knee chondromalacia w/hypertrophic changes, rating denied.”


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 LBP and migraine headache conditions are addressed below. The not unfitting asthma and allergic rhinitis were not contended and therefore, not within the DoDI 6040.44 defined purview of the Board. The mitral valve prolapse, depression/PTSD and right knee conditions, as per the contention, were not identified by the PEB and therefore, are not within the Board’s purview. These, and any other condition or contention not requested in this application, remain eligible for future consideration by the Board for Correction of Military Records. The Board acknowledges the CI’s contention that suggests ratings should have been conferred for other conditions documented at the time of separation. The Board wishes to clarify that it is subject to the same laws for service disability entitlements as those under which the Disability Evaluation System (DES) operates. 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. Additionally, the Department of Veterans Affairs, operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service-connected conditions and to periodically reevaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time.

RATING COMPARISON :

Service FPEB – Dated 20020221
 VA* - (20040505: 25 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Mechanical LBP 5099-5002 20% Arthritis and Sacroileitis 5236 10% 20030917
Migraine headaches 8100 0% Migraine headaches 8100 30% 20030917
Asthma Not Unfitting Asthma 6602 10% 20020917
Allergic Rhinitis Not Unfitting Seasonal Allergic Rhinitis... 6513-6522 NSC 20030917
Other x 0
 Other x 2 20030917
Combined: 20%
 Combined: 50%
*Derived from VA Rating Decision (VARD) dated 20040505 (most proximate to date of separation (DOS))


ANALYSIS SUMMARY:

Chronic Mechanical Low Back Pain. The CI attributes her chronically painful low back to a lifting injury, documented as occurring in June 1996. Review of the service treatment records (STR) reveals recurrent clinic visits, as well as consultations with orthopedics and rheumatology. Her LBP was unrelieved by conservative therapy, including medication, physical therapy, rest, or steroid injections. In an addendum to the MEB dated 20 October 2000, for which she was found fit for full duty, the examiner noted tenderness to palpation at the upper lumbar spine and at the left sacroiliac (SI) joint and the “axial skeleton showed full range of motion.” In May 2001 (10 months prior to separation), the CI described the pain as 6/10 and worse with standing, walking, or movement. Radiologic imaging revealed no evidence of disc disease or spinal stenosis (narrowing), but noted symmetric sacroileitis (inflammation in the SI joint) without ankylosis (fusion of joints). At the time of her MEB physical examination (11 months prior to separation) the CI reported “severe” back pain. The examiner noted a normal spine examination at that time and included “chronic LBP” in the diagnoses. Permanent profile (5 months prior to separation) listed the diagnosis of sacroileitis and prescribed no running, marching, jumping, with walking at her own pace, and lifting limited to 10 pounds. The commander’s memorandum to the MEB (5 months prior to separation) reported that the CI’s profile did “not allow her to perform” any of her duties and noted that she was on a “four-hour duty day due to the severity of her back problem.” The IPEB (4 months prior to separation) adjudicated her back condition as chronic LBP, diagnosed as undifferentiated spondyloarthropathy, with full range-of-motion (ROM) and coded under VASRD code 5299-5295. In an addendum to the MEB (2 months prior to separation) the CI also noted pain and parasthesias (numbness or tingling) in the left lower extremity. The addendum noted that physical examination revealed antalgic gait, tenderness over the SI joints (greater on the left than on the right) but no evidence of muscle spasm or abnormal spinal contour, such as kyphosis, scoliosis or excessive lordosis. Lower extremity strength, sensation and reflexes were all normal. ROM was reported as “forward flex to the knees, laterally bend to mid-thigh and hyperextend to 10%.” An FPEB (6 weeks prior to separation) rated the chronic mechanical LBP condition analogous to rheumatoid arthritis, coded 5099-5002.

At a VA Compensation and Pension (C&P) examination (17 months after separation and therefore of limited probative value when considering the CI’s condition at separation), the CI noted daily, sharp, LBP and pressure, rated at 5/10 in the morning and 8/10 at the time of the examination. She noted the LBP flares “every five to six weeks” to 10/10, during which she experiences “trouble sleeping” and “limitation of motion and function.” She stated that she missed “four days of school this last semester due to back pain,” adding that “during flare ups, the condition…does not affect activities of daily living.” On physical examination, gait and posture were normal, without deformity of spinal contour, muscle spasm, or asymmetry of movement. Tenderness over the SI joints and pain with motion were noted. Examination of lumbar ROM revealed lumbar flexion at 80 degrees, extension 20 degrees, right lateral bend 35 degrees, left lateral bend 30 degrees and 40 degrees of rotation in either direction. Strength, sensation and reflexes of the lower extremities were normal with a negative straight leg raise (SLR) test for sciatic nerve irritation.

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 2001 VASRD coding and rating standards for the spine which were in effect at the time of separation. The 2001 standards were later modified on 23 September 2002 to add incapacitating episodes (5293 Intervertebral disc syndrome) and then changed to the current §4.71a rating standards on 26 September 2003. The FPEB awarded a 20% rating, using the 2001 rating standards. Using the current §4.71a rating standards for the spine which became effective in September 2003, the May 2004 VARD (25 months after separation) awarded a 10% rating under VASRD code 5236, for “sacroiliac injury or weakness,” citing thoracolumbar ROM of “greater than 60 degrees but not greater than 85 degrees.”

The Board must correlate the above clinical data with the 2001 rating schedule, for which the applicable diagnostic codes include 5292 (limitation of lumbar spine motion), 5293 (intervertebral disc syndrome), 5294 (sacro-iliac injury and weakness) and 5295 (lumbosacral strain). The Board first considered the rating under the VASRD diagnostic code 5292 in effect at the time. The MEB NARSUM noted normal extension and side bending and lumbar flexion was not severely limited; consequently, the criteria for the next higher rating of 40% under this code was not met and the Board concluded that there was no advantage to the CI to rate under code 5292. The Board next examined if this condition could be rated under code 5293 for intervertebral disc syndrome. Although the CI reported occasional radiating symptoms, there was scant symptomology and neither clinical nor radiologic objective evidence of intervertebral disc disease or radiculopathy to warrant a rating under this code. As the MEB diagnosis was sacroileitis, the Board considered the rating under diagnostic code 5294 for SI injury or weakness, for which the VASRD prescribed the application of the same criteria as for code 5295 (lumbosacral strain). There was no altered spinal contour, slight limitation of forward flexion, no loss of lateral motion or irregularity of the joint spaces to allow for a rating of 40% under this code. Also, there was no documentation of muscle spasm or loss of lateral motion. Consequently, the criteria for a rating of 20% under this code, or under code 5295, were not met. 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 mechanical LBP condition.

Migraine Headaches: Review of the STR revealed that the CI first reported “frequent headaches” in 1998, and revealed multiple visits for headaches through the remainder of her military career. Consultation with neurology noted daily headaches, “migrainous in their characteristics,” with aura consisting of scotoma (a type of blurred vision specific to migraine headache), nausea, chills, photophobia (worsened by light), and phonophobia (worsened by sound). Computerized tomography scan was normal. Although the headaches temporarily improved following treatment of her allergic rhinitis (hay fever), and on occasion, may have been “secondary to muscle tension in her upper back” and neck, repeat consultation with neurology verified the diagnosis of “common migraine headache” in February 2002 (2 months prior to separation).

Although a MEB in October 2000 found her fit for duty, a second MEB in November 2001 (5 months prior to separation) found this condition medically unacceptable. Having been permanently profiled P3 for headaches amongst other conditions, and subsequent to the commander’s statement that she was not able to “perform physically demanding duties”, an IPEB (4 months prior to separation) concluded that the headaches were not unfitting. Pursuant to the CI’s non-concurrence with the IPEB, an FPEB was scheduled. A neurology addendum to the MEB NARSUM (1.5 months prior to separation) stated that the CI had “over the past three months…missed seven days out of each month due to migraine headaches.” The addendum stated that the CI’s medication was changed and that she had only two headaches since starting Elavil “and neither one caused her to miss any work.” The FPEB concluded that the headaches were unfitting, albeit not prostrating “as defined by DoDi 1332.39.”

The VA C&P examination was dated 17 months after separation and therefore of limited probative value pertaining to the CI’s condition at separation. The examiner recorded that the CI had severe headaches, pain level 10/10, usually starting in mid-day and lasting “two or three days.” Although the current headache frequency was not established, the CI noted missing 8-10 days of school in the past year due to headaches. The VA examiner verified the diagnosis of “migraine headaches with aura.” The VARD noted that while the CI was still on active duty, “with treatment, a regimen was identified which reduced the severity of the headaches to the point where the headaches were infrequent and of such mild intensity that a disability evaluation above 0% could not be assigned” by the PEB. The VARD stated that “in the past year” the CI’s headaches “are shown to be worse than characteristic prostrating attacks averaging one in two months over the last several months.”

The Board directs attention to its rating recommendation based on the above evidence. The rating options under 8100 for migraine headaches, which were open to consideration in this case, rely on the frequency of “prostrating” attacks. The VASRD’s §4.124a rating schedule for 8100 (migraine) rests heavily on the frequency of “characteristic prostrating attacks … over the last several months.” 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. Also, the Board noted the earliest VA C&P evaluation was 17 months after the date of separation. DoDI 6040.44 provides for consideration of post-separation VA findings, particularly within 12 months of separation, although the Board’s recommendation is premised on the degree of disability at separation. Therefore, the record evidence was assigned a higher probative value than the VA C&P examination.
The neurology addendum to the MEB (1.5 months prior to separation) noted a history of attacks “over the past 3 months,” which caused the CI to miss “7 days out of each month due to migraine headaches.” However, the addendum also noted that a recent change in medication had resulted in only 2 headaches over 10 days, neither of which “caused her to miss any work.” The VARD also noted that prior to PEB adjudication, a treatment regimen had been identified with which the headaches became “infrequent” and of “mild intensity,” and that a rating above 0% “could not be assigned by the PEB.” The VARD added that since separation, the headaches had worsened “in the past year” and “were worse than characteristic prostrating attacks.” The VARD acknowledged that the VA rating was based upon symptoms which had changed after separation (“in the past year”). 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 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. As discussed above, IPEB reliance on the USAPDA pain policy for rating the back pain, and upon DoDI 1332.39 for rating the migraine headaches, may have been operant in this case; however, these conditions were adjudicated independently of those policies and instructions by the Board. In the matter of the chronic mechanical LBP condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the migraine headache condition and IAW VASRD §4.124a, the Board unanimously recommends no change in the PEB adjudication. There were no other conditions within the Board’s scope of review for consideration.


RECOMMENDATION: The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20130829, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record




XXXXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXXXX, AR20150002611 (PD201301176)
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 accept the Board’s recommendation and hereby deny the individual’s application.
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                                                  XXXXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary of the Army
                                                      (Review Boards)
                                                     
CF:
( ) DoD PDBR
( ) DVA

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