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AF | PDBR | CY2014 | PD-2014-00449
Original file (PD-2014-00449.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX    CASE: PD-2014-00449
BRANCH OF SERVICE: Army  BOARD DATE: 20150318
SEPARATION DATE: 20060328


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reservist on temporary tour of active duty E-6 (Supply Tech) medically separated for asthma, headaches, and chronic right shoulder pain. The conditions could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty or satisfy physical fitness standards. She was issued a permanent P3/U3 profile and referred for a Medical Evaluation Board (MEB). The asthma, headaches and chronic right shoulder pain conditions, characterized as “asthma,” “chronic right shoulder pain,” “low back pain,” and “migraines without aura,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. No other conditions were submitted by the MEB. The PEB adjudicated “asthma,” “headaches,” and “chronic right shoulder pain,” rated 10%, 10%, and 0% respectively with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The remaining condition (low back pain [LBP] ) was determined to be not unfitting . The CI made no appeals and was medically separated.


CI CONTENTION: “I was medically discharged for migraine headaches (10%) Asthma (10%) Right Shoulder pain (0%) and my back which wasn’t even included in the rating scheme. I am currently Rated at Migraines (50%) Asthma (30%) Right Shoulder (10%) Back (10%) which was retroactive back to my filing date in 2007. I am currently pending a physical on my back + shoulder to qualify for 100% unemployability [sic]. I was approved by the State of North Carolina for disability for these exact same condition.”


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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting. Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records. Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate. The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation. The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions. That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws. The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.


RATING COMPARISON :

Service IPEB – Dated 20060209
 VA - (~13 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Asthma 6602 10% Asthma 6602 0% 20070413
Headaches 8045-9304 10% Migraine Headaches 8199-8100 0% 20070413
Chronic Right Shoulder Pain 8201 0% Chronic Residual, Torn Rotator Cuff (X3) of Right Shoulder with Pain 5299-5201 NSC 20070413
Low Back Pain Not Unfitting Chronic Disability to Account for Low Back Pain 5237 NSC 20070413
Other x 0 (Not In Scope)
 Other x 8
Combined: 20%
 Combined: 0%
Derived from VA Rating Decision (VA RD ) dated 20070214 ( most proximate to date of separation [ DOS ] ).


ANALYSIS SUMMARY:

Asthma Condition: The service treatment record (STR) and the narrative summary (NARSUM) detailed that the CI had a syncopal episode (passed out) while running on the treadmill in 2003; later she had chest pain, wheezing, and shortness of breath (SOB). A pulmonary function test revealed asthma, and skin testing was positive for multiple allergies. The CI was placed on anti-histamines, nasal steroids (Flonase), and immunotherapy (allergy shots). At a pulmonary clinic visit on 28 October 2005 (5 months prior to separation), she was asymptomatic if she did not run or walk at a fast pace, and was started on an inhaled steroid (Advair). Post-bronchodilator spirometry (breathing test) showed FEV-1 (forced expiratory volume at 1 second) at 83% of predicted normal value and FEV-1/FVC (ratio of FEV-1 to total forced expired volume) at 66%. At the NARSUM examination on 15 December 2005, 3 month prior to separation, the CI’s lungs were clear to auscultation with no wheezes, or rhonchi. At the VA Compensation and Pension (C&P) general medical exam in April 2007, 13 months after separation, the CI complained of daily asthma symptoms (chronic cough, which was productive for 3 weeks), used an inhaled bronchodilator (Albuterol) 3-4 times a week, but was not on inhaled steroids. Spirometry showed FEV-1 at 90% of predicted and FEV-1/FVC at 86%. At a pulmonary VA C&P exam on 26 September 2007 (18 months after separation), the CI had dyspnea (SOB) with exertion and did not have a productive cough. The examiner stated that the CI had “exercise induced asthma,” that the CI’s only medication was Albuterol (i.e., not on inhaled steroids), and that the CI used the Albuterol “daily and more than once a day when she exercises.” The lungs were clear on examination. Spirometry showed FEV-1 at 109% of predicted and FEV-1/FVC at 85%.

The Board directed attention to its rating recommendation based on the above evidence. The PEB rated the condition with code 6602 (Asthma) at 10%, citing the current treatment with Advair, but noting, “Pharmacy records reflect intermittent use of medications.” On 12 June 2007 the VA rated the condition with code 6602 at 10%, citing intermittent inhalational or oral bronchodilator therapy. On 28 August 2011, the VA increased the rating to 30% effective as of 26 September 2007 (19 months after separation), consistent with the examiner’s statement that the CI used Albuterol inhaler daily. After reviewing the entire available STR and, specifically, the spirometry accomplished on 27 October 2005 (referenced in the NARSUM), the Board determined that FEV-1/FVC measurement of 66% supported a disability rating of 30% under §4.97 and code 6602 (FEV-1 of 56 to 70% predicted, or; FEV-1/FVC of 56 to 70%). A higher rating would not be supported unless the FEV-1 was less than 56% predicted or the FEV-1/FVC was less than 56%; the CI required courses of corticosteroids or frequent visits to a physician for care of exacerbations; or the CI experienced more than one attack per week with episodes of respiratory failure. 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 asthma condition.

Headache Condition: The NARSUM noted that the CI slipped on ice February 2000 hitting the back of her head (occipital area), resulting in a concussion and a headache. After that she suffered recurrent headaches 1-2 per month lasting up to 24-hours, unrelieved with over-the-counter medications, not associated with nausea/photophobia/dizziness, and helped by lying down in a dark room. By 2002 she had weekly headaches, and was prescribed several prophylactic and abortive medications which failed to adequately relieve her symptoms. At a civilian neurology appointment on 23 May 2005, the CI stated that her headaches had recently gotten worse and occurred 4-5 times a week; and were associated with photophobia, and phonophobia, and nausea. She also had milder headaches that did not cause these symptoms. The CI was seen by a nurse for a referral for MEB on 3 October 2005; she was having one of her headaches and stated that her pain level was 5/10; and she was described to be awake, alert, oriented, and in no acute distress. In October 2005 she was given a specific duty limitation to not drive in the early morning, due to concerns about headlights exacerbating her migraine headaches. At the MEB examination on 27 October 2005 (5 months prior to separation) the CI complained of frequent severe headaches; dizziness with the headaches; and short-term memory loss. Neurologic examination was normal. On 7 December 2005 (3 months prior to separation) at a neurology appointment, the CI complained of 2-3 headaches per week, associated with nausea and occasionally some vomiting. She was unable to function very well when she had these bad headaches (even unable to go to sleep), and her medication helped for only a short period of time and then the headaches came back. She wanted to try a different kind of medication and the neurologist prescribed a medication used for prevention of headaches. On 13 December 2005, at a chiropractic visit, the CI reported her headaches had been occurring 3 times a week since 1999. In a neurology report written for the MEB on 14 December 2005 (3 months prior to separation), the CI reported recurrent headaches for over 6 years, that had increased in frequency and intensity over the previous 6 months, and were occurring at least 4 times per week. The CI was using Zomig as her abortive therapy (used to stop the headache when it starts), which “will enable the pain to remit within 2-3 hours’ time,” if the Zomig did not work, the headache would last the remainder of the day. Neurologic examination was normal. The neurologist stated, “Based on the current frequency and intensity of these headaches and the amount of time she misses work, an estimate of her industrial capacity using the VASRD coding, suggests that she has mild to definite industrial impairment.” At a civilian neurology appointment on 1 February 2006 (a month prior to separation), the CI’s headaches were occurring twice a week and were “tolerable,” and were less intense and less frequent. At work she normally took her medications and then could continue to work; while at home she took her medications and then go off to sleep (which helped). On 31 May 2006 (2 months after separation), the CI complained of chronic headaches that were associated with photophobia, phonophobia, and neck problems; and were not associated with nausea, vomiting, numbness, or tingling. The frequency and severity of headaches (whether prostrating or not) was not documented, although the CI had to take Imitrex almost every day. The CI was going to school full-time, but the strain of reading everyday made her headaches worse. At the VA C&P general exam on 12 April 2007 (13 months after separation), the CI reported bifrontal headaches 4-5 times a week, “usually” helped by abortive medication (Imitrex). The pain reached a peak in 20 minutes, and lasted for about 30 minutes. Neurological exam was negative. Per the VA C&P mental health exam on the same date, “She is attending school online part-time. She plans to take up holistic medicine soon and go full-time.” At a VA C&P neurological exam on 24 August 2007 (17 months after separation), the CI stated that she missed work while still on active duty, but “was just allowed to miss work because she did a good job when she was there.” She did not know how often she had to leave work early because of the headaches. At the time of the exam, she was having headaches almost every day (representing an increase in frequency), which she treated almost all the time with Imitrex, Lunesta (a sleeping pill), and a three hour nap. The headaches could be associated with nausea, blurred vision, and photophobia; and could be triggered by smells (such as perfume), stress, or bright lights.
The Board directed attention to its rating recommendation based on the above evidence. The PEB rated the condition with code 8045-9304 (Residuals of traumatic brain injury – Dementia due to head trauma) at 10%, citing headache frequency 3-4 times a week but no record of prostrating episodes. In June 2007, the VA rated the condition analogously to code 8100 (Migraine) at 0%, citing the lack of evidence of characteristic prostrating attacks. On 16 October 2007, the VA continued the rating of 0%, again citing the lack of evidence of characteristic prostrating attacks; however, on 18 August 2011 the VA upgraded this rating to 30% (“With characteristic prostrating attacks occurring on an average once a month over last several months”), effective on 27 May 2011, 5 years after separation. Although the CI was having frequent headaches at the time of separation, the various examinations were somewhat disparate in their description of the severity and frequency of the CI’s symptoms. The rating options under 8100 for migraine headaches depend on the frequency of “prostrating” attacks. The VASRD does not further define prostrating attacks however by way of reference, the Board noted that according to Webster's New World Dictionary of American English, Third College Edition (1986), p. 1080, "prostration" is defined as “utter physical exhaustion or helplessness”; and in Dorland's Illustrated Medical Dictionary (28th Ed. 1994), p. 1367, it is defined as “extreme exhaustion or powerlessness.” The Board carefully considered the frequency and nature of the CI’s headaches including objective evidence and corroborating subjective evidence. Per the NARSUM, the CI was suffering weekly headaches in 2002, headaches twice weekly in January 2005, and three and four times weekly at the time of the NARSUM; but none of these were described as prostrating. The notes from the civilian neurologist described headache frequency as two to three times per week, but did not describe the headaches as prostrating. At the VA neurological exam on 12 April 2007, the headache frequency was reported as four to five times a week, which was “usually” helped by abortive medication (Imitrex), but without portrayal as being prostrating. At the VA exam on 24 August 2007 (16 months after separation), the CI stated that she missed work while still on active duty, but “was just allowed to miss work because she did a good job when she was there” – which does not substantiate the headaches as prostrating. At the time of this VA exam, the CI was having headaches almost every day (increased in frequency), which she treated almost all the time with medication and a 3 hour nap. Board consensus was that the STR did not support a contention that the CI had prostrating attacks occurring on an average once a month or more at the time of separation. 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 headache condition.

Chronic Right Shoulder Condition. Review of the STR indicated that the CI had onset of burning pain in the right shoulder after a push-up event in April 2003. The pain worsened over time with duty, leading to surgery in June 2004 (arthroscopic acromioplasty and open rotator cuff repair) and rehabilitative physical therapy (PT). Her pain worsened during a deployment “range-of-motion [ROM] was still very painful,” and in January 2005 (14 months prior to separation) she had a second surgery ( open rotator cuff repair for supraspinatus tendon ) followed by PT . However, she had residual burning (pain) with driving, shoulder rota t ion, and lifting. In an orthopedic evaluation on 27 September 2005 ( 8 months after surgery and 6 months prior to sep aration), the CI reported right shoulder burning pain on a daily basis that interfered with her activities of daily living. On examination, she had “full” ROM and intact neurovascular testing . Physical examination tests for impingement, instability, and acromioclavicular pain were negative. A dictated orthopedic summary, also on 27 September 2005, detailed ROM with 170 degrees of forward flexion and abduction (normal 180 degrees). There was normal strength of the rotator cuff. There was pain in the surgical site but no pain in the acromioclavicular joint with the cross-arm test. At the MEB examination on 27 October 2005 (9 months after surgery and 5 months prior to separation), the CI reported “burning anterior deltoid with driving, shoulder rotation, and lifting.” She did not participate in physical training, or do repetitive or overhead movements. On examination, the CI had “full ROM without pain” and no crunching, grating, grinding, or muscle atrophy of the shoulder. At an orthopedic MEB addendum on 1 December 2005 the CI stated that she had full motion and strength, but “after increased activity throughout the day, it bothers her in the subacromial region.” The orthopedic surgeon noted that recent imaging (MRI) showed some fluid in the joint (subacromial and subdeltoid space) with a questionable partial bursal surface rotator cuff tear, but recommended no further surgery. At the VA C&P exam on 12 April 2007, the CI reported weakness, stiffness, swelling, and intermittent pain (3 times per week) of the shoulder; which was worse with driving, using a baseball bat, and lifting. Exam showed 165 degrees flexion (normal 180) with pain beginning at 155 degrees, and abduction 135 degrees (normal 180) with pain beginning at 115 degrees.

The Board directed attention to its rating recommendation based on the above evidence. The PEB rated the condition with code 8201 at 0% (apparently a typographical error, intending the code to be 5201, Arm, limitation of motion of), noting full ROM of the shoulder with no instability. In June 2007, the VA rated the condition with code 5201-5024 (Arm, limitation of motion of - Tenosynovitis) at 10%, citing painful or limited motion of a major joint. The limitation of motion at both the MEB examinations and the VA C&P examination 13 months after separation did not support a minimum rating for limitation of arm motion (5201). However, the Board considered whether a 10% rating was warranted under code 5024 (Tenosynovitis), which is to be rated on limitation of motion of affected part, as arthritis, degenerative (code 5003). The orthopedic MEB summary on 27 September 2005 reported decreased shoulder flexion and abduction. An orthopedic office visit on the same day reported that ROM was “full” and did not mention presence or absence of painful motion, although the CI described burning shoulder pain on a daily basis. The MEB examination on 27 October 2005 reported full ROM without pain, but the associated MEB NARSUM described “burning anterior deltoid with driving, shoulder rotation, and lifting,” – implying painful motion. This history was consistent with the after separation VA C&P exam on 12 April 2007, which reported decreased and painful motion. Although the CI may not have had a measureable loss of ROM, the Board concluded that the bulk of evidence supported a contention that the CI had functional loss (VASRD §4.40) and painful motion (§4.59), which supported a 10% rating under code 5024-5003. The Board did not see a pathway to a higher rating under any other applicable shoulder codes (ankylosis, limitation of motion, or impairment of humerus or clavicle/scapula). After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% under code 5099-5024 for the right shoulder condition.

Contended PEB Condition. The MEB forwarded the condition of LBP to the PEB, but the PEB did not find it to be unfitting. The Board’s main charge is to assess the fairness of the PEB’s determination that the LBP condition was not unfitting. The Board’s threshold for countering fitness determinations is the “preponderance of evidence,” which 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 STRs indicated that the CI had LBP in 1994 after over 20 parachute landing falls, which then completely resolved. In 1999 she experienced morning stiffness and daily pain (5/10) with intermittent right upper leg pain. Over the next 5 years she had multiple flare-ups of her LBP, including an episode in April 2005 when she fell off a forklift. On 23 August 2005, the CI had tenderness of the lower (thoracolumbar) spine on an MEB evaluation, but was determined to be qualified for service. At the MEB examination on 27 October 2005 (5 months prior to separation), the CI detailed recurrent LBP for 2 years which was worse over the previous year, pain with lifting, and radiation of pain into the posterior right thigh. On examination she had no pain with lumbar movement, no pain with palpation, no muscle wasting, and a normal neurological examination. A PT evaluation on 1 November 2005 showed thoracolumbar forward flexion of 90 degrees (normal) and combined ROM of 230 degrees (normal 240). In the MEB NARSUM on 12 December 2005, 3 months prior to separation, the examiner stated, “… she has chronic, intermittent 4-5/10 low back pain with right leg pain exacerbated by lifting, bending, twisting, and repetitive movements. She states that she has 1-2 days weekly of minimal pain in her low back.” An X-ray of the lumbar spine showed a slight anomaly (congenital sacralization of the fifth lumbar vertebra), scoliosis of the lumbar spine, and no degenerative changes. Further imaging (MRI) was reported to be normal. On examination, there was no pain with palpation, no muscle wasting, and normal strength and sensation of the lower extremities. The examiner concluded the CI “…cannot the rigors of soldiering.” [sic] In a chiropractic visit on 29 December 2005, the LBP was described as “intermittent”; and on 24 January 2006 the CI reported “some LBP with increase in activity.” On 3 February 2006 (a month prior to separation), the CI had “no pain at this time,” reporting good relief after a treatment 4 days earlier; on examination there was tenderness to palpation in the lower spine (L4-L5). On 8 February 2006 there was, “No spinal pain today,” and on examination there was tenderness at the L5-S1 vertebral level. LBP was listed as one of the diagnoses on the physical profiles dated 26 September 2005 and 21 December 2005, and on the latter date L-3 (lower extremities) was added as a permanent profile code, apparently referring to the low back condition. LBP was listed as a diagnosis in the commander’s performance statement on 28 October 2005; the CI was unable to do physical training. In summary, the Board noted that the CI had initial LBP in 1994 (associated with parachute landings) and intermittent flare-ups of LBP since at least 1999, which was reported as worse in the 2 years prior to separation. In the NARSUM the CI stated that she had 1-2 days weekly of minimal pain in her back, however she had no pain at two chiropractic examinations in the month prior to separation. 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 intermittent LBP, as described at the time of separation, 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. All documentation was reviewed in this case to include recently updated information provided by CI dated 28 April 2015. In the matter of the asthma condition, the Board unanimously recommends a disability rating of 30%, coded 6602 IAW VASRD §4.97. In the matter of the headache condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the right shoulder condition, the Board unanimously recommends a disability rating of 10%, coded 5099-5024 IAW VASRD §4.71a. In the matter of the contended LBP condition, 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 re-characterized to reflect permanent disability retirement, effective as of the date of her prior medical separation:

UNFITTING CONDITION VASRD CODE RATING
Asthma 6602 30%
Headaches 8043-9304 10%
Chronic Right Shoulder Pain 5099-5024 10%
COMBINED 40%



The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20140107, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans Affairs Treatment Record





XXXXXXXXXXXXXXX
President
DoD 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, AR20150013274 (PD201400449)


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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