APPLICANT REQUESTS:  That his discharge for physical unfitness, rated 10 percent disabled, be corrected to medical retirement, rated a minimum of 30 percent disabled.

APPLICANT STATES:  He was rated for classic migraine headaches.  Subsequent to his discharge, it was determined that he had actually suffered from fibromyalgia.

EVIDENCE OF RECORD:  The applicant's military personnel and medical records show:

He served on active duty from October 1980 to October 1983.  During that enlistment he went AWOL for 5 days and was denied reenlistment because of that lost time.  After his release from active duty in October 1983 he was assigned to a USAR unit.

On 18 November 1986 he enlisted in the Regular Army in pay grade E-2 as prior service with a waiver of his lost time.

He performed duties as a military policeman and was promoted to pay grade E-5.

On 30 October 1992, while assigned to Korea, the applicant was returned to the United States prior to the completion of his overseas tour for the purpose of being medically boarded.

On 18 May 1994 a medical evaluation board (MEB) convened and determined that the applicant suffered from classic migraines, severe and disabling; from bilateral chondromalacia patella (premature degeneration of the kneecap); from depressive disorder, in full remission; from psychologic factors affecting his depressive disorder; from prostatisis (inflammation of the prostate); from gastroduodenitis (an inflammation of the stomach and duodenum); and from gastroesophageal reflux disease (a backward or return flow of the contents of the stomach into the esophagus).  During the examinations conducted in conjunction with the MEB, the applicant reported having headaches as early as high school, which were “global or frontal, sometimes throbbing, usually associated with nausea or photophobia . . . headaches were provoked by stress.  In the early 1980’s the [applicant] first experienced visual scintillations and a spell of expressive speech impairment lasting 20 minutes.  These deficits would herald the onset of a usual throbbing, global headache.”  The MEB referred the applicant to a physical evaluation board (PEB).

On 25 July 1994 a PEB convened and determined that the applicant was physically unfit due to chronic migraine headache syndrome, existing prior to service (EPTS), but service aggravated.  The PEB recommended that he be discharged with severance pay, rated 10 percent disabled.

Accordingly, on 23 September 1994 the applicant was honorably discharged by reason of physical disability with $35,187.80 in severance pay.

Army Regulation 600-8-1, paragraph 41-8 states, in pertinent part, that if an EPTS condition was aggravated by military service, the finding will be in line of duty.  If an EPTS condition is not aggravated by military service, the finding will be not in line of duty, EPTS.  Specific findings of natural progress of the pre-existing injury or disease based on well established medical principles alone are enough to overcome the presumption of service aggravation.

Army Regulation 635-40 provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board.  Those members who do not meet medical retention standards will be referred to a physical evaluation board for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.  For example, a noncommissioned officer who receives above average evaluation reports and passes Army Physical Fitness Tests (which have been modified to comply with the individual’s physical profile limitations) after the individual was diagnosed as having the medical disqualification would probably be found to be fit for duty.  The fact that the individual has a medically disqualifying condition does not mandate the person’s separation from the service.  Fitness for duty, within the perimeters of the individual’s grade and military specialty, is the determining factor in regards to separation.  If the PEB determines that an individual is physically unfit, it recommends the percentage of disability to be awarded which, in turn, determines whether an individual will be discharged with severance pay or retired.  Paragraph 4-19b states that a PEB may decide that a soldier’s physical defect was EPTS, but must then determine whether the condition was aggravated by military service.  If the PEB determines that a soldier has an unfitting EPTS condition which was service aggravated, the PEB must determine the degree of disability that is in excess of the degree existing at the time of entrance into the service.  The method of determining the percentage of disability to be awarded in such cases is outlined in appendix B, item B-10 of this regulation.  

Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.

Records obtained from the VA show that the applicant was awarded a 40 percent disability rating from that agency, 30 percent for migraine headaches; 10 percent for gastroesophageal reflux disease; 10 percent for fibromyalgia; and zero percent for both the left and right knee for chondromalacia patella.

In the processing of this case an advisory opinion (COPY ATTACHED) was obtained from the Army Review Boards Agency (ARBA) Medical Advisor.  The ARBA Medical Advisor stated that the applicant’s request to change his diagnosis from myofascial pain syndrome to fibromyalgia is moot since the two terms are used interchangeably.  The applicant’s fibromyalgia was not severe enough to prevent satisfactory performance of duty and, therefore, did not warrant referral to a MEB, much less a referral to a PEB or a 30 percent or greater disability rating.  In a second opinion, the ARBA Medical Advisor stated that the applicant’s contentions were adequately addressed in an addendum to his MEB.  The ARBA Medical Advisor states that the applicant has not submitted proof that the diagnosis at the time of his separation was incorrect.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1.  The applicant’s request to have his physically disqualifying condition changed from migraines to fibromyalgia is not supported by the evidence of record.  His physically unfitting condition was his migraines, regardless of what caused that condition.  The applicant’s 10 percent VA rating for fibromyalgia supports this conclusion as does the advisory opinions from the ARBA Medical Advisor.
2.  The applicant’s rating was derived by subtracting the EPTS portion of his disability.  This accounts for the relatively low rating for disabling migraines.

3.  Although the applicant was diagnosed as having several other medical problems, those conditions were never found to be physically unfitting and were properly not rated.

4.  In view of the foregoing, there is no basis for granting the applicant’s request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

                       GRANT          

                       GRANT FORMAL HEARING

                       DENY APPLICATION




						Karl F. Schneider
						Acting Director