PROCEEDINGS


	IN THE CASE OF:       


	BOARD DATE:            25 SEPTEMBER 2002                       
	DOCKET NUMBER:   AR2001065862


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  


Mr. Carl W. S. Chun

Director



Analyst

  The following members, a quorum, were present:




Chairperson



Member



Member



Member



Member
	The applicant requests correction of military records as stated in the application to the Board and as restated herein. 

	The applicant did not appear before the Board and was not represented by counsel.

	The Board considered the following evidence:

      Exhibit A - Application for correction of military records
      Exhibit B - Military Personnel Records (including advisory opinion, if any)
      Exhibit C - Case Summary
      Exhibit D - Live testimony and any evidence introduced during the hearing

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that her medical discharge with separation pay be changed to a medical retirement.

3.  The applicant states, in effect, that everything the Department of Veterans Affairs (VA) has rated her for is service connected.  She maintains that she should have been medically retired.  In support of her request she submits copies of her informal PEB (Physical Evaluation Board) and a copy of her March 2000 VA disability rating decision.  She also submits a 19 September 2002 statement from her psychologist indicating that she is receiving mental health treatment for posttraumatic stress disorder resulting from trauma sustained during her military service and was advised against attending her formal hearing because of the increased stress and anxiety a long trip or being away from medical support might cause.  Additionally, she submits a 17 September 2002 statement from the VA indicating she could not attend her formal hearing because of her back condition.

4.  The applicant’s military records show that she enlisted in the Regular Army on 18 February 1992.  Medical records indicate that two days after her enlistment, on 20 February 1992, she reported to medical personnel and complained of a headache.  However, she successfully completed basic and advanced individual training and was awarded military occupational specialty (MOS) 92A (Automated Logistics Specialist).

5.  Medical documents submitted by the applicant indicate she was involved in a motor vehicle accident in March 1993 and was treated for back pain and foot problems in April 1993 and June 1993.  In February 1994 the applicant underwent surgery for hemorrhoids.  The surgery was accomplished without complications.

6.  In April 1994 she was promoted to pay grade E-4.

7.  In August 1994 the applicant's service medical records indicate that she was seen by medical personnel for flu like symptoms and rectal pain with occasional bleeding.  She also underwent oral surgery.

8.  Between September and December 1994 the applicant was seen by medical personnel five times for complaints of migraines.  Those visits included a record of 24 hours quarters on 27 September 1994 for a migraine, and single visits in November and December 1994 for headaches.  Her 7 September 1994 visit to medical officials also included a complaint of back strain. 

9.  The applicant returned to medical officials in September 1995 and on 
19 September noted that she had not had any headaches for 2 to 3 months but had experienced headaches on 2 and 12 September, which are documented in her medical records.
10.  In January 1996 the applicant was treated for flu like symptoms and on 
19 January 1996 was granted 48 hours in quarters due to her headaches.  Between April and August 1996 the applicant was seen by medical officials on several occasions for a variety of ailments, including stomach pains, diarrhea, back and shoulder pain, and flu like symptoms.  She was seen once in April and once in June for migraines.  In July 1996 she was issued a physical profile while she was undergoing physical therapy for her back pain. 

11.  Between 4 November 1996 and 30 January 1997 the applicant attended and successfully completed the Medical Specialist Course leading to her reclassification from a logistics specialist to a medical specialist (MOS 91B).  Her academic evaluation report notes that the "demanding nature of this course required rigorous study, self-discipline, and the ability to manage proficiency in highly stressful situations."  Following completion of training, the applicant was assigned to Womack Army Medical Center at Fort Bragg, North Carolina.

12.  The applicant delivered a baby girl in April 1997 and sustained a "pubic symphysis separation" (separation of the joint formed by union of the bodies of the pubic bones in the median plane by a thick mass of fibrocartilage) while giving birth.  As a result, the applicant's medical records indicate medical personnel saw her on several occasions between May and September 1997.  She was also seen in May 1997 for an eye infection and twice in September for flu like symptoms.  She also reported a headache on 22 September 1997 when she was seen for her flu like symptoms.  However, when seen on 23 September for her flu like symptoms she did not report any headaches.

13.  In October 1997 the applicant apparently telephoned medical personnel regarding her physical profile.  The telephone consult notes that the applicant reported that she was due to take a "PT test" and to be "weighed in" on 
7 October 1997.  A 7 October 1997 medical report notes that she reported to medical personnel with a complaint of a headache, which had begun the previous afternoon.  She also noted that her headaches had improved after her delivery in April 1997 but started up again the "last 2 months."  She reported that this was her first headache in "a month" and that she had no nausea.  On 
8 October 1997 she was seen again with a complaint of a headache.  The evaluating physician noted in his comments, however, "doubt true migraine picture."  On 21 October 1997 she was seen again for a headache and reported her last headache was "3 wks ago."  She indicated, however, that her headaches were worsening and were no longer responding to nighttime migraine medicines and she was taking "Pamelor, Elavil, or Inderal" daily.

14.  On 13 November 1997, during a "Community health nurse tuberculosis screening program" the applicant reported she was in "good health" when asked to assess her general health.  On 19 November 1997 the applicant reported to medical personnel that she experienced migraines one to three times per month and on that particular day (19 November) she had taken medication for her migraine and was requesting that she be assigned to her quarters for the day.  On 23 November 1997 she was seen by medical personnel who noted the applicant had experienced a headache in the "evening" and that she was "pending MEB" (medical evaluation board).

15.  In December 1997 she reported one migraine with no nausea and no photophobia and noted during sick call that her migraine often "goes away by AM."  During a neurology visit the examining physician noted the applicant stated that her headaches began "3 yrs ago" and had been occurring every day, but improved during the second and third trimesters of her 1996/1997 pregnancy.  She stated that her headaches returned in August 1997 and that she experienced headaches 2 to 3 times per week.

16.  There are no additional indications of medical visits for any of the applicant's ailments subsequent to December 1997.

17.  In January 1998, as part of the applicant's disability processing, she underwent a psychiatric evaluation.  The evaluating physician noted the applicant's medical records documented a November 1992 sexual assault.  He also noted that she suffered a second sexual assault in the summer of 1993.  However, the evaluating physician does not indicate whether the source of this information was from the applicant or other documents.  The physician noted the applicant "has had chronic [symptoms] of PTSD which she has dealt with individually [and with] professional or other support."  He noted that "despite" her symptoms she "has an excellent military record, to include multiple letters of appreciation, AAMs and an ARCOM."  Although the applicant's separation document indicates the applicant was awarded a single AAM, none of the accolades referred to by the evaluating physician were confirmed in any information available to the Board.  The physician noted the applicant's permanent profile for her pelvic condition and that "she has had frequent migraine HAs since the sexual assaults."  He concluded that the applicant was "mentally fit for duty, but will have mild industrial & moderate social impairment." 

18.  In March 1998 the applicant underwent a Medical Evaluation Board (MEB).  The narrative summary of her medical conditions noted her "chief complaint" as "headaches and pubic symphysis separation."  The evaluating physician indicated the applicant had experienced headaches since 1994 and that they were "frequent in origin associated with photophobia, phonophobia, and nausea." He noted that the applicant has "headaches 10-15 times a month and she usually missed approximately 16 days of work a month secondary to the headaches."  He also notes that she "continues to have severe pain at the pubic symphysis with walking or running" and that she "has constant pain regardless of activity."  The MEB concluded the applicant suffered from migraine headaches, symphysis pubis separation and posttraumatic stress disorder (which was medically acceptable) and recommended the applicant be referred to a Physical Evaluation Board (PEB).  The applicant concurred with the findings and recommendation of the MEB.

19.  As part of the MEB process, the applicant's immediate supervisor and unit commander submitted statements regarding her inability to perform her duties because of her medical conditions.  Her immediate supervisor stated on 
26 February 1998 that between February and May 1997 the applicant was "put on limited duty with a shortened workday and subsequently sent home until she delivered" because she developed gestational diabetes.  He noted that she "did not report back to duty until July 1997" following an extended convalescent leave period after the applicant "suffered a fracture of the pelvis" during delivery.  He states that since that time (July 1997 through February 1998) the applicant has "developed an increase in frequency of her debilitating headaches and consistent problems with cold related symptoms which have resulted in excess of five hundred sick in quarters hours and a multitude of duty time lost due to medical appointments."  He noted that "due to her physical inability to perform these functions with the onset of the headaches she has previously been placed on shortened duty hours (August 1997) for a period of 30 days."  He concluded that it has "become increasingly difficult to accommodate [the applicant's] frequent absences and inability to perform her duties…."

20.  The applicant's unit commander authored a statement on 5 March 1998 which noted that "due to her excessive lost time from work and lack of dependability due to her health problems" he requested a "fitness for duty evaluation…" and agreed with the recommendation of the applicant's supervisor that because of the applicant's medical condition she was "unable to function in her MOS while her current medical condition persists."

21.  After the applicant's MEB, but prior to her informal PEB, a physician in the "Family Practice/Sports Medicine Staff" at Womack Army Medical Center, authored a statement concerning the applicant's referral to the Sports Medicine Clinic for "pelvic pain after having delivered a baby…."  He noted the applicant had "multiple treatments with physical therapy, non-steroidal anti-inflammatory medications, TENS unit, and steroid injection of the pubic symphysis."  He noted that she "has shown significant improvement but still has pain with running and intercourse."  He concluded that the applicant was improving but that she "may always have some subjective pain in the region of the pubic symphysis."  The physician's statement was authored on 22 April 1998.

22.  On 8 May 1998 an informal PEB concluded that the applicant's migraine headaches and symphysis pubis separation with pain prevented the applicant's satisfactory performance of duty in her grade and primary MOS.  The PEB concluded that the applicant's PTSD was not unfitting and therefore was not rated.  The applicant's headaches and pelvic pain were independently rated at 10 percent and the PEB recommended she be discharged with severance pay.
The applicant concurred with the findings and recommendation of the informal PEB and waived her right to a formal hearing.

23.  On 26 June 1998 the applicant was discharged as a result of her medical conditions and received more than $12,000.00 in disability severance pay.  At the time of the applicant's separation she had 6 years, 4 months and 9 days of active Federal service.

24.  In December 1998, subsequent to the applicant's separation, she received a combined disability rating of 80 percent from the VA.  The applicant's migraine headaches "also diagnosed as mixed tension and vascular headaches" was independently rated at 50 percent disabling, and her history of separation of symphysis pubis, with residuals was independently rated at 10 percent. The VA also granted the applicant disability ratings for PTSD (30 percent), lumbosacral strain (10 percent), cold injury to left great toe (10 percent), and cold injury to right great toe (10 percent).  The VA also noted that the applicant's chronic conjunctivitis, hemorrhoids, and left and right hallux valgus were service connected but rated at 0 percent disabling.  The applicant's combined VA rating of 80 percent was retroactive to 1 July 1998.

25.  The VA's decision to grant the applicant a 50 percent disability rating for her headaches was based on information contained in the applicant's MEB and a 
6 August 1998 examination in which the applicant stated that "the headaches last one or two days, sometimes lasting up to a week.  Headaches occur two to three times a week."  

26.  Provided VA medical records show the applicant was treated for a complaint of headaches approximately 10 times between 8 August 1998 and 26 July 2000. Two of these dates are duplicated on different documents.  

27.  By January 2000 the applicant was undergoing regular therapy visits for marital problems, sexual trauma, PTSD and depression related issues.  During a February 2000 session she reported having had a "migraine headache all weekend…."  During a subsequent February 2000 session she reported chronic back pain.  The applicant related that her husband had been physically and sexually abusive towards her "during their 5 years of marriage" although the physical abuse ended 4 years ago.  The majority of her therapy sessions related to difficulties with her spouse.

28.  During her January 2000 VA medical examination the applicant reported migraine headaches occurred eight to twelve times a month and last from two days to one week.  She stated during the examination that the headaches had not changed much "in intensity, duration or frequency."  She was also seeking an increase in her disability rating for her back condition.  The examination resulted in a diagnosis of chronic low back strain and x-rays showed evidence of degenerative joint and degenerative disk disease.  In March 2000 the VA increased her disability rating for her lumbosacral strain from 10 percent to 40 percent, while her PTSD rating remained at 30 percent and her rating for migraine headaches remained at 50 percent.  The VA also granted her "entitlement to individual unemployability."  

29.  In September 2000 the Social Security Administration determined the applicant was "entitled to a period of disability commencing June 26, 1998, and to disability insurance benefits….and the claimant's disability has continued at least through the date of this decision."  The Social Security Administration's determination was based in part on the applicant's testimony in which she stated that she had been discharged on disability from the military on 26 June 1998, because of PTSD and migraine headaches.  She testified that she had initially been discharged on 80 percent disability, and that effective 1 March 1999 her disability rating had been increased to 90 percent.

30.  The applicant submitted her initial application to this Board in March 2001.  Her request was inadvertently forwarded to the Army Disability Rating Review Board (ADRRB).  That board voted on 7 August 2001 to modify "the decision of the formal US Army Physical Evaluation Board of 8 May 1998."  The ADRRB believed that the applicant's correct disability rating should have been 60 percent and based their decision "largely on the fact that her migraine headaches were prostrating in severity and should have been rated at 50%."  They concluded, however, that her pelvic condition was appropriately rated at 10 percent and that her other medical problems were not unfitting and therefore were correctly not rated.  The applicant was notified for the ADRRB decision in August 2001.  When it was subsequently discovered that the ADRRB did not have the jurisdiction to review the applicant's case, she was notified in September 2001 that the ADRRB decision was null and void.  The applicant was informed that the ADRRB has the authority to review disability percentage ratings on request of a soldier who was retired because of disability.  The applicant was not retired by reason of disability and hence the ADRRB should not have reviewed her application to this Board. 

31.  Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  The regulation defines “physically unfit” as unfitness due to physical disability.  The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.

32.  The VA Schedule for Rating Disabilities (VASRD) is the standard under which percentage rating decisions are to be made for disabled military personnel. The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  Once a soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD.  These percentages are applied based on the severity of the condition.

33.  VASRD code 8100, migraine, awards a 50 percent disability rating for migraine with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.  A 30 percent disability rating is awarded with characteristic prostrating attacks occurring on an average once a month over last several months.  A 10 percent disability rating is awarded with characteristic prostrating attacks averaging one in 2 months over last several months.

34.  Department of Defense Instruction (DODI) 1332.39, Application of the Veterans Administration Schedule for Rating Disabilities, implements policy for rating disabilities of Service members determined to be physically unfit and who are eligible for disability separation or retirement.  It states that for VASRD code 8100, Migraine, “prostrating” means that the service member must stop what he or she is doing and seek medical attention.  The number of prostrating attacks per time period (day, week, months) should be recorded by a neurologist for diagnostic confirmation.  Estimation of the social and industrial impairment due to migraine attacks should be made.

35.  Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish error or injustice in the Army rating.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at a different disability rating based on the same impairment.  Furthermore, unlike the Army the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

CONCLUSIONS:

1.  This Board believes, after reviewing the applicant's extensive service medical records, that the applicant's migraine headaches, while certainly a problem were not "prostrating" as defined by the DODI.  The applicant was periodically seen by medical personnel for treatment of her headaches but the duration and frequency of those headaches is inconsistent from month to month.  While the applicant's March 1998 MEB found that the applicant's headaches occurred "10-15 times a month and she usually missed approximately 16 days of work a month secondary to the headaches" that information is not confirmed in available medical records which indicate the applicant was last seen for a headache in December 1997.  There is no evidence her headaches were so prostrating that the applicant had to stop what she was doing and seek medical attention, which was the requirement under the DODI.  The severity of the applicant's pelvic condition is well documented but again, the Board notes that once the applicant was scheduled for disability processing there were no other records of visits to a physician for her pelvic pain.  Under the circumstance this Board can understand the PEB's findings and recommendation that neither condition rated a higher disability rating and the Board concludes those ratings were adequate and just.

2.  The evidence of record clearly indicates that the applicant was unable to perform her military duties because of her medical ailments.  However, the MEB and PEB, with the applicant's concurrence, concluded that only her migraine headaches and pelvic pain were disabling and rendered a combined disability rating of 20 percent.  The applicant now contends that, based on her VA disability ratings, she should have had a much higher Army disability rating.

3.  The applicant's contention that medical conditions that were rated by the VA and not the Army, or that those conditions that were rated higher by the VA should somehow affected the outcome of her Army disability processing is not supported by the evidence of record.  The applicant, who would have been familiar with her medical ailments, at the time of the MEB and PEB, concurred with the findings of both and provides no evidence that she ever raised additional issues during her disability processing.  The applicant's entire appeal to this Board is based on findings by the VA and she offers no explanation for the fact that she concurred with the MEB and PEB and waived her right to a formal PEB.

4.  The rating action by the VA does not necessarily demonstrate any error or injustice in the Army rating.  The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit.  Any rating action by the VA does not compel the Army to modify its rating.

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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



RECOMMENDATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice and as such, her request for disability retirement should be denied.

DISSENT:  Two members of the Board (Ms. Prater and Ms. Kennedy) dissented from the foregoing recommendation.  Both members are of the opinion that the applicant's service medical records supported a disability rating of 30 percent for migraine headaches.  Additionally, one member (Ms. Kennedy) concluded that the applicant's posttraumatic stress disorder warranted a disability rating of 10 percent, in spite of the fact that the PEB did not find that condition unfitting.

BOARD VOTE:  

____  ____  ____  _xxx_  _xxxx__  GRANT

_xxx  _xxx_  _xxxx_  ____  ____  DENY APPLICATION




		__xxxxxxxxxxxxxxx __
		        CHAIRPERSON




INDEX

CASE ID
AR2001065862
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20020925
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
110.00
2.

3.

4.

5.

6.



ABCMR Proceedings (cont)                                                           AR2001065862


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