| Mr. Carl W. S. Chun | Director | |
| Mr. Hubert S. Shaw, Jr. | Analyst |
| Mr. Raymond V. O'Connor, Jr. | Chairperson | |
| Ms. Terry L. Placek | Member | |
| Mr. Robert L. Duecaster | Member |
APPLICANT REQUESTS: Reconsideration of his earlier appeal to correct his military records by increasing his Army disability rating.
APPLICANT STATES: In effect, that his disability rating is error in that it is 10 percent instead of 30 percent. He contends that his 10 percent disability rating is unjust because in his opinion the facts warrant a much higher rating. The applicant also contends that, at the time of his discharge, he "thought" the 10 percent rating was only for headaches and that he accepted the 10 percent rating based on an uninformed impression of the facts.
The applicant also states that he has presented a letter from his doctor to his wife's chain of command which suggests that his migraine headaches were far worse than a 10 percent disability rating suggests. He further states that the Narrative Summary by the Medical Evaluation Board (MEBD) refers to his headaches being "moderate to severe" and shows the severity of these episodes. The applicant contends that a rating of 10 percent suggests that occurrence of incapacitation due to migraine headaches once per month whereas daily migraines "suggest" a 50% rating. He also points out that an internal medicine doctor found the he had "ASA toxicity" from using aspirin so frequently to control his headaches.
The applicant further contends that the extensive use of abbreviations in his medical records may have caused the "frequency of his headaches to go overlooked since [he] was using over-the-counter medications to self-treat headaches prior to meeting MAJ [doctor's last name omitted]."
The applicant concluded by contending that all of these factors gave a "misleading impression of [his] condition which, when coupled with [his] own ignorance about the way the Army rated disabilities, caused [him] to accept a rating of ten percent (10%), when in fact a high rating was warranted." The applicant further states that "Paragraph 4-11 of AR 635-40, NARSUM's of MEB's which are incomplete, inaccurate, misleading, or delayed may result in injustice to the soldier" and he contends that is what happened in his case."
In support of his request for reconsideration, the applicant provided a copy of a document entitled "MEDICAL EVALUATION BOARD SUMMARY" which he highlighted under the history of present illness to show that his headaches occur every day and can last two to three weeks, if not treated and two to three days if treated. He also highlighted the statement indicating under current condition that he continues to have significant limitations due to his tremors and headaches. The applicant also highlighted a portion of the final diagnosis which states: "2. COMMON MIGRAIN HEADACHES-MODERATE TO SEVERE." The applicant indicated on this document in his own hand that he had reviewed it on 6 April 1992 and it was accurate and ready for preparation in final form. This document is not new evidence in that the MEBD Summary presented by the applicant was transcribed in final form, dated 13 April 1992, and attached to a DA Form 3947 (Medical Evaluation Board Proceedings) which is a part of the applicant's records. It was available to the Army Board for Correction of Military Records (ABCMR) during consideration of Docket Number AR1999024338 on 2 December 1999.
The applicant also provided a copy of a two-page Medical Record Consultation Sheet, dated 19 August 1991. He highlighted this document to show the entry, "ASA toxicity. This document is not in the applicant's service personnel records available to the ABCMR, and there is no indication that this medical record was seen during consideration of Docket Number AR1999024338 on 2 December 1999. However, the reference to "ASA toxicity" is not new information in that the MEBD Summary describes possible "PUD [peptic ulcer disease vs [versus] gastritis secondary to ASA [aspirin] therapy in 1991."
The applicant also provided a copy of a 6 April 1992 memorandum from his doctor addressed to his wife's chain of command. This memorandum was recommended that the applicant's wife should receive full consideration for separation under hardship conditions. The applicant highlighted paragraph 4 of this memorandum which essentially states that the applicant's condition was progressive and resulted in his inability to do certain activities. This paragraph also stated that the applicant's migraine headaches precluded normal activity even with immediate treatment and that this condition has resulted in the applicant's referral to a MEBD. This document is not in the applicant's service personnel records available to the ABCMR, and there is no indication that this medical record was seen during consideration of Docket Number AR1999024338 on 2 December 1999.
NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the ABCMR's previous consideration of Docket Number AR1999024338 on 2 December 1999.
In his application dated 15 January 1999, the applicant requested disability retirement based on the fact the Department of Veterans Affairs (DVA) rated him with 40 percent service connected disability. The ABCMR denied that application in Docket Number AR1999024338, dated 2 December 1999.
The applicant now requests that his 10 percent Army disability rating be increased to 30 percent. This is a new request which will be considered by the ABCMR.
The applicant provided a document entitled "MEDICAL EVALUATION BOARD SUMMARY." This is not new evidence since it existed in the applicant's service personnel records when the ABCMR considered Docket Number AR1999024338 on 2 December 1999.
The applicant provided a copy of a two-page Medical Record Consultation Sheet, dated 19 August 1991. This document is new evidence and as such it will be considered by the ABCMR.
The applicant provided a copy of a 6 April 1992 memorandum from his doctor addressed to his wife's chain of command supporting her discharge for hardship. This document is new evidence and as such it will be considered by the ABCMR.
The applicant's service records contain a DA Form 3947 (Medical Evaluation Board Proceedings), dated 22 April 1992. Item 13a (Diagnosis) of this document lists the conditions which the applicant's medical conditions. Item 13a shows the entry: "1. Familial essential tremor severe." Item 13b (Approximate Date of Origin) shows the entry, "EPTS" [existed prior to service].
The second entry in item 13a is: "Common migraine headaches--moderate to severe." Item 13b shows that the approximate date of origin of the migraine headaches was "SEPTEMBER 1989."
Items 17, 18, and 19 contains the names of the three military doctors who were the members of the MEBD. Item 20 shows that the colonel assigned as the Deputy Commander for Clinical Services approved the findings and recommendations of the MEBD on 4 May 1992. The applicant indicated in item 24that he agreed with the MEBD's findings and recommendations on 6 May 1992.
The applicant's records contain a DA Form 199 (Physical Evaluation Board (PEB) Proceedings) which shows that a PEB convened on 26 May 1992 to consider the applicant's case. This document shows in items 8a (VA Code) and 8b (Disability Description) the code "8100" and the entry, "COMMON MIGRAINE HEADACHES (MEBD) DIAG [diagnosis] 2/NARSUM [narrative summary]."
The DA Form 199 shows in item 8a and 8b the Code 8004 and the entry "*FAMILIAL ESSENTIAL TUMOR (sic-tremor), EPTS [existed prior to service], NOT AGGRAVATED BY SERVICE. (MEBD DIAG 2/NARSUM) [The asterisk refers to the following statement in item 8b: "There is compelling evidence to support a finding that the current condition existed prior to service (EPTS) and was not permanently aggravated by such service."]
Items 8d, e, and f on the DA Form 199 show that the applicant's disability (Code 8100) occurred during service and was the proximate result of performing duty. Item 8g (Recommended disability percentage) shows the entry, "10%."
Items 8d, e, and f on the DA Form 199 show that the applicant's disability (Code 8004) did not occur during service and was not the proximate result of
performing duty. Item 8g (Recommended disability percentage) for Code 8004 shows the entry, "---%."
The Physical Evaluation Board found the applicant physically unfit and recommended a combined rating of 10 percent. The Physical Evaluation Board also found that he should be separated with severance pay if otherwise qualified.
The DA Form 199 shows in item 13 (Election of Member) that the applicant was advised of the findings and the recommendations of the Physical Evaluation Board and received a full explanation of the results of the findings and recommendations and legal rights pertaining thereto. This form also shows by the applicant's check mark and his signature and date that he concurred with the findings and recommendations of the Physical Evaluation Board and, on 29 May 1992, waived a formal hearing of his case.
The Physical Evaluation Board Liaison Officer (PEBLO) who informed the applicant of the findings and recommendations of the Physical Evaluation Board and explained the results of the findings and recommendations and his legal rights, signed the DA Form 199 on 29 May 1992. The applicant's records contain a copy of the DA Form 5893-R (PEBLO Counseling Checklist/Statement) which the applicant signed and dated 29 May 1992, thereby acknowledging that he was counseled. The DA Form 5893-R is also authenticated by the PEBLO and dated 29 May 1992.
The applicant was separated from active duty on 28 July 1992 by reason of disability with entitlement to disability severance pay in the amount of $6022.80.
Department of Veterans Affairs (DVA) records show that, on 10 August 1992, the applicant filed a disability compensation claim. The applicant received a service connected disability rated at 10 percent for "Chronic headaches (claimed as migraines)," Department of Veterans Affairs Schedule for Rating Disability (VASRD) Code 8199-8100. Based on a decision of the Board of Veterans' Appeals, dated 31 December 1997, the applicant was awarded an additional 30 percent service connected disability for "Familial tremors," VASRD Code 8099-8004. By DVA rating decision dated 20 February 2003, the applicant received a combined rating of 40 percent.
The VASRD shows on page 4.124a-4 that Code 8100 identifies "Migraine." This schedule shows that the condition of a Migraine with very frequent completely prostrating and prolonged attacks productive of severe economic adaptability is rated at 50 percent. The condition of a Migraine with characteristic prostrating attacks occurring on average once a month over last several months is rated 30 percent. The condition of a Migraine with characteristic prostrating attacks averaging one in 2 months over last several months is rated at 10 percent. The condition of a Migraine with less frequent attacks is rated at zero percent.
Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of soldiers who may be unfit to perform their military duties because of physical disability. Paragraph
4-11 (Narrative summary (NARSUM)) states that the NARSUM to the medical evaluation board is the heart of the disability evaluation system. Further this paragraph states that incomplete, inaccurate, misleading, or delayed NARSUMs may result in injustice to the soldier or to the Army.
Title 10, United States Code, Section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.
Title 10, United States Code, Section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.
Army Regulation 635-40 also provides that a soldier may be separated with severance pay if his or her disability is rated at less than 30 percent; if he or she has less than 20 years of service as defined in Title 10 United States Code, Section 1208.
Army Regulation 15-185 sets forth the policy and procedures for the ABCMR. This regulation provides guidance for reconsideration requests that are received more than 1 year after the Board’s original consideration or after the Board has already reconsidered the case. In such cases, the staff of the Board will review the request to determine if substantial relevant evidence has been submitted that shows fraud, mistake in law, mathematical miscalculation, manifest error, or if there exists substantial relevant new evidence discovered contemporaneously with or within a short time after the Board’s original decision. If the staff finds such evidence, the case will be resubmitted to the Board. If no such evidence is found, the application will be returned without action.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:
1. The Board considered the applicant's contention that his headaches were far worse than the 10 percent disability rating by the Army. The Board also noted the applicant's arguments to support his claim. He initially stated that the extensive use of abbreviations caused the frequency of his headaches to be overlooked since he was using over-the-counter medications prior to meeting the doctor who wrote the medical consultation. Further, the applicant stated that this factor, when coupled with his "own ignorance about the way the Army rated disabilities, caused him to accept a rating of ten percent when in fact a high rating was warranted."
2. Evidence of record shows the following.
a. On 6 April 1992 the applicant concurred in the draft of the MEBD Summary. The final MEBD Summary, dated 22 April 1992, diagnosed the applicant with two conditions: "1. Familial essential tremor severe" which was found to have existed prior to service; and "2. Common migraine headaches--moderate to severe." The MEBD recommended that the applicant be presented to a PEB. On 6 May 1992, the applicant indicated in his own hand that he agreed with the MEBD's findings and recommendations.
b. On 26 May 1992, the PEB found that the applicant's condition of migraine headaches (Code 8100) occurred during service and was the proximate result of performing duty. The PEB found this condition unfitting and recommended a disability percentage of 10%." The PEB also found that the condition of familial essential tremor severe (Code 8004) did not occur during service and was not the proximate result of performing duty. The PEB did not assign a disability percentage) for this condition. The PEB awarded the applicant a combined rating of 10 percent.
c. On 29 May 1992, the PEBLO informed the applicant of the findings and recommendations of the PEB and explained the results of the findings and recommendations and his legal rights. At that time, the applicant concurred with the findings and recommendations of the PEB and waived a formal hearing of his case.
d. The applicant had less than 20 years of service and disability rated at less than 30 percent; therefore, he was separated with entitlement to disability severance pay in the amount of $6022.80 instead of disability retirement.
e. The DVA awarded the applicant compensation for medical conditions which that agency has determined to be related to military service. Relevant to this case, the applicant was awarded service connected disability for chronic headaches (claimed as migraines) at the 10 percent rate.
3. Upon review of the evidence in this case, the Board found that the applicant's contention regarding extensive use of abbreviations and use of over-the-counter medications caused the frequency of his headaches to be overlooked is without merit. The medical doctor who dictated the NARSUM indicated a history of frequent and severe headaches over a period of three years. The NARSUM clearly indicates that the applicant's medications and contains only a few
abbreviations related primarily to the applicant's physical examination. The NASRSUM also noted the applicant's conditions related to aspirin toxicity.
4. Upon review, the Board concluded that the applicant's contention that his ignorance of the Army disability system caused him to accept a low rating was without merit for the following reasons.
a. The Board noted that the applicant's records contained the checklist used by the PEBLO to explain to the decision of the PEB and the applicant's rights. This checklist was completely filled out, signed and dated by both the applicant and the PEBLO.
b. It is also noted that, after explanation by the PEBLO, the applicant concurred in the findings of the PEB and waived formal hearing of his case. Therefore, the Board concluded that the applicant did not act in ignorance as he claims.
c. Finally, the applicant's contention that he accepted a rating of 10 percent when a higher rating was warranted is not supported by the facts in this case. The applicant has presented no evidence which shows that Army improperly rated his headaches. The NARSUM by the MEBD accurately described the applicant's condition. The Army PEB rated the applicant's headaches as 10 percent disabling in accordance with VASRD. The DVA also rated the applicant's headaches (claimed as migraines) independently under the VASRD, the same criteria as used by the Army, and concluded that his condition was 10 percent disabling.
5. The Board considered the 6 April 1992 memorandum to the chain of command of the applicant’s wife recommending that she receive full consideration for separation under hardship conditions. The Board concluded that this memorandum restated facts that were noted in the MEBD NARSUM and are not a basis for increasing the 10 percent rating of the PEB.
6. Based on all of the foregoing, the Board made the following determinations.
a. The medical evidence of record supports the determination that the applicant's unfitting condition was properly diagnosed by the MEBD just prior to his discharge.
b. The applicant was properly referred to a PEB and the applicant's disability was properly rated by the PEB in accordance with the VASRD at 10 percent, not at 30 percent as the applicant now claims.
c. The applicant's separation with severance pay, based on less than 20 years of service and disability rated at less than 30 percent, was in compliance with law and regulation.
d. The DVA subsequently rated the applicant's migraine headaches under the VASRD and also found them 10 percent disabling, not 30 percent as the applicant now contends.
7. Based on all of the foregoing, this Board determined that the overall merits of the case, including the latest submissions and arguments are insufficient as a basis for this Board to reverse the previous decision of the ABCMR in Docket Number AR1999024338 on 2 December 1999.
8. 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.
9. In view of the foregoing, there is no basis for granting the applicant's request to increase his Army disability rating from 10 percent to 30 percent.
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
__TLP__ __RLD___ __RVO___ DENY APPLICATION
Carl W. S. Chun
| CASE ID | AR2003085083 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 20030424 |
| TYPE OF DISCHARGE | |
| DATE OF DISCHARGE | |
| DISCHARGE AUTHORITY | |
| DISCHARGE REASON | |
| BOARD DECISION | DENY |
| REVIEW AUTHORITY | MR CHUN |
| ISSUES 1. | 108.0200.0000 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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