RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            6 January 2005
      DOCKET NUMBER:   AR20040000512


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Fred N. Eichorn               |     |Chairperson          |
|     |Mr. Richard T. Dunbar             |     |Member               |
|     |Ms. Yolanda Maldonado             |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his migraines be determined to
have been service-aggravated and his disability separation with severance
pay be changed to a disability retirement.

2.  The applicant states that his migraines should have been rated.

3.  The applicant provides one page of a Department of Veterans Affairs
(VA) rating decision and his DD Form 214 (Certificate of Release or
Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 6 March 1996.  He
completed basic training and advanced individual training and was awarded
military occupational specialty (MOS) 31U (Signal Support Systems
Specialist).

2.  A Medical Evaluation Board (MEB) Summary dictated 14 August 2000 shows
the applicant was referred to an MEB for a chief complaint of leg length
discrepancy secondary to an open proximal right tibia/fibula fracture
(incurred prior to entry in service) with right knee and ankle pain and low
back pain secondary to the leg length discrepancy.  The applicant had
stated he had no problems until he was deployed to Kuwait.  It was
determined that surgery would not be performed and that his other medical
problems, one of which was migraine headaches, would be evaluated and a
medical board would be held.  He had been on Imetrex for daily migraine
headaches.  He was diagnosed with ten conditions, the tenth diagnosis was
migraine headaches, occurring on a daily basis with poor control on current
medication.  His prognosis was that he was unable to perform his current
MOS duties because of the leg length discrepancy that was affecting his
lower back, right knee, and right ankle.

3.  An Addendum to MEB dated 23 May 2001 was in regards to his migraine
headaches.  The History of Present Illness noted that he had a long-
standing history of common migraine which initially began during childhood.
 It was noted that he was initially seen in the Neurology clinic in June
2000 and found fit for duty in regards to his headaches.  The applicant had
indicated his current headaches lasted about two hours about twice a week
and that they were incapacitating about once a month when he had to go home
from work because he was unable to concentrate.  He was diagnosed with
common migraine and obstructive sleep apnea, mild, and referred to a
Physical Evaluation Board (PEB) because his migraines interfered with duty
once per month.

4.  A letter dated 13 July 2001 from a soldier who served with the
applicant in Kuwait during the period February to July 1998 discussed the
problems the applicant had been having with his knees.

5.  On 1 August 2001, the applicant was given a physical profile for his
medical conditions of leg length discrepancy; right anterior cruciate
ligament deficient knee secondary to his leg length discrepancy; shoulder
pain, and bilateral thoracic outlet syndrome (a group of disorders that
affect the nerves in the brachial plexus and various nerves and blood
vessels between the base of the neck and axilla).

6.  On 2 August 2001, the applicant nonconcurred with the Addendum to MEB
dated 23 May 2001 in regards to his migraine headaches.  He stated that,
while the doctor indicated he was fit for duty, the doctor omitted the fact
that he chose not to let the migraines be debilitating.  He stated that,
while at times he did get quarters or go home early, many times he put the
mission first, but the fact was he was unable to work because of blurred
vision and being nauseous with uncontrollable vomiting.  The doctor in turn
nonconcurred with the applicant's statements.  He stated that the applicant
told him the onset of the migraines was prior to his going to Kuwait but
the doctor acknowledged that stress certainly was known to aggravate
migraines.

7.  A DA Form 3947 (Medical Evaluation Board Proceedings) dated 9 August
2001 found, in regards to diagnosis 10 (common migraine), that the
condition was incurred while the applicant was entitled to basic pay, that
it did not exist prior to service (EPTS), and that it was permanently
aggravated by service.  The MEB referred the applicant to a PEB.  On 2
August 2001, the applicant agreed with the MEB's findings and
recommendation.

8.  On 27 August 2001, the U. S. Army Physical Evaluation Board, Fort Sam
Houston, TX discontinued the applicant's PEB proceedings to resolve some
issues, none of them involving the applicant's migraines.

9.  On 4 October 2001, the U. S. Army Physical Evaluation Board, Fort Sam
Houston, TX again discontinued the applicant's PEB proceedings to resolve
some issues, one of the issues involved his migraines.  It was noted that
the     23 May 2001 addendum stated that diagnosis 10 was common migraine,
that  the applicant's headaches began in childhood, and that the DA Form
3947 must be corrected to show an EPTS condition without service
aggravation.

10.  On 16 November 2001, the DA Form 3947 was corrected to show the
applicant's common migraine (now listed as diagnosis 9) was EPTS, not
incurred while entitled to basic pay, was EPTS, and was not permanently
aggravated by service.  The applicant questioned how his migraines (and
other conditions) could be listed as not aggravated by service if he was
not having any migraines prior to his deployment to Kuwait.  The
applicant's questions may have been answered to his satisfaction since on
30 November 2001 he signed the DA Form 3947 and indicated he agreed with
the MEB's findings and recommendation.

11.  On 4 December 2001, an informal PEB found the applicant to be unfit
due to chronic pain -- right knee, with degenerative joint disease, right
ankle, due to degenerative joint disease, with multidirectional instability
both shoulders, with early degenerative joint disease, right shoulder, with
low back pain and bilateral shin splits, status post right proximal tibia
fibula fracture (i.e., he was rated for pain).  Several other diagnoses, to
include his migraines, were found to be not unfitting and not rated.  The
PEB recommended he be separated with severance pay with a 20 percent
disability rating.  The applicant did not concur and demanded a formal
hearing with personal appearance.

12.  On 23 January 2002, after reevaluating all available medical records
and sworn testimony by the applicant, a formal PEB found the applicant to
be unfit for duty for the same conditions as the informal PEB found; also
found several other diagnoses, to include his migraines, to be not
unfitting and not rated; and also recommended he be separated with
severance pay with a 20 percent disability rating.  On this date, the
applicant concurred with the findings of the formal PEB.

13.  On 15 April 2002, the applicant was discharged by reason of physical
disability with severance pay.

14.  On an unknown date, the VA assigned the applicant a 30 percent
disability rating for his migraine headaches and a 10 percent disability
rating for recurring subacromial bursitis, right shoulder.  Several other
conditions were assigned a zero percent rating and three conditions were
found to be not service connected.

15.  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.

16.  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 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.
 It states that there is no legal requirement in arriving at the rated
degree of incapacity to rate a physical condition which is not in itself
considered disqualifying for military service when a soldier is found unfit
because of another condition that is disqualifying.  Only the unfitting
conditions or defects and those which contribute to unfitness will be
considered in arriving at the rated degree of incapacity warranting
retirement or separation for disability.

17.  Army Regulation 635-40, appendix B, paragraph 10 states that when
considering EPTS cases involving aggravation by active service, the rating
will reflect only the degree of disability over and above the degree
existing at the time of entrance into the active service, less natural
progression occurring during active service.

18.  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.

19.  VASRD code 8100, migraine, awards a 30 percent disability rating for
migraine with characteristic prostrating attacks occurring on an average of
once a month over the last several months.

20.  Department of Defense Instruction 1332.39 (Application of the Veterans
Administration Schedule for Rating Disabilities) notes that the VASRD
percentage ratings represent, as far as can practicably be determined, the
average impairment in civilian occupational earning capacity resulting from
certain diseases and injuries.  However, not all the general policy
provisions of the VASRD are applicable to the Military Departments.  Many
of the policies were written primarily for VA rating boards and are
intended to provide guidance under laws and policies applicable only to the
VA.  This Instruction replaces some sections of the VASRD.

21.  Department of Defense Instruction 1332.39 states, for VASRD code 8100,
migraine, that "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, month) should be recorded by a
neurologist for diagnostic confirmation.  Estimation of the social and
industrial impairment due to migraine attacks should be made.

22.  Title 38, U. S. Code, sections 310 and 331 permit the VA to award
compensation for a medical condition which was incurred in or aggravated by
active military service.  The VA, however, is not required by law to
determine medical unfitness for further military service.
DISCUSSION AND CONCLUSIONS:

1.  There is contradictory evidence about the onset of the applicant's
migraines.  One doctor stated that the applicant told him the onset of the
migraines was prior to his going to Kuwait yet later the applicant
questioned how his migraines could be listed as not aggravated by service
if he was not having any migraines prior to his deployment to Kuwait.

2.  There is contradictory evidence about the severity of the applicant's
migraines.  One addendum noted the applicant had indicated his current
headaches lasted about two hours about twice a week and that they were
incapacitating about once a month when he had to go home from work because
he was unable to concentrate.  Later, the applicant stated that, while at
times he did get quarters or go home early, many times he put the mission
first, but the fact was he was unable to work because of blurred vision and
being nauseous with uncontrollable vomiting.

3.  However, the applicant was never given a physical profile for his
migraines.  There is no evidence to show that he was unfit to perform his
duties because of his migraines.  As he himself stated, he put the mission
first.  Although he met the VASRD standard for a 30 percent disability
rating for his migraines, the Army does not always strictly follow the
VASRD.  For migraines, the guidelines laid out in Department of Defense
Instruction 1332.39 are followed instead.  Those guidelines define
"prostrating" as meaning the Service member must stop what he or she is
doing and seek medical attention.  There is no evidence to show that the
applicant sought immediate medical attention for his migraines.

4.  Since the evidence does not support the finding that the applicant's
migraines were unfitting, that condition would not have been rated and
whether or not they were service-aggravated (used to determine the
percentage of disability) is immaterial.

5.  The rating action by the VA does not necessarily demonstrate an error
or injustice on the part of the Army.  The VA, operating under its own
policies and regulations, assigns disability ratings as it sees fit.  The
VA is not required by law to determine medical unfitness for further
military service in awarding a disability rating, only that a medical
condition reduces or impairs the social or industrial adaptability of the
individual concerned.  Consequently, due to the two concepts involved
(i.e., the more stringent standard by which a Soldier is determined not to
be medically fit for duty versus the standard by which a civilian would be
determined to be socially or industrially impaired), an individual’s
medical condition may be rated by the VA and yet found to be not unfitting
by the Army.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__fne___  __rtd___  __ym____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.




            ___Fred N. Eichorn____
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040000512                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050106                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |108.01                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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