RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 April 2007
	DOCKET NUMBER:  AR20060008761 


	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. Gerard W. Schwartz

Acting Director

MR. Dean L. Turnbull

Analyst


The following members, a quorum, were present:


Mr. Kenneth L. Wright

Chairperson

Ms. LaVerne M. Douglas

Member

Ms. Ernestine I. Fields

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 an increase to her disability rating that was assigned by the Physical Evaluation Board (PEB).

2.  The applicant states, in effect, her disability rating was reduced from  
40 percent to 10 percent and she would like to have her disability rating increased to the original disability rating of 40 percent.  She states that the PEB rated her at 40 percent before she was discharged and she was informed by legal counsel that the military must stay with that rating.

3.  The applicant provides:

     a.  a copy of a written Physical Evaluation Appeal letter, dated 30 May 2006.  In this letter it was stated that the applicant had originally received a disability rating of 40 percent from the Medical Evaluation Board (MEBD) (sic), but upon her discharge she was reevaluated.  Her disability rating was then reduced to 
10 percent.  She states that her injuries were sustained during combat in Iraq on 27 March 2004.  She further states that she received 18 mortar metal injuries and three plus bone fractures which she retained in her body.  Also, as a result she is suffering from physiological, back, and stress issues;

     b.  a copy of a letter from the Office of the Staff Judge Advocate, dated  
20 March 2006.  In this letter, legal counsel explains the reason why the Department of Defense applied the Veterans Administration Schedule Rating Disability code to her condition;

     c.  a copy of three DA Forms 3349 (Physical Profile);

     d.  a copy of several medication profiles.  The medication profiles show a history of the type of medications that the applicant was taking for her conditions; and

     e.  a copy of a PEB proceedings dated 4 November 2005, a revised PEB dated 15 March 2006, and a copy of an election form dated 16 March 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 19 April 2006.  The application submitted in this case is dated 30 May 2006.



2.  The applicant's military records show she enlisted in the Regular Army on  
10 October 2002 and entered active duty on 5 March 2003.  She served a tour of duty in Iraq from 10 January 2004 to 9 January 2005.

3.  On 21 July 2005, the applicant received a permanent profile for her chronic arm/leg pain as a result of a blast injury.  She received a numerical profile rating of "U-3 and L-3."

4.  The applicant's records do not have a copy of her MEBD Narrative Summary (NARSUM).  However, an advisory opinion from the U.S. Army Physical Disability Agency (USAPDA), dated 26 January 2007, states that the applicant's MEBD listed her right arm and leg pain and migraine headaches as conditions that did not meet medical retention standards.  On 4 November 2005, an informal PEB found the applicant unfit for both conditions.  Her arm and leg pain were rated at 10 percent and her headaches were rated at 30 percent.  The applicant had concurred with the findings.

5.  On 15 December 2005, the USAPDA reviewed the applicant's case and returned the case to the PEB for additional information and reconsideration about the applicant's migraine headaches.  On 28 December 2005, the PEB forwarded the case to the MEBD for additional information.  After further review by the MEBD, the case was returned on 18 January 2006 to the PEB with the additional information.

6.  The PEB reviewed the case, but declined to change any of their previous findings because the MEBD continued to opine that the applicant's headaches were "prostrating" and “incapacitating" based upon the applicant's description to medical authorities.  Neither the MEBD nor the applicant provided any evidence from the medical records to show that the headaches required the applicant to stop what she was doing to seek medical treatment.

7.  The USAPDA revised the PEB's findings.  On 15 March 2006, a new finding was provided in accordance with Army Regulation 635-40, paragraph 4-22c (3).  This regulation provides the applicant's headaches were not prostrating in accordance with Department of Defense Instruction (DoDI) 1332.39, E2.A1.4.1.4. The DoDI states that the Soldier "must stop what he or she is doing and seek medical attention."

8.  On 16 March 2006, the applicant was fully counseled on her rights to a formal hearing and/or to provide a rebuttal.  However, the applicant concurred with the new findings and waived her right to a formal hearing.

9.  On 19 April 2006, the applicant was honorably discharged with disability and severance pay.  She had completed a total of 3 years, 1 month, and 5 days of active service.

10.  Issue and Guidance Memorandum from the USAPDA, dated 25 May 2005, states, in pertinent part, that when rating cases in which the Soldier is determined to be unfit because of migraine headaches, the headaches may be considered to be prostrating if the following conditions are met: 1) there must be a valid diagnosis and detailed description of the Soldier's migraine events historically and currently; 2) there must be evidence that the Soldier's headache episode met the DoDI definition of "prostrating" prior to initiation of the problem described as migraine headaches; 3) the Soldier must have undergone a rational medical treatment program aimed at controlling the migraine headache; 4) the Soldier must have been, and, is currently compliant with treatment; 5) the attending physician (preferably a neurologist) must provide a written plan of instruction for the Soldier, with a copy in the health record, detailing what the Soldier is to do when experiencing a headache; and 6) the plan must include a requirement that the Soldier stop activities and use appropriate medication or other acceptable modalities.  The stopping of activities must clearly interfere with the Soldier's performance of duty and be documented by the Soldier's chain of command.  A brief period of rest (20 minutes to an hour), once a week or so, would not likely met the "interference" criterion.

11.  DoDI 1332.39, E2.A1.4.1.4 8100 Migraine, provides that prostrating means that the Soldier must stop what he or she is doing and seek medical attention.  The number of prostrating attacks per time period (day, week, and month) should be recorded by a neurologist for diagnostic confirmation.  An estimation of the social and industrial impairment due to migranious attacks should be made.

12.  The records show that the applicant had two temporary profiles for chronic pain, headaches/migraine with numerical profile rating as "P-3."  The applicant's limitations during her temporary profile were to work no greater than six hours per 24 hour period.  On 27 July 2006, the temporary profiles ended.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her percentage for disability rating should be changed to show a disability rating of 40 percent.

2.  The applicant had received a rating of 40 percent initially because she had a disability rating of 30 percent for her migraine headaches and 10 percent for her chronic right arm/leg pain.

3.  The USAPDA revised her original disability rating of 30 percent to 0 percent, because the applicant's headaches were not prostrating in accordance with DoDI standards and the Issue and Guidance Memorandum.  The applicant’s medical history does not show she was unable to perform her military duties with her migraine headaches.  Also, there is no documentation from the applicant's chain of command that shows her duty performance was interrupted to seek medical attention.

4.  In addition, the applicant concurred with the USAPDA modification to her disability rating of 0 percent and waived her rights to a formal hearing.  Therefore, the applicant is not entitled to correction of her records to show an increase in her disability rating for migraine headaches.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____klw _  ___lmd__  ___eif___  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.




__________Kenneth L. Wright______
          CHAIRPERSON




INDEX

CASE ID
AR20060008761
SUFFIX

RECON
20070410
DATE BOARDED
YYYYMMDD
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.

2.

3.

4.

5.

6.