RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        17 May 2007
      DOCKET NUMBER:  AR20060009905


      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. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Eric N. Anderson              |     |Chairperson          |
|     |Mr. Antonio Uribe                 |     |Member               |
|     |Mr. Rodney E. Barber              |     |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:

The applicant's request, argument, and supporting documents are provided by
counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the applicant's 8 June 2005 discharge
from the United States Army be set aside and that the applicant's record be
corrected to show that he was instead medically retired by reason of
permanent disability with a disability rating of at least 30% on that same
date; and that the applicant be provided all back retirement pay and
allowances due as a result.

2.  Counsel states, in effect, that the incident that led to the
applicant's injuries occurred in May 2003, when the applicant was thrown
from a Bradley Fighting Vehicle, as evidenced by the applicant's
commander's performance statement, dated April 2004.  The applicant was
evacuated to Landstuhl Regional Medical Center and on 20 May 2003,
underwent a comprehensive neurology evaluation at that facility, and was
diagnosed with Post-Concussive headaches.

3.  Counsel further indicates that by 12 October 2004, a Medical Evaluation
Board (MEB) found the applicant medically unfit for continued service due
to his chronic intractable headaches with incapacitating attacks.  The same
MEB also found the applicant to be medically unfit due to a Post-Concussive
Syndrome and due to a related Mood Disorder with Depressive Features.  The
MEB included consultations from the Traumatic Brain Injury Clinic, Womack
Army Medical Center (WAMC), Fort Bragg, North Carolina, which reached an
impression of "status post closed head injury with persistent post-
concussive syndrome.  Decreased neuro-cognitive skill.  A Neuro-psychology
consult reached a diagnosis of chronic daily tension headaches which is
intractable, unresponsive to prophylactic medications and the Psychiatry
consultation concluded the applicant suffered from Mood Disorder due to
post-concussion syndrome with Depressive features, manifested prominent
irritable mood, insomnia, decreased appetite, social withdrawal, low self-
worth and thoughts of death, resulting in impaired social and occupation
functioning.

4.  Counsel further indicates that the applicant's neurology consult, which
was also part of the MEB, reached the following diagnosis:  Chronic daily
tension headaches, intractable and unresponsive to prohylactic medications.
 It further indicated the applicant's intractable headaches prevented him
from any semblance of regular duty, and that even his recent assignment to
a Gym was difficult because of the pain.

5.  Counsel states that the applicant's case was considered by an informal
PEB on 4 November 2002.  This informal PEB assessed a Department of
Veterans Affairs (VA) Diagnostic Code of 8045-8100 for Post-Concussive
Syndrome with intractable headaches and further found that the applicant
injured himself during combat operations in Baghdad, Iraq, and was thrown
off an armored vehicle and rendered unconscious.  For this disability, the
recommended disability percentage was assigned at 10%.  The informal PEB
also assigned Disorder with Depressive Symptoms after being thrown off an
armored vehicle in Baghdad. Iraq, during combat operations, and awarded a
10% disability rating.  The combined total disability rating reached 20%.

6.  The applicant non-concurred with the informal PEB decision, and on 4
March 2005, he appeared before a formal PEB at Walter Reed Army Medical
Center (WRAMC), Washington, D.C.  The formal PEB assigned a VA Diagnostic
Code of 9304, and described the applicant's disability as a Post-Concussive
Syndrome with chronic intractable headaches and mood disorder secondary to
a head injury in Iraq in May 2003.  Post-Concussive Sydrome associated with
headaches, dizziness, bilateral tinnitus, nausea, decreased concentration,
and forgetfulness. Constant headaches are located in the frontal area of a
6-10/10 intensity with associated photophobia, phonophobia, nausea,
disturbed sleep and dizziness.  Headaches were described as incapacitating
when most severe and limited the applicant's activities of daily living,
such as work and driving.

7.  Counsel also states that the formal PEB further indicated the applicant
took opiod, mood stabilizing and anti-depressant medications for headaches.
 Mood disorder with depressive features manifested by prominent irritable
mood, insomnia, decreased appetite, social withdrawal and low self-worth.
Eeuropsychological testing in January 2004 reported the applicant had a
medical condition associated with both psychological factors and an
adjustment disorder. An MRI of the brain was reported to be unremarkable.
For this description, the applicant was awarded a total combined disability
rating of 10%, which was down from the 20% awarded by the informal PEB.

8.  Counsel states that a minority report was prepared by a member of the
formal PEB.  The minority member concluded that the applicant should
receive a 30% disability rating and stated that the board unanimously
agreed that the applicant was unfit to perform the functions of an 11B
(Infantryman) and that he was eligible for compensation.  Difference arose
over the applicant's rating,
8045-9304 versus 8045-8100.  The other two members believed the applicant's
condition was caused by brain trauma and that the applicant was only
entitled to 10% rating.  The minority member believed that the applicant
comes under
8045-8100, head trauma that is causing migraines and as a result is
entitled to a
30% disability rating.

9.  The VA awarded the applicant a 100% disability rating a little more
than a month after the applicant's discharge.  It's findings and
conclusions fully support the contention that at the time of the formal
PEB, the applicant was unfit for further service with at least a 30%
disability rating.  The VA rated the applicant service-connection for post-
concussive headaches rated at 50% and cognitive disorder and mood disorder
with depressive features at 70%, as well as for a number of conditions
unrelated to this application.  These ratings were assigned from 9 June
2005, the day after the applicant's discharge.

10.  Counsel indicates that the applicant contends that this evaluation,
nearly contemporaneous with his discharge, shows that since the date of the
accident and at the time of the disability processing, he suffered from the
conditions for which he requested a conservative disability rating of 30%
from the formal PEB.  While the rating methodologies of the Army and VA
differ, the underlying diagnostic criteria are the same.  Counsel states
that it should be noted that the applicant's family is no longer eligible
to receive health care through TRICARE.

11.  Counsel provides the 16 documents identified in the list of
attachments contained with the application submitted to the Board in
support of the application.

CONSIDERATION OF EVIDENCE:

1.  A Commander's Performance Statement, dated 8 April 2004, confirms the
applicant's medical condition began in May 2003, while the applicant was
serving in Iraq.  It shows that the applicant fell from a Bradley Fighting
Vehicle while on a combat patrol.  The vehicle was traveling at a speed of
45 miles per hour when it turned a corner in downtown Baghdad, Iraq,
causing the applicant to be thrown from the vehicle.  He fell on his head
and lost consciousness.  He was medically evacuated to the 28th Combat Army
Surgical Hospital (CASH) for initial
treatment and then transferred to Germany to be treated by a specialist in
head trauma.  He was treated in Germany and then sent to WAMC, Fort Bragg
for further treatment in June 2003.  The commander stated that the
applicant was an infantry Soldier, which is one of the Army's most
physically demanding jobs; however, in August 2003, the applicant was sent
to the Gym to check Identification (ID) cards since he was not physically
able to perform any of his duties as an infantryman.

2.  The unit commander outlined the applicant's history and indicated that
prior to the accident, the applicant was in good shape, scored well on his
Army Physical Fitness Test (APFT), and had no problem excelling in the
unit's demanding physical fitness program.  He further indicated that the
applicant's medical condition now prevents this.  He further indicated that
the applicant made every effort to rehabilitate himself; however,
unfortunately, all of his efforts were fruitless.  The unit commander
stated that the applicant was an outstanding member of his command, was in
charge of a gun team, which was 70 percent of the platoon's firepower.  He
further commented that the applicant was a good leader and a solid
performer, and his release from duty was truly a loss to the unit, but he
was forced to support this action.

3.  On 12 October 2004, the applicant underwent an MEB examination at
Fort Bragg.  The MEB examination resulted in a diagnosis of chronic
intractable headache with incapacitating attacks; post-concussive syndrome;
and mood disorder with depressive features, which resulted in an MEB
recommendation that the applicant be referred to a PEB.

4.  Consultations completed during the MEB process included a
Neuropsychology examination.  The examining physician indicated the
applicant suffered from chronic daily tension headaches, which was
intractable, unresponsive to prophylactic medications and recommended
current medications and referral to PEB.  A psychiatry evaluation completed
on the applicant resulted in a diagnosis of mood disorder due to post-
concussive syndrome with depressive features, manifested by prominent
irritable mood, insomnia, decreased appetite, social withdrawal, low self-
worth, and thoughts of death, resulting in impaired social and occupational
functioning.  The examining psychiatrist further indicated that the
applicant's impairment from further military duty was marked and his
impairment for social and industrial adaptability was definite.

5.  On 2 November 2004, an informal PEB convened in Washington D.C. to
consider the applicant's case.  The PEB found that he was physically unfit
to perform duties in his grade and specialty.  As a result, it recommended
a combined physical disability rating of 20% and separation with severance
pay.  The PEB Proceedings (DA Form 199) indicated that the VASRD codes
applicable to the applicant’s medical condition were 8045-8100 (Post-
Concussive Syndrome with Intractable Headaches) 10% and 8045-9435 (Mood
Disorder with Depressive Symptoms) 10%.  The description of the applicant’s
disability indicated he was injured during combat operations in Baghdad,
Iraq and was thrown off an Armored vehicle and rendered unconscious.  It
further indicated that the applicant was mentally competent and could
handle legal, medical and financial affairs.  The applicant non-concurred
with the PEB decision and requested a formal hearing.

6.  On 4 March 2005, a formal PEB convened in Washington D.C. to consider
the applicant's case.  The PEB found that he was physically unfit to
perform duties in his grade and specialty.  As a result, it recommended a
combined physical disability rating of 10% and separation with severance
pay.  The PEB Proceedings (DA Form 199) indicated that the VASRD codes
applicable to the applicant’s medical condition were 8045-9304 (Post-
Concussive Syndrome with Chronic Intractable Headaches and Mood Disorder
secondary to head injury in Iraq in May 2003.  The description of the
applicant’s disability indicated he suffered from post concussive syndrome
associated with headaches, dizziness, bilateral tinnitus, nausea, decreased
concentration, and forgetfulness.  It further indicated that constant
headaches were located in the frontal area of a 6-10/10 intensity with
associated photophobia, phonophobia, nausea, disturbed sleep and dizziness.
 Headaches are described as incapacitating when most severe and limit the
applicant's activities of daily living such as work and driving.

7.  The formal PEB Proceedings further indicated that the Soldier was
taking opioid, mood stabilizing and anti-depressant medications for his
headaches.  Mood disorder with depressive features manifested by prominent
irritable mood, insomnia, decreased appetite, social withdrawal and low
self-worth, and that Neuropsychological testing in January 2004 reported
the Soldier had a medical condition associated with both psychological
factors and an adjustment disorder. An MRI of the brain was reported to be
unremarkable and the applicant was determined to be competent to manage
legal, medical and financial affairs.

8.  A member of the PEB non-concurred with the majority recommendation and
elected to submit a minority report.  In it, this member of the PEB
indicated that the PEB unanimously agreed the applicant was unfit to
perform the functions of an 11B (Infantryman) and that he was eligible for
compensation.  He stated that difference arose over the Soldier's rating
8045-9304 verses 8045-8100.  He

stated the other two board members believe the Soldier's condition was
caused by brain trauma and the Soldier is entitled to only 10% rating,
while he believed the Soldier comes under 8045-8100, head trauma that is
causing migraines and is entitled to a 30% rating.

9.  The dissenting member explained that the applicant was in combat in
Iraq during May 2003 and while moving to engage the enemy he was thrown
from his vehicle and sustained head trauma and was unconscious and
medically evacuated.  He stated that the difference in this case for him
was between subjective and objective evidence.  Using the criteria of 8045-
9304 requires the use of subjective evidence.  In this case, he believed
firmly from medical records and sworn testimony from both the applicant and
his mother that there was multiple residues that have arisen as a result of
this injury and requires an objective rather than subjective rating.
Therefore, the minority member believed the best rating should not be 8045-
9304 (subjective), but rather 8045-8100 (objective) because there was not
subjective but rather objective evidence toward the migraines, tension and
normal headaches originating from the accident and being sustained through
the date of the PEB.

10.  In the minority report, the dissenting formal PEB member further
states that after hearing the sworn testimony of the applicant and his
mother, and the case presented by counsel, he believed the applicant was
compensable under
8045-8100 for the following five reasons:

      First, the applicant’s sensitivity to equilibrium changes (i.e., he
is now unable to climb ladders and unable to bend over and work on an
automobiles).

      Second, mentally the applicant has lost portions of his short-term
memory. When asked to answer a question, he at times has to have the
question restated. Additionally, under oath, he stated that at the present
time he would not be able to complete a correspondence course as he had
before.

      Third, his migraine headache conditions were being treated by
narcotic drugs and when he has a prostrating headache with nausia and
causes him to vomit; he takes prescriptive medication to help stop the
vomiting.  If the condition was subjective, the doctors would not be
prescribing medication to help stop vomiting.  If the condition was
subjective, the doctors would not be prescribing narcotic drugs and trying
various prescription drugs to resolve the condition.  He stated that there
appeared to be no dissention from the board members that the headaches as
described and documented to be prostrating in nature.

      Fourth, the mental health experts associated the applicant's mental
depression with his brain trauma.  The applicant testified that his
depression was a result of the pain and incapacitating intensity of his
migraines, which caused him to be depressed.

      Fifth, the applicant has sensitivity to light and noise.  He has a
constant ringing in his ears, which the minority board member also
experiences since coming back from combat.  In and of itself this is not
unfitting, but is this subjective or objective.  The applicant is unable to
mow grass due to the loud noise and he was unable to work at the gym at
Fort Bragg around the clanking noises of the free weights without vomiting.
 Having to vomit after being exposed to loud noises, the minority member
believed was objective and not subjective.  He stated that when the
applicant does have a prostrating headache, a dark quiet place without
activity works best for him.  Lastly, the applicant's condition was not
stabilized.

11.  The dissenting member further stated in his minority report that he
believed the PEB proceedings should be changed to read 8045-8100, post-
concussive syndrome with migraine headaches taking narcotic medicines to
resolve the intensity of the pain.  He states the applicant was injured
during combat operations in Iraq in May 2003, and due to the intensity and
duration of incapacitating migraines headaches, he has difficulty in
accomplishing routine tasks in normal daily living.  He finally states that
the primary issue for him is the definition of subjective versus objective.
 In his opinion, subjective is when items occur that might actually be in a
person's head versus objective, which are items that actually occur and are
physically affecting the person's daily living and life.

12.  A Memorandum from the Chief, Neurology Service, WAMC, Fort Bragg,
dated 10 May 2005, confirmed the applicant's recurrent headache condition
had remained unchanged over the previous six months.  The applicant
continued to suffer daily head pain that prevents him from engaging in any
physical activity.  In addition, the applicant remained limited in
performing tasks that require short term memory or concentration.  One to
two times per week, the applicant's headache increased in severity forcing
him to go to sleep in a dark quiet cool room.  This physician also provided
a list showing the applicant remained on low dose narcotic therapy to
control his pain.

13.  On 8 June 2005, the applicant was honorably separated under the
provisions of Army Regulation 635-40, by reason of disability with
severance pay.


14.  On 14 July 2005, the VA Regional Office, Winston-Salem, North
Carolina, issued a rating decision on the applicant.  The VA found the
applicant's Post Concussion Headaches were service-connected and assigned a
50% disability rating.  It also found the applicant's Cognitive Disorder
and Mood Disorder with Depressive Features was service connected and
assigned a 70% disability rating.  The VA provided the reasons for its
ratings and indicated that a review of the applicant's military medical
records showed that in May 2003, he suffered a head injury in Iraq, a
combat zone, and as a result of his head injury he developed chronic, daily
and intractable headaches that are unresponsive to medical treatment.  It
further indicated that the medical record substantiate that the applicant
suffers one to two prostrating attacks a week that profoundly limit
physical activities. The VA examination confirmed the diagnosis of post
concussion headaches and noted that the applicant suffered from nausea,
vomiting and photophobia due to the headaches.  It also indicated that the
applicant's cognitive disorder and mood disorder with depressive features
was established as directly related to the head injury he suffered in May
2003, in Iraq.

15.  During the processing of this case, an advisory opinion was obtained
from the Deputy Commander, United States Army Physical Disability Agency
(USAPDA).  This official confirms there is no dispute that the applicant
received a closed head injury that resulted in his experiencing unfitting
headaches.  He indicates that the only issue relating to the headaches is
how they were rated.  He outlines the applicant's processing through the
Army's Physical Disability Evaluation System (PDES) and states the
applicant's case was fully reviewed and all evidence was properly
considered by the PEB and USAPDA.  He concludes that the PEB findings were
supported by a preponderance of the evidence, were not arbitrary or
capricious, and were not in violation of any statute or regulation, and he
finally recommends the applicant's military records remain unchanged;
however, he also suggests that strong consideration be given to the PEB
minority report.

16.  On 14 May 2007, the applicant's counsel responded to the USAPDA
advisory opinion.  He states that the formal PEB completed on the applicant
contained a dissenting opinion consistent with the position presented to
the Board by the applicant.  The minority report submitted by a dissenting
member states, in pertinent part, that the other two PEB members believed
the applicant was only entitled to a 10% rating; however, he believed the
applicant should be rated under VASRD Codes 8045-8100, head trauma that is
causing migraines, and should be entitled to a 30% rating.  The minority
member also commented that he believed the best rating should not be 8045-
9304 (subjective), but instead 8045-8100 (objective) because the migraine
evidence was not subjective but
objective.  Counsel restates the five reasons the minority member gave to
support his conclusions and recommendation and points out that the USAPDA
advisory opinion indicates that strong consideration should be given to
this minority report.

17.  Counsel also indicates that the USAPDA advisory opinion suggests the
standard for rating prostrating headaches disqualifies the applicant from
receiving a 20% disability rating; however, this ignores the opinion of the
applicant's neurologist, who provided a memorandum to the Board, dated 10
May 2005, which indicates the applicant's recurrent headaches have remained
unchanged over the past six months and he continues to suffer daily head
pain that prevents him from engaging in any physical activity.  The
neurologist further stated that the applicant remained limited in
performing tasks that required short term memory or concentration, and that
one or two times a week, the applicant headache increases in severity
forcing him to go to sleep in a dark quiet cool room.  Counsel suggests
that the medical opinion of the applicant's neurologist clearly qualifies
him to be rated under VASRD Code 8045-8100 and to receive a 30% disability
rating.

18.  Counsel finally states that the USAPDA advisory opinion fails to
adequately address the applicant's contention that he should receive a
disability rating for severe mood disorder with depressive symptoms.  He
states that both he applicant's military psychiatrist and civilian forensic
psychologist agree that the applicant's mood disorder has a definite degree
of impairment of the applicant's social and industrial adaptability.
Counsel claims this fact is not disputed in the applicant's military and
civilian records and as a result, the applicant again contends that the
Department of Defense (DOD) and VASRD rating methodologies assign a 30%
disability rating when a member mental health disability is characterized
as having a definite degree of impairment on the member's social and
industrial adaptability, which must be considered in rating the applicant's
post-concussive syndrome/migraine headaches.  Thus, the applicant again
contends that he should have been awarded a disability rating under VASRD
8045-8100 for his post-concussive syndrome with intractable headaches with
definite impairment of social and industrial adaptability of 30%.

19.  Part 4 (VASRD), Title 38 (Pensions, Bonus, and Veterans Relief), Code
of Federal Regulations (CFR), provides a general rating formula for mental
disorders, which would include a Mood Disorder (9435) that states that a
rating of 30% is appropriate when an individual has occupational and social
impairment with occasional decrease in work efficiency and intermittent
periods of inability to perform occupational tasks (although generally
functioning satisfactorily, with routine behavior, self-care, and
conversation normal), due to such symptoms as: depressed mood, anxiety,
suspiciousness, panic attacks (weekly or less often), chronic sleep
impairment, mild memory loss (such as forgetting names, directions, recent
events).  It also contains guidance on establishing disability ratings for
Migraines (8100), which states, in pertinent part, that a rating of 30% is
appropriate for Migraines with characteristic prostrating attacks occurring
on an average of once a month over last several months.

20.  DODI 1332.29 implements the policy, assigns responsibilities, and
prescribes procedures, for rating disabilities of members determined to be
physically unfit and who are eligible for disability separation or
retirement.  Paragraph 6 contains guidance on the essentials of rating
disabilities.  It states, in pertinent part, that the VASRD is a guide for
evaluating disabilities.  However, because of differences between military
department and DVA applications rating policies for specific cases,
differences in ratings may result.

21.  Paragraph 6 of DODI 1332.29 further indicates that unlike the DVA, the
Military Departments must first determine whether a member is fit to
reasonably perform the duties of his/her office, grade, rank, or rating.
Once a member is determined to be physically unfit for further military
service, VASRD percentage ratings are applied to the unfitting conditions.
Percentages are based on the severity of the condition.

22.  Paragraph 6.2 of DODI 1332.29 provides guidance on applying the higher
of two evaluations.  It states that when the circumstances of a case are
such that two percentage ratings could be applied, the higher percentage
will be assigned only if the member’s disability more nearly approximates
the criteria for that rating.  Otherwise, the lower rating will be
assigned.  When, after careful consideration of all reasonably procurable
and assembled data, there remains a reasonable doubt as to which rating
should be applied, such doubt will be resolved in favor of the member.

23.  The VASRD guidance on disability ratings for Code 8100 (Migraines)
states that a 10% rating is applicable in cases with characteristic
prostrating attacks averaging one in 2 months over the last several months
occur.  A 30% rating is applicable with characteristic prostrating attacks
averaging once a month over the last several months.

24.  Army Regulation 635-40 sets forth policies, responsibilities, and
procedures that apply in determining whether a Soldier is unfit because of
physical disability to reasonably perform the duties of his or her office,
grade, rank, or rating.  If a Soldier is found unfit because of physical
disability, this regulation provides for disposition of the Soldier
according to applicable laws and regulations.
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim that he should have received at least a 30%
disability rating based on his disqualifying medical conditions was
carefully considered and found to have merit.

2.  The evidence of record confirms that an MEB originally diagnosed the
applicant with a Chronic Intractable Headache with incapacitating attacks;
Post-Concussive Syndrome; and Mood Disorder with depressive features.  An
informal PEB conducted on the applicant on 4 November 2002, found the
applicant was unfit for further military service based on his suffering
from
Post-Concussive Syndrome with intractable headaches (8045-8100) and
Mood Disorder with depressive symptoms (8045-9435).  The informal PEB
assigned a disability rating of 10% for each of these conditions, for a
combined rating of 20%.

3.  A formal PEB considered the applicant's case on 4 March 2005, and it
found the applicant was unfit for further military service based on his
suffering from a Post-Concussive Syndrome with chronic intractable
headaches and Mood Disorder (8045-9304) secondary to head injury in Iraq in
May 2003.  By majority vote the PEB assigned a combined disability rating
of 10%.

4.  A minority report was submitted by a dissenting member of the formal
PEB, who argued that the evidence regarding the migraine headaches suffered
by the applicant and their impact on his ability to function was objective
and should have been ratable under VASRD code 8100, and not subjective, as
indicated by the majority board members.

5.  The VA Rating Decision completed on the applicant by the VA Regional
Office, Winston-Salem, North Carolina, on 14 July 2005, just over a month
after the applicant's separation, assigned the applicant a 50% disability
rating for his service connected Post Concussion Headaches and a 70%
disability rating for his service connected Cognitive Disorder and Mood
Disorder with depressive features, which were both the result of the head
injury he received in combat in May 2003 in Iraq.

6.  By regulation, a 10% rating is applicable in cases where symptoms are
not severe enough either to interfere with occupational and social
functioning or to require continuous medication.  A 30% rating is
applicable in cases where serious to moderate social and functional
impairment exists.  The fact that the applicant is still suffering from
incapacitating headaches and requires regular medication, and is
uncomfortable interacting with people outside of his own environment and to
function in a work setting, as evidenced by the May 2005 statement from his
military Neurologist, the formal PEB minority report, and the VA Rating
Decision, which was completed less than five months after his separation,
seems to clearly establish a serious to moderate social and functional
impairment that would place him within the regulatory criteria that
supports a definite 30% disability rating.

7.  Given the regulatory criteria established for the application of the
higher of two evaluations, which requires resolution in favor of the
member, the applicant’s record contains sufficient evidence showing that
his Post Concussive Syndrome with intractable headaches and Mood Disorder
with depressive symptoms support a serious to moderate functional and
social impairment, as opposed to the mild impairment indicated by the PEB.
Therefore, in accordance with the regulatory criteria for applying the
higher of two ratings and given the reasonable doubt created by the medical
evidence and formal PEB minority report in this case, it would be
appropriate to resolve this case in favor of the applicant.

8.  In view of the facts of this case, it would be appropriate and serve
the interest of justice and equity, to correct the applicant's record to
show his Post Concussive Syndrome with intractable headaches and Mood
Disorder with depressive symptoms (8045-8100) were rated at 30%.

9.  Further, the applicant's record should be corrected to show that based
on his combined disability rating of 30%, he was placed on the Retired List
by reason of permanent disability, on 6 November 2002 in lieu of his
discharge of the same date and he should be provided all back retired pay
and allowances due as a result, minus the disability severance pay he
received at the time of his discharge.

BOARD VOTE:

    ENA__  ___AU___  __REB_   GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for relief.  As a result, the Board recommends
that all Department of the Army records of the individual concerned be
corrected by:

      a.  showing that he was given a combined disability rating of 30% for
Post- Concussive Syndrome with intractable headaches and Mood Disorder with
depressive symptoms by the 4 March 2005 formal Physical Evaluation Board;
and

      b.  voiding his 8 June 2005 discharge, with severance pay, and showing
that he was instead released from active duty, by reason of permanent
disability rated at 30%, and placed on the Retired List, in the rank and
pay grade of corporal/E-4, on that same date.

2.  That the Defense Finance and Accounting Service (DFAS) pay the
individual concerned all back retired pay and allowances due as a result of
the correction outlined in the preceding paragraph, minus any disability
severance pay the individual concerned may have already received.




                                  _ERIC N. ANDERSON___
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060009905                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/05/17                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |2005/06/08                              |
|DISCHARGE AUTHORITY     |AR 635-40                               |
|DISCHARGE REASON        |Disability with Severance Pay           |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |108.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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