RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  18 December 2007
	DOCKET NUMBER:  AR20060017840 


	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.  


Ms. Catherine C. Mitrano

Director

Ms. Wanda L. Waller

Analyst


The following members, a quorum, were present:


Mr. John Slone

Chairperson

Ms. Marla Troup

Member

Mr. Thomas Ray

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 her disability rating be increased to at least 30 percent. 

2.  The applicant states, in effect, that the Medical Evaluation Board (MEB) allowed their personal feelings to intrude on their rating for her medical discharge and they did not follow the regulations to the letter.  She contends that she was told “We have our own set of rules to follow” during the appeal proceedings which were tape recorded.  She states that the MEB exercised their discretion in a damaging and abusive manner by not rating her at a minimum of 30 percent.  She claims that she has two Department of Veterans Affairs (DVA) letters stating that the severity of her medical disabilities are such that she cannot work in her profession as a veterinarian and that she is functionally unemployable due to her medical injuries.  She states that costochondral separation (i.e., rib separation) with chondritis occurred when she lifted a Soldier during training, that a doctor challenged medical documentation and accused her of aggravating the condition, and that the MEB gave her a verbal reprimand for not pursuing surgery.  She contends that her medical file had five specialist’s reports recommending no surgery be pursued due to a less than 30 percent chance of correcting the problem and that not to pursue surgery was based on the expert opinions of medical specialists.    

3.  The applicant states that her command gave her a two year assignment in a civilian program to recover and rehabilitate without regular Army duties and that when she returned to a regular assignment her medical injuries still would not allow her to perform the duties of a Soldier or as a veterinarian.  She claims that she was dedicated to her Soldiers and mission and that she was penalized by the MEB for her actions and that the MEB was sexually discriminating against her because there was no female representative on it.    

4.  The applicant states that her injury severely inhibits her range of motion and prevents her from lifting, bending, stooping, moving, or maneuvering in a functional manner; and the condition causes acute pain and chronic pain.  She contends that the MEB ignored the underlying cause and her loss of function and ability to perform in a specialty occupation.  She contends that passive range of motion measurements were included in determining the MEB rating and that only active range of motion measurements are to be used in determining a disability rating.  She points out that she received a zero percent rating for her migraines which are medically documented as worsening and increasing in frequency while serving in the Army.  She contends that she was penalized for following the neurologist’s orders and prescription and not showing weakness or neglecting her duties and mission.  She states that degenerative joint disease in her cervical and lumbar spine prevent normal range of motion and that she only received a 10 percent rating for this condition.  The loss of function due to this medical condition affecting both her cervical and lumbar regions is far more substantial than 10 percent and the condition is never going to get better.  She indicated that the MEB does not rate for future progression of the medical condition; however, a 
10 percent rating was below an appropriate rating at the time of her discharge.  She states that she received a zero percent rating for osteoarthritis in both knees and that a higher rating than zero should have been given considering the loss of function.

5.  The applicant further states that the MEB tried very hard to avoid giving her a 30 percent disability rating which would have allowed her a medical retirement.  She served for a total of almost 18 years, she gave her life and her career to the military, and in the end no one cared enough to do the right thing for her.  She contends that her medical conditions are bona fide, are seriously debilitating, and are documented.

6.  The applicant provides letters from two DVA doctors; four letters of support; and a cassette tape of her appeal proceedings. 

CONSIDERATION OF EVIDENCE:

1.  Having prior enlisted service in the Army National Guard, the applicant was appointed a first lieutenant in the U.S. Army Reserve (USAR) on 24 July 1995 and entered active duty on 9 August 1995.

2.  The MEB is not available.  However, according to the advisory opinion obtained from the Deputy Commander, U.S. Army Physical Disability Agency (USAPDA), on 13 November 2003, a MEB diagnosed the applicant with mild arthritis of bilateral knees and hands; status post parathyroidectomy, for para thyroid adenoma; osteopenia, secondary to parathyroidectomy; early degenerative changes to cervical and lumbar spine; costochondral dislocation, with chest pain; and migraines.  Apparently, the MEB recommended referral to a Physical Evaluation Board (PEB).  The advisory opinion noted the applicant offered no objection to the findings of the MEB and she agreed with the findings and recommendations.  

3.  The PEB is not available.  However, according to the advisory opinion, on 
14 May 2004 an informal PEB found the applicant physically unfit due to neck pain (10 percent); back pain (10 percent); chronic bilateral knee, bilateral hand, and chest pain (0 percent); and migraines (0 percent).  The parathyroidectomy and osteopenia were found not unfitting and were not rated.  On 19 May 2004, the applicant nonconcurred with the findings and recommendations and requested a formal hearing.

4.  The formal PEB is not available.  However, according to the advisory opinion, on 22 June 2004 a formal PEB affirmed the informal PEB’s findings.  On 
30 June 2004, the applicant submitted a rebuttal to the PEB’s findings.  On 8 July 2004, the PEB found no errors in their findings and indicated that they had followed all of the applicable rules and regulations involved in her case.    

5.  On 21 July 2004, the USAPDA approved the PEB’s findings and recommendations.  On 29 July 2004, the applicant requested another USAPDA review and requested answers to several of her concerns.  The advisory opinion noted on 7 September 2004 the USAPDA again reviewed the applicant’s case and responded to her concerns in a memorandum.

6.  The applicant was honorably discharged on 2 October 2004 by reason of physical disability with severance pay.  She completed a total of 9 years, 
5 months, and 27 days of active service.

7.  In support of her claim, the applicant provided letters from two DVA doctors.  One letter states she was diagnosed with costochondral separation with neuritis and neuroma; severe degenerative joint disease of both knees; severe degenerative joint disease of the hands; severe degenerative joint disease of the spine; and chronic migraines.  The doctor states that these conditions are permanent and continue to worsen and the incapacitating limitations are additive and prevent her from being able to work in any capacity, including sedentary work.  The second letter states that she is having more problems with her degenerative arthritis of her cervical, thoracic and lumbar spine and bilateral knees.  The doctor states that it is her medical opinion that the injuries, repetitive work and responsibilities that were required of the applicant during her military career increased the likelihood of developing the degenerative arthritic problems she experiences and since her discharge her symptoms have progressed and will continue to do so.  The applicant also provided four letters of support.  

8.  In the processing of this case, an advisory opinion was obtained from the Deputy Commander, USAPDA.  The opinion recommended that the applicant’s military records remain unchanged.  The opinion states that the MEB physical examination revealed a female in no acute distress, that there was mild tenderness to palpation of the left lower rib cage, and that the knees had no effusion, with minimal tenderness and no laxity noted.  The applicant’s hands revealed no small joint synovial thickening and no effusions.  Both the knees and hands had full range of motion, x-ray findings of the hands revealed minimal arthritis changes, with the knees demonstrating no significant arthritis changes, and the back and cervical spine revealing early degenerative changes.  The applicant complained of pain in all of these areas that interfered with her job.  She used Motrin, as needed, for relief.  The range of motion of her cervical flexion was noted as 22 degrees and lumbar flexion as 42 degrees.  There was no indication of any mechanical basis for the reduced range of motion.  The applicant complained of migraines since the age of 18.  She reported good relief of migraine symptoms with proper medication use.  The applicant reported that she was generally able to abort symptoms with Imitrex and her neurologist confirmed that she obtained symptomatic relief by using Imitrex.   

9.  The opinion states that the applicant’s back and neck pain were properly rated at 10 percent each due to tenderness to palpation.  The applicant had no other physical findings that would warrant any higher rating under the VA Schedule for Rating Disabilities (VASRD) General Rating Formula for Diseases and Injuries of the Spine.  Her flexion of the neck and back were not limited by an mechanical basis and any reduction was based on the applicant not willing to move further, based upon a complaint of pain.  Pain limited motion is, by itself, not sufficient for rating purposes.

10.  The applicant’s pain in the bilateral knees and hands, and left chest wall, were considered to be only unfitting when their limitations were combined.  Individually, none of these conditions were considered to be independently unfitting.  There is no specific rating for the applicant’s costochondritis (chest pain), and the applicant had to be rated for her pain.  The knee and hand physical findings were so mild that they did not individually warrant being found independently unfitting or rated.  Combined, they only warranted a zero percent rating in accordance with the USAPDA’s Policy Number 13, Rating Pain; Minimal/Occasional. 

11.  The applicant’s migraines were considered unfitting, although the applicant was shown to have been able to adequately control them with medication.  She did not meet the Department of Defense Instruction (DODI) 1332.39 rating criteria for prostrating which required the headaches to be so severe that she was required to stop what she was doing and seek medical attention.  The fact that she administered the medication herself, with good results, did not equate to seeking medical attention as required by the DODI.  It is not unusual for migraine sufferers to administer their own medications.  It is only when such treatments are not effective, causing the individual to seek professional medical care for relief, does the condition meet the required definition of prostrating.  

12.  The applicant’s claim that her pain caused her to lose her career and that should equate to a disability retirement is not appropriate under the established rules.  Each condition must be individually reviewed, considered, and (if unfit) rated.  Those ratings must be added in accordance with the VASRD Combined Rating Table and only if the applicant had the necessary 30 percent rating, or years of service, could a disability retirement be authorized.      

13.  The opinion states that any comments regarding the PEB following their “own set of rules” was only related to the specific additional instructions and guidance offered by the DODI and Army regulations.  It was not meant as a comment to indicate the PEB was ignoring any evidence or only following some unpublished PEB rules.  All applicable disability rules and guidance were closely followed in this case.  The opinion concluded that the applicant did not present any new evidence or any evidence clearly establishing any errors by the PEB.  The PEB’s findings were supported by a preponderance of the evidence, were not in violation of any statute, directives, or regulations, and were not arbitrary or capricious. 

14.  On 9 October 2007, the advisory opinion was furnished to the applicant for his review and possible rebuttal.  She did not respond within the given time frame.

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.  Section 1212 provides that a member separated under Section 1203 is entitled to disability severance pay.

16.  Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

17.  Paragraph 3-39 (Spine, scapulae, ribs, and sacroillac joints) of Army Regulation 40-501 (Standards of Medical Fitness) does not list costochondral separation as a cause for referral to a MEB. 

18.  Paragraph E2.A1.4.1.4. (Migraine) of DODI Number 1332.39 (Application of the Veterans Administration Schedule for Rating Disabilities) states 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 (day, week, month) should be recorded by a neurologist for diagnostic confirmation.  Estimation of the social and industrial impairment due to migranious attacks should be made.

19.  Paragraph 4-17g(1) of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states that when requested, the PEB will substitute a female or minority Soldier of the same minority group for one of the regular members of the Board, if the requested representation is reasonably available.  Request for female or minority representation should be made in writing at the time of request for a formal hearing.  The substitute must meet the qualifications for regular voting members.  The PEB President will determine if the requested representation is reasonably available.  The proceedings will include a statement of the request and whether the representation was or was not provided, that is, “Minority (or female) representation was requested and provided” or “Minority representation (or female) was requested and not reasonably available and, therefore, was not provided.”

DISCUSSION AND CONCLUSIONS:

1.  Without having the applicant’s MEB, MEB narrative summary, and PEBs to consider it is presumed that the information contained in the advisory opinion is accurate.  It is also presumed that any concerns she expressed regarding the composition of the PEB were properly addressed in accordance with Army Regulation 635-40. 

2.  It is noted that costochondral is not listed as a cause for referral to a MEB.  Also, because the applicant did not seek medical attention for her migraines, for whatever reason, she did not meet the criteria outlined in DODI Number 1332.39 that would have made her migraines a cause for referral to a MEB.

3.  There is insufficient evidence to show the applicant’s PEB disability rating was incorrect or that the recommendation for severance pay was not in compliance with law and regulation.  Therefore, there is no basis for granting the applicant’s request. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

JS______  __MT___  __TR____  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.




___John Slone_________
          CHAIRPERSON




INDEX

CASE ID
AR20060017840
SUFFIX

RECON

DATE BOARDED
20071218
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
108.0200
2.

3.

4.

5.

6.