IN THE CASE OF:	

		BOARD DATE:	  
		DOCKET NUMBER:  AR20080011203 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that the record be corrected to show she was placed on the Temporary Disability Retired List (TDRL) and medically retired.

2.  The applicant states, in effect, that the Army Physical Evaluation Board (PEB) did not comply with DOD Directives and inappropriately medically discharged her.

3.  In support of her request, the applicant submits a copy of a two-page brief to the Army Board for the Correction of Military Records (ABCMR) prepared by her counsel; a copy of a DA Form 3349 (Physical Profile), dated 25 October 2005; a copy of a Memorandum, Subject:  Medical Evaluation Board Notification, dated 26 April 2006; a copy of a Texas Army National Guard Letter, Subject:  Incapacitation Status [pertinent to the applicant], dated 30 June 2006; a copy of the back side of DD Form 2697 (Report of Medical Assessment), dated 30 October 2006; a copy of a DA Form 199 (PEB Proceedings), dated 25 April 2007; a copy of Orders D143-02 prepared by the US Army Physical Disability Agency (USAPDA), Washington, DC, dated 22 May 2007; a copy of Orders 178-1102 prepared by the Adjutant General's Department, Texas Military Forces, Army National Guard, Austin, Texas, dated 27 June 2007; a copy a NGB Form 22 (Report of Separation and Record of Service) with an effective date of discharge of 23 June 2007; a copy of a VA rating decision, dated 14 June 2007 which was made pertinent to the applicant's claim, and received by the VA on 25 July 2006; and a copy of a Department of Veterans Affairs (VA) Rating Decision,


 dated 29 June 2007 which was also made pertinent to the applicant's claim and was received by the VA on 25 July 2006.

4.  In a follow-up transmittal, dated 22 September 2008, the applicant submitted a rebuttal to the advisory opinion; a copy of a DA Form 3349, dated 20 March 2007; a copy of a DD form 689 (Individual Sick Slip), dated 30 May 2007; a copy of a letter prepared by Marlboro Primary Care Associates, dated 21 August 2008; a copy of a Standard Form 600 (Chronological Record of Medical Care), dated 26 June 2006; a copy of a Medical Evaluation Board (MEB) Report, dated 
2 December 2007; a copy of the result of a Magnetic Resonance Imaging Radiology procedure conducted on the applicant's spine, brain, and cervical spine, on 23 May 2006 and on 14 June 2006; a copy of medical progress notes printed on 30 March 2007 for an examination that was administered on 30 July 2006 pertinent to the applicant's headache(s); a copy of a Standard Form 600, dated 8 March 2007 that was prepared in preparation for the applicant's appearance before a MEB; and a copy of the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty), effective 8 June 2004.

5.  In a follow-up transmittal dated 24 September 2008, the applicant submitted a statement addressed "To Whom it May Concern" from an individual who reportedly comes and helps the applicant to clean and do laundry on a weekly basis.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the applicant be placed on the TDRL and medically retired.

2.  Counsel states, in effect, an Army PEB medically separated the applicant with a 20 percent rating for diagnostic code 5099-5003, Chronic left knee; chronic shin splints, 0 percent; and migraine headaches, 0 percent, diagnostic code 8100.  She received an honorable discharge for disability with separation pay of $3,458.40.

3.  Counsel adds that the Department of Veterans Affairs (VA) granted the applicant service connection for the following:  Migraines, 10 percent, diagnostic Code 8100; Left lower leg condition, 30 percent, diagnostic Code 5262; Hypertension, 10 percent, diagnostic Code 7101; and Left knee, 10 percent, diagnostic Code 5257.  The percentage of disability for migraine headaches was increased in 2005 to 
30 percent and in 2007 to 50 percent, with an effective date of 30 October 2006.  The combined service-connected disability rating from the VA is 70 percent and the applicant's unemployability is determined to be 100 percent.

4.  Counsel states, in effect, that the Army did not comply with DoD Directive Number 1332.18 when the PEB failed to comply with the sole standard required by that directive to be used in making a determination of unfitness.  Specifically, the PEB did not address the fact that the migraine headaches were currently rated by the VA at 30 percent and the left leg shin splints were rated at 
30 percent and ignored this on the MEB rendered on the applicant that determined she was unfit to perform the duties of her primary specialty, 92A, Supply Logistics.

5.  Counsel continues that the Army failed to comply with DoD Directive Number 1332.36 (sic:  DoD Directive Number 1332.39) when the PEB again failed to consider her hypertension currently rated by the VA at 10 percent, her left leg shin splints rated at 30 percent, migraine headaches rated at 50 percent, which were already determined to be related to her military service with a compensable disability rating.  Counsel states the board [PEB] was shown and was informed of her current rating decisions shortly after the PEB when the VA granted the 70 percent unemployability rating.  Based on the foregoing, counsel concludes that the applicant should have been medically retired and placed on the TDRL with a rating of 70 percent.

6.  Counsel provided no additional documents besides those that were provided by the applicant.

CONSIDERATION OF EVIDENCE:

1.  On 25 October 2005, the applicant was issued a temporary physical profile for chronic bilateral leg pain (shin splints), for having been on crutches since September 2004, for having uncontrolled hypertension and severe migraine headaches.  The applicant was issued a temporary P-3, U-1, L-4, H-1, E-2, E-1 physical profile.  The applicant was identified as being non-deployable, non-retainable in accordance with Army Regulation 40-501 (Standard of Medical Fitness), and was recommended for discharge from the service.  The applicant was precluded from participating in drills and field duty.  The applicant was also identified as needing to go before a MEB/PEB.

2.  On 26 April 2006, the applicant was notified that a MEB had been initiated for her diagnosed condition of bilateral shin splints.  The applicant acknowledged receipt of notification on the same date.

3.  On 30 June 2006, a memorandum addressed to "Whom it May Concern" was prepared and distributed by the Health Services Noncommissioned Officer In Charge (NCOIC).  The memorandum was prepared to inform those concerned that the applicant had incurred a line of duty injury and was currently in the Physical Disability Evaluation System (PDES) and that she was pending approval for payment of incapacitation pay.

4.  The applicant was provided a medical assessment at Darnell Army Hospital, Fort Hood, Texas, on 30 October 2006.  Only the back side of the DD Form 2697 is available for the Board's review.  According to the practitioner providing the assessment, (a physician’s assistant), the applicant's overall health was worse.  The applicant was diagnosed to suffer from migraines, hypertension, shin splints, left knee pain, neck pain and mitral valve prolapse.  A notation on this document shows the applicant was receiving a “60 % VA Disability” for hypertension, left knee pain, shin splints, and ovarian cysts/fibroids.

5.  On 25 April 2007, the applicant went before a Formal PEB and was evaluated for chronic left knee pain (VA Code 5099 and 5003), chronic shin splints (VA Code 5022), and migraine headaches (VA Code 8100).  The applicant elected to appear before the board with counsel (a Judge Advocate General's Corps Lieutenant Colonel).  During the formal proceedings the PEB reevaluated all available medical records and sworn testimony by the Soldier.  Based on a review of objective medical evidence of record, the PEB found that the applicant’s medical and physical impairments prevented reasonable performance of duties required by her grade and military specialty and recommended a disability percentage of 20 percent for chronic left knee pain and 0 percent for her other evaluated conditions.  The PEB found the applicant physically unfit and recommended a combined rating of 20 percent.  The PEB also recommended that the applicant be separated with severance pay, if otherwise qualified.  The applicant indicated that she did not concur with the board's recommendation on 
4 May 2007.  She indicated that she had attached a statement in rebuttal explaining why she did not agree with the findings and recommendations.  This statement is not available for the board's review.

6.  The DA Form 199 that was completed in conjunction with the PEB’s finding and recommendation states that the applicant's migraine headaches were rated in accordance with DoD Instruction 1332.39 E2.A1.4.1.4.  Although the migraines were considered medically acceptable on the DA Form 3947, the formal PEB felt that this condition was separately unfitting based on her need for medication and her description of the headaches.

7.  On 22 May 2007, Orders D143-02 were published by the USAPDA, Washington, DC, discharging the applicant from the Army National Guard, effective 22 June 2007.  She was authorized disability severance pay in the rank of specialist based on 00 years, 11 months, and 12 days of service.  She was awarded a 20 percent disability rating.


8.  On 27 June 2007, Orders 178-1102 were published by the Texas Military Forces, Army National Guard, Austin, Texas, discharging the applicant from the Army National Guard and as a Reserve of the Army with an effective date of 23 June 2007.  The applicant was authorized disability severance pay.

9.  On 23 June 2007, the applicant was honorably discharged from the Texas Army National Guard and as a Reserve of the Army in the rank and pay grade Private First Class, E-3.  The applicant was honorably discharged under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-35i(8) as medically unfit for retention per Army Regulation 40-501.  On the date of her discharge, the applicant had completed 3 years, 9 months, and 27 days total service for pay purposes.

10.  The applicant submitted a copy of a VA rating decision, dated 14 June 2007, which was made pertinent to a claim she submitted to the VA on 25 July 2006.  The applicant was notified by the VA that an earlier decision which had granted her a service-connected disability for migraine headaches rated at 30 percent had been increased to 50 percent.  She was notified that she was entitled to individual unemployability.  The applicant was also notified that her claim for disability for her cervical spine condition; mitral valve prolapsed; depression, secondary to her current medical condition; her neuropathy, bilateral to her upper extremities; and an eye condition had been denied.

11.  The applicant submitted a copy of a VA rating decision, dated 29 June 2007.  The applicant was again notified by the VA it had decided to grant an increase in her service-connected disability for migraine headaches from 30 percent to 50 percent.  She was notified that she was entitled to individual unemployability and that her overall combined service-connected disability rating was at 70 percent.  The applicant was again advised that she had been denied service-connected disability for her cervical spine condition; mitral valve prolapse; depression, secondary to her current medical conditions; her neuropathy, bilateral in her upper extremities; and for an eye condition.

12.  In the processing of this case, an advisory opinion provided by the USAPDA, Washington, DC on 9 September 2008, recommended that no change be made to the applicant's PEB findings.

13.  On 22 September 2008, the applicant submitted a rebuttal to the advisory opinion.  The advisory opinion focused on the process, findings, and recommendations made by the Formal PEB.  In her rebuttal, the applicant's focus was on her alleged perfect health before she joined the military and how this same perfect health and her physical abilities had deteriorated to a level where she now considered herself to be crippled and in all probability she would be in pain and be required to take medications for the rest of her life.

14.  In the advisory opinion, it was revealed that the applicant's MEB was completed on 4 March 2007 and listed the following diagnoses:  bilateral shin splints, cervical degenerative disk disease and migraine headaches.  The MEB found that the applicant's migraine headaches were medically acceptable.  The Chief, Neurology, stated that there was no documentation in her records indicating the applicant had sought medical attention for headaches over the past year and the totality of the medical evidence did not warrant the headaches being classified as not meeting medical retention standards.  Her preventive medication and therapy appeared to work satisfactorily.  The applicant nonconcurred stating that she believed that her headaches should be considered not to meet medical retention standards.

15.  In the advisory opinion, it was further revealed that the applicant's conditions were considered by an informal PEB on 5 April 2007.  The informal PEB found the applicant unfit for chronic neck pain due to cervical disc disease without neurologic abnormality with cervical range of motion limited by pain with localized tenderness.  This condition was rated at 10 percent severance pay.  The applicant received a rating for shin splints without ratable limitations of motion, with a 0 percent disability rating.  The migraines were considered not to be unfitting and therefore not ratable.  The applicant nonconcurred on 6 April 2007 and requested a formal hearing.

16.  On 25 April 2007, a formal PEB rated the applicant for chronic knee pain without specific identifiable pathology.  At the time her range of motion was 
0-130 degrees.  This condition was rated in accordance with the Agency's Pain Policy at a maximum of 20 percent.  Her shin splints were rated at 0 percent in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), B-29e because her shin splints had no compensable limitation of motion and there was no recent bone scan evidence showing stress reaction or stress fractures.  Even though the MEB found that her headaches did meet medical retention standards, the PEB found that there was sufficient evidence that they were unfitting; however, since her headaches were being successfully treated and the evidence did not show she had to stop what she was doing and seek medical attention when she got the headaches, the headaches were not considered prostrating in accordance with DoDI 1332.39, E2.A1.4.1.4.

17.  The VASRD is the standard used by both the VA and the military to quantify a service member’s disability. PEBs use the VASRD to assign a disability rating when the PEB finds a service member unfit.  As described in Chapter 2, the military’s disability rating is used to determine eligibility for certain military benefits such as separation pay and medical retirement.  The VA uses the VASRD to assign a disability rating when determining a veteran’s eligibility for VA benefits.  Not all general policy provisions in the VASRD are applicable to the military departments, and, consequently, a service member may receive a disability rating from the VA that differs from the rating assigned by the military.  More specifically, the military will only consider the service member’s physical conditions that make him or her unfit for continued service.  In contrast, the VA will consider all service-connected disabilities when assigning a disability rating.  In addition, the VA process permits reevaluation of service-connected disabilities if a condition worsens over time, if medical science permits an improved evaluation or if there is a change in the law governing the assignment of disability ratings.  As a consequence, a VA disability rating generally is expected to be equal if not higher than the military disability rating, and it may increase after the service member’s separation from the military.  (Source:  www.woundedwarriorproject.org)

18.  Army Regulation 40-501, chapter 7, physical profiling, provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric.  Numerical designator 1 under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  Numerical designators 2 and 3 indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty.  The individual should receive assignments commensurate with his or her functional capacity.  Numerical designator 4 indicates that an individual has one 
or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited.  The numerical designator 4 does not necessarily mean that the individual is unfit because of physical disability as defined in Army Regulation 635-40.

19.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System according to the provisions of Title 10, United States Code, Chapter 61, and Department of Defense Directive (DODD) 1332.18.  It 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.  The objectives of this regulation are to maintain an effective and fit military organization with maximum use of available manpower, provide benefits for eligible Soldiers whose military service is terminated because of a service-connected disability, and to provide prompt disability processing while ensuring that the rights and interests of the Government and the Soldier are protected.

20.  Department of Defense Instruction Number 1332.18 establishes the policy for the retirement or separation because of physical disability in accordance with Chapter 61 of 10 U.S. Code and states, in effect, that the "sole standard to be used in making determinations of unfitness due to physical disability shall be unfitness to perform the duties of the member's office, grade, rank or rating because of disease or injury."

21.  Department of Defense Instruction Number 1332.36 establishes the policy and assigns responsibilities and prescribes procedures for the conduct of the Transition Assistance Program pre-separation counseling for active duty service members and their spouses.

22.  Department of Defense Instruction Number 1332.39 implements policy, assign responsibilities, and prescribes procedures, under the authority of DoD Directive 1332.18 for rating disabilities of service members determined to be physically unfit and who are eligible for disability separation or retirement under Title 10 US Code.  This instruction applies to the Office of the Secretary of Defense and the military departments.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's and counsel's contentions have been considered and found to be without merit.

2.  The applicant was initially issued a temporary physical profile for chronic bilateral leg pain (shin splints), for having uncontrolled hypertension and severe migraine headaches.  She was also precluded from participating in drills and field duty.  The applicant was identified as being non-deployable and non-retainable in accordance with Army Regulation 40-501 and based on this identification, she was recommended for discharge from the service.  The applicant was also identified as needing to go before a MEB/PEB.

3.  The applicant acknowledged that she had been notified that she was being considered for a MEB on 26 April 2006.



4.  On 30 October 2006, the applicant entered into the PDES in accordance with Army Regulation 635-40 and she was provided a medical assessment at Darnell Army Hospital, Fort Hood.  According to the practitioner providing the assessment, (a physician’s assistant), the applicant's overall health was worse. The applicant was diagnosed to suffer from migraines, hypertension, shin splints, left knee pain, neck pain and mitral valve prolapse.  It was noted that the applicant had received a 60 percent VA disability rating for hypertension, left knee pain, shin splints, and ovarian cysts/fibroids.

5.  The applicant went before a MEB in accordance with Army Regulation 635-40 on 4 March 2007.  The following diagnoses were listed:  bilateral shin splints, cervical degenerative disk disease and migraine headaches.  The MEB found the applicant's migraine headaches were medically acceptable because there was no documentation in the applicant's records indicating that she had sought medical attention for headaches over the past year and the totality of the medical evidence did not warrant the headaches being classified as not meeting medical retention standards.  Her preventive medication and therapy appeared to work satisfactorily.  The applicant nonconcurred stating that she believed her headaches should be considered not to meet medical retention standards.

6.  The applicant went before an informal PEB, in accordance with Army Regulation 635-40, on 5 April 2007.  The informal PEB found the applicant unfit for chronic neck pain, due to cervical disc disease without neurologic abnormality with cervical range of motion limited by pain with localized tenderness.  This condition was rated at 10 percent severance pay.  The applicant received a rating for shin splints without ratable limitations of motion, with a 0 percent disability rating.  The migraines were considered not to be unfitting and therefore not ratable.  The applicant nonconcurred on 6 April 2007 and requested a formal hearing.

7.  The applicant went before a formal PEB, in accordance with Army Regulation 635-40, on 25 April 2007.  The formal PEB considered the applicant's condition described in the records.  During formal proceedings, the PEB reevaluated all available medical records and sworn testimony by the applicant.  The findings of the PEB were based on a review of the medical evidence of record and the findings of the PEB were that the applicant's medical and physical impairments prevented her reasonable performance of her duties required by her grade and military specialty.  The formal PEB rated the applicant for chronic knee pain without specific identifiable pathology.  At the time her range of motion was 0-130 degrees.  This condition was rated in accordance with the Agency's Pain Policy at a maximum of 20 percent.  Her shin splints were rated at 0 percent in accordance with Army Regulation 635-40 because her shin splints had no compensable limitation of motion and there was no recent bone scan evidence showing stress reaction or stress fractures.  Even though the MEB found that her headaches did meet medical retention standards, the PEB decided that there was sufficient evidence to find that they were unfitting; however, since her headaches were being successfully treated and the evidence did not show she had to stop what she was doing and seek medical attention when she got the headaches, the headaches were not considered prostrating in accordance with DoDI 1332.39, E2.A1.4.1.4.

8.  The evidence shows that all actions taken in the separation of the applicant were accomplished in accordance with Army Regulation 635-40, the regulation that establishes the PDES within the Army.  This regulation is also the regulation which implements Department of Defense Directive (DODD) 1332.18 within the Army.  As indicated, the primary purpose of the Army regulation is to determine 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 a physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.

9.  The applicant and her counsel also contend that the PEB did not comply with the provisions of DoD Directive Number 1332.36 in the evaluation of her migraine headaches; however, the evidence shows the PEB overruled the findings of the MEB and even though the migraines were considered medically acceptable on the DA Form 3947, the formal PEB felt that this condition was separately unfitting based on her need for medication and her description of the headaches.

10.  According to the evidence of record, the applicant's physical and medical disabilities were thoroughly reviewed.  She was afforded a MEB, an informal PEB and a formal PEB.  She was evaluated in accordance with guidelines and procedures established by the Army in Army Regulation 635-40 in compliance with the instructions given in Department of Defense Directives and Instruction.  There is no evidence the applicant was not evaluated appropriately and that she was inappropriately medically discharged.  The applicant is therefore not entitled to a correction of her records to show that she was placed on the TDRL and medically retired with a higher disability rating.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ___x____  ____x___  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.




      _______ _   __x_____   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.





ABCMR Record of Proceedings (cont)                                         AR20080011203



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ABCMR Record of Proceedings (cont)                                         AR20080011203



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