IN THE CASE OF:	  

		BOARD DATE:	  19 March 2014

		DOCKET NUMBER:  AR20130011606 


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 amendment of his Physical Evaluation Board (PEB) proceedings to add migraine headaches.

2.  He states he was medically discharged with a 50 percent (%) disability rating for hip, shoulder, back and diabetes, but his migraine headaches were never considered.  He states this condition was not considered because his migraine headaches occurred late in the PEB/Medical Evaluation Board (MEB) process, he was allowing time for the treatments to work, and he was advised by a Judge Advocate General officer to complete the MEB/PEB process and request an increase of his disability rating afterwards.

3.  He provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Two supporting statements
* Memorandum, Subject:  Request for Reconsideration of Proposed Disability Evaluation System (DES) Rating Decision, dated 11 September 2012, in the case of Applicant, dated 25 January 2013 
* Memorandum, Subject:  Withdrawal of Demand for Formal PEB Hearing by applicant, dated 2 January 2013
* National Capital Region (NCR) letters, dated 20 and 21 November 2012 
* DA Form 199 (Informal PEB Proceedings)
* Letter, Subject:  Notice of Applicant Request for Reconsideration of the 
27 September 2012 Informal PEB Findings . . . , dated 12 October 2012
* DA Form 5892 (Physical Evaluation Board Liaison Officer (PEBLO) Estimated Disability Compensation Worksheet)
* Department of Veterans Affairs (VA), Rating Decision, dated 
11 September 2012
* DA Form 3947 (MEB Proceedings), dated 30 April 2012 and supporting documents
* Health Record documents
* Standard Form 88 (Report of Medical Examination), dated 3 December 1982
* Standard Form 93 (Report of Medical History), dated 3 December 1982
* DA Form 3349 (Physical Profile), dated 7 May 2012
* DA Form 7652 (Physical Disability Evaluation System (PDES) Commander’s Performance and Functional Statement), dated
7 February 2012
* Memorandum, Subject:  Line of Duty Investigation, applicant, dated 
30 July 2010 with DA Form 2173 (Statement of Medical Examination and Duty Status), dated 28 July 2010
* Medical documents from Island Neurological Associates
* Memorandum, Subject:  Request for VA Reconsideration of Rating Determination, dated 30 January 2013
* VA Form 21-0819 (VA/Department of Defense (DoD) Disability Evaluation Board Claim), dated 31 January 2012
* Integrated Disability Evaluation System (IDES) document, dated 13 April 2012

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a Reserve commissioned officer on 19 May 1985.  He was ordered to active duty on 4 November 2010.  He held areas of concentration 25A (Signal, General) and 53A (Information Systems Management).

2.  On 13 April 2012, the IDES PDES provided the diagnosis concerning the applicant's condition of migraine aura without headache.  The physician stated:

(Applicant) endorses white lines and spots in right eye.  VA examiner found no associated ocular pathology and suggests symptoms are an aura associated with ocular migraines.  Ophthalmologist (medical doctor) evaluated (applicant) on 27 September 2011 and diagnosed him with benign vitreous floaters with otherwise normal exam.  The MEB can find no evidence in the medical record that this condition interferes with the satisfactory performance of the applicant's duty and thus the MEB feels that this condition currently meets retention standards.
3.  On 26 April 2012, an MEB was convened and recommended that the applicant be referred to a PEB.  The board determined that the three conditions listed below did not meet the retention standards of Army Regulation 40-501 (Standards of Medical Fitness):

* Right hip osteoarthritis associated with right hip cam type femoral acetabular impingement
* Right shoulder osteoarthritis with right shoulder subacromial impingement syndrome with decreased range of motion
* Type II diabetes mellitus, controlled with medication 

4.  The MEB determined that his other conditions listed below met the retention standards of Army Regulation 40-501:

* Lumbar degenerative disc disease
* Migraine aura without headache
* Hypertension
* Hyperlipidemia
* Sleep terror disorder
* Right sensorineural hearing loss, normal to mild
* Left sensorineural hearing loss, normal to moderate
* Right and left tinnitus

5.  In a memorandum, dated 8 May 2012, he disagreed with the findings of the MEB.  He requested a physician, not associated with his MEB proceedings, be appointed to conduct an independent medical review.  Specifically, he believed that the diagnosis of lumbar degenerative disc disease was not fully evaluated.  The memorandum makes no mention of his migraine headaches.

6.  On 22 May 2012, he signed his MEB procedures which indicated that he disagreed with the board's findings and recommendation. 

7.  On 27 September 2012, a PEB was convened and found the applicant was physically unfit and recommended permanent disability retirement with a disability rating of 50% for the following conditions:

* Right shoulder osteoarthritis with right shoulder subacromial impingement syndrome with decreased range of motion
* Lumbar degenerative disc disease
* Type II diabetes mellitus, controlled with medication 
* Limitation of flexion due to right hip osteoarthritis associated with right hip cam type femoral acetabular impingement
* Right hip impairment due to osteoarthritis associated with right hip cam type femoral acetabular impingement

8.  The PEB determined that his migraine aura without headache, as well as his other conditions listed on his MEB, were not unfitting.  The PEB stated that those conditions met medical retention standards and they did not, independently or in combination, affect his performance in his primary military occupational specialty. Additionally, they did not pose a medical risk to the health of the applicant or the welfare of others and did not impose an unreasonable requirement on the military to maintain or protect the applicant.  He was found not unfit for those diagnoses.

9.  On 11 September 2012, VA assigned the applicant a disability rating of 0% for migraine aura without headache (claimed as right eye blurriness and white spots).  

10.  On 12 October 2012, the applicant nonconcurred and demanded a formal hearing.  In his request for reconsideration, authored by his MEB counsel, counsel stated two conditions had manifested significant symptoms that were not available for the PEB and VA to consider in their process.  The cardiac condition was new.  Since August 2012, his headaches had increased in severity and these headaches had progressed to migraine headaches which caused him to have prostrating attacks two or three times a week.  He had to stop everything and lay down in the dark and do nothing for one to three hours before the headache subsided to a level of pain through which he could function.  He added that this rendered the applicant unfit and the VA should reevaluate this condition in light of these symptoms which have developed.  Counsel recommended that the PEB make a determination on the action they were going to take on the cardiac condition and worsened migraine condition before the packet was forwarded to VA for reconsideration.

11.  On 20 November 2012, the PEB representative stated that they had received the applicant's nonconcurrence of his informal proceedings and the correspondence from his counsel requesting the VA reconsider their rating determination.  He said based on the new medical evidence that was not previously reviewed, his case was carefully reviewed again.  Based upon that review, the board found no basis for a change in its action and reaffirmed its previous findings.  He was scheduled for a formal PEB hearing.

12.  In a supporting statement from a fellow Soldier to the PEB, dated 
14 December 2012, the Soldier stated that he has known the applicant for over 30 years professionally and socially.  He said knowing the applicant was nearing retirement, he could not wait to offer him a position on his staff.  He said he had seen an alarming change come over the applicant since September 2012.  He added that the applicant had severe migraine headaches almost every time he had seen him, to the point where he could not function.  He said he often canceled his commitments with little or no notice due these migraines.  

13.  On 18 December 2012, the applicant's spouse submitted a supporting statement to the PEB reiterating the applicant's claim concerning his suffering with migraine headaches and dizziness since August 2012.  Additionally, she stated that even when he was not having migraines, he always seemed to have some kind of headache that made him irritable and unresponsive to interaction with people.

14.  In the applicant's statement, dated 1 January 2013, concerning his migraine headaches, he said since late August 2012 he had been having severe headaches with migraines mixed with dizziness, lightheadedness, and feeling faint, especially when standing.  He added that the migraines were mixed with nausea and sensitivity to light and noise.  He offered that rarely does a day go by when he does not have one or more of those symptoms.  He said based on his physician's guidance, he was pursuing two tracks related to those symptoms-- one with neurology and the other with cardiology.  He said VA diagnosed him with migraine aura without headache based on vision problems in his right eye.  

15.  On 2 January 2012, the applicant withdrew his request for a formal PEB.  He signed the memorandum indicating that he concurred with the informal PEB, but did not concur with the VA ratings for those conditions determined unfitting by the PEB.  He requested a VA rating reconsideration.  He also indicated that he understood that submission of the waiver served to cancel the previously scheduled formal hearing and that his case would be forwarded for further processing and applicable reviews.   

16.  On 25 January 2013, the VA stated that the applicant's request for reconsideration of his ratings for right hip impairment due to osteoarthritis evaluated at 0% and for left side lumbar radiculopathy evaluated with the lumbar degenerative disc disease condition were confirmed and continued.  There was no mention of a reconsideration of his claim for migraine headaches.

17.  On 30 January 2013, the VA stated that since there was no change warranted, his DA Form 199, dated 27 September 2012, that found him unfit with a total disability rating of 50% was still applicable.  
18.  The applicant provided documents from the Island Neurological Association which shows he was seen on six separate occasions from 9 October 2012 through 1 May 2013 for headaches. 

19.  On 20 May 2013, he was honorably retired in the rank/grade of lieutenant colonel/O5 with a 50% disability rating.

20.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) sets forth policies, responsibilities, and procedures 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.

   a.  Disability compensation is not an entitlement acquired by reason of a service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

	b.  Paragraph 3-1 (Standards of Unfitness Because of Physical Disability) provides that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  The regulation states 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.

	c.  Recommendations of the informal PEB are recorded on a DA Form 199.  Item 13 of the DA Form 199 lists the election options available to the Soldier for informal determinations.  These include:

* concurrence with the findings and recommendations and waiver of a formal hearing
* nonconcurrence with the findings and recommendations, submission of a rebuttal explaining the Soldier's reasons for nonconcurrence, and waiver of a formal hearing
* demand for a formal hearing with or without personal appearance
* choice of counsel if a hearing is demanded

   d.  Soldiers indicate their elections by placing a checkmark in item 13 and signing and dating the original and the medical treatment facility copies.
   
21.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish error or injustice in the Army rating.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that on 26 April 2012 the applicant underwent an MEB which diagnosed him with right hip osteoarthritis associated with right hip cam type femoral acetabular impingement, right shoulder osteoarthritis with right shoulder subacromial impingement syndrome with decreased range of motion, and type II diabetes mellitus.  These conditions did not meet the retention standards of Army Regulation 40-501 and, therefore, he was referred to a PEB.  The MEB determined that his condition of "migraine aura without headache" met the retention standards.  

2.  On 22 May 2012, he non-concurred with the findings and recommendations of the MEB based on his belief that the board did not fully evaluate his diagnosis of lumbar degenerative disc disease.  There was no mention of his migraine headache as a reason for his non-concurrence.

3.  The record further shows that a PEB was conducted on 27 September 2012 that considered all the conditions listed on the MEB.  The PEB found he was physically unfit and recommended permanent disability retirement with a 50% disability rating for:  right shoulder osteoarthritis with right shoulder subacromial impingement syndrome with decreased range of motion, lumbar degenerative disc disease, type II diabetes mellitus, limitation of flexion due to right hip osteoarthritis associated with right hip cam type femoral acetabular impingement, and right hip impairment due to osteoarthritis associated with right hip cam type femoral acetabular impingement. 

4.  The PEB determined that his other conditions to include migraine aura with headache were not unfitting.  The PEB stated that those conditions met medical retention standards and they did not, independently or in combination, affect his performance in his primary military occupational specialty.  On 12 October 2012, the applicant, through his MEB counsel, non-concurred with the PEB findings.  His counsel requested that the cardiac and migraine conditions be reviewed before the packet was forwarded to VA for reconsideration.

5.  On 20 November 2012, the PEB representative reviewed the new medical evidence the applicant provided and his case again and found no basis for a change in its action.  The previous findings were reaffirmed.  He was scheduled for a formal hearing, but on 2 January 2012, he withdrew the request for a formal hearing and concurred with the informal PEB findings.

6.  The evidence of record shows that the applicant underwent an MEB, a PEB, and had the benefit of an MEB counsel.  Further, he was given the opportunity to appear before a formal board or provide additional evidence that would aid the board in making their final determination, but he withdrew his request for a formal hearing.  The PEB reviewed the applicant's medical records, new evidence, supporting statements, and his rebuttal to the PEB.  There is no indication that the PEB was not aware of the applicant's claim concerning his migraine headaches prior to making their final decision.  

7.  Additionally, the applicant received the findings and the recommendations of the PEB, concurred with the results, and waived a formal hearing of his case

8.  No medical evidence has been presented by the applicant to demonstrate an injustice in the medical treatment received in service.  Therefore, there is no basis for granting his requested relief.

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)                                         AR20130011606





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ABCMR Record of Proceedings (cont)                                         AR20130011606



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