IN THE CASE OF:	  

		BOARD DATE:	  13 January 2015

		DOCKET NUMBER:  AR20140009613 


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 correction of his records to show he was medically retired by reason of disability instead of honorably discharged with entitlement to severance pay. 

2.  The applicant states:

* he was referred to a physical evaluation board (PEB) for his back, cervical pain, and migraines
* the decision by the Integrated Disability Evaluation System (IDES) came back with a rating of 10 percent each for his neck and back but with no rating for his migraines
* he received a medical severance pay and the physician stated he was not retainable because of all three conditions, even though there was no rating for his migraines
* he does not understand he would be put out the Army for migraines when there was no rating
* the Department of Veterans Affairs (VA) initially deferred the rating on his migraines but later rated it at 30 percent
* his contention is that the VA rating for migraines would have sufficiently awarded him a medical retirement versus the severance pay
* he contends that the PEB should not have found him not retainable without the migraine rating 
* it is incumbent upon the Board to correct the decision and award him a medical retirement  

3.  The applicant provides:

* service medical records 
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Enlisted Record Brief
* DA Form 199 (PEB Proceedings)

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army on 10 June 2005 and he held military occupational specialty (MOS) 11B (Infantryman).  He was advanced to sergeant/E-5 on 1 December 2005.  He reenlisted in December 2007.

2.  He served in Iraq from 5 February 2007 to 15 April 2008.  He was advanced to staff sergeant/E-6 on 1 September 2009 and again served in Iraq from 1 September 2009 to 1 August 2010.  

3.  He received an Annual Noncommissioned Officer Evaluation Report (NCOER) for the rating period 1 December 2008 through 30 November 2009 for his duties as Rifle Squad Leader.  His rater rated his performance as "Excellence" and his overall potential as "Among the Best."  His senior rater rated his overall performance and his overall potential as "Superior."  

4.  He received a second Annual NCOER for the rating period 1 December 2009 through 29 November 2010 for his duties as Rifle Squad Leader.  His rater rated his performance as "Excellence" and his overall potential as "Among the Best."  His senior rater rated his overall performance and his overall potential as "Superior."  

5.  On 21 June 2011, he was seen at Ireland Army Medical Center, Fort Riley, KS, for the chief complaints of neck pain from degenerative disc disease, back pain, asthma, headaches, mild traumatic brain injury (TBI), knee pain, post-traumatic stress disorder, and depression.  He underwent a thorough medical evaluation that resulted in findings of certain conditions not meeting retention standards.  According to his Narrative Summary: 

	a.  Neck pain: His neck pain was confirmed via magnetic resonance imaging (MRI) on 3 November 2010.  Chronic neck pain limited him from performing in his grade and MOS and fails retention standards.  A permanent (U-3) profile is appropriate.


	b.  Low back pain from degenerative disc disease.  He described low back pain he related to multiple blast exposures.  The pain is aggravated by high impact activities and heavy loads carried by an infantryman.  At times, his pain reaches an intensity that interferes with sleep.  His pain is unpredictable and occurs without warning.  He is unable to perform the duties of his grade and MOS due to this pain.  It fails retention standards.  A permanent (L-3) profile is appropriate. 

	c.  Asthma: A diagnosis has not been established.  He has chronic non-productive cough.  He has normal pre-and post-bronchodilator pulmonary function tests but he has an abnormal methacholine challenge test indicating bronchial hyper-responsiveness but not necessarily asthma.  The abnormal methacholine can be reversed with a bronchodilator.  This condition meets retention standards.  A permanent (P-2) profile is appropriate. 

	d.  Mild TBI, migraine headaches from mild TBI, sensitivity of eyes to light:  These issues fall under mild TBI as they are all related to the same blast exposure.  Immediately following a blast in 2007, the applicant experienced severe headaches associated with vomiting.  He did not lose consciousness and he was able to continue his mission.  But he did not get over the headaches which are always associated with photophobia and often with vomiting.  He currently experiences headaches an average of 15 days a month and some of these headaches make it impossible for him to continue his duty assignments.  He has not responded well to medications including a variety of triptans.  Because of the negative effect that his headaches have on his assigned mission, he does not meet retention standards and should be issued a permanent (P-3) profile. 

	e.  Bilateral knee pain: A diagnosis of patellofemoral pain syndrome was made on the basis of an MRI findings of chondromalacia associated with bilateral knee pain.  Although the pain interferes with his ability to perform sustained high impact activities, it has not reached the level of severity as to limit his usefulness to the Army.  A permanent L-2 profile is more appropriate here. 

	f.  Mental health issues: These issues have received wildly discordant levels of severity from a variety of mental health providers.  The inconsistencies need to be resolved before they could be considered by a PEB. 

6.  On 31 October 2011, a medical evaluation board (MEB) convened and, after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed with the below conditions and recommended his referral to a PEB.  

Diagnosis
Met Retention Standards
Did Not Meet Retention Standards
1.  Neck pain from degenerative disc disease 

X
2.  Low back pain from degenerative disc disease

X
3.  Mild TBI 

X
4.  PTSD 
X

5.  Hearing loss
X

6.  Tinnitus
X

7.  Chronic cough 
X

8.  Right carpal tunnel syndrome
X

9.  Bilateral patellofemoral syndrome
X

10. Right hand stiffness and pain/injury residual
X

7.  On 14 December 2011, after having been counseled, the applicant indicated he reviewed the contents of the MEB and disagreed with the findings and recommendations.  He submitted an appeal (not available for review with this case).  Also on 14 December 2011, his appeal was considered but the original findings and recommendations were confirmed.  

8.  He authenticated the DA Form 3947 (MEB Proceedings) with his signature.  He acknowledged:

* he reviewed the contents of the MEB, physical profile, and narrative summary; he understood the PEB would only consider the conditions listed on his physical profile
* the physical profile included all his conditions and whether or not they meet retention standards; the conditions that did not meet retention standards were properly listed
* he provided all medical documents in his possession to be included in the MEB; he agreed that the MEB accurately covered his medical conditions at the time

9.  The VA proposed rating, dated 11 April 2012, for DES and service-connection is not available for review with this case. 

10.  On 20 April 2012, an informal PEB convened and found his conditions prevented him from performing the duties required of his grade and military specialty and determined that he was physically unfit due to below conditions. 

	a.  The PEB rated the applicant's medically-unacceptable conditions under the VA Schedule for Rating Disabilities (VASRD) as follows:

VASRD Code
Condition
Percentage
5237
Cervical pain with degenerative disc disease 
10 percent
5237
Low back pain with degenerative disc disease 
10 percent
	b.  The cervical pain and low back pain are combat injuries and are unfitting because they place him at increased risk when performing basic warrior tasks and battle drills.  Both conditions were stable.  

	c.  The mild TBI was considered.  Although the military treatment facility (MTF) determined it failed retention standards, the condition was not unfitting and therefore not ratable as attributed to the 2007 improvised explosive device (IED) blast exposure with no reported symptoms until several months later.  This is not consistent with the natural history of TBI but may be consistent with the not-below-retention standards PTSD.  Regardless of the cause, he has performed extremely well, earning two promotions since 2007, with outstanding evaluation reports until referred to the MEB for his neck pain in March 2011.  

	d.  The PEB also considered his other medical condition of PTSD, hearing loss, tinnitus, chronic cough, right carpal tunnel syndrome, bilateral patellofemoral syndrome, and right hand stiffness and pain/injury residual, which did not fail retention standards and were not found unfitting and therefore not ratable.  

	e.  The PEB recommended a 20 percent combined disability rating and separation with entitlement to severance pay, if otherwise qualified.  

	f.  Throughout the disability process, he was counseled by a PEB Liaison Officer (PEBLO) and informed of his rights at each step of the process.  His counseling culminated on 4 May 2012 when he was counseled by a PEBLO regarding his medical conditions, the findings of the MEB, the PEB process, and his rights under the law.  Subsequent to this counseling, the applicant concurred with the PEB's finding and recommendation and waived his right to a formal hearing.

11.  On 28 June 2012, he was honorably discharged from active duty in the rank/grade of staff sergeant/E-6, under the provisions Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, by reason of disability with entitlement to severance pay.  The DD Form 214 he was issued shows he completed 7 years and 19 days of active service. 



12.  He provides a partial VA rating decision, dated 5 July 2012.  The decision, which is missing page 2, does not show assignment or a change to his DES proposed rating.  However, it does show a change to his service-connection rating, effective 29 June 2012, as follows: 

* degenerative arthritis/disc disease/lumbar spine, 10 percent
* right knee patellofemoral syndrome, 10 percent
* left knee patellofemoral syndrome, 10 percent
* chronic cough with bronchial hyper-responsiveness, 10 percent
* tinnitus, 10 percent
* right cubital tunnel syndrome, 10 percent
* TBI, no rating
* Bilateral hearing loss, denied

13.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES) and 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.  It 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.

14.  Army Regulation 635-40 states the mere presence of a medical impairment does not in and of itself justify a finding of unfitness.  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.  A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.

15.  Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement).  The VASRD is used by the Army and the VA as part of the process of adjudicating disability claims.  It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service.  This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation.


16.  VASRD Code 8045, Residuals of TBI. 

	a.  There are three main areas of dysfunction that may result from TBI and have profound effects on functioning: cognitive (which is common in varying degrees after TBI), emotional/behavioral, and physical.  Each of these areas of dysfunction may require evaluation.

		(1)  Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain.  Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive.  Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others.  In a given individual, symptoms may fluctuate in severity from day to day.  Evaluate cognitive impairment under the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.”  Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction.  Evaluate subjective symptoms that are residuals of TBI, whether or not they are part of cognitive impairment, under the subjective symptoms facet in the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.”  However, separately evaluate any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere’s disease, even if that diagnosis is based on subjective symptoms, rather than under the “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” table.

		(2)  Evaluate emotional/behavioral dysfunction under §4.130 (Schedule of ratings–mental disorders) when there is a diagnosis of a mental disorder.  When there is no diagnosis of a mental disorder, evaluate emotional/behavioral symptoms under the criteria in the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” 

		(3)  Evaluate physical (including neurological) dysfunction based on the following list, under an appropriate diagnostic code: Motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions.

	b.  The preceding list of types of physical dysfunction does not encompass all possible residuals of TBI.  For residuals not listed here that are reported on an examination, evaluate under the most appropriate diagnostic code.  Evaluate each condition separately, as long as the same signs and symptoms are not used to support more than one evaluation, and combine under §4.25 the evaluations for each separately rated condition.  The evaluation assigned based on the “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations.  Consider the need for special monthly compensation for such problems as loss of use of an extremity, certain sensory impairments, erectile dysfunction, the need for aid and attendance (including for protection from hazards or dangers incident to the daily environment due to cognitive impairment), being housebound, etc.

	c.  When evaluating cognitive impairment and other residuals of TBI, not otherwise specified, the evaluator considers the level of impairment in various facets, including memory, concentration, judgment, social interaction, orientation, motor activity, sensory system, visual spatial orientation, subjective symptoms, neurobehavioral effects, communications, and consciousness.  For example, when evaluating subjective symptoms, a level of impairment is assigned as follows: 

		(1)  Level 0, subjective symptoms that do not interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples are: mild or occasional headaches, mild anxiety.
		(2)  Level 1, three or more subjective symptoms that mildly interfere with work; instrumental activities of daily 	living; or work, family, or other close relationships. Examples of findings that might be seen at this level of impairment are: intermittent dizziness, daily mild to moderate headaches, tinnitus, frequent insomnia, hypersensitivity to sound, hypersensitivity to light.

		(3)  Level 2, three or more subjective symptoms that moderately interfere with work; instrumental activities of daily living; or work, family, or other close relationships.  Examples of findings that might be seen at this level of impairment are: marked fatigability, blurred or double vision, headaches requiring rest periods during most days.

17.  VASRD Code 8100, Migraine:  With very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, assign a rating of 50 percent; with characteristic prostrating attacks occurring on an average once a month over last several months, assign a rating of 30 percent; with characteristic prostrating attacks averaging one in 2 months over last several months, assign a rating of 10 percent; and with less frequent attacks, assign a rating of zero percent. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant complained of/sustained various injuries and/or illnesses that warranted his entry in the IDES.  He underwent an MEB which recommended his referral to a PEB.  The PEB found some of those medical conditions that failed retention standards (cervical pain and low back pain) prevented him from reasonably performing the duties required of his grade and military specialty.  He was determined to be physically unfit for further military service.  

2.  Additionally, the PEB also considered his other medical conditions despite their having been determined to have met retention standards and found those other conditions to be not unfitting and therefore not ratable.  The PEB assigned a 10 percent rating for each unfitting condition at a combined disability rating of 20 percent and recommended his separation with entitlement to severance pay.  He was counseled and agreed with the findings and recommendations and waived his right to a formal hearing.

3.  He contends that his headaches should have been rated.  His contention is not supported by the evidence.  The PEB also considered his mild TBI condition and determined that although the MTF determined it failed retention standards, the condition was not unfitting and therefore not ratable as attributed to the 2007 IED blast exposure with no reported symptoms until several months later.  The PEB also determined this is not consistent with the natural history of TBI but may be consistent with the not-below-retention standards PTSD.  The PEB concluded that regardless of the cause, he had performed extremely well, earning two promotions since 2007, with outstanding evaluation reports until referred to the MEB for his neck pain in March 2011.  

4.  When evaluating cognitive impairment and other residuals of TBI, not otherwise specified, the evaluator considers the level of impairment in various facets.  Here, the applicant does not provide medical evidence to support a diagnosis of headaches (or any other condition) that not only failed retention standards but was also found unfitting at the time of his separation.  

5.  It is not necessary to have multiple conditions for a Soldier to be separated for disability.  He states that he does not understand why he would be put out the Army for migraines when there was no rating.  The migraine was not the only condition that failed retention standards.  The fact that the PEB did not find his headaches unfitting does not mean he was fit for duty.  There were two other conditions (spine and back) that failed retention standards and were unfitting.
6.  The VA awarded him a rating in July 2012 that may be different from the rating assigned during the DES evaluation in April 2012.  However, there is no evidence that the VA proposes a different rating for DES purposes.  The VA may have revised his service-connected disability rating but that has no impact on his military disability rating.   

7.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation.  The available evidence indicate the applicant was properly rated 20 percent disabled for his conditions.  There is no evidence to support rating any other medical condition.  The PEB is tasked to assess the degree of disability at the time of discharge.  The PEB did so and rated him 20 percent disabled for his conditions.  

8.  The applicant's physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the recommendation of the PEB.  There does not appear to be an error or an injustice in his case.  He has not submitted substantiating evidence or an argument that would show an error or injustice occurred in his case.  In view of the circumstances in this case, there is insufficient evidence to grant the 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)                                         AR20140009613





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ABCMR Record of Proceedings (cont)                                         AR20140009613



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