IN THE CASE OF:	  

		BOARD DATE:	  12 March 2015

		DOCKET NUMBER:  AR20140010316 


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 an increase in his physical evaluation board (PEB) disability rating.

2.  The applicant states his sleep apnea, migraine headaches, and mental health issues were not properly evaluated during his medical evaluation board (MEB).

3.  The applicant provides:

* service medical records from 4 May 2010 to 27 January 2011
* post service medical records from 1 October 2013 to 5 May 2014

CONSIDERATION OF EVIDENCE:

1.  The applicant's mental health issue was addressed in Army Board for Correction of Military Records (ABCMR) Docket Number AR20140010508 on 
23 July 2014.  Therefore, the issue of mental health will not be discussed further in these proceedings.

2.  He previously completed 2 years, 7 months, and 15 days of active service in the Regular Army in an enlisted status.  On 18 May 2000, he was commissioned as a Reserve commissioned officer in the grade of second lieutenant.  Upon acceptance of his appointment, he was ordered to active military service for 3 years.  He completed 4 years, 9 months, and 29 days of active service and he was released from active duty in the rank of captain/O-3.  He completed an additional 1 year of active service on 17 September 2008.
3.  On 13 February 2009, he was ordered to active duty for 365 days for operational support in support of Operation Enduring Freedom.  His report date was 17 April 2009 with an end date of 16 April 2010.

4.  He was involved in an automobile accident in August 2009 in which he was hit from the rear while driving to work.  As a result he suffered a herniated disk and several bulging disks in his back as well as some bone chips in his shoulder.  He had previously been involved in an automobile accident in December 2006 in which his head hit the windshield and he was unconscious for a few seconds.  He has had chronic low back pain since the accident.

5.  On 14 April 2010, he was retained on active duty for 60 days to participate in the Reserve Component Warriors in Transition Medical Retention Processing Program for the purpose of medical evaluation.  His end date was 14 June 2010.

6.  On 18 May 2010, he was retained on active duty for 330 days to participate in the Reserve Component Warriors in Transition Medical Retention Processing Program for the purpose of medical evaluation.  His end date was 13 April 2011.

7.  He provided service medical records dated 4 May 2010 to 27 January 2011 from the Dwight D. Eisenhower Army Medical Center, Augusta, GA.  

	a.  Entries show he was having some problems with sleeping because he would wake up with pain or because he couldn't shift positions due to his injuries. On 1 September 2010, he reported he couldn't sleep because he kept thinking about his job being over, whether he would get the 30 percent disability from the medical board he needed to get medical care for his family, how he'll be able to support his family, and feeling like he's useless to his family now.  However, there are no entries diagnosing sleep apnea.

	b.  An entry dated 4 May 2010 from the neurology clinic stated the applicant reported he had moderate to severe headaches 2-3 times a month since his first accident that were relieved within a few hours of taking Motrin, 800 milligrams (mg).  He expressed surprise that he was referred to the clinic for this as he did not consider it to be a significant problem.  His headaches had not changed significantly in frequency, intensity, or character over the years and did not interfere with his usual daily activities.  The examiner's impression was common migraine (without aura): probable migraine, post traumatic by history that was currently well controlled.  The examiner saw no need for any further evaluation or change in treatment.  

	c.  An entry dated 27 January 2011 from the neurology clinic stated that in August 2010 when the applicant found out he was being sent to an medical evaluation board (MEB) he experienced a significant increase in the amount of stress he felt.  This increased stress resulted in a marked increase in migraine frequency and intensity.  The applicant reports that he was averaging 3-5 "unbearable" migraines a week.  These began as a little throb and if untreated, progressed to become a severe/unbearable holocephalich throbbing headache accompanied by photo/phonophobia, aggravated by movement/activity, and relieved by rest/sleep and medication.  The examiner's impression was common migraine (without aura) chronic with intractable migraine.  He explained to the applicant that it was very common for headaches to worsen due to stress (which is what he suspected was going on in this case).  He advised him that the focus should therefore be on taking measures to reduce stress.  Various options for migraine prevention were also discussed.  The applicant stated he did not wish to take medications.

8.  The applicant's narrative summary and MEB proceedings were not available for review.

9.  On 10 January 2011, an informal PEB found him unfit for duty for the following conditions:

* degenerative arthritis of the spine (lumbar degenerative disc disease) with a 20 percent (%) disability rating
* left (non-dominant) shoulder rotator cuff tendonitis and subacronial bursitis with a 10% disability rating
* right knee arthropathy with a 10% disability rating
* left knee arthropathy with a 10% disability rating

10.  Recurrent neck pain, recurrent migraine headaches, and hypercholesterolemia met medical retention standards per the MEB and were found by the PEB to not be unfitting either independently or in combination with any other conditions as a review of the case file supported that they are not a significant limitation on the applicant's ability to perform in his primary military occupational specialty.

11.  The PEB found the applicant physically unfit and recommended a combined rating of 40% with permanent disability retirement.

12.  On 3 February 2011, the applicant indicated he had been advised of the findings and recommendations of the PEB and he had received a full explanation of the results of the findings and recommendations and legal rights pertaining thereto.  He concurred with the findings and recommendation and waived a formal hearing of his case.

13.  On 15 May 2011, he was retired by reason of permanent disability and placed on the Retired List with a disability rating of 40%.  He completed a total of 10 years, 6 months, and 13 days of active service.

14.  He provided medical records from SleepMed of South Carolina-West Columbia, West Columbia, SC from 1 February to 2013 to 20 February 2014. 

	a.  A sleep study interpretation letter, dated 1 February 2013, diagnosed him with mild obstructive sleep apnea.

	b.  On 18 February 2013, during a follow-up visit his treatment options were discussed.  The applicant elected  to go with continuous positive airway pressure (CPAP).  He was scheduled for a repeat sleep study with CPAP titration.

15.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System and sets forth the 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, in pertinent part, that after establishing the fact that a Solider is unfit because of a physical disability, and that the Soldier is entitled to benefits, the PEB must decide the percentage rating for each unfitting disability.  The VA Schedule for Rating Disabilities, as modified in the regulation, is used to establish this rating.  

16.  Chapter 3 of Army Regulation 635-40 contains the policy and outlines the standards for determining unfitness because of physical disability.  It states, in pertinent part, 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 reasonably may be expected to perform because of his or her office, grade, rank, or rating.  Paragraph 3-3b(1) states, in pertinent part, that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his/her office, grade, rank or rating.  

17.  Title 38, United States Code, permits the Department of Veterans Affairs (VA) to award compensation for disabilities which were incurred in or aggravated by active military service.  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 can evaluate a veteran throughout his or her lifetime, awarding and/or adjusting the percentage of disability of a condition based upon that agency’s examinations and findings.  
DISCUSSION AND CONCLUSIONS:

1.  He contends his migraine headaches and sleep apnea were not evaluated properly and incorporated into his PEB with a disability rating.

2.  His service medical records indicate that on 4 May 2010 he was suffering moderate to severe headaches 2-3 times a month and they were relieved within a few hours of taking 800 mg of Motrin.  His headaches did not interfere with his usual daily activities.  The examiner saw no need for further evaluation or change in treatment.

3.  On 27 January 2011, his headaches increased in frequency and severity after he found out he was being referred to an MEB.  The examiner felt the increase was due to the added stress and advised him to take measures to reduce his stress.  The applicant did not desire to take medication for migraine prevention.

4.  The PEB found his recurrent migraine headaches met retention standards as per the MEB.  There was no evidence the headaches prevented the applicant from performing his military duties.  The mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  Therefore, the PEB did not find this condition unfitting and no disability rating was assigned.

5.  The service medical records he provided did show he was having some problems sleeping.  However, it appears this was due to his pain caused by his other medical conditions and the anxiety of having to leave the Army.  There is no evidence this condition prevented him from performing his military duties.  His sleep apnea was not diagnosed until 1 February 2013, 20 months after his retirement.

6.  In view of the above, there is no basis on which to increase his disability percentage.

7.  Disabilities which occur or which worsen after a Solder is separated are treated by and compensated for by the VA.  The VA evaluates veterans throughout their lifetime, adjusting the percentage of disability based upon that Agency's examinations and findings.  Any changes in the severity of a disability should be referred to that Agency.


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)                                         AR20140010316



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ABCMR Record of Proceedings (cont)                                         AR20140010316



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