IN THE CASE OF:	  

		BOARD DATE:	  7 April 2015

		DOCKET NUMBER:  AR20140013223 


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 reevaluation of the disability rating she received from her physical evaluation board (PEB) to account for all injuries and illnesses she sustained during active service to include fibromyalgia.   

2.  The applicant states:

	a.  In 2010 (i.e., 2007), she went to the medical evaluation board (MEB) under the Legacy system.  At the time, she was not allowed to address the Department of Veterans Affairs (VA) claim until the termination of her active service.  She was expediently pushed through the system and assigned a rating of 20 percent (%) (i.e., 10%) without all medical factors being taken into account.  She had been diagnosed with fibromyalgia and never informed that the disorder was even a consideration.  There was a lack of communication between her and the medical staff.  Her MEB/PEBs were completed without addressing new found tumors and fibromyalgia.  She was released without an explanation of her syncope episodes. 

	b.  As can be seen in the documentation she provides, the issue she makes is plainly visible.  Her assigned limitations of duty and Army Physical Fitness Test (APFT) restrictions should have been considered for an evaluation of retention standards and compensation from the Army.  Her DA Form 199 (PEB Proceedings) shows the issues addressed in the MEB/PEB in comparison to medical records she is providing.  She is requesting reevaluation of her MEB/PEB to reflect all injuries and illnesses she sustained during her active service, that she be assigned the appropriate rating, and receipt of any additional compensation she may be entitled to from the date she was released from active duty.

3.  The applicant provides:

* her DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 199, dated 26 March 2007
* orders, dated 9 March 2007
* DA Form 3947 (MEB Proceedings), dated 22 February 2007
* MEB Narrative Summary (NARSUM), dated 22 February 2007
* DA Form 3349 (Physical Profile), dated 22 February 2007
* Commander's Performance Statement, dated 13 February 2007
* an undated and unsigned Commander's Performance Statement
* 76 pages of various medical documents, dated between 18 August 2000 and 26 February 2007

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was serving in the rank/grade of specialist (SPC)/E-4 in the U.S. Army Reserve (USAR) and she held military occupational specialty (MOS) 21U (Topographic Analyst).  She was ordered to active duty as a member of the USAR in support of Operation Enduring Freedom and she entered active duty on 28 March 2005.  She was assigned to the 1st Space Brigade, U.S. Army Space and Missile Defense Command, Peterson Air Force Base (AFB), CO.  

3.  She provides medical documents that, in part, show:

	a.  On 13 April 2006, she underwent a magnetic resonance imaging (MRI) for a complaint of pain after a twisting injury to the right knee and two reports of instability.  The radiologist stated the MRI revealed the menisci were intact, the cruciate and collateral ligaments were unremarkable, there was no evidence of bone bruise, and the articular cartilage was preserved.  There was no evidence of soft tissue mass and two views of the right knee demonstrated no evidence of fracture, osteoblastic, or osteolytic disease, and no acute pathology of the right knee.  

	b.  On 17 July 2006, she underwent a series of c-spine x-rays for a complaint of chronic cevicle and lumbar back pain.  The radiologist stated the x-rays revealed there was some straightening, possibly due to muscle spasm, but the vertebral bodies and interspaces were normal.  The vertebrae were in good alignment and the spinous process and odontoid were intact.  There was possibly some muscle spasm but no significant findings noted otherwise. 

	c.  On 25 October 2006, she underwent an MRI of the brain for a complaint of chronic headaches despite adequate medical treatment and syncopal (fainting) episodes.  The radiologist stated the MRI was essentially a normal study.  The only unusual finding was a cluster of tiny cysts located in the white mass underneath the right insula.  There was no evidence of increased signal on the diffusion images and the finding apparently represented a benign collection of cerebrospinal fluid, doubtful for clinical significance (emphasis added).  There was no mass effect or increased signal in the area.  No sign of mass effect, midline shift, hydrocephalus, hemorrhage, or hematoma.  

	d.  On 22 February 2007, she received a permanent profile of "3" in the P (physical capacity or stamina) category of the PULHES for migraine headaches and recurrent pre-syncopal and syncopal episodes.  Her PULHES was "311111."

4.  Her MEB NARSUM, dated 22 February 2007, stated, in part:

	a.  The applicant was seen for the chief complaint of massive migraines.  She reported first having a headache after the delivery of her first child in June 2002.  Her Navy provider prescribed Motrin and she finished her service with the Navy in May 2004.  She continued to have intermittent headaches.  In July 2006, when stationed at Peterson AFB she had a migraine that lasted 2 weeks.  A scan of her head was normal.  She was placed on several medications but none helped. 
In October 2006, she was referred for an MRI that was essentially normal.  In November 2006, she saw a neurologist whose impression was migraine headaches.  She was recommended for an MEB and given a permanent profile.

	b.  Her current status was that she reported her headaches were occurring 2 to 3 times a week, were frontal and bitemporal, and lasted an average or 1 to 1 and 1/2 days.  With the headaches, she had sensitivity to light, noise, and nausea, but had no visual disturbances, no aura and had not required hospitalization for the headaches.  When she had a headache at work, she would work for 45 minutes and was able to function, then would take a 15 minute break and go into an empty dark room.  She denied being sent home from work because of the headaches and stated "her supervisor understands."

	c.  The second problem she had was syncope and near syncope.  She reported that in August 2006 she was driving, became dizzy, and her vision was going black but she did not pass out (emphasis added).  She had a stress echocardiogram on 23 August 2006 and there was no structural heart disease noted.  The test noted minimally symptomatic peak exertion, negative for electrocardiographic or echocardiographic ischemia.  She also had a Tilt Table test with an overall positive analysis due to the demonstration of both cardioinhibitory and vasodepressor responses.

	d.  She reported that she currently experienced near-syncopal episodes 2 to 3 times per week.  She described them as she gets dizzy and her vision starts to go black.  With these symptoms, she realizes she has about 30 seconds to sit or lay down.  Once she does that, her symptoms resolve in 2 to 5 minutes.  Since August 2006, she had experienced about a dozen of these episodes.  She reported the episodes can occur at any time and are not related to any special activity.  There were no associated symptoms such as shortness of breath, no significant chest pain, and denied any previous episode prior to last year.

	e.  There was no Military Entrance Processing Station (MEPS) paperwork in her chart and she couldn't recall if she listed any medical problems upon her entry in the USAR.  A review of her records showed she was seen in February 2006 for a right knee sprain and had a past history of iron-deficiency anemia.  She was seen by a chiropractor in July 2006 for some back discomfort and there was an entry for this as fibromyalgia; however, there was no supporting documentation in the note insofar as necessary trigger point findings and the applicant reported she was not currently having any problems (emphasis added).

	f.  She was hospitalized in August 2006 for a medication overdose and reported she has having marital and financial problems at the time.  She was seen by Mental Health for a few visits and reported she had been doing fine since, was not having any significant problems, and was no longer on any medications.  The psychiatrist's impression was the applicant had a history of major depression with a single episode that was currently in remission.  She did not require a profile and there was no impairment for her military duties or for social and industrial adaptability (emphasis added).

	g.  She reported she continued to work her assigned job at Peterson AFB and her duties were assisting supply personnel.  Her medical conditions affected her ability to perform her assigned job in that when she got a headache she could perform her job only 75% of the time and if she had one of her near-syncopal episodes she had to sit or lay down right away.  She could not carry and fire a weapon, move with a fighting load, or be deployed.

	h.  In a Commander's Statement, dated 13 February 2007, her commander confirmed that she could not perform all the duties of her MOS.  The diagnosis was that she failed to meet retention standards under the provisions of Army Regulation 40-501 (Standards of Medical Fitness) due to migraine headaches and recurrent presyncopal/syncopal episodes.  She did not have any additional active diagnoses which caused her to fall below retention standards (emphasis added).

5.  On 22 February 2007, an MEB convened and, after consideration of clinical records, laboratory findings, and physical examination found she had been diagnosed with migraine headaches and recurrent presyncopal/syncopal episodes that were medically unacceptable under the provisions of Army Regulation 40-501, chapter 3.  The MEB also found she did not have any additional diagnoses that caused her to fail to meet retention standards (emphasis added).   The MEB recommended she be referred to a PEB.  On 2 March 2007, the applicant concurred with the MEB findings and recommendation. 

6.  On 26 March 2007, an informal PEB convened and confirmed her unfitting disabilities of migraine headaches and of near syncopal episodes.  The PEB, in part, stated:

	a.  The onset of migraine headaches was June 2002 and they occurred 2 to 3 times a week lasted 24 to 36 hours but she was able to remain at work with 15 minute breaks every 45 minutes.  Health record reviews indicated multiple emergency room visits resulting in pain medicine and quarters for 24 hours from May 2006 through November 2006.  No documented prostrating headaches in the past several months; rated as less frequent non-prostrating attacks (emphasis added).  She was rated under VA Schedule of Rating Disabilities (VASRD) codes 8299 and 8210 for migraine headaches non-prostrating attacks and assigned a 10% disability rating.

	b.  Near syncopal episodes consisting of lightheadedness and darkening vision (emphasis added) occurring 2 to 3 times a weekly with positive tilt table test.  Condition rendered applicant unable to carry or fire a weapon by profile restriction; rated per table of analogous codes as analogus to vagus nerve paralysis, moderate (emphasis added)..  She was rated under VASRD code 8100 for near syncopal episodes analogous to vagus nerve paralysis and assigned a 0% disability rating.
   c.  The PEB found she was physically unfit, recommended a combined rating of 10%, and separation with entitlement to severance pay if otherwise qualified.  
   
   d.  On 28 March 2007, after being counseled on her rights and options, she waived her right to a formal hearing and concurred with the PEB findings and recommendation.
   
7.  It appears the VASRD codes and ratings were listed incorrectly for the corresponding disability and the PEB Proceedings should have shown she was rated under VASRD code 8100 for migraine headaches, less frequent non-prostrating attacks, and assigned a 0% disability rating.  Also, that she was rated under VASRD codes 8299 and 8210 for near syncopal episodes analogus to vagus nerve paralysis, moderate, and assigned a 10% disability rating for a combined rating of 10%.

8.  She was honorably discharged on 30 April 2007 in the rank of specialist.  She completed 2 years, 1 month, and 3 days of creditable active service during this period of service.  The DD Form 214 she was issued shows she was discharged by reason of disability with severance pay in the amount of $24,754.

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army 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.  The mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability (emphasis added).  

10.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD.  Ratings can range from 0 percent to 100 percent, rising in increments of 10 percent.

11.  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.  

12.  VASRD code 8100 pertains to migraine headaches.  A rating of 10% is assigned in cases with characteristic prostrating attack averaging once a month over the last several months.  A rating of 0% is assigned in cases with less frequent attacks (emphasis added).  VASRD codes 8299 and 8210 pertain to nerve paralysis.  A rating of 10% is assigned in cases of incomplete, moderate paralysis (emphasis added).  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms that on 22 February 2007 an MEB found the applicant's conditions of migraine headaches and recurrent presyncopal/syncopal episodes were medically unacceptable and did not meet retention standards.  The MEB also found she had no other diagnosed conditions that did not meet retention standards.  The MEB recommended that she be referred to a PEB.  She concurred with the MEB findings and recommendation.

2.  On 26 March 2007, the PEB found her unfit due to migraine headaches and near syncopal episodes consisting of lightheadedness and darkening visions that prevented her from performing her military duties.  These were the only diagnosed conditions that prevented her from performing her duties.  The PEB rated her under VASRD codes 8100, 8299, and 8210 and properly assigned a combined 10% disability rating.  The PEB also noted the she did not have any additional diagnosed conditions that failed to meet retention standards.  The PEB reviewed all the available and appropriate evidence.  There were no other unfitting conditions found.  The PEB recommended separation with entitlement to severance pay with a 10% disability rating.  She concurred with the findings and recommendation.

3.  Although the MEB NARSUM stated that when she had been treated for some back discomfort in July 2006 and an entry was made for this as fibromyalgia, it also stated there was no supporting documentation for fibromyalgia and the applicant stated she was not having any problems with her back.  In addition, only the unfitting conditions and those which contribute to unfitness are considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.

4.  Her physical disability evaluation was conducted in accordance with law and regulations and she concurred with the recommendation of the PEB.  There does not appear to be an error or an injustice in her case.  Nor has she submitted substantiating evidence or an argument that would show an error or injustice occurred in her case.

5.  In view of the foregoing, 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)                                         AR20140013223



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ABCMR Record of Proceedings (cont)                                         AR20140013223



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