IN THE CASE OF:	  

		BOARD DATE:	  19 May 2015

		DOCKET NUMBER:  AR20140014203 


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 her disability findings to add chiari malformation (structural defect in the cerebellum, the part of the brain that controls balance) to her unfitting conditions and to increase her disability rating to at least 70 percent for medical retirement.

2.  The applicant states:

	a.  She was discharged for a back condition on 2 September 2004.

	b.  During the adjudication portion of her physical evaluation board (PEB), the PEB determined she had chronic low back pain without a neurologic abnormality condition.

	c.  She was granted service connection for chiari malformation by the Department of Veterans Affairs (VA) which is the reason for her migraines.

	d.  A computerized axial tomography scan was performed and showed she had no abnormalities.  However, when a magnetic resonance imaging (MRI) was performed on her brain in August 2012, it showed a chiari malformation.  She has not sustained any type of injury and she has not been in any accidents that would cause an injury of this magnitude since she was discharged from the military.

	e.  Her migraines were a direct result of her military service and she was subjected to a number of activities as a Soldier that aggravated her condition.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* VA Rating Decision, dated 6 January 2014
* MRI
* medical records
* Physical Disability Board of Review (PDBR) documentation
* PEB Record of Proceedings
* Medical Evaluation Board (MEB) Proceedings

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 enlisted in the Regular Army on 3 April 2000 and trained as a land combat electronic missile system repairer.

3.  In March 2004, an MEB diagnosed her with symptomatic bilateral pes planus (existed prior to service), chronic ankle and Achilles tendonitis, and chronic low back pain.  The MEB recommended her referral to a PEB.  On 20 April 2004, she concurred with the board's findings and recommendation.

4.  In April 2004, a PEB found her physically unfit due to chronic low back pain without neurologic abnormality combined thoracolumbar range of motion 225 degrees and symptomatic bilateral pes planus with chronic ankle pain and Achilles tendonitis.  The PEB determined there was compelling evidence to support a finding that the current condition (symptomatic bilateral pes planus with chronic ankle pain and Achilles tendonitis) existed prior to service and was not permanently aggravated beyond natural progression by such service.

5.  The PEB recommended a 10-percent disability rating and separation with severance pay.  On 7 May 2004, she concurred with the recommendation of the PEB and waived a formal hearing.

6.  On 11 May 2004, the U.S. Army Physical Disability Agency approved the PEB findings.

7.  On 2 September 2004, she was honorably discharged by reason of disability with severance pay.

8.  On 17 November 2011, the PDBR reviewed the applicant's disability rating and recommended no recharacterization of separation or modification of the disability rating previously assigned.  On 2 December 2011, the Deputy Assistant Secretary (Army Review Boards) accepted the PDBR's recommendation and denied the applicant's petition to the PDBR.

9.  She provided VA documentation showing she was granted service-connected disability for the following medical conditions effective 22 January 2013 and her overall or combined rating was 80 percent:

* chiari malformation with voiding dysfunction, respiratory condition, swallowing difficulties and hoarseness (30 percent)
* neuropathy, right lower extremity (0 percent)
* neuropathy, left lower extremity (0 percent)
* carpal tunnel syndrome, left (0 percent)
* carpal tunnel syndrome, right (0 percent)
* migraine headaches (30 percent)

10.  She also provided medical records that show:

	a.  she had an MRI of the brain on 3 August 2012 and the opinion was chiari variation, otherwise unremarkable examination;

	b.  she was diagnosed with chiari malformation in November 2013; and

	c.  she was diagnosed with headaches and numbness in December 2013.

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  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.

12.  Title 10, U.S. Code, chapter 61, provides for disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of disability incurred while entitled to basic pay.

13.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent.

14.  Title 38, U.S. Code, sections 310 and 331, permit the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

15.  A Mayo Clinic website defines chiari malformation as a condition in which brain tissue extends into the spinal canal.  It occurs when part of the skull is abnormally small or misshapen, pressing on the brain and forcing it downward.  Chiari malformation is uncommon, but improved imaging tests have led to more frequent diagnoses.  Chiari malformation type I develops as the skull and brain are growing.  As a result, signs and symptoms may not occur until late childhood or adulthood.  The most common pediatric form, called chiari malformation type II, is present at birth (congenital).  Treatment of chiari malformation depends on the form, severity, and associated symptoms.  Regular monitoring, medications, and surgery are treatment options.  In some cases, no treatment is needed.

DISCUSSION AND CONCLUSIONS:
 
1.  The applicant requests the addition of chiari malformation as an unfitting condition and an increase in her disability rating to at least 70 percent for medical retirement.

2.  Her contentions that an MRI was performed on her brain in August 2012 and it showed chiari malformation and that she has not sustained any type of injury or been in any accidents that would cause an injury of this magnitude since she was discharged from the military were noted.  However, chiari malformation is not caused by an injury; it occurs when part of the skull is abnormally small or misshapen, pressing on the brain and forcing it downward.  Chiari malformation type I develops as the skull and brain are growing.  As a result, signs and symptoms may not occur until late childhood or adulthood.

3.  Her MEB did not list chiari malformation as a diagnosis and she agreed with the MEB findings and recommendation.  She provided no evidence to show this condition rendered her unfit to perform her military duties.  Therefore, there is insufficient evidence to support adding this medical condition as an unfitting condition.

4.  The evidence shows the PEB found her physically unfit due to chronic low back pain without neurologic abnormality combined thoracolumbar range of motion 225 degrees and symptomatic bilateral pes planus with chronic ankle pain and Achilles tendonitis.  She concurred with the PEB findings and recommendation on 7 May 2004.

5.  There is insufficient evidence to show her unfitting conditions were improperly rated by the PEB in 2004.  In 2011, the PDBR recommended no modification of the disability rating previously assigned.  Therefore, there is no basis for granting the applicant's request to increase her disability rating.

6.  The rating action by the VA does not demonstrate an error or injustice on the part of the Army.  The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit.

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 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)                                         AR20140014203



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ABCMR Record of Proceedings (cont)                                         AR20140014203



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