MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           28 August 2001
	DOCKET NUMBER:   AR200049937

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mr. William Blakely		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Richard T. Dunbar		Member	
	Mr. Donald P. Hupman, Jr.		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                             records
	Exhibit B - Military Personnel Records (including
	                  advisory opinion, if any)

APPLICANT REQUESTS:  In effect, that her separation for physical disability with severance pay be voided and she instead be placed on the Temporary Disability Retired List (TDRL).

APPLICANT STATES:  In effect, that the Physical Evaluation Board (PEB) erred in its adjudication of her rating by establishing a conjectural analogy between a condition of the musculoskeletal system and a neurological disorder.  She states that the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) Code 5099-5003 was the improper code to rate her disability and that the correct VASRD code should have been 8099-8723 or 8099-8724.  She also states that neither the functional, anatomical localization nor symptomatology is closely analogous to arthritis as indicated by the VASRD 5009-5003.  Also, the sural nerve is a sensory nerve, having no motor function, and that her residual disability reflects a neuralgia and should be evaluated accordingly.  She further states that the residuals of her condition produce at least a moderate degree of disability that warranted a 20% disability rating.

Finally, she states that the additional medical evidence pertaining to her recurring headaches should have been reviewed by the PEB as an unfitting condition.  However, she was told to send any additional medical evidence directly to this Board.  In support of her application she submits a copy of the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB) proceedings, a copy of the medical addendum to the MEB, a copy of a Veterans Administration (VA) rating decision, dated 3 March 1999, and a copy of her Certificate of Release or Discharge from Active Duty (DD Form 214).

COUNSEL CONTENDS:  In effect, that based upon the medical evidence of record a 20% disability rating accurately reflects the applicant’s medical condition and concurs with the ARBA, Medical Advisor advisory opinion, which indicates that the VASRD rating codes were incorrectly applied.  Also, the applicant’s migraine headaches are currently and moderately disabling and should have been referred to the MEB and PEB for evaluation.  Counsel also contends that the applicant’s migraine headaches are unfitting in accordance with statutory provisions and once these migraine headaches are rated the applicant’s total combined rating would require her to placed on the Retired List with a 30% disability rating. 

EVIDENCE OF RECORD:  The applicant's military records show:

On 7 October 1994, she entered the Regular Army and was trained and performed duties in military occupational specialty (MOS) 91B 
(Medical Specialist).  Her awards included the National Defense Service Medal and the Army Service Ribbon, and the highest rank she attained while serving on active duty was specialist four/E-4 (SP4).

On 7 January 1997, while assigned to Walter Reed Army Medical Center (WRAMC), the applicant underwent an achilles tendon turndown repair of the lateral peroneal retinaculum secondary to subluxing peroneal tendons in her left ankle.  This was complicated by a sural nerve entrapment with intractable paresthesias down the lateral side of her foot.  This problem was surgically addressed on 16 December 1997 when she underwent a sural nerve exploration resection and burying in the fibula.  Subsequent to these procedures, she continued to have some pain over the lateral malleolus especially when she was required to stand for long periods of time and when having to wear combat boots.

On 11 June 1998, as a result of the medical condition outlined in the preceding paragraph, the applicant’s medical condition was reviewed by a MEB.  The MEB determined that the applicant was medically disqualified from performing her duties and recommended that she be referred to a PEB.  The applicant, after an initial rebuttal, finally concurred with the MEB findings and recommendations on 11 June 1998.

On 29 June 1998, an addendum to the MEB was approved pertaining to the applicant’s complaint of severe chronic pelvic pain status post surgical management after she was evaluated at the Gynecology clinic at WRAMC.  The applicant’s condition and prognosis were defined as follows: history of chronic pelvic pain now with considerable relief after surgical management consisting of laparoscopic-assisted vaginal hysterectomy, bilateral salpingo-oophorectomy and lysis of adhesions; pelvic adhesion disease status post surgical intervention with relief; normal postoperative pelvic examination as of June 1998. 

On 7 August 1998, a PEB convened at WRAMC to consider the applicant’s medical condition.  The PEB found that the applicant was physically unfit due to pain lateral aspect of the left ankle status post sural nerve.  She was rated for the above condition under VASRD code of 5099-5003.  The PEB recommended that her injuries be rated at 10 percent disabling and that the applicant be separated with severance pay. 

On 10 August 1998, the applicant non-concurred with the PEB findings and recommendations, requested a formal hearing and that she be appointed counsel.  On 5 October 1998, the applicant completed a statement with counsel, in which she agreed with the PEB decision.  She indicated that she understood this waiver served to cancel the previously scheduled hearing and that her case would be forwarded for processing at that time.  

On 3 November 1998, a second addendum to the MEB was approved pertaining to the applicant’s headaches.  It indicated that she had recurrent benign headaches consistent with migraine since her teenage years and the resultant diagnosis was migraine with and without aura-moderate severity and history of intractable migraine.  There is no evidence which shows what action the PEB took on this addendum.  However, the PEB did not alter its findings.

The US Army Physical Disability Agency approved the PEB’s findings and recommendations, and the applicant was honorably discharged on 5 December 1998, accordingly with a 10 percent disability rating with severance pay, under the provisions of Army Regulation 635-40, paragraph 4-24, e(3).  At the time of her separation she had completed a total of 4 years, 1 month, and 
29 days of active military service.

During the processing of this case an opinion was obtained from the ARBA, Medical Advisor.  He noted the applicant’s overriding complaints related to pain and paresthesias, which are supported in the MEB narrative summary.  As such, the condition more closely approximated a neurologic one and should have been rated as one and the proper VASRD rating code would be 8099-8681, an analogous rating relating to neuritis of the common peroneal nerve.  Applying the level of symptomatology noted, the Medical Advisor opined that the disability rating percentage would still not exceed 10 percent.  Finally, the Medical Advisor noted that the headaches addressed by the applicant were not addressed in the submitted military medical documentation and finally opines that VASRD rating codes were incorrectly applied and should be corrected to reflect the proper neurologic condition.  

The applicant was provided a copy of the medical advisory opinion in order to have the opportunity to respond, which she did on 8 April 2001.  She indicated that she did not have a problem with the Medical Advisor’s recommendation to change the code number but that while she agreed with the PEB findings and recommendations in October 1998, it was only because the Army did not assist her in understanding what was going on.  She also states that her disability has resulted in the loss of feeling in more than half of her foot, range of motion, and the loss of the ability to wear high top shoes and shoes with high heels, and to participate in the activities that she once enjoyed.  She further states that the NCOs of her unit were not sensitive to her medical condition and her foot will always give her problems for the rest of her life.  Finally, she states that the medical addendum pertaining to her migraines were not a part of the medical proceedings and the length of her migraine suffering is in error.  Given these factors, she requests the Board consider her concentrated problems with migraines headaches and with her left ankle. 

The VA rating decision, dated 3 March 1999, provided by the applicant shows she was awarded a 60% disability rating for migraine headaches, left ankle condition, and a hysterectomy. 

Army Regulation 600-8-1, paragraph 41-8 states, in pertinent part, that if an EPTS condition was aggravated by military service, the finding will be in line of duty.  If an EPTS condition is not aggravated by military service, the finding will be not in line of duty, EPTS.  Specific findings of natural progress of the pre-existing injury or disease based on well established medical principles alone are enough to overcome the presumption of service aggravation.  

Army Regulation 635-40, the regulation which governs physical evaluation boards (PEB’s), paragraph 4-19b, states that a PEB may decide that a soldier’s physical defect was EPTS, but must then determine whether the condition was aggravated by military service.  If the PEB determines that a soldier has an unfitting EPTS condition which was service aggravated, the PEB must determine the degree of disability that is in excess of the degree existing at the time of entrance into the service.  The method of determining the percentage of disability to be awarded in such cases is outlined in appendix B, item B-10 of this regulation.

Army Regulation 635-40, Appendix B, outlines the Army application of VASRD codes and paragraph B-24 contains the following explanation for VASRD Code 5003 Arthritis, degenerative, hypertrophic and pain conditions rated by analogy to degenerative arthritis.  It also indicates that inasmuch as there are no objective medical laboratory testing procedures used to detect the existence of or measure the intensity of subjective complaints of pain, a disability retirement cannot be awarded solely on the basis of pain.  A maximum 20 percent rating by analogy to degenerative arthritis may be awarded as an exception in unusual cases, either for a single diagnosed condition or for a combination of diagnosed conditions each rated essentially for a pain value.  To do otherwise would be to combine pain ratings so as to achieve a percentage of disability that would result in erroneous disability retirement.  

Department of Defense Directive (DoDD) 1332.18, Part 6, TDRL Management, states that service members shall be placed on the TDRL when they would be qualified for permanent disability retirement but for the fact the member’s disability is not determined to be of a permanent nature and stable.  DoDD 1332.18, Part 7, Final Disposition, paragraph E, Disposition of Unfit Members, provides for the permanent disability retirement of members who have at least 
20 years of active service or whose total disability is at least 30 percent.

Title 38, United States Code, sections 310 and 331, permits 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.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  The applicant’s disabilities were properly rated in accordance with the VASRD and her separation with severance pay was accomplished in compliance with the applicable laws and regulations in effect at the time.  

2.  While the Board considered the opinion of the ARBA, Medical Advisor, in which it was indicated that VASRD rating codes were incorrectly applied and should have reflected the proper neurologic condition, it finds, based on the regulatory guidance and the underlying determination of the PEB, that her inability to perform her duties was due to pain not to the underlying neurologic disorder, that the VASRD code 5099-5003 more accurately represents her disability. 

3.  The Board concludes that the applicant’s contention that she shouId have been placed on the TDRL is without merit.  This is based on its concurrence with the PEB conclusion that her condition had stabilized sufficiently to be accurately rated.  

4.  It must be presumed that both MEB addenda were considered by the applicant’s PEB and the PDA and found the conditions listed not to be unfitting.  There is no evidence to suggest that the conditions listed on both MEB addenda rendered the applicant unfit to perform her military duties or medically disqualified her from further service.  

5.  Additionally, the medical addendum, dated 29 October 1998, indicated the applicant had recurrent, benign headaches consistent with migraines since her teenage years.  In that there is no evidence that the applicant’s service aggravated her migraine headaches beyond natural progression, it is reasonable to presume that the PEB and PDA would have considered this condition to be not rateable (existed prior to service) even if it was determined to be unfitting.

6.  The rating action by the VA does not necessarily demonstrate any error or injustice in the Army rating.  The VA, operating under its own policies and regulations, assigns rating as it sees fit.  Any rating action by the VA does not compel the Army to modify its rating. 

7.  In view of the foregoing, there is no basis for granting the applicant’s request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__JHK___  ___TL___  ___PM___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000049937	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/08/28	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.