BOARD DATE: 31 March 2016 DOCKET NUMBER: AR20150003503 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING _x_______ __x______ __x___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 31 March 2016 DOCKET NUMBER: AR20150003503 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. IN THE CASE OF: BOARD DATE: 31 March 2016 DOCKET NUMBER: AR20150003503 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, in effect, correction of his records to show he was medically retired instead of separation with severance pay. 2. He states a medical evaluation board (MEB) and a physical evaluation board (PEB) were conducted using his medical records prior to May 2013. He continued treatment, including surgeries, until August 2013 and this relevant information was unavailable during the MEB/PEB process. 3. He provides: * extensive medical record documents * DD Form 214 (Certificate of Release or Discharge from Active Duty) * DA Form 3947 (MEB Proceedings), dated 18 July 2013 with MEB documents * DA Form 199 (Informal PEB Proceedings) * extensive Department of Veterans Affairs (VA) documents * DA Form 31 (Request and Authority for Leave), dated 8 April 2014 * Orders 093-0035, dated 3 April 2014 * DA Form 3349 (Physical Profile), dated 28 November 2012 and 14 May 2013 * DA Form 7652 (Physical Disability Evaluation System (PDES)), dated 16 May 2013 * Enlisted Record Brief * Defense Finance and Accounting Service Military Leave and Earnings Statement * Noncommissioned Officer Evaluation Report * DA Form 2648 (Preseparation Counseling Checklist), dated 16 May 2013 CONSIDERATION OF EVIDENCE: 1. After having prior enlisted service in the Army National Guard, the applicant enlisted in the Regular Army on 22 May 2002. He served in Iraq from 10 May 2007 to 3 July 2008. 2. The applicant's medical records show: a. On 19 July 2012, he was seen at the Catholic University of Korea and diagnosed with cluster headache and trigeminal neuralgia (facial pain). The physician stated at the initial examination, the first possible diagnosis was trigeminal neuralgia, so he treated him with medication several times. Even though there was some relief with the treatment, he still had severe headaches. He believed it was proper to consider a second diagnosis of "cluster headache" for him. To manage this disease properly, short-term admission with hyperbaric O2 therapy and preventive treatment was recommended as the best choice. b. On 17 September 2012, he was seen at Yonsei University College of Medicine and diagnosed with trigeminal neuralgia. The physician stated the most severe pain was around the right supratrochlear area, but the magnetic resonance angiogram was normal. A peripheral rheumatoid factor test was performed. He also had facial pain (associated with pain in the neck, similar to carotidynia) and treatments for the migraine or cluster headache could be considered for that. c. On 28 November 2012, he was issued a DA Form 3349 which shows his physical profile series (PULHES) as "311211." The "3" rating indicated a physical capacity/stamina limitation and the "2" rating indicated a limitation in hearing/ear. d. On 14 May 2013, he was issued a DA Form 3349 which shows his original PULHES rating of "2" in hearing changed to "3." e. On 17 June 2013, the Madigan Army Medical Center (MAMC), Fort Lewis, WA, listed the history of the applicant's condition as relayed by him as difficulty swallowing, upper body rash, restless leg syndrome, right sided trigeminal neuralgia, migraine, and right and left arm tremors. Other symptoms and conditions reported by the applicant were tinnitus (described as constant), erectile dysfunction (described as medicating with Viagra), and a traumatic brain injury (TBI). Based on the exam, his diagnosis revealed: * tinnitus was present * no diagnosis for heat intolerance because there was no pathology to render a diagnosis * trigeminal neuralgia * tinea versacolor for upper body rash * no diagnosis for right and left arm tremors because the conditions were resolved * gastroesophageal reflux disease (GERD) for the condition of difficulty swallowing * no diagnosis for restless leg syndrome because there was no pathology to render a diagnosis * migraines * scar on chin f. On 18 June 2013, MAMC listed the history of the applicant's condition as relayed by him as confusion and sleep disturbance. The physician stated the symptoms of each mental disorder could be delineated from each other: insomnia (his inability to initiate or maintain restorative sleep) and cognitive disorder (he scored 25.5 indicating some failure in cognitive performance). He was unable to properly produce an adequate face of a clock and to copy a cube suggesting some difficulty with visual-spatial recognition and execution. He remembered two of the five words after a 5-minute distraction. g. On 23 June 2013, a doctor in Seattle, WA, listed the history of the applicant's condition as related by him as confusion and sleep disturbance. h. On 6 July 2013, the physician with QTC Medical Group noted inconsistencies for the applicant's claimed conditions and he requested clarification for: (1) whether pain on the right side of the face and trigeminal neuralgia on the right side were present. The answer was listed as "No, the diagnosis is based on patient's history only. The condition is quiescent during the examination"; (2) the three elevated blood pressure readings since the applicant did not have a history of hypertension which was determined in fact to be hypertension; (3) the physical examination revealed a smell or taste problem. The smell test for the right and left nostril revealed partial loss of senses. There was no psychological basis for the smell disorder. However, the bilateral partial loss of smell was at least as likely as not a result of TBI; (4) the taste test showed a partial loss of taste. There was no psychological basis for the taste disorder. The partial loss of taste was at least as likely as not a result of TBI; and (5) the applicant reported erectile dysfunction and he was medicating with Viagra. The erectile function was secondary to TBI and medication. 3. On 21 May 2013, an MEB was conducted at MAMC. The physician stated the applicant was referred into the Integrated Disability Evaluation System(IDES) following more than 12 months of treatment for right-sided facial pain (trigeminal neuralgia) and hearing loss (bilateral sensorineural). He surpassed the 1-year time frame for returning to duty and was referred to the MEB. The MEB found his condition of right-sided facial pain and hearing loss, bilateral sensorineural, failed to meet the Army retention standards of Army Regulation 40-501 (Standards of Medical Fitness). He said the QTC/VA examiner diagnosed the applicant with the below listed conditions that met the retention standards. His DA Form 3947 also verifies the following conditions met Army retention standards. He was referred to a PEB. The MEB Narrative Summary (NARSUM) was signed on 18 July 2013. * tinnitus both ears * tinea versicolor * GERD * migraine headaches * scar on chin * hypertension * bilateral partial loss of smell * partial loss of taste * erectile dysfunction * dizziness secondary to drug reaction * primary insomnia * cognitive disorder, not otherwise specified (NOS) * alcohol abuse in full sustained remission 4. On 7 August 2013, an impartial medical review was requested on behalf of the applicant by his MEB counsel regarding the MEB findings and recommendations. Specifically, the applicant requested that the providers review the MEB, to include the DA Form 3947, NARSUM, VA Compensation and Pension (C&P) Examination, and service treatment records to determine whether the applicant's migraine headaches should be a failing condition considering that the headaches were secondary to his trigeminal neuralgia. Additionally, the applicant sought clarification for the presumed resolution of his bilateral hand tremor condition. 5. On 8 August 2013, the MEB physician stated, in part, the applicant was deemed to not meet the retention standards in accordance with Army Regulation 40-501, paragraph 3-30j, by neurosurgery for his atypical facial pain that had been labeled as "trigeminal neuralgia." a. Army Regulation 40-501 includes the following conditions as causes for referral to an MEB: "any other neurologic conditions, TBI or other etiology, when after adequate treatment there remains residual symptoms and impairments such as persistent severe headaches, uncontrolled seizures, weakness, paralysis, or atrophy of important muscle groups, deformity, uncoordination, tremor, pain, or sensory disturbance, alteration of consciousness, speech, personality, or mental function of such a degree as to significantly interfere with performance of duty." The applicant's atypical facial pain syndrome labeled "trigeminal neuralgia" was the neurologic condition and the headaches he experiences stemming from this condition were the residual symptoms that rendered the trigeminal neuralgia medically disqualifying. b. The applicant also disputes the findings of the VA C&P General Medical Examination, dated 17 June 2012, that stated his bilateral upper extremity tremor was resolved. He stated it was not resolved and he believed it should be included on his DA Form 3947. 6. On 15 August 2013, the Deputy Commander for Clinical Services, MAMC, responded to the applicant's appeal to the MEB. He stated: a. He nonconcurred with the applicant's request to list the diagnosis of migraine headaches as a condition failing Army retention standards. The diagnosis of migraine headaches as a failing condition must be made by a neurologist. A review of the Armed Forces Health Longitudinal Technology Application (AHLTA) notes indicated the original neurology examination in May 2012 listed headache syndrome and not migraine headaches. The most recent neurology note of May 2013 does not document the applicant's report of headaches, does not provide any headache diagnosis, and reports the primary source of pain as being due to trigeminal neuralgia, one of his failing medical conditions. b. He also nonconcurred with listing the diagnosis of bilateral tremor, since it meets Army retention standards in the NARSUM and on the DA Form 3947. Discrepancies in diagnoses by the military and VA can be combined in the NARSUM and on the DA Form 3947. The 13 May 2013 neurology note documented the "motor exam demonstrated no dysfunction." As per Annex O, the VA C&P was the examination of record for rating purposes. Their determination, based upon their physical examination, was that the condition was resolved. c. On 21 August 2013, the applicant signed a statement acknowledging that he was informed of the response to his MEB appeal. 7. On 21 August 2013, he was referred to a PEB. 8. The applicant's medical records also show the following: a. On 28 August 2013, University Hospital South Portland Oregon admitted the applicant and performed the preoperative diagnosis of right-sided trigeminal neuralgia subsequent to his procedure of right suboccipital craniectomy for internal neurolysis of trigeminal nerve. The applicant made appropriate gains toward activity and functional goals while an inpatient and he was subsequently discharged on 29 August 2013. b. On 14 November 2013, he was seen at the Neurology Clinic for headaches. The applicant stated his migraines started in 2006, initially occurring three times per month and progressively worsened to two to three times per week for the last 3 months. A plan was developed and he was given medication for his migraines. 9. On 3 March 2014, the VA rendered a combined disability rating of 70 percent for: * primary insomnia and cognitive disorder, NOS – 50 percent * migraine headaches – 30 percent * tinnitus – 10 percent * tinea versicolor – 10 percent 10. The other conditions were considered, but a 0-percent disability rating was assigned for: * bilateral high-frequency sensorineural hearing loss * right-sided facial pain due to trigeminal neuralgia * partial loss of sense of smell * partial loss of sense of taste * hypertension * GERD * erectile dysfunction * chin scar * dizziness secondary to drug reaction * heat intolerance * TBI * tremors of bilateral arms * restless leg syndrome 11. On 4 March 2014, the applicant was seen at the Oregon Health and Science University. He reported having recurrent lancinating pain in the right V2 distribution. Prior to that, he was having non-troubling numbness in V3, V2, and V1, with paresthesia in V2. He stated that coming into a warm room can trigger the pain, but he could not identify any other particular trigger for the pain. 12. On 5 March 2014, a PEB convened at MAMC and considered the applicant's condition of hearing loss and right-sided facial pain. These two conditions were determined to be unfitting. The other conditions listed in his MEB and paragraph 3 of this document, with the exception of alcohol abuse, were determined to meet retention standards. The case file contained no evidence that the conditions independently or in combination rendered the applicant unfit for his assigned duties. Accordingly, the PEB found the conditions not to be unfitting and therefore not ratable. In reference to the condition of alcohol abuse, the PEB found it not compensable as it was not deemed to constitute a physical disability, although it might have been administratively unfitting. The PEB found the applicant was physically unfit and recommended a rating of 0 percent and his separation with severance pay. 13. On 11 March 2014, the applicant concurred with the PEB findings and recommendations and waived a formal hearing of his case. Additionally, he stated he did not request reconsideration of his VA rating. 14. On 27 May 2014, he was seen at Barnes Jewish Hospital, St. Louis, MO, and diagnosed with trigeminal neuralgia, headache, and migraine. He was examined and treated in the emergency department and instructed to set-up follow-up care with his doctor or primary care clinic. 15. On 18 June 2014, he was honorably discharged in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, for disability with severance pay. He completed 12 years and 27 days of net active duty service during this period and received $93,373.80 in disability severance pay. 16. On 29 January 2016, an advisory opinion was obtained from the U.S. Army Physical Disability Agency (USAPDA). The advisory official recommended no changes to the applicant's military records. The official stated: a. The applicant's MEB was completed on 18 July 2013 with the right-side facial pain and bilateral hearing loss as the only two conditions that were found not to meet the medical retention standards in accordance with chapter 3, Army Regulation 40-501. All other conditions, to include migraine headaches, were found to meet medical retention standards. The applicant nonconcurred with the MEB findings and requested that his headaches be found not to meet retention standards and that bilateral hand tremor be added to the list of MEB conditions. b. The MEB denied the appeal on 15 August 2013, stating the evidence did not support that his headaches were materially impacting his ability to perform his military duties and that the medical evidence and the VA evaluation indicated that his tremor condition had been resolved. On 28 August 2013, the applicant underwent surgery in an attempt to alleviate his facial pain. A follow-up appointment to the surgery on 4 March 2014 indicated the applicant reported his facial pain had returned after experiencing "non-troubling numbness" after his surgery. No further treatment was prescribed except restarting a prescription of Gabapentin. c. On 5 March 2014, an informal PEB found the applicant unfit for his facial pain and hearing loss and rated those conditions in accordance with the VA disability ratings, dated 3 March 2014. The VA rated both conditions as 0 percent disabling resulting in a separation with severance pay. The applicant concurred with the informal PEB findings, provided no additional medical information or appeal, and waived his right to a formal hearing. d. The applicant's MEB clearly reflected his condition of facial pain due to trigeminal neuralgia. The subsequent surgery attempt to correct said pain appeared to be temporarily successful as it resulted in "non-troubling numbness" instead of pain with no other noted unfitting residuals resulting from the surgery. The complaints of pain returning one day before the date of the applicant's informal PEB does not appear to support that any significant change to the MEB findings of facial pain occurred after the date of the MEB. e. The applicant has not provided any evidence of error or injustice in the final PEB findings concurred with by the applicant. The PEB findings are supported by a preponderance of the evidence; there is insufficient evidence to support that such evidence was not complete at the time of the PEB findings; the PEB findings were not arbitrary, capricious, or in violation of due process; and the findings were not in violation of any statute, directive, or regulation. 17. On 2 March 2016, the applicant responded to the advisory opinion. He stated he received a 0-percent disability rating for trigeminal neuralgia, facial pain, because there was no objective data or objective cause for the major pain he was in. He states the surgery notes from his open cranial surgery were not included during the MEB. He opines that he should have received a percentage. He maintains that he concurred with the PEB findings because it would have taken too long to appeal and his MEB lawyer indicated he could appeal to the ABCMR after he was discharged. He reiterates the information concerning his migraines and states that if it were not for the migraines after and during each episode, the pain would be more tolerable. He states that based on his surgery, his MEB/PEB process should have been suspended so he could receive an appropriate recovery period before continuing the MEB process. REFERENCES: 1. Army Regulation 635-40 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 office, grade, rank, or rating. a. PEB's are established to evaluate all cases of physical disability equitability for the Soldier and the Army. It is a fact-finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish the eligibility of a Soldier to be separated or retired because of physical disability. b. The findings and recommendations of the informal PEB are recorded on DA Form 199. Block 13 of the DA Form 199 lists the election options available to the Soldier for informal determinations. These include the following: * concurrence with the findings and recommendations and waiver of a formal hearing * nonconcurrence with the findings and recommendations; submission of a rebuttal explaining the soldier's reasons for nonconcurrence and waiver of a formal hearing * demand for a formal hearing with or without personal appearance * choice of counsel if a hearing is demanded * Soldiers indicate their elections by checkmark in block 13 and sign and date the original and the MTF copies c. The PEB Liaison Officer will counsel the Soldier and make him or her fully aware of the election options available, the processing procedures, and the benefits to which he/she will be entitled if separated or retired for physical disability. 2. 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 rated at least 30 percent. DISCUSSION: 1. The applicant argues, in effect, that his MEB/PEB did not take into consideration relevant medical information, to include surgeries that occurred after the boards. 2. The evidence of record shows the applicant underwent an MEB on 21 May 2013 that considered his condition of right-sided facial pain and hearing loss. These two conditions failed to meet the Army retention standards and he was subsequently referred to a PEB. His other 13 conditions, specifically migraine headaches, were considered and determined to have met the Army retention standards. 3. On 7 August 2013, he and his MEB counsel requested an impartial review of the MEB findings and recommendations. He requested that the providers review the MEB, DA Form 3947, NARSUM, VA C&P Examination, and service treatment records, to determine whether his migraine headaches should be a failing condition considering that it was a secondary condition to his trigeminal neuralgia. 4. On 15 August 2013, the Deputy Commander for Clinical Services, nonconcurred with the applicant's request to list the diagnosis of migraine headaches as a condition failing Army retention standards. He said the AHLTA notes indicated the original neurology examination in May 2012 as being headache syndrome and not migraine headaches. The most recent neurology note of May 2013 did not document the applicant's report of headaches or provide any headache diagnosis, but reported the primary source of pain as being due to trigeminal neuralgia, one of his failing medical conditions. He also nonconcurred with listing the diagnosis of bilateral tremor since it met the Army retention standards in the NARSUM and on the DA Form 3947. 5. On 5 March 2014, a PEB convened and determined that the applicant's condition of hearing loss and right-sided facial pain were unfitting and recommended he be separated with a 0 percent disability rating. The other conditions listed in the MEB were determined to meet the retention standards, to include migraine headaches. 6. On 11 March 2014, the applicant concurred with the PEB findings and recommendations and waived a formal hearing of his case. Additionally, he stated that he did not request reconsideration of his VA rating. 7. On 29 January 2016, the USAPDA stated that the applicant's MEB clearly reflected his condition of facial pain was due to trigeminal neuralgia. The subsequent surgery attempted to correct said pain appeared to be temporarily successful as it resulted in "non-troubling numbness" instead of pain with no other noted unfitting residuals resulting from the surgery. The complaints of pain returning one day before the date of the applicant's informal PEB does not appear to support that any significant change to the MEB findings of facial pain occurred after the date of the MEB. 8. There is no medical evidence and the applicant has not presented any to demonstrate an injustice in the medical treatment received in service. Additionally, the evidence further shows that both the MEB and the PEB was well aware of his condition of migraines and facial pain when they rendered their decision. Therefore, there does not appear a basis for granting his requested relief. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150003503 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150003503 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2