RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-02156
            INDEX NUMBER:  108.00
      XXXXXXX    COUNSEL:  None

      XXXXXXX    HEARING DESIRED:  No


MANDATORY CASE COMPLETION DATE:  3 Feb 06


_________________________________________________________________

APPLICANT REQUESTS THAT:

He be medically retired instead of medically discharged as of the date
he was removed from the Temporary Disability Retired List (TDRL).

_________________________________________________________________

APPLICANT CONTENDS THAT:

In a two-page statement, applicant’s spouse states that  she  and  her
husband have suffered financial  and  emotional  hardships  since  her
husband was medically discharged.  Applicant poses four questions that
address the problems she and her husband have experienced:

        a.  How is it that the applicant was relieved from active duty
without the opportunity to cross-train and to  continue  his  military
service?

        b.  How is it that the applicant was  removed  from  the  TDRL
after only one medical evaluation, even though he  had  not  undergone
periodic physical evaluations as stated in Title 10, Subtitle A,  Part
II, Chapter61, Section 1210?

        c.  How is it that the military has not formally diagnosed the
applicant with epilepsy, but is treating  him  with  epileptic  drugs?
Moreover,  why  doesn’t  the  military  find  it  prudent  to  conduct
additional examinations to  determine  if  the  applicant’s  recurrent
seizures could be a result of cardiovascular causes or syncope,  which
are common seizure-like episodes easily mistaken as epilepsy?

         d.  How  is  it  the  applicant’s  military  medical  records
prohibit him from being medically cleared to  work  in  his  field  of
expertise of training, yet he is denied military compensation?

In support of the applicant’s appeal, he provides an extract from  the
applicable US code, a copy  of  the  Medical  Evaluation  Board  (MEB)
Narrative Summary, a copy of the  Commander’s  impact  statement,  and
other medical documentation.

The applicant’s complete submission, with attachments, is  at  Exhibit
A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant entered active duty in the Air Force on 18  Jan  96.   A
full copy of the applicant’s medical service record was not  available
for review  in  this  case.   According  to  records  present  in  the
applicant’s military personnel service  records,  while  stationed  in
Japan in 2001, the applicant was hospitalized from 10-12 Aug 01  after
experiencing a seizure.  Medical evaluation  concluded  the  applicant
suffered an epileptic seizure possibly related to head  trauma  (twice
in high school, dietary supplements he was taking, or “idiopathic” (no
Known cause)).  Since  the  seizure  was  a  single  episode  possibly
related to dietary supplements and he had a normal brain  imaging  and
electroencephalogram (EEG), the applicant was observed over  time  and
was not placed on medication.  A Medical Evaluation  Board  (MEB)  was
convened in Nov 01 in accordance with Air Force policy  and  initially
returned the applicant to duty  based  on  his  only  having  a  singe
seizure episode and being recurrence free without medication for three
months.  However, while undergoing the MEB evaluation,  the  applicant
suffered a second seizure and was placed on  anti-seizure  medication.
He was referred to an Informal PEB (IPEB) which  found  his  condition
unfitting and placed him on the TDRL effective 11 Feb 02  with  a  40%
compensable rating.

While on the TDRL, members are to have periodic reevaluations not more
than 18 months apart.  Based on the particular clinical condition, the
PEB may direct  reevaluation  at  periods  less  than  18  months  and
typically direct reevaluations approximately 12 months  following  the
MEB.  The applicant was directed to undergo a reevaluation in Nov  02.
A senior Air Force neurologist performed the evaluation.  According to
the report, dated 4 Feb 03, and records submitted by the applicant, he
experienced a seizure in the early morning in  Mar  02  shortly  after
returning from Japan to the United States.  The  evaluation  concluded
with  a  diagnosis  of  “Epilepsy,   generalized   stable”   and   the
recommendation to continue current  medications  with  adjustments  to
maintain therapeutic levels as needed.  Based on stable, seizure  free
epilepsy, the IPEB rated the applicant’s seizure disorder at  10%  and
controlled by medication according to guidance in the VA Schedule  for
Rating Disabilities (VASRD).   The  IPEB  recommended  discharge  with
severance pay.  The applicant did not  appeal  the  decision  and  was
removed from the TDRL and  separated  with  disability  severance  pay
effective 7 Apr 03.

_________________________________________________________________

AIR FORCE EVALUATION:

The AFBCMR Medical Consultant recommends  denial  of  the  applicant’s
request.  The evidence of record shows that the Air  Force  Disability
Branch  followed  established  policy  and  law  in   processing   the
applicant’s case.  Medical evaluation at the  military  hospitals  and
clinics in Japan were appropriate including specialty examination  and
no medical documentation subsequent to that time  has  been  submitted
that shows the presence of an alternative diagnosis (including cardiac
conditions causing passing out) that in retrospect  should  have  been
investigated at the  time  he  was  on  active  duty.   The  applicant
questions why he was not  returned  to  duty  and  cross-trained  into
another specialty when his seizures were controlled  with  medication.
Seizure disorder controlled with medication limits the utilization  of
military  personnel  and  members  are  only  retained  under  unusual
circumstances when other members cannot serve the  needs  of  the  Air
Force.

TDRL status  is  only  reserved  for  those  individuals  whose  newly
diagnosed disease or condition has not achieved a state  of  stability
to accurately assign a disability rating.  Placement  in  TDRL  status
enables  temporary  retirement  with  compensation   pending   further
treatment  and  observation   before   final   adjudication   of   the
compensation rating.  Disability ratings  awarded  when  a  member  is
placed on the  TDRL  are  often  generous  to  allow  for  fluctuating
severity associated with a new diagnosis in its early stages.

The DoD  is  required  to  use  the  VASRD  as  a  guideline  to  rate
disabilities that are unfitting  for  continued  military  service  as
modified by DoD policy in DoD Instruction 1332.39.  The intent  is  to
rate the degree of civilian occupational disability using the VASRD as
a guide.  It is not intended to rate for limitations  for  a  specific
occupational specialty or in recreational activities.  At the time  of
the applicant’s TDRL evaluation the applicant had  been  seizure  free
for nearly a year on a well-tolerated medication regimen.   His  first
two seizures are not considered in establishing a final  rating  since
they were in the untreated state.  It was not known if the March  2002
seizure, which may be considered a nocturnal  seizure  (and  also  not
considered in rating), was  related  to  sub-therapeutic  drug  levels
since the applicant was experiencing side effects, was  traveling  and
may have been missing doses.  Assuming  the  applicant’s  drug  levels
were therapeutic, counting this seizure in his rating would  have  the
same end  result  of  discharge  with  severance  pay.   However,  the
emergency room record indicated  this  was  a  nocturnal  seizure  and
according to DoD policy, nocturnal seizures are  not  considered  when
rating seizure disorder.  The applicant  reported  recurrent  seizures
since  discharge  with  severance  pay,  but  there  is   no   medical
documentation for evaluation.

The complete evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the  applicant  on
17 May 05 for review and comment within 30 days.  On 20  Jun  05,  the
applicant requested an extension of time to respond to
the Air Force evaluation.  On 27 Jun 05, he was granted  an  extension
until 17 Jul 05.  To date, a response has not been received.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law
or regulations.

2.  The application was not timely  filed;  however,  it  is  in  the
interest of justice to excuse the failure to timely file.

3.  Insufficient relevant evidence has been presented to  demonstrate
the  existence  of  error  or  injustice.   We  took  notice  of  the
applicant's complete submission in judging the merits  of  the  case;
however, we agree with the opinion and  recommendation  of  the  BCMR
Medical Consultant and adopt his  rationale  as  the  basis  for  our
conclusion that the applicant has not been the victim of an error  or
injustice.  Therefore, in the absence of evidence to the contrary, we
find no compelling basis to recommend granting the relief  sought  in
this application.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant  be  notified  that  the  evidence  presented  did  not
demonstrate the existence of material error or  injustice;  that  the
application was denied without a personal appearance;  and  that  the
application will only be reconsidered upon the  submission  of  newly
discovered relevant evidence not considered with this application.

_________________________________________________________________

The following members of the Board considered Docket Number  BC-2004-
02156 in Executive Session on 3 August 2005, under the provisions  of
AFI 36-2603:

      Ms. Rita S. Looney, Panel Chair
      Ms. Barbara R. Murray, Member
      Mr. James A. Wolffe, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 29 Jul 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, BCMR Medical Consultant,
                dated 13 May 05.
    Exhibit D.  Letter, SAF/MRBR, dated 17 May 05.
    Exhibit E.  Letter, Applicant, dated 20 Jun 05.


                                   RITA S. LOONEY
                                   Panel Chair