PROCEEDINGS


         IN THE CASE OF:


         BOARD DATE: 09 OCTOBER 2003
         DOCKET NUMBER: AR2002079231


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

Mr. Carl W. S. Chun		Director
Mr. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor, Jr.		Chairperson
Mr. Robert J. Osborn II		Member
Ms. Eloise C. Prendergast		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

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

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. In effect, the applicant requests physical disability retirement.

3. The applicant made no statement but deferred to counsel.

4. Counsel contends that applicant should be permanently retired as of 1 January 2001 with a 60 percent disability rating due to a line of duty closed head injury with subsequent seizure disorder and cognitive loss, and that he be paid from the date of this retirement to the present.

•         The applicant was improperly denied medical retirement. He received a closed head injury on 28 June 1999 when he fell and struck his head. The injury was found to be in line of duty. The applicant underwent brain surgery on 1 July 1999. He was discharged [from the hospital] to the VA (Veterans Affairs) hospital in Richmond, Virginia. In October 2000 he underwent neuropsychological testing, which revealed residual cognitive deficits. The purpose of the testing was for a medical board. He went to West Point on 20 June 2001 for what he thought was a medical evaluation board; however, returned with a P-2 profile and a finding of fit for duty. Since then, he has been forgotten. He has 18 years and 8 months of qualifying service for retirement at age 60; however, he has served only one day since June 1999. He never underwent a Medical Evaluation Board (MEB). Prior to 20 June 2001 a neuropsychological test at Walter Reed indicated cognitive impairment. In November 2001 the applicant was diagnosed with a seizure disorder, specifically, post traumatic encephalopathy (any degenerative disease of the brain) and post traumatic seizure disorder. The reporting physician stated that he was totally and permanently disabled, and the Social Security Administration has granted him disability benefits. He is deserving of a 60 percent disability rating, and the best way to do this is to return him to active duty for a MEB/PEB (Physical Evaluation Board).

5. The applicant’s military records show that he was a member of Company B, 50th Support Battalion, a New Jersey Army National Guard unit in Dover, New Jersey, when he was injured while on annual training at Camp Edwards, Massachusetts on 28 June 1999. He fell down and hit his head. He was treated by medical personnel and then air evacuated to Boston Medical Center. His injury was determined to be in line of duty. Orders published by his unit show that he was ordered to annual training for 15 days from 18 June to 2 July 1999.

6. The applicant was determined to have a closed head injury with a subdural hematoma, contusions and a basilar skull fracture; and on 1 July 1999 underwent surgery for his head condition. The surgical report also indicates that the applicant sustained a closed head injury when a large branch initially hit him on the head prior to the injury on 28 June 1999, and at that time he was evaluated and cleared.

7. A 13 July 1999 consultation by a neuropsycholgist at the Boston University School of Medicine indicated that the applicant's condition was diagnosed as delirium and mood disorder due to his traumatic brain injury.

8. The applicant was discharged from the hospital on 16 July 1999 with a diagnosis of left temporoparietal subdural hematoma with bifrontal lobe contusion; left lower lobe postoperative pneumonia, since resolved; and left longitudinal temporal fracture. He was discharged to an acute traumatic rehabilitation facility where his treatment and rehabilitation would continue. The Boston Medical Center proceedings indicated that his treatment and all follow-up would be coordinated by the military.

9. A medical report from the Richmond VA Medical Clinic shows that the applicant was admitted on 30 July 1999 with a diagnosis of traumatic brain injury with subdural hematoma and craniotomy. That report indicated that he hit his left head into a tree on 23 June 1999, evaluated and released; and on 28 June 1999 fell and hit his head. That report indicated that the applicant was unaware of his brain injury, and denied having surgery, and that he was unable to name the President. A 4 August 1999 report diagnosed his condition as cognitive deficits and post traumatic seizures. The applicant underwent numerous tests, treatment, and counseling at the clinic; and on 11 August 1999 underwent a neuropsychological assessment. The examining doctor indicated that he did not agree with the applicant's conviction that he would be able to return to work, stating that the applicant had significant lapses in cognitive functioning.

10. A 17 August 1999 medical report indicated that the applicant continued to have functional disabilities, e.g., shaving and bathing tasks, performing mental calculations, and severe impairment in abstract thinking, complex concrete problem solving, mental flexibility, moderate concrete problem solving, forward visual memory and sequencing; and moderate and minimal impairment in other areas. That report indicated that the applicant continued to deny cognitive deficits/difficulties with mental calculations and mental flexibility.

11. A 7 September 1999 report indicated that the applicant's performance had improved, and that he was eligible for reevaluation at 6, 12, and 24 months at the VA facility. The examining doctor stated, however, that the findings were clearly abnormal and likely to be predictive of the significant difficulty in the near future even if improvement continues. He stated that return to normal employment appeared unlikely at least in the near term, and that the applicant's lack of acceptance of the importance of failing the driving simulation test and not qualifying for on-the-road assessment was so absolute as to raise question as to whether he was able to forecast and judge the effects of his condition and to make reasonable and prudent judgments about important matters in his life.

12. The applicant was discharged from the VA facility to the care of his wife on 11 September 1999.

13. The applicant continued his treatment on an outpatient basis at the Department of Veterans Affairs New Jersey Health Care System. A 26 May 2000 medical record indicates that the applicant was diagnosed with post traumatic seizures that were difficult to control.

14. On 29 January 2001 the applicant underwent a neuropsychological evaluation at Walter Reed Army Medical Center. The report of that evaluation indicated that the measures of the applicant's intellectual function were in the low average range, and that the overall neuropsychological profile showed evidence for residual impairment on some measure of visual recall and visuospatial ability, and that other areas were mildly impaired. The findings suggested a residual cognitive disorder, most likely related to the injury he suffered in June 1999. The report indicated that the cognitive impairment would likely result in mild-moderate impairment of social and industrial adaptability, and that continued significant improvement was unlikely. It indicated that additional factors that might contribute to reduced cognitive efficiency included the applicant's medication regimen and seizure disorder.

15. On 28 June 2001 the applicant received a physical profile serial of 2 1 1 1 1 1 for post traumatic epilepsy. The profile report indicated that the applicant should not work at heights and that his duty assignments should be limited to only those areas where a neurologist was available.

16. A 19 September 2001 medical report from the Chilton Memorial Hospital in Pompton Plans, New Jersey, indicated that the applicant had three seizures since his injury in June 1999, and yesterday (18 September 2001) had a grand mal seizure. The impression given was that the applicant had a seizure disorder and that he was confused.

17. On 26 November 2001 a doctor of the North Jersey Neurological Associates, P.A., evaluated the applicant and stated that the applicant had severe memory difficulties as the result of his previous head injury with the seizure disorder. He further stated that the applicant had a post traumatic encephalopathy and post traumatic seizure disorder and that a recent CT (computerized tomography) scan of his brain showed an area of encephalomalacia in both frontal lobes and in the left temporal lobe. He stated that the applicant had poorly controlled seizures with severe memory difficulty and was totally and permanently disabled from working any type of occupation; he was not allowed to drive.

18. On 9 March 2002 the Social Security Administration informed the applicant that he was entitled to disability benefits beginning in October 2000, and that they found that he became disabled under their rules on 15 June 1999.

19. The applicant's statement of retirement points prepared on 5 April 2000 shows that he has 18 years, 8 months, and 2 days of qualifying service for retirement at age 60.

20. Information provided by the applicant's counsel on 8 May 2003 shows that the applicant has been transferred to the Individual Ready Reserve, apparently sometime in the spring of this year.

21. In the processing of this case an advisory opinion was obtained from the National Guard Bureau. That agency concurred with the applicant's counsel to the extent that the applicant should undergo a MEB to determine if he meets the medical retention standards, and if appropriate, be referred to a PEB for a determination of fitness. The applicant was furnished a copy of the advisory opinion for his information and possible comment. He concurred with the opinion.

22. Army Regulation 635-40 establishes the Army physical disability evaluation system 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. It provides for medical evaluation boards, which are convened to document a soldier’s medical status and duty limitations insofar as duty is affected by the soldier’s status. A decision is made as to the soldier’s medical qualifications for retention based on the criteria in Army Regulation 40-501, chapter 3. If the MEB determines the soldier does not meet retention standards, the board will recommend referral of the soldier to a PEB.

23. Physical evaluation boards 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 eligibility of a soldier to be separated or retired because of physical disability.

24. Army Regulation 40-400 provides for medical evaluation boards for Reserve Component personnel on authorized duty whose fitness for further military service upon completion of hospitalization is questionable, or who require hospitalization beyond the termination of their tour of duty. It also provides for medical evaluation boards for those Reserve Component members not on active duty who require evaluation because of a condition that might render them unfit for further duty.

CONCLUSIONS:

1. The evidence shows that the head injury resulted in the applicant having considerable neurological deficits and functional disabilities. This is adequately documented by both military, VA, and civilian personnel. The applicant, in addition to his head injury on 28 June 1999, had some type of injury to his head on 23 June 1999. Whether or not this injury could conceivably have caused the subdural hematoma that caused him to lose consciousness on 28 June 1999 is unknown. Nonetheless, it appears that he was on active duty for both of those dates.

2. Notwithstanding the applicant's obvious difficulties, the extent of his disabilities is undetermined. The Board notes that in January 2001 medical personnel at Walter Reed determined that his cognitive impairment would likely result in mild-moderate impairment of social and industrial adaptability. In June 2001 he was granted a P2 profile for post traumatic epilepsy. In November of that year a doctor determined that the applicant had poorly controlled seizures with severe memory difficulty, and was totally and permanently disabled from working. It would appear that a determination should be made on the applicant's physical condition and fitness for duty, and as the applicant's counsel contends, a MEB, and if appropriate, a PEB would be the best venue to make this determination. Consequently, the applicant's request for physical disability retirement with a 60 percent disability rating, as suggested by counsel, is not accepted. Instead, the applicant should be afforded the opportunity for processing under the physical disability evaluation system.

3. In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by directing that the Commander, United States Army Human Resources Command – St. Louis, contact the applicant and arrange, via appropriate medical facilities, for a MEB, and if necessary a PEB. That commander is directed to use appropriate travel orders, as necessary, to accomplish this purpose.

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2. That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

__RVO__ __RJO _ ___ECP _ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  Raymond V. O'Connor, Jr.
                  CHAIRPERSON

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INDEX

CASE ID	AR2002079231
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20031009
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	108.00
2.
3.
4.
5.
6.