| Mr. Carl W. S. Chun | Director | |
| Mrs. Nancy L. Amos | Analyst |
| Mr. Raymond V. O'Connor | Chairperson | |
| Ms. Kathleen A. Newman | Member | |
| Mr. Patrick H. McGann | Member |
APPLICANT REQUESTS: In effect, that she be reinstated or that her discharge with severance pay be changed to a medical retirement.
APPLICANT STATES: In a letter to her Representative in Congress, that the Army has removed her from the Temporary Disability Retired List (TDRL) and separated her, suggesting that her disability has decreased to 10 percent without evidence. Her medical condition has changed; however, it has by no means stabilized.
The applicant stated that since the beginning of her illness in June 1998, Army doctors showed disinterest and neglect and did not take her illness seriously. She was allowed to suffer and deteriorate for months while she was bounced around to various doctors, none of whom were able to discover what was wrong with her. Two doctors at Ireland Army Community Hospital (IACH), Fort Knox, KY told her there was nothing physically wrong with her even though a doctor at Mental Health said she was not crazy. She went to the hospital daily from 26 June through 20 July 1998 but she was sent home without a single laboratory test being taken. Her mother took her to a civilian doctor in California but the Army ordered her transferred to the San Diego Naval Center on 8 August 1998. There, it was finally determined she had Guillain-Barre Syndrome. She was then ordered back to Fort Knox, KY. She filed an Inspector General (IG) complaint and requested to go to Walter Reed Army Medical Center (WRAMC).
The applicant stated that Guillain-Barre Syndrome is a rare illness and very few facts are known about what causes the illness and no treatment or cure of the illness has been found. The illness attacked her body twice. She was evacuated to WRAMC on 22 September 1998 and released on 8 October 1998. Just one month later, she felt the onset of the illness again. On 10 November 1998, she went to IACH to report her symptoms. However, she was not scheduled for an appointment until 19 November 1998. On 25 November 1998, she returned to IACH but was sent away. On 27 November 1998, she was unable to walk or take care of herself. Friends took her to IACH. She was transferred to a civilian hospital. When her Army doctor returned, she was transferred back to IACH, where she was hospitalized from 28 November through 17 December 1998. After returning from convalescent leave, she was sent to a medical evaluation board (MEB) and placed on the TDRL.
The applicant stated that she was concerned that she had been examined by 8 different doctors. Since being placed on the TDRL, she was assigned to 4 different medical professionals at the Department of Veterans Affairs (VA) hospital and sent to Wright-Patterson Air Force Base for an annual re-evaluation. Being seen by that many doctors indicates a lack of consistency concerning her case. Doctors are transferred to other locations or dismiss her case because they are unable to understand or diagnose the underlying cause for the symptoms. All of that caused her to suffer severe depression. She reported her handicaps to the doctors and the general attitude was that her condition may never change and they would have to wait and see.
The applicant stated that she never desired to leave the Army. She begged to remain on active duty. She even believed that she would return to active duty within 12 months of being placed on the TDRL. A captain at the Physical Evaluation Board (PEB) at Fort Sam Houston, TX told her she had the option of being placed on the TDRL or being placed on permanent (voluntary early) retirement. She opted for placement on the TDRL because of the chance to return to active duty. If she had been aware of the mistreatment and unconcern that faced her future, she certainly would have chosen the option of permanent retirement.
The applicant states that she served over 15 years of active duty prior to being placed on the TDRL. Prior to 1 January 2002, solders were offered, upon request, retirement under the Temporary Early Retirement Authority (TERA), provided disability granted by the PEB was less than 30 percent. Unfortunately, the program ended effective 31 December 2001. She is under the impression the Army is attempting to "pay her off" and forget about the years of honorable service she gave to her country. Her greatest desire is to return to active duty. The least the Army could do is allow her to maintain all military benefits to include medical insurance and a military identification card.
As supporting evidence, the applicant provides her DD Form 214 (Certificate of Release or Discharge from Active Duty); three Internet articles discussing Guillain-Barre Syndrome; a letter from a friend dated 15 September 2002; 2 undated letters from her chain of command prepared for her disability processing board; documents from her MEB, initial PEB, and final PEB; and extracts from her medical records.
EVIDENCE OF RECORD: The applicant's military records show:
She enlisted in the Regular Army on 30 October 1984. She was promoted to Sergeant First Class, E-7 on 1 September 1998 in military occupational specialty 75H (Personnel Service Specialist).
On 26 June 1998, the applicant began to have problems with an intractable headache, neck pain, and difficulty walking. She was initially seen by doctors at IACH. On 21 July 1998, she was admitted to Centinela Hospital Medical Center, Inglewood, CA. Multiple sclerosis was suspected and that was the final diagnosis upon her discharge on 6 August 1998.
On 8 August 1998, the applicant was examined at the San Diego Naval Medical Center, Division of Neurology. That office noted that, although myelitis (inflammation of the spinal cord) remained a possibility, the applicant could well be recovering from Guillain-Barre Syndrome.
On 21 August 1998, the applicant filed an IG complaint. The IG's response is not available.
A WRAMC Air Evacuation Summary dated 24 September 1998 noted that, given the applicant's somewhat complex history and very extensive evaluation in the past, it was conceivable that she had a monophasic (exhibiting only one phase or variation) illness due to an episode of essentially very mild Guillain-Barre Syndrome. It was recommended she be followed closely for development of further symptoms that would indicate either a chronic form of Guillain-Barre Syndrome versus CIDP (chronic inflammatory demyelinating polyneuropathy, a neurological disorder characterized by slowly progressive weakness and sensory dysfunction of the legs and arms). The applicant was provided a profile to allow her to begin exercise at her own pace and she was informed that recovery from Guillain-Barre Syndrome may take months to years and, in fact, some patients are left with chronic residuals. She appeared to understand and would alert her physician to new or more pronounced symptoms.
The applicant's commander and one of her supervisors prepared memorandums apparently for her MEB. Her commander stated that the applicant's duties were not physically demanding but they required her to work diligently without frequent rest. In her present condition, she was not able to maintain the workload required of her duty position. He stated, "With adequate treatment and time, I am convinced that (the applicant) can recover fully and should be capable of meeting all standards of a Personnel Sergeant to include performing duties as a Drill Instructor."
The applicant's supervisor stated that the applicant's duties were not physically demanding but required attention to detail, manual dexterity, and the ability to communicate effectively. At her current state of recovery, she could not efficiently perform those duties. He also stated, "With adequate recovery time, however, (the applicant) should be fully capable of meeting all standards of a Personnel Sergeant to include performing duties as a Drill Instructor."
An MEB Narrative Summary noted the applicant was seen in November 1998 for onset of new symptoms (shortness of breath). Neurologically, she was fully alert and oriented. Sensory examination was intact to light touch, pinprick, temperature, and vibration. Her gait was stable with a walker although she required the assistance of one to do toe-and-heel waking and was quite unsteady with tandem walk. She continued her physical therapy while at Fort Knox, KY. Although she had made improvements (able to walk about 20 feet without assistance), she continued to be somewhat unsteady, requiring assistance or use of a walker while ambulating or ascending and descending stairways. She continued to demonstrate muscle weakness despite ongoing physical therapy. She was expected to continue to improve although it could take as long as 18 months. She was referred to a PEB.
An MEB addendum dated 21 January 1999, prepared by the Behavioral Medicine Clinic, noted the applicant had periods of anxiety, tearfulness, and feelings of hopelessness coinciding with times when her Guillain-Barre Syndrome symptoms were most severe. No diagnosis was made.
On 18 March 1999, an informal PEB found the applicant to be unfit for duty as a result of having Guillain-Barre Syndrome, rated as moderately severe (rated analogously to poliomyelitis, VA Schedule of Rating Disabilities (VASRD) code 8011). The PEB recommended she be placed on the TDRL with reexamination on 1 July 2000. She applied for continuance on active duty. The decision on this request is not available but it was apparently disapproved. She was placed on permissive temporary duty and on transition leave and on 9 November 1999 she was released from active duty after completing 15 years and 10 days of creditable active service. She was placed on the TDRL effective 10 November 1999.
The applicant's 2000 and/or 2001 TDRL reexamination findings are not available.
On or about 17 January 2002, the applicant received a TDRL reexamination. The physical examination noted that motor examination was 5 out of 5 throughout with normal bulk and tone. Sensation was intact to pinprick, light touch, proprioception, and complex motor movements. She had a normal heel-toe and tandem gait. However, she described a current stress and tightness sensation in the back of her head and neck as well as numbness of the tips of her fingers bilaterally. She also complained of nondescript fatigue. She described dull headaches without any specific precipitating event that got better with rest. She also said she developed tension-type headaches about twice a week. She denied any recent exacerbations or changes in her physical capabilities.
On 5 April 2002, a PEB found the applicant to be unfit for duty as a result of Gullain-Barre Syndrome with an essentially normal neurologic examination with fatigue and limited endurance, rated as mild. The PEB recommended she be removed from the TDRL and discharged, with a 10 percent disability rating, with severance pay.
On 15 April 2002, the applicant nonconcurred in the PEB's findings and recommendation. She requested she be granted a permanent disability retirement. She noted that Guillain-Barre Syndrome is considered extremely rare. Clinical treatment is uncertain and highly variable. No cure is available. Her illness warranted continual medical treatment and she requested she be allowed to receive continual medical benefits. She stated that she suffered with numerous symptoms associated with the illness and wholeheartedly believed she would be victimized by a future attack. She continued to experience profound numbness and tingling in her feet, hands, and face. Her vision went from double to blurred. She suffered with headaches, dizziness, and a stiff neck daily. The left side of her body was considerably weak. She requested a test of her cerebrospinal fluid protein levels but her request was denied. She stated that being separated with severance pay would deny her medical treatment that could be provided by Tricare and/or the VA.
The action on the applicant's appeal is not available. However, effective 5 June 2002 she was removed from the TDRL and discharged, with severance pay, because of permanent physical disability with a 10 percent disability rating.
The applicant provides articles on Guillain-Barre Syndrome obtained from several Internet sites. The National Institutes of Health article states that Guillain-Barre Syndrome is a disorder in which the body's immune system attacks part of the peripheral nervous system. The first symptoms of this disorder include varying degrees of weakness or tingling sensations in the legs. In many instances the weakness and abnormal sensations spread to the arms and upper body. These symptoms can increase in intensity until certain muscles cannot be used at all and, when severe, the patient is almost totally paralyzed. Most patients recover from even the most severe cases of Guillain-Barre Syndrome although some continue to have a certain degree of weakness. The syndrome is rare, afflicting only about one person in 100,000. The disorder can develop over the course of hours or days, or it may take up to 3 to 4 weeks. Most people reach the stage of greatest weakness within the first 2 weeks after symptoms appear and by the third week of the illness 90 percent of all patients are at their weakest.
The article further states that Guillain-Barre is called a syndrome rather than a disease because it is not clear that a specific disease-causing agent is involved. The signs and symptoms of the syndrome can be quite varied, so doctors may, on rare occasions, find it difficult to diagnose Guillain-Barre in its earliest stages. In Guillain-Barre patients, the cerebrospinal fluid that bathes the spinal cord and brain contains more protein than usual. Therefore a physician may decide to perform a spinal tap. Guillain-Barre Syndrome can be a devastating disorder because of its sudden and unexpected onset. In addition, recovery is not necessarily quick. Patients usually reach the point of greatest weakness or paralysis days or weeks after the first symptoms occur. Symptoms then stabilize at this level for a period of days, weeks, or, sometimes, months. The recovery period may be as little as a few weeks or as long as a few years. About 30 percent of those with Guillain-Barre Syndrome still have a residual weakness after 3 years. About 3 percent may suffer a relapse of muscle weakness and tingling sensations many years after the initial attack.
Section 4403 of the National Defense Authorization Act (NDAA) for Fiscal Year 1993 provided the Secretary of Defense a temporary additional force management tool with which to effect the drawdown of military forces through 1999 (TERA). During the active force drawdown period (23 October 1992 and ending on 1 October 1999, later extended to 31 December 2001), the Secretary of the Army could authorize an enlisted member with at least 15 but less than 20 years of creditable service a length of service retirement. While the Army did not broadly apply this program beyond Fiscal Year 1998 (that is, the U. S. Total Army Personnel Command did not issue an implementing message to the field), apparently TERA was offered to soldiers with more than 15 but less than 20 years of active service who would otherwise be discharged for physical disability with severance pay.
Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability. The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purpose of his employment on active duty.
Army Regulation 635-40 prescribes the function of the TDRL. The TDRL is used in the nature of a “pending list.” It provides a safeguard for the Government against permanently retiring a soldier who can later fully recover, or nearly recover, from the disability causing him or her to be unfit. Conversely, the TDRL safeguards the soldier from being permanently retired with a condition that may reasonably be expected to develop into a more serious permanent disability.
Title 10, U. S. Code, section 1202 provides that if a member would be qualified for retirement for disability but for the fact that his disability is not determined to be of a permanent nature and stable, the Secretary shall, if he also determines that accepted medical principles indicate the disability may be of a permanent nature, place the member's name on the TDRL with retired pay computed under section 1401 of this title. Section 1210 states that, if not sooner removed, the disability retired pay of a member whose name is on the TDRL terminates upon the expiration of 5 years after the date when the member's name was placed on the list.
Army Regulation 635-40 states that providing definitive medical care to active duty soldiers requiring prolonged hospitalization who are unlikely to return to active duty is not within the Department of the Army mission. The time at which a soldier should be processed for disability retirement or separation must be decided on an individual basis. The interest of both the Army and the soldier must be considered. A soldier may not be retained or separated solely to increase retirement or separation benefits. Soldiers who are medically unfit and not likely to return to duty should be processed for disability retirement or separation when it is decided that they have attained optimum hospital improvement.
The mission of the Veterans Benefits Administration is to provide benefits and services to veterans and their families in a responsive, timely and compassionate manner in recognition of their service to the nation.
Title 38, U. S. 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 VASRD is the standard under which percentage rating decisions are to be made for disabled military personnel. The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. Unlike the VA, the Army must first determine whether or not a soldier is fit to reasonably perform the duties of his office, grade, rank or rating. Once a soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD. These percentages are applied based on the severity of the condition.
The VASRD states that the residuals of code 8011 (anterior poliomyelitis) may be rated from 10 percent to 100 percent in proportion to the impairment of motor, sensory, or mental function. Complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, etc. should especially be considered.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:
1. The Board empathizes with the frustrating problems the applicant had with medical personnel misdiagnosing or dismissing the symptoms of her illness. However, as the Internet articles she herself provided indicate, the signs and symptoms of Guillain-Barre Syndrome can be quite varied, so doctors may find it difficult to diagnose Guillain-Barrè in its earliest stages. The Board notes that even civilian doctors in California misdiagnosed her illness when they diagnosed her with multiple sclerosis.
2. The Board notes the applicant's contention that she never desired to leave the Army. However, the Board also notes that WRAMC informed her in September 1998 that recovery from Guillain-Barre Syndrome could take months to years and some patients are left with chronic residuals. She appeared to understand and indicated she would alert her physician to new or more pronounced symptoms, which she proceeded to do in November 1998. Nevertheless, even considering the "mistreatment and unconcern" she had faced in the past (before she was ever placed on the TDRL) concerning this illness and the fact she was aware that she could be left with chronic residuals, she made a personal decision not to accept a TERA retirement.
3. Unfortunately, the TERA program ended during the period the applicant was on the TDRL. However, that was a calculated chance she, as a senior noncommissioned officer, took. Also unfortunately, the symptoms of her Guillain-Barre Syndrome did improve, but not sufficiently to make her fit for duty. (This fits the recovery pattern of the illness as described by the Internet article she provided. About 30 percent of those with Guillain-Barrè Syndrome still have a residual weakness after 3 years.)
4. The Board concludes that the continuing symptoms the applicant described in her appeal to her removal from the TDRL (profound numbness and tingling in her feet, hands, and face, blurred vision, headaches, dizziness, and a stiff neck daily) clearly render her unfit for military service. However, she does not complain about the loss of the use of any of her extremities, her vision is impaired but not profoundly so, and she did not mention that she still had a gait problem.
5. The Board notes that the applicant requested a test of her cerebrospinal fluid protein levels but her request was denied. However, the finding of a high protein level in the fluid would not have impacted on her disability rating. The residuals of the illness are rated, not the fact of the illness itself.
6. The Board acknowledges that the applicant could have a relapse of her illness; however, the Internet article she provided indicated only about 3 percent may suffer a relapse of muscle weakness and tingling sensations many years after the initial attack. The applicant could have remained on the TDRL no later than 9 November 2004. It is unlikely that a relapse would have occurred before that date or that the relapse would have been severe enough to warrant a higher disability rating.
7. It appears to the Board that the applicant was given an appropriate disability rating, which unfortunately required her separation with severance pay rather than a physical disability retirement. However, as it appears to the Board that her illness is clearly service-connected, she should have no problem obtaining treatment and perhaps a higher disability rating from the VA. (It should be noted that any disability rating she receives from the VA would not indicate an error or injustice in the rating the Army awarded her. The Army awards a rating based upon the condition rendering the member unfit as it was at the time of the member's separation.)
8. 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
__rvo___ __kan___ __phm___ DENY APPLICATION
| CASE ID | AR2002082771 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 20030703 |
| TYPE OF DISCHARGE | |
| DATE OF DISCHARGE | |
| DISCHARGE AUTHORITY | |
| DISCHARGE REASON | |
| BOARD DECISION | DENY |
| REVIEW AUTHORITY | Mr. Chun |
| ISSUES 1. | 110.03 |
| 2. | 108.02 |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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