RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  25 October 2007
	DOCKET NUMBER:  AR20070006528 


	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.


Ms. Catherine C. Mitrano

Director

x

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that her disability separation with severance pay be changed to a medical retirement.

2.  The applicant states she had begun to have seizures (which the Army called pseudoseizures).  She also developed debilitating migraines at the onset of the seizures.  She was prescribed an anti-convulsant drug for the pseudoseizures and several different medications to help with the migraines.  She was also receiving biofeedback treatment and counseling for depression.  Yet, the Army did not evaluate or rate all her disabilities.  Several of her physicians stated that she did suffer from some form of epilepsy and not a conversion disorder.  This was confirmed by her current neurologist.  Her records show she also suffered from depressive disorder – avoidant, difficulty trusting, and fear of personal closeness (she was sexually harassed by two different noncommissioned officers).  She was not rated for that, either.  Yet, now all of these diagnoses have been confirmed by her neurologist and psychologists.

3.  The applicant provides her DD Form 214 (Certificate of Release or Discharge from Active Duty); a letter, dated 2 October 2000, from Angela G___, licensed psychologist; two letters, dated 16 January 1998 and 19 January 1999, to the Department of Veterans Affairs (VA) from her supervisor; a letter, dated            16 January 1998, to the VA from a co-worker; a letter, dated 16 January 1998, from her office manager to the VA; three letters, dated 4 May, 4 October,          30 November, and 21 December 1999, from the VA to “Whom It May Concern”; a personal statement, dated 9 April 2003, from Meredith R___; a memorandum for record, dated 15 November 2001, from the Animals in the Military Helping Individuals (AIM HI) Service Dog Training Center (SDTC); and copies of the applicant’s SDTC identification cards.

4.  The applicant also provides a letter, dated 26 January 2007, from herself to Suburban Hospital; four CHAMPUS TRICARE Program Explanation of Benefits documents; a personally-prepared chronological listing of treatment while at Goodfellow Air Force Base; her Medical Evaluation Board (MEB) proceedings with Narrative Summary; copies of her service medical records; a letter, dated  15 December 1997, from the VA; two electroencephalogram (EEG) test results, dated 21 June 1995 and 23 August 1996; a letter, dated 22 October 2001, from Angel G___, licensed psychologist; and 547 pages of her VA medical records. 

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 13 August 1992.  She completed basic training.  She completed Russian language training at the Defense Language Institute at the Presidio of Monterey.  Her DA Form 2-1 (Personnel Qualification Record) shows she was assigned to Goodfellow Air Force Base on or about 5 November 1993 for training in military occupational specialty 98G (Voice Interceptor).

3.  The applicant’s MEB Narrative Summary indicated her first “seizure” occurred while she was asleep on 15 December 1993 (sic).  An MRI (magnetic resonance imaging) and an EEG performed at Fort Ord, CA were both normal, no diagnosis was made and no treatment was started at that time.  In June 1993, she had another, similar event.  Repeat EEGs and MRIs were normal, so medication was not started.  Since that time, she had an episode every 1 1/2 to 2 1/2 weeks consisting of right arm shaking, head turning to the right, and bilateral leg stiffening.  She was aware of the events and had memory of the event[s].  She would sometimes get blurred vision and/or right neck pain 5 to 10 minutes before a spell.  

4.  There is some confusion.  Several documents indicated the applicant’s first seizure was 15 December 1992.  If her first seizure was while she was at Goodfellow Air Force Base, then 15 December 1993 would seem to be the correct date.  However, an EEG performed at Fort Ord, CA would tend to corroborate her first seizure date as 15 December 1992, as it would make sense that she was sent from Monterey, CA to Fort Ord for the EEG rather than from Goodfellow Air Force Base, TX to Fort Ord.  

5.  The Narrative Summary continued that the applicant was admitted to Neurology Service and hooked up to the continuous video EEG monitoring system.  She had a baseline EEG performed which was a normal awake and sleep study.  On 4 May 1993, she had an episode which involved a shaking of the right arm, bilateral stiffening of both legs, and her head would passively fall to the right.  There were no eye movement abnormalities.  Afterwards, she could recall what happened during the episode.  The EEG showed that prior to the episode starting she awoke from sleep and had been awake for several minutes before beginning to experience these symptoms.  During the symptoms, the EEG was completely normal.  It was their conclusions, based on her “history and now this characteristic spell with a normal EEG (which would not be possible in a generalized seizure as she had),” that they were psychogenic seizures.  Therefore, Psychiatry Service was consulted.  

6.  The Narrative Summary continued that Psychiatry Service concluded the applicant had a conversion disorder of pseudoseizures based on the thorough negative workup and identified possible underlying psychological conflicts including longstanding issues with trust, intimacy, identify, fear of closeness, and rejection sensitivity.  They also felt there might be a mild depression.  She was diagnosed with conversion disorder manifested as pseudoseizures.

7.  On 17 May 1994, an Air Force MEB referred the applicant to an Army  Physical Evaluation Board (PEB) with a diagnosis of conversion disorder, recurrent, manifested by multiple episodes of pseudoseizures; depressive disorder, not otherwise specified, refused medication, in need of psychotherapy; and multiple personality traits (avoidant, rejection sensitivity, difficulty trusting, and fear of personal closeness).  

8.  The applicant indicated that she wanted to remain in the service.  In an        18 May 1994 statement, she stated that she cared very much about the military and also cared very much for herself.  One very important factor was her job performance.  She felt that she was going to have those episodes in the military or civilian world.  She understood that if [the episodes] would affect her job performance that the Army could not put people at risk.

9.  On 20 May 1994, the applicant requested continuation on active duty.

10.  On 23 May 1994, the applicant was given a permanent S3 physical profile for a mental disorder (conversion disorder with pseudoseizures). 

11.  On 9 June 1994, the applicant’s commander prepared a Commander’s Statement.  He recommended the applicant be allowed to stay in the Army as long as follow-on medical treatment was made available and her condition solved.  If further medical care was unavailable and/or her condition could not be solved, then he recommended she be processed for separation.  He noted the applicant was a bright, disciplined, motivated Soldier who wanted to fulfill her enlistment commitment.  He also noted, however, that with her “seizures” she was unable to meet many basic Soldier requirements – she could not drive a military vehicle, she could not fire a weapon, she could not do anything that might endanger her or other Soldiers.  
12.  On 16 June 1994, an informal PEB held at Fort Sam Houston, TX found the applicant unfit with a diagnosis of conversion disorder, recurrent, manifested by multiple episodes of pseudoseizures; and depressive disorder, refused medication, in need of psychotherapy, under the VA Schedule for Rating Disabilities (VASRD) code 9402 (psychoneurotic disorders – conversion disorder; psychogenic pain disorder).  Her diagnosis of multiple personality traits was found to be not unfitting and not rated.  The PEB recommended she be discharged with severance pay and a 10 percent disability rating.  

13.  On 30 June 1994, the applicant did not concur with the findings of the informal PEB and demanded a formal hearing.

14.  On 29 July 1994, a formal PEB found the applicant to be unfit with a diagnosis of conversion disorder, recurrent, manifested by multiple episodes of pseudoseizures; and depressive disorder, refused medication, in need of psychotherapy, under VASRD code 9402.  Her diagnosis of multiple personality traits was found to be not unfitting and not rated.  The PEB recommended she be discharged with severance pay and a 10 percent disability rating.  

15.  The applicant did not concur with the findings of the formal PEB.  In an appeal, she stated that she was a good Soldier and felt that she did her job and handled her responsibilities very well.  For those reasons, she thought that she was entitled to more than a check and a write off.  The doctors did not know what was causing her episodes to occur and they wanted to send her on her way.  She deserved a solid diagnosis from the military.  

16.  Counsel for the applicant stated that the applicant requested to be found fit for duty.  He contended there was no objective medical evidence to support a diagnosis of conversion disorder.  The applicant took no medication.  She did not have a social impairment.  There was no proof that she could not operate in an environment in and around people.  She did not suffer from an industrial impairment.  Testimony was given that the applicant could perform duties of a 98G in a strategic capacity.  

17.  The president of the formal PEB responded to the applicant’s rebuttal.  He stated that the PEB was required to evaluate her ability to reasonably perform the MOS duties of her rank.  In her case, the board questioned her ability to perform the duties of an Army Russian voice intercept linguist based on her seizures.  He noted that the board engaged in lengthy closed deliberations.  The issue of discussion was her overall ability to perform her duties.  The board agreed that her seizures had not precluded her from doing well in military academic and training environments.  Fulfilling her duties in an operational capacity was a different issue altogether.  Until the cause of the seizures could be determined and controlled it was against the Army’s and her interest to put her into a position where her medical condition could adversely affect national security.  The Army could ill afford a Soldier charged with the important duties of voice intercept[or] “blacking out” while recording and translating critical strategic or operational level intelligence information.  

18.  The findings of the formal PEB were approved, and on 26 October 1994 the applicant was discharged, with severance pay, for disability with a 10 percent disability rating.

19.  The applicant provided an EEG report, dated 21 June 1995, that was interpreted as an abnormal EEG because of some intermittent sharply configured slow waves in the left temporal region during hyperventilation.  Findings were “by no means diagnostic of a seizure disorder but could be consistent there of.”

20.  The applicant provided an EEG report, dated 23 August 1996, that was interpreted as an abnormal EEG with some intermittent paroxysmal slowing in either temporal region.  It was a nonspecific finding and could be seen “for example in someone with migraines among other possibilities.  There are no definite epileptiform abnormalities on the current EEG.”  

21.  The applicant provided a letter, dated 15 December 1997, from the VA neurologist, Doctor B___, treating her.  He stated that the applicant has had nocturnal spells since the military, and it has become clear over the years he has followed her that the spells are epileptic seizures.  She has had nocturnal generalized convulsions and rare daytime spells with loss of consciousness and prominent tonic motor contraction consistent with complex partial seizures.  She had several EEGs which showed some temporal slowing and sharp slowing as well.  

22.  The applicant provided a Discharge Summary, dated 19 March 1998.  The document indicates the applicant was admitted to Neurology Service for a telefactor EEG.  They originally took the EEG for 72 hours; however, the hospitalization was extended because of the lack of any seizure activity while off her antiepileptic drugs.  She did have some occasional headache throughout the hospitalization; but through day seven, she had not had any seizure activity.  

23.  In an addendum to the 19 March 1998 Discharge Summary, it was noted that the impression was that the applicant has seizure disorder.  It was impossible to determine at that time whether any of her seizures were nonepileptic or pseudoseizures.  The attending physician, Doctor B___, was convinced that at least some of her seizures were real.  He proposed that another extended video-EEG monitoring session should be done in the future; hopefully, one that would capture a seizure event to determine whether it was an epileptic or a nonepileptic event.

24.  The applicant provided an EEG report, dated 30 April 1999, that showed an EEG was performed while the applicant was playing a video game in an attempt to solicit a seizure.  The EEG was interpreted as a normal EEG without focal or epileptiform abnormalities.

25.  The applicant provided a Consult Request, dated 10 November 1999, that indicated an EEG was performed that was interpreted as abnormal with mild intermittent left temporal slowing and sharps, the latter of potential epileptiform significance.

26.  The applicant provided a Progress Note, dated 27 May 2003.  This document noted, in the Psychiatric History section, that the applicant, for as long as she could remember, felt mildly depressed, did not sleep well, felt unmotivated, and had low self-esteem.  She saw a therapist for the first time in 1992 after her seizures began.  However, she stated that she was simply frustrated with the life change posed by the seizures and did not feel more depressed than usual during that time.  Doctor B___ provided input to this Progress Note, noting that the applicant has idiopathic epilepsy and had              19 seizures in 2001 and 10 seizures in 2002, at least half of them generalized tonic clonic seizures (major seizures).  He also noted that she also has severe migraines and typically is disabled for about a day with these and has about one per month.

27.  The applicant provided a Progress Note, dated 20 October 2006, co-signed by Doctor B___, which indicated the applicant had generalized epilepsy, seizure free for over one year.

28.  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 purposes of his employment on active duty.  In pertinent part, it states there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.  

29.  Army Regulation 635-40 also 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.  Soldiers who are medically unfit and not likely to return to duty should be processed for disability retirement or separation when it is decided they have attained optimum hospital improvement.

30.  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.

31.  The VASRD gives code 9402 a 10 percent rating when the criteria is less than for the 30 percent rating, with emotional tension or other evidence of anxiety productive of mild social and industrial impairment.  It gives a 30 percent rating when there is definite impairment in the ability to establish or maintain effective and wholesome relationships with people.  The psychoneurotic symptoms result in such reduction in initiative, flexibility, efficiency, and reliability levels to produce definite industrial impairment.  Higher ratings, of 50 percent, 70 percent, and   100 percent are also given for progressively worse symptoms.  

32.  Title 38, U. S. Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contended that she developed debilitating migraines at the onset of her seizures, which began in December 1992, and she was also receiving biofeedback treatment and counseling for depression.  

2.  However, there is no evidence of record to show that either the applicant’s migraines or depression rendered her unfit for duty.  In his 9 June 1994 statement, her commander noted only that her seizures rendered her unable to meet many basic Soldier requirements such as driving a military vehicle or firing 
a weapon.  In her appeal to the formal PEB findings, she mentioned only her seizure episodes and did not contend that either migraines or depression made her unfit for duty.  To the contrary, the applicant felt fit enough to request continuation on active duty.  It is also noted that in the Progress Note, dated      27 May 2003, the applicant related that for as long as she could remember she felt mildly depressed.  She indicated that she saw a therapist for the first time in 1992 only because she was frustrated with the life change posed by the seizures and did not feel more depressed than usual during that time.

3.  Contrary to the contention of counsel for the applicant in her appeal to the findings of the formal PEB, the evidence of record did show that the applicant suffered from an industrial impairment.  The president of the formal PEB reasonably concluded that the applicant would be unable to fulfill her duties as a voice interceptor in an operational capacity, that the Army could ill afford a Soldier charged with the important duties of voice intercept[or] “blacking out” while recording and translating critical strategic or operational level intelligence information.  

4.  Admittedly the applicant’s industrial impairment was mild, sufficient to warrant granting only a 10 percent disability rating.  Nevertheless, the impairment, which rendered the applicant unable to perform basic Soldier functions, was sufficient to warrant her separation from the Army.

5.  The applicant’s frustration with the inability to diagnose her condition is understandable.  However, the evidence shows that competent military psychiatric medical personnel diagnosed her with conversion disorder.  Notwithstanding Doctor B___’s 15 December 1997 pronouncement that it was “clear over the years that he has followed her that the spells are epileptic seizures,” she provided evidence that showed that as late as April 1999 there was no clear evidence that she suffered from epilepsy.

6.  It is acknowledged that the applicant’s seizures may have worsened since her separation and that her migraines and depression may have since become debilitating; however, the Army’s rating is dependent on the severity of the disabling condition at the time of separation.  The VA has the responsibility and jurisdiction to recognize any changes in that condition over time by adjusting a disability rating or by awarding a rating for other service-connected disabilities (even though those conditions were not disabling while in the Army).  The evidence shows that the Army did not just “send her on her way.”  She is being treated by the VA, whose mission is to treat veterans.  


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__x__  __x__  __x___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




__x____
          CHAIRPERSON




INDEX

CASE ID
AR20070006528
SUFFIX

RECON

DATE BOARDED
20071025
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
108.00
2.

3.

4.

5.

6.