RECORD OF PROCEEDINGS


	IN THE CASE OF:	  
	BOARD DATE:	  15 April 2008
	DOCKET NUMBER:  AR20070008315 


	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.  




Director



Analyst


      The following members, a quorum, were present:




Chairperson



Member



Member

	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 his case be referred to a Medical Evaluation Board (MEB).  

2.  The applicant states, in effect, that he was denied referral to an MEB per Army Regulation 40-501 (paragraphs 3-3c, 3-30g, 3-30h, 3-30j, 3-41c, and 
7-11e) for an illness (meningitis encephalitis) and ongoing related medical issues (migraine headaches).  He contends that he was deployed to Iraq with his Army Reserve unit in December 2003 and that during his deployment he was medically evacuated to the United States for treatment for meningitis encephalitis.  He states that when he recovered from the initial illness he was assigned to the Community Based Health Care Organization (CBHCO) Massachusetts Forward National Guard unit to complete his treatment and recovery.  During his recovery period (11 January 2005 to 15 November 2005), he attempted to be processed through an MEB to address his ongoing medical issues; however, his care manager and the unit’s physician refused.  He contends they understated his medical issues or were not concerned about them because he was not assigned to that facility for treatment for migraine headaches.  He indicates that he has and continues to have migraine headaches with a frequency of at least one per month and that prior to his illness he routinely had them about once every six months.  He states that his neurologist has documented the reason for the increase in migraine headaches is due to meningitis encephalitis.

3.  The applicant states that according to Army Regulation 40-501, an MEB should have been performed.  He goes on to state that on 15 November 2005 he was released from active duty and assigned to his parent unit (323rd Maintenance Company).  He also states that during his assignment with his former unit he had attempted to have an MEB conducted, that the Regional Readiness Command Surgeon General’s office felt he was entitled to an MEB, and that prior to being scheduled to attend an MEB he was discharged because his expiration term of service date (18 April 2004) was during his actual deployment.      

4.  The applicant provides a memorandum, dated 5 February 2007, from a Member of Congress’ office; a letter, dated 29 January 2007, from Headquarters, U.S. Army Reserve Command, Fort McPherson, Georgia to a Member of Congress; discharge orders, dated 7 November 2005; and numerous service medical records.




CONSIDERATION OF EVIDENCE:

1.  Having prior active service, the applicant enlisted in the U.S. Army Reserve (USAR) on 16 March 1999.  He attained the rank of sergeant on 25 October 2003.  In February 2004, the applicant was ordered to active duty in support of Operation Iraqi Freedom.  

2.  A service medical record states that on 10 November 2004, while in Iraq, the applicant (with a history of migraines) went to the hospital with complaints of headache, photophobia, and bilateral hand weakness.  He subsequently had multiple seizures and was admitted.  On 11 November 2004, he was medically evacuated to a medical center in Germany due to seizures.  He was admitted to Walter Reed Army Medical Center on 13 November 2004.  He was diagnosed with meningitis encephalitis; seizure disorder secondary to infection; reactive thrombocytosis likely medication related; and elevated liver function tests (resolving) likely secondary to medication.  The applicant was discharged from Walter Reed Army Medical Center on 25 November 2004.    

3.  A service medical record, dated 10 January 2005, states, in pertinent part, that the applicant has a history of migraines since 1996.

4.  The applicant provided medical records which show he was seen on a monthly basis during the period February to August 2005 for a follow-up assessment of seizures, meningoencephalitis, and history of/complicated migraines.  He also provided service medical records which indicate he was being referred to an MEB.

5.  A service medical record, dated 3 May 2005, states, in pertinent part, “Sleep study completed showing sleep apnea.”

6.  On 15 July 2005, the applicant underwent a nocturnal polysomnogram.  Based on the examination, and the applicant’s reported complaints, the physician concluded that it appeared the applicant had mild to moderate obstructive sleep apnea syndrome. 

7.  A DD Form 3349 (Physical Profile), dated 18 July 2005, shows the applicant was issued a temporary profile of 211111 for meningioencephalitis with history of seizure activity.  Items 5a (Able to carry and fire individual assigned weapon) and 5f (Is Soldier healthy without any medical condition that prevents deployment?) on this form shows an “X” in the “No” block. 
 
8.  On 18 July 2005, a request for the applicant’s medical clearance/REFRAD [release from active duty] was initiated.  On 20 July 2005, the CBHCO Massachusetts Medical Officer reviewed the applicant’s records and determined he was “Fully Fit for Duty and or REFRAD [release from active duty] with any permanent profiles as noted.”  The projected date of medical clearance was 
20 July 2005.    

9.  On 22 July 2005, a progress note indicated that the applicant returned for reevaluation of apparent aseptic meningoencephalitis.  The notes also indicated that his migraines and associated motor changes, all nocturnal events, occurred with much greater frequency and with more associated signs and symptoms following onset of meningoencephalitis.  

10.  A service medical record, dated 2 August 2005, states, in pertinent part, “Sleep apnea – Sleep EEG [Electroencephalogram] APR 05.  SM [service member] requested 3rd sleep apnea study.  Tricare does not provide 3rd requests.  Case discussed with CBHCO Dr. Plan – No further care planned.  Will REFRAD.”

11.  On 9 August 2005, the applicant requested to be boarded for tuberculin meningitis.  An official from the Office of the Surgeon General informed the applicant that he was not diagnosed with tuberculin meningitis and that he would be released from active duty.

12.  On 15 November 2005, the applicant was released from active duty and assigned to the 323rd Maintenance Company in Massachusetts.  Apparently, he was discharged from the USAR on 3 October 2006. 

13.  Army Regulation 635-40 governs the evaluation for 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.  It states that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  

14.  Army Regulation 635-40, appendix B, paragraph 10 states that when considering EPTS (existed prior to service) cases involving aggravation by active service, the rating will reflect only the degree of disability over and above the degree existing at the time of entrance into the active service, less natural progression occurring during active service. 

15.  The VA Schedule for Rating Disabilities (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.  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.

16.  VASRD code 8100, migraine, awards a 30 percent disability rating for migraine with characteristic prostrating attacks occurring on an average of once a month over the last several months.

17.  Paragraph 3-3c of Army Regulation 40-501 (Standards of Medical Fitness) states that a Soldier will not be referred to an MEB or a Physical Evaluation Board (PEB) because of impairments that were known to exist at the time of acceptance in the Army and that have remained essentially the same in degree of severity and have not interfered with successful performance of duty.

18.  Paragraph 3-30g of Army Regulation 40-501 states that a cause for referral to an MEB is migraine, tension, or cluster headaches, when manifested by frequent incapacitating attacks.  All such Soldiers will be referred to a neurologist, who will ascertain the cause of the headaches.  If the neurologist feels a trial of prophylactic medicine is warranted, a 3-month trial of therapy can be initiated.  If the headaches are not adequately controlled at the end of the 3 months, the Soldier will undergo an MEB for referral to a PEB.  If the neurologist feels the Soldier is unlikely to respond to therapy, the Soldier can be referred directly to an MEB. 

19.  Paragraph 3-30h of Army Regulation 40-501 states that a cause for referral to an MEB is narcolepsy, sleepwalking, or similar sleep disorders.  The evaluation and treatment of these diagnoses by a neurologist or other sleep specialist should be routinely sufficient. 

20.  Paragraph 3-30j of Army Regulation 40-501 states that a cause for referral to an MEB is any other neurologic conditions, Traumatic Brain Injury 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. 

21.  Paragraph 3-40j(1) of Army Regulation 40-501 states that a cause for referral to an MEB is meningitis, tuberculous.

22.  Paragraph 3-41c of Army Regulation 40-501 states that a cause for referral to an MEB is sleep apnea.  Obstructive sleep apnea or sleep-disordered breathing that causes daytime hypersomnolence or snoring that interferes with the sleep of others and that cannot be corrected with medical therapy, nasal continuous positive airway pressure, surgery, or an oral appliance.  The diagnosis must be based upon a nocturnal polysomnogram and the evaluation of a pulmonologist, neurologist, or a privileged provider with expertise in sleep medicine.

23.  Paragraph 7-11e of Army Regulation 40-501 states that item 5 will be prepared by answering Yes or No to items 5a through 5f.  These functional activities are the minimum requirements to be considered medically qualified for worldwide deployment.  If any answer is No then the appropriate profile serial should in most cased be at least a 3.  This will ensure that the Soldier’s case will be individually reviewed by either an MEB or Medical Military Occupational Specialty Retention Board.

DISCUSSION AND CONCLUSIONS:

1.  It is acknowledged that the applicant suffered from several medical conditions, the primary condition being meningitis encephalitis.  However, that condition appears to have been fully resolved through medications.  Other conditions he suffered from include migraines and sleep apnea.  However, the evidence indicates both those conditions were primarily nocturnal events.

2.  However, the purpose of the physical disability evaluation system is to determine the fitness for retention of Soldiers with medical conditions that interfere with the performance of their duty.  There is no evidence to show the applicant was ever given any profile other than a temporary profile for his meningitis encephalitis.  There is no evidence to show he could not perform his duties.

3.  The applicant’s contentions were noted.  However, on 20 July 2005, the CBHCO Massachusetts Medical Officer determined he was fit for duty.  Therefore, there is no basis for granting the applicant’s request.  








BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

PM_____  __JH____  ___KJ___  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.


      ___              PM_____
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20070008315


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
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