IN THE CASE OF:	

		BOARD DATE:	      8 OCTOBER 2009

		DOCKET NUMBER:  AR20090002079 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests correction of his military records to show that he was retired due to a physical disability.  The applicant also requests to personally appear before the Board.

2.  The applicant states [exhibit 1] that he was given an incorrect disability rating that resulted in his removal from the temporary disability retired list (TDRL).  He also provides a 7-page sworn affidavit.  In summary, the applicant states:

	a.  that in 1993 and 1994, while on active duty, he suffered a generalized seizure, two grand mal seizures, and two strokes with hemorrhage;

	b.  that Army personnel initially dismissed his symptoms;

	c.  that his family, including his brother who is a medical doctor, took him to private medical doctors who addressed his symptoms and had him transferred to Walter Reed Army Medical Center (WRAMC);

	d.  that the supervising doctor at WRAMC was unable to diagnose the cause for his condition and was subsequently removed from the case;

	e.  that he was transferred to Bethesda Naval Medical Center (BNMC) where the doctors immediately recognized the mass in his brain;

	f.  that after his surgery to remove the mass, he was found to be unfit for further duty and placed on the TDRL;
	g.  that it was hoped his condition would improve and he could return to active duty;

	h.  that in December 1998, it was medically determined he would never improve sufficiently to permit his return to active duty;

	i.  that he was very confused by the comments made by the examining doctor stating that his unfitness for military service due to a permanent physical disability was not contributable to the incurred brain condition and subsequent surgery;

	j.  that there was a concern because the same medical staff that was reprimanded in 1994 for mishandling the case was handling the 1998 evaluation;

	k.  that the examining doctor made unprofessional comments, refused to review notes of his medical treatment during the time he was on the TDRL, and stated that "it is my job to save the Army money";

	l.  that the examining doctor stated that he "looked fine" and that he would ensure he did not receive any disability rating since he believed he had improved and no longer had a disability despite the residual medical symptoms of his brain surgery;

	m.  that with the help of his wife and brother, he submitted a rebuttal which the medical staff subsequently lost and he had to resubmit;

	n.  that in August 1999, the examining doctor, in response to the applicant's rebuttal, stated that his ability to write a rebuttal proved his condition had been resolved and that he was no longer disabled;

	o.  that had the doctor chosen to listen to the applicant, his wife, and brother, the doctor would have understood that the rebuttal was mostly written by his wife and family because he was not mentally able to stay focused enough to do so;

	p.  that despite the evidence of the residual disability connected to his brain surgery, the formal physical evaluation board (PEB) in 2000 found him to be unfit for further military service with a zero-percent disability rating;

	q.  that the doctor assigned to his case was prejudiced against him and unfairly evaluated his medical condition;

	r.  that the applicant had tried to remain gainfully employed, but the symptoms of his brain condition ultimately prevented his employment despite his employer's generous allowances for his mental shortcomings;

	s.  that he applied to the Department of Veterans Affairs (VA) for assistance, but his medical records were lost three times;

	t.  that in 2007, after locating his medical records, the VA recognized his disabilities, found him unable to work, and awarded him a "total and permanent" disability rating of 100 percent, backdated to the date of his transfer to the TDRL;

	u.  that the VA overseer could not understand why the Army did not medically retire the applicant; and

	v.  that the applicant remains mentally and physically unable to perform military duties or to retain a civilian job.  His disabilities are incapacitating and prevent him from working.  He has significant problems with memory, concentration, anger, restlessness, lack of mental focus, inability to perform multi-task skills, language, psychomotor, perceptual, organization, time management, finishing projects, interacting with co-workers and family, and decision making.  He is unable to remember names, addresses, and work assignments.  He must write everything on a list, but often forgets to refer to the list and becomes further confused.  He is taking several prescription medications to control his condition.  The stress of his condition has led to many family problems.  He continues to receive therapy and counseling.  The applicant was unable to draft this affidavit without the assistance of family and legal counsel.

3.  The applicant provides no supporting documents with his application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the applicant's military records to show:

	a.  that the erroneous separation from the TDRL without proper rating of his disability be removed from his official military personnel record (OMPF);

	b.  that all references to the erroneous separation, including all administrative documents created by or relating to his final TDRL physical disability processing, including the erroneous separation orders dated 16 November 2000, be removed from his OMPF;

	c.  that all documents resulting from the erroneous separation be removed from his OMPF, including, but not limited to, all associated memoranda and correspondence connected to his removal from the TDRL;

	d.  that the applicant be returned to a TDRL status, retroactive to 16 November 2000, for proper evaluation of his medical condition by a new, impartial PEB;

	e.  that, as an alternative to a new PEB, the Army accept the VA 100-percent disability rating and enter it into his military records;

	f.  that the applicant's records be corrected to show he was serving continuously on the TDRL from 16 November 2000 to the date the Army properly completes his evaluation and legally separates him from active duty;

	g.  that the applicant be immediately paid all back pay and allowances due him for the period from 16 November 2000 to the date the Army completes its evaluation and legally removes him from the TDRL;

	h.  that the applicant be credited for pay and longevity for the period from 16 November 2000 to the date the Army completes its evaluation and legally separates him from the TDRL;

	i.  that the applicant be reimbursed for all medical expenses, including transportation for medical treatment and medical insurance premiums paid, during the period from 16 November 2000 to the date the Army completes its evaluation and legally removes him from the TDRL;

	j.  that the applicant be paid TDRL retirement pay during the period from when he is returned to the TDRL for disability processing and subsequently medically retired;

	k.  that, if medically retired, the applicant be given an opportunity to participate in the Survivor Benefit Plan;

	l.  that the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) and all other separation documents be corrected to indicate that he was separated or retired from active duty by reason of physical disability on the date the Army completes its evaluation and legally removes him from the TDRL; and

	m.  that the applicant's longevity and retirement pay be recalculated accordingly.
2.  Counsel states that the United States Army has failed to live up to its legal and moral duty to provide proper medical treatment to an injured Soldier and then failed to properly process him for disability retirement in violation of its own regulations.  The applicant entered the Army National Guard and served in an active status from January 1985 until June 1987.  He was appointed to the United States Military Academy at West Point, where he completed his course of study and was commissioned as a second lieutenant on 1 June 1991 as a Field Artillery officer.  The applicant was promoted through the ranks, attaining captain on 1 June 1995.  During this time, he experienced seizures in 1993 and 1994 which resulted in a so-called "stroke" and hemorrhage in his brain.  

3.  Counsel states that the Army medical personnel failed for over a year to identify and treat the condition causing his seizures.  The applicant's family intervened and secured his transfer to WRAMC where the Army again failed to properly diagnose and treat his malady.  The applicant's family had him transferred to BNMC where he was "almost immediately" diagnosed and underwent brain surgery.  The applicant's treatment continued while he was on active duty.  On 16 April 1997, he was placed on the TDRL.  In December 1998, the applicant underwent a periodic medical evaluation.  The applicant's disability processing was fatally flawed by the prejudice of the examining doctor who ignored the medical evidence and concluded that the applicant's medical unfitness for military service was not the result of his seizures or the residual symptoms from the removal of a mass in his brain.  The examining doctor told the applicant, in the presence of two other witnesses, that he would not examine the medical evidence and would ensure that the applicant received no disability rating.  

4.  Counsel states that, on 16 November 2000, the applicant was removed from the TDRL and discharged with severance pay for his 16 years of military service.  His orders state that he was discharged due to a physical disability rated at zero percent.  It is clear from the medical record and from the separation orders that the applicant was suffering from physical and mental disabilities which made him unfit to perform his military duties.  The applicant's length of service falls short of qualifying him for retirement.  However, his disability, which the Army failed to properly rate, qualifies him for a physical disability retirement.  Due to the Army's errors, the applicant's separation was improper because the zero-percent disability rating was contrary to the facts and evidence that existed at the time.  This is an injustice that merits correction and the granting of the requested relief.

5.  Counsel provides the following in support of the application:

	a.  applicant's affidavit;
	b.  medical chronology;

	c.  administrative chronology;

	d.  applicant's DD Form 214;

	e.  affidavit from the applicant's brother [a doctor];

	f.  affidavit from the applicant's wife;

	g.  excerpt from Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation);

	h.  excerpt from Army Regulation 40-400 (Patient Administration);

 	i.  Neuropsychological Evaluation Report, dated 13 October 1998;

	j.  TDRL Evaluation Summary, dated 15 December 1998;

	k.  letter from applicant's mother to the then Commander, WRAMC, dated 10 February 1999;

	l.  applicant's rebuttal letter, dated 26 August 1999;

	m.  TDRL Evaluation Summary Addendum, dated 4 March 2000;

	n.  Orders D222-8 and memorandum, United States Army Physical Disability Agency (USAPDA), dated 16 November 2000;

	o.  excerpt of Title 10, U.S. Code, section 1214; and

	p.  letter, VA, dated 16 May 2008.

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.  On 1 June 1991, the applicant was commissioned as a second lieutenant, Field Artillery, with concurrent call to active duty in the Regular Army.

3.  In 1993 and 1994, the applicant experienced two generalized tonic-clonic seizures.  Prior to this, his medical condition was unremarkable.  On 16 August 1994, he underwent a left frontal craniotomy with surgical resection to remove a mass.

4.  On 1 June 1995, the applicant was promoted to captain, pay grade O-3.

5.  On 5 August 1996, the applicant underwent a neuropsychological evaluation.  The clinical interview and test results suggested that the applicant was operating at a normal level of neuropsychological functioning.  There were few deficits in those attention, concentration, memory, psychomotor, language, perceptual, or executive skills sensitive to the effects of organic brain dysfunction.  The assessment data from June 1994 and August 1996 was essentially identical and was not consistent with the presence of an organic brain disorder.  The recommendation was for a follow-up examination in 2 years, sooner if additional neuropsychological symptoms develop.

6.  On 8 August 1996, the applicant underwent a physical examination which revealed that his head had a well-healed scar secondary to his arteriovenous malformation resection.  The applicant complained about headaches and several episodes of fluid leaking from his left temple which was not evident during the examination.  His neck revealed no masses.  His chest revealed clear lung fields.  His cardiac examination revealed no murmurs.  His abdomen was soft and non-tender.  Genitourinary examination revealed an incised right testicle with a prosthesis in place.  He complained about inguinal and testicular pain.  Extremities revealed left anterior cruciate ligament injury.  He had not undergone surgery for that condition.  

7.  The applicant’s neurological examination revealed cranial nerves II-XII intact.  The results of the motor and sensory examinations were normal.  His reflexes were bi-laterally symmetric and physiologic.  Cerebellar examination revealed no defects.  The applicant had undergone extensive neuropsychological testing and it was felt that his symptoms interfered with many aspects of his day-to-day functioning.  The symptoms impeded his decision-making; however, his neurological functioning revealed that he was operating at normal levels at that time.  There were deficits to include attention, concentration, memory, psychomotor, language and perceptual.  The deficits in terms of attention, concentration and memory were mild.  The conclusion was that these findings were consistent with the presence of a slight brain disorder.  Re-imaging of his brain revealed no evidence of blood collections, cerebrospinal fluid leak, or any other problem at that time.  The applicant was also seen by the orthopedic service, the urologist, and was administered an allergy test resulting in the identification of 28 specific antigens to which he was allergic.  The applicant was found not medically qualified for retention.

8.  On 13 October 1996, the applicant's supervisor wrote a letter to the Commander, WRAMC, wherein he stated that the applicant's medical condition had continued to take a toll.  The applicant was an exceptionally talented young man who could always be counted on to perform at the highest levels of professionalism.  His integrity and honor were above reproach.  His supervisor trusted him implicitly.   Unfortunately, due to the applicant's medical condition, there were periods of severe migraine headaches and dizziness.  On a number of occasions, the applicant had to be ordered to leave and rest up prior to returning to work.  He could not function without taking medication three or four times a day for pain.  The applicant attempted to engage in physical activities to regain his strength and prepare for the Army physical fitness test.  Each time, regardless of the activity, he became ill, losing color and becoming extremely fatigued.  The supervisor had to order the applicant to stop all physical activities until cleared by his doctor.  His mental fatigue, medication, and inability to exercise precluded him from competing successfully with his peers, regardless of the branch of service.  The applicant was no longer capable of advancing in grade due to the limitations imposed by his medical problems.  The supervisor recommended that the applicant be separated from military service at the earliest opportunity.

9.  On 7 November 1996, a medical evaluation board (MEBD) convened to assess the applicant's medical condition.  The MEBD referred the applicant to a PEB for a determination of fitness for duty based on the following diagnoses:

	a.  status post resection of the left frontal arteriovenous malfunction with neuropsychological deficits, organic brain disorder;

	b.  severe headaches secondary to resection;

	c.  urologic testicular pain status post-right orchiectomy secondary to trauma and right inguinal discomfort most likely secondary to scar formation (no surgery needed);

	d.  anterior cruciate ligament tear on the left knee secondary to trauma (no evidence of laxity, no need for emergency surgery at that time);

	e.  allergic rhinitis, controlled with medication;

	f.  allergic to 28 specific allergens;

	g.  seizure-free at that time;

	h.  sustained episodes of dizziness;

	i.  pseudomeningocele [bulging membrane] at burr hole site where episodes of cerebrospinal fluid may leak secondary to resection (surgical repair discussed, most likely will heal with time); and

	j.  persistent eczema.

10.  On 12 December 1996, a PEB convened to consider the applicant's medical condition.  The PEB found the applicant unfit due to status post-resection of left frontal arteriovenous malformation with neuropsychological defects, slight organic brain syndrome, rated at 10-percent disabling; severe headaches secondary to arteriovenous malformation resection rated at 10-percent disabling; and sustained episodes of dizziness rated at 10-percent disabling.  The remaining seven diagnoses submitted by the MEBD were not found unfitting and were not rated by the PEB.  The PEB rated his disability at 30 percent and recommended placement on the TDRL.  The applicant did not concur and demanded to appear before a formal hearing with counsel.

11.  An addendum to the MEBD, dated 17 January 1997, states that the applicant experiences severe, unmitigated vascular type recurrent headaches secondary to resection of a left frontal arteriovenous malformation.  The specifics of the vascular malformation within his brain that was resected was found on the initial MEBD.  The subsequent vascular headaches are so severe that they limit the amount of his physical activity as well as provide an atmosphere that hinders his work performance.  His headaches are characterized by an average of two to three a week that are severe enough to interfere with his working.  They consist of sharp, radiating pains usually starting on one side that cause him to experience feelings of disgust and to lose interest in activities.  The applicant was on medication four to six times a day consisting of 600 milligrams of ibuprofen in efforts to relieve and control the effects of his migraines; however, this was unsuccessful and caused him to be unable to perform physical activity.

12.  On 4 February 1997, an informal PEB was convened to reconsider the applicant's medical condition.  The PEB found the applicant unfit due to severe vascular headaches secondary to resection of left frontal arteriovenous malformation rated at 30-percent disabling; status post-resection of left frontal arteriovenous malformation with neuropsychological defects, slight organic brain syndrome, rated at 10-percent disabling; and sustained episodes of dizziness rated at 10-percent disabling.  The remaining seven diagnoses submitted by the MEBD were not found unfitting and were not rated by the PEB.  The PEB rated his disability at 40 percent and recommended placement on the TDRL with reexamination in July 1998.  The applicant concurred and waived a formal hearing.

13.  On 16 April 1997, the applicant was separated from active duty and placed on the TDRL.  His DD Form 214 shows that he had completed 5 years, 10 months, and 16 days of active duty and 2 years, 2 months, and 29 days of prior inactive service.

14.  On 16 December 1998, a TDRL Evaluation Summary stated that it had been nearly 5 years since the resection of the applicant's arteriovenus malformation.  By all measurable, objective neurological standards, the applicant was doing extremely well.  Serial neurosurgical testing did not demonstrate deficit.  He had had no further generalized tonic-clonic seizures.  He was gainfully employed.  The applicant's condition was stable at a very functional baseline and he was likely to stay that way.  The applicant may develop seizures again at some time in the future, but there was no way to quantify that risk.  The applicant was unlikely to develop any further neurological deficits in as much as he has demonstrated a cure of his arteriovenus malformation with total resection.  The applicant was diagnosed with intracranial arteriovenus malformation status post-resection via frontal lobectomy and craniotomy (medically unacceptable); severe headaches with migraine component (medically unacceptable); and eczema (medically acceptable).  The applicant's complaints of severe headaches and other subjective dysfunction were not substantiated on detailed neuropsychological, radiographic, and clinical testing.  Nonetheless, they significantly affected his performance.  Previous attempts at functioning in an active duty environment were unsuccessful.  The applicant was therefore felt to be medically unacceptable for active duty service and was unlikely to ever be so.  The recommendation was that he be placed on permanent disability retirement.

15.  On 11 February 1999, the applicant disagreed with the TDRL summary and recommendations.  He stated, "To begin with, I would like to say that I was very concerned about returning to the neurosurgery clinic because of the fact that the same doctors who were taken off of my case by General B____ previously, who was the acting commander at the time of Walter Reed, were put in charge of the dictation of my TDRL evaluation.  One being Doctor W____ M____ who oversees Doctor P____ at the present time.  Others were Doctor S____ and the chief at the time, Doctor C____.  The professionalism displayed by these men was not what my 13 years of Federal service to this Nation to include enlisted time, [United States Military Academy Preparatory] School, 4 years at West Point, and active duty as an officer, had prepared me for to put my life in their hands when their actions clearly demonstrated that I could not trust them.”  

16.  The applicant also stated, “After my surgery which was done at the Bethesda Naval Hospital by Captain R____ H____, the acting chief of neurosurgery, Doctor R____ E____, wrote my medical evaluation board to ensure that I would receive an impartial evaluation.  My meeting with Doctor P____ lasted no more than 10 minutes.  After waiting for over 45 minutes, Doctor P____ arrived.  I had taken both my wife and my brother, who graduated from the Philadelphia osteopathic medicine school, along to tell the doctor what they have experienced.  It was good that I did because now they are witnesses to what happened during this brief meeting.  Doctor P____ clearly told them that he was not there to listen to what has been occurring.  I explained to him my concern about having him do the evaluation and having Doctor M____ overseeing him.  He told me that they were the only ones who could evaluate me.  I asked him if I could speak to the present chief and see if he would do the dictation, but he again insisted that since Doctor E____ had done the previous evaluation, he would do this one.  He then told me that I looked healthy and that there was no reason why he should not put a ruck sack on my back and make me run up a hill.  At this time I asked him how he could say this without first at least examining me and hearing what has been occurring.  I also assured him that I have not done any physical activity because of my symptoms since surgery.  He then told me that he would not be putting the same information down on my evaluation as Doctor E____ had and that Doctor E____ was no longer here.”  

17.  The applicant further stated, “I then asked if I could be examined elsewhere because I could tell that I already was being discriminated against before even being evaluated like the board had asked of him.  He said that the board will not accept outside medical evaluations nor their results and conclusions.  I then insisted that at least I be examined and tested to show that I still have the same occurring residuals.  He told me that I could see anyone that I wanted, but he knew already what he would be putting on the evaluation and what he would not.  His final words were that his job was to tell the board what they wanted to hear and save the Army/military money.  All this in less than 10 minutes.  Quite an impression.  I always thought and was taught to serve the Soldiers and care for them; they will in return fulfill any needs [sic] that is asked of them by their Nation, Army, and commander."

18.  The applicant provided the following comments regarding his physical examination in his response to the TDRL summary:

	a.  His scar has done well but gets very inflamed for no apparent reason.  He also has two very tender to the touch spots on his head, the size of a half dollar, where the bore holes were not covered up and chalked properly.  He has four or five plates that protrude from his head that make it very uncomfortable to even wear a baseball cap.

	b.  The first examination for the TDRL reevaluation, regardless of what Doctor P____ wrote, was with Doctor S____ H____ at neurology at 1000 hours, 6 August 1998.  He evaluated the applicant and then prescribed 25 milligrams of Pamilar and 50 milligrams of Imitrex for his severe vascular headaches.

	c.  The applicant saw Doctor G____ on 10 August 1998, at 1400 hours and was told that she agreed with Doctor S____ H____'s evaluation, but she wanted him on 500 milligrams of Naproxen twice daily instead of the 600 milligrams of Motrin three to four times a day.

	d.  The electroencephalography (EEG) results were abnormal and showed the exact same as the one done for his MEBD.  Continuous slowing was seen in the frontal region which suggested an area of cerebral dysfunction.  Significant amounts of delta activity with sharp waves activity was noted.

	e.  After seeing the EEG results, Doctor S____ H____ wanted the applicant on medication right away to control both his vascular headaches and any seizure activity.  The decision was to continue with the medication already prescribed and to keep a close watch for any seizure activity because of the drug's detrimental side effects.

	f.  All tests that were conducted showed that the applicant was experiencing vascular/migraine headaches.

	g.  On 2 October 1998, the applicant was tested by Doctor G____ and Doctor C____ of neuropsychology.  The findings showed that he was not functioning at the levels he did prior to surgery.  It also showed that he had some impairment in learning and equivocal findings in attention and motor skills.  This was the same finding on the MEBD which had listed him as having the presence of slight organic disorder.  These symptoms interfere with many aspects of the applicant's day-to-day functioning.  He tried to compensate for the limitations.

	h.  The applicant listed nine separate diagnoses made by the doctors who examined him during the TDRL evaluation.
19.  On 9 August 1999, Doctor P____ , in a TDRL Evaluation Summary Addendum, responded to the applicant's February 1999 rebuttal of the TDRL evaluation.

	a.  The doctor stated that the applicant underwent further evaluation and that this document summarized that further evaluation.

	b.  The doctor addressed the applicant's initial PEB in February 1997 and his August 1998 medical reevaluations.

	c.  The doctor stated that the applicant continued to "note headaches."  He had been seen and evaluated on multiple occasions over the previous year by the neurology service.  This neurology workup was well documented in his TDRL summary.  The neurology service felt his headaches had a migraine component and anti-migraine medications were prescribed.  The applicant continued to follow up periodically with the neurology service.  The applicant notes the headaches were quite severe, but that he had been employed in a 5-day a week job with an investment company in a position of some responsibility.  A third neuropsychological evaluation was performed and confirmed that the applicant was functional in daily life and eminently employable.  Further evaluation by the ear, nose, and throat service showed that the applicant was "felt" to have some elements of mild vertigo and disequilibrium.

	d.  The doctor stated that the applicant "had composed a 3-page typewritten letter with his concerns regarding his TDRL summary."  "I would comment that an individual capable of composing this type of document does not have any evidence of organic brain syndrome."

	e.  The doctor stated that the applicant had an arterial venous malformation operated on in 1994.  This malformation was considered cured.  The entire lesion was taken out at surgery.  The patient has no further risks of bleeding or problems from the arteriovenus malformation because it no longer exists in his body.  The applicant had not had seizures in over 4 years.  He did not have epilepsy.  The applicant functioned in a complex civilian job for long hours and did well.  He did not have organic brain syndrome.  The applicant noted headaches, testicular pain, and dizziness which bothered him considerably.  These syndromes did not preclude his performance in the civilian sector.

	f.  Doctor P____ recommended no change in his dictated diagnoses and that the applicant be transitioned to permanent disability retirement status.

20.  On 26 August 1999, the applicant again disagreed with the TDRL Summary and recommendations.  He provided a 2-page rebuttal reportedly prepared with professional assistance and the aid of his family.  It states, in pertinent part:

	a.   The applicant has struggled for the past 5 years with a severe medical condition.  He survived major neurological surgery and lived in fear of future medical problems.  He changed his entire lifestyle to meet his medical condition.  Despite this, his toughest challenge has been with the medical community that has handled his case from the earliest detection of the medical condition.  His pleas to surgical teams to hear his concerns fell on deaf ears.  This conflict was best noted when the commander of WRAMC transferred him to BNMC.

	b.  In the applicant's opinion, Doctor P____ was emotionally attached to this case and was unable to separate his personal feelings from his professional opinion.  The applicant believed this was evident when Doctor P____ suggested that "an individual capable of composing this type of document does not have any evidence of organic brain syndrome."  The applicant contends that medical doctors should diagnose patients based on medical findings and not on their ability to write a letter.

	c.  The applicant also contested Doctor P____'s evaluation of the applicant's job performance.  Doctor P____ stated, "the patient's performance at his job in the civilian sector, as well as the very mild (not interfering with activities of daily living, compensable) nature of the deficits noted on his two previous evaluations, warranted further workup" and "these pain syndromes have not precluded his performance in the civilian sector."  The applicant states that he is amazed at the doctor's ability to evaluate the applicant's performance given that Doctor P____ refused to discuss his performance with his wife, family, or his previous military commander.

	d.  Doctor P____ agreed that the applicant was felt to have some elements of mild vertigo and disequilibrium.  He asks that this diagnosis be retained in the evaluation.

21.  On 13 October 1999, the PEB returned the applicant's case to the Commander, WRAMC, because the current information was insufficient for adjudication.  The PEB requested WRAMC acknowledge the applicant's rebuttal to the TDRL Evaluation Summary Addendum and to address the rebuttal, if appropriate.

22.  On 12 January 2000, the PEB convened an informal hearing to reconsider the applicant's medical condition.  He was diagnosed with headaches post-resection left frontal arteriovenus malformation rated at zero-percent disabling based on the 15 December 1998 TDRL and 9 August 1999 letter from Doctor P____.  He was found unfit for retention.

23.  On 26 January 2000, the applicant nonconcurred with the PEB determination and demanded a formal hearing.

24.  On 4 March 2000, Doctor S____ H____, in a TDRL Evaluation Summary Addendum, recommended referral of the applicant to a PEB for migraine headaches, cognitive disorder, and vertigo that did not meet medical retention standards.  His medical conditions were incapacitating and may prevent the applicant from working or from working effectively.  The doctor further stated that it was unlikely that the applicant would become free of these disorders in the future because of the duration of his complaints and the nature of the precipitating event.

25.  On 13 April 2000, Doctor S____ C____ stated in a memorandum for the PEB that he had reviewed the neuropsychological evaluation records, dated 13 October 1998, as requested by the PEB.  The doctor described the diagnosis of cognitive disorder, not otherwise specified, as a mild impairment in learning as well as some equivocal impairment in attention and in psychomotor functioning.  Some increase in impairment was noted in comparison to the preoperative neuropsychological assessment.  The report also clarified that there appeared to be little to no negative impact on the applicant's functioning due to this condition.  The applicant was functioning adequately in his position as a financial advisor in the civilian community in October 1998.  The applicant's condition was judged to be within medical retention standards.  Regulation required that an organic mental condition be "sufficient to interfere definitively with the performance of duty or social adjustment" in order to be considered outside medical retention standards.

26.  On 1 May 2000, the applicant, under referral by Doctor P____, underwent a neuropsychological evaluation.  Doctor C____ M. C____ and Doctor K____ P. M____ signed the report.  The results of the evaluation indicated that the applicant was functioning in the above-average range of overall intellect.  He did not exhibit significant memory problems.  His short and long delay recall memory were intact, indicative of no significant retrieval problems.  The applicant's verbal memory and non-verbal memory were equally intact.  Overall, the results suggested that the applicant did not struggle with an encoding or retrieval problem for new material (although he may take a little more time in learning it) and that his visuo-spatial abilities were intact.  On the conceptual level, frontal/executive tasks, there were no marked perseverations [meaningless words or phrases] in the applicant's performance, indicative of normal brain functioning.  His motor speed was also in the average range for both hands.  The applicant's attention and concentration were in the average and above-average range.  The applicant's functioning in each of the tested domains showed no significant problem areas.  Based on this assessment, there was no reason to declare the applicant incompetent for pay and records.  He showed substantial potential for continued civilian employment.  Per the applicant's report, he had compensated for his self-identified memory loss by writing everything down.  However, based on this assessment, his degree of impairment for civilian social and industrial adaptability is in "full remission."  This evaluation did not focus on the applicant's migraine headaches.  The doctors recommended that the applicant be further assessed regarding his migraine headaches.

27.  On 31 July 2000, the PEB convened a formal hearing to reconsider the applicant's medical condition.  He was diagnosed with headaches post-resection left frontal arteriovenus malformation rated at zero-percent disabling based on the 15 December 1998 TDRL and 9 August 1999 letter from Doctor P____.  He was found unfit for retention.

28.  On 14 September 2000, the PEB made an administrative correction to the applicant's previous PEB by adding the following:

	a.  The results of neuropsychological testing indicated that the neuropsychological deficits for which [the applicant] was placed on the TDRL were no longer present.  The tests reflected that [the applicant] currently had above-average function and that his condition met medical retention standards at that time.

	b.  There was insufficient evidence to substantiate that the sustained episodes of dizziness which were present when placed on the TDRL were still an unfitting condition.

29.  On 29 September 2000, the applicant, through his counsel, submitted his rebuttal to the PEB decision of 31 July 2000, as amended on 14 September 2000.

30.  On 2 November 2000, the PEB notified the applicant that it had received his rebuttal letters.  In that the rebuttals did not contain any new substantive medical information not previously considered, the PEB affirmed the decision of the formal PEB that had found him unfit with a disability rating of zero percent.

31.  On 15 November 2000, the USAPDA noted the applicant's disagreement with the findings of the PEB.  The USAPDA reviewed the applicant's entire case file and concluded that his case had been properly adjudicated.  It informed the applicant that he may apply to the VA for a disability rating and medical care.
32.  USAPDA Orders D222-8, dated 16 November 2000, removed the applicant from the TDRL and discharged him from the military service.  These orders also informed the applicant that he was entitled to receive severance pay if he had over 6 months of service.

33.  The applicant provided a copy of a letter from the VA Regional Office, Philadelphia, Pennsylvania, dated 16 May 2008, indicating his service-connected physical disabilities and ratings as follows:

	a.  scar, residual of frontal craniotomy surgical resection of arteriovenus malformation (50 percent);

	b.  maxillary and frontal sinusitis with cephalgia, residual of frontal craniotomy/surgical resection of arteriovenus malformation (30 percent);

	c.  post-craniotomy headache disorder, migraine, vascular and sinus (30 percent);

	d.  cognitive deficit/depressive disorder, residual of frontal craniotomy/surgical resection of arteriovenus malformation (30 percent);

	e.  degenerative joint disease/disc herniatior L5-S1 (20 percent);

	f.  loss of field of vision, residual of frontal craniotomy/surgical resection of arteriovenus malformation (20 percent);

	g.  seizures, residuals of frontal craniotomy/surgical resection of arteriovenus malformation (20 percent);

	h.  tinnitus (10 percent);

	i.  left knee instability, residual of anterior cruciate ligament tear (10 percent);

	j.  dizziness, residual of frontal craniotomy/surgical resection of arteriovenus malformation (10 percent);

	k.  scar, adherent and tender, over right inguinal area, residual of right orchiectomy (10 percent);

	l.  scar, tender, residual of frontal craniotomy/surgical resection of arteriovenus malformation (10 percent);



	m.  loss of skull and pseudomeningocele, residual of frontal craniotomy/
surgical resection of arteriovenus malformation (10 percent);

	n.  right orchiectomy (zero percent);

	o.  eczema (zero percent);

	p.  herpes simplex type 1 (zero percent); and

	q.  left knee loss of extension, residual of anterior cruciate ligament tear (zero percent).

34.  On 29 May 2008, the VA Regional Office notified the applicant of the following changes to their rating decision:

	a.  increased disability rating from 30 to 50 percent for scar, residual of frontal craniotomy/surgical resection of arteriovenus malformation, effective 17 April 1997;

	b.  increased disability rating from zero to 30 percent for maxillary and frontal sinusitis with cephalgia, residual of frontal craniotomy/surgical resection of arteriovenus malformation, effective 16 November 2006;

	c.  increased disability rating from 10 to 30 percent for cognitive deficit/
depressive disorder, residual of frontal craniotomy/surgical resection of arteriovenus malformation (30 percent), effective 5 April 2007;

	d.  decreased disability rating from 20 to zero percent for left knee loss of extension, residual of anterior cruciate ligament tear, effective 5 April 2007; and

	e.  overall or combined disability rating of 100 percent, effective 17 April 1997.

35.  In processing this case, an advisory opinion was obtained from the USAPDA recommending no change in the applicant's records.  The opinion stated that the PEB originally found the applicant unfit for duty due to severe vascular headaches rated at 30 percent, slight organic brain syndrome rated at 10 percent, and sustained episodes of dizziness rated at 10 percent.  He was placed on the TDRL with an overall 40-percent disability rating.  On 15 December 1998, the applicant was reevaluated by Doctor P____.  He noted that he, the applicant, was doing extremely well.  Neuropsychological testing did not demonstrate any deficit.  The applicant reported that he was fully employed and had not experienced any further seizures.  The applicant still complained of headaches.  Doctor P____ recommended that the applicant be placed on the PDRL.  This recommendation was based on the regulatory requirement to comment on the stability of the condition.  Stability is the key to TDRL review that determines if the Soldier remains on the TDRL or is removed.  Medical summarizations are not authorized to include comments or opinions regarding fitness or rating issues.  Fitness and rating issues are the sole province of the PEB.  

36.  The advisory opinion continued by stating, in response to the applicant's objection to the TDRL and to his specific complaints about Doctor P____, the TDRL reevaluation was returned to the medical treatment facility (MTF) on 13 October 1999.  The Chief, Department of Surgery, a different doctor, acknowledged and approved the final TDRL report.  The applicant again objected.  As a result, an informal PEB was held on 12 January 2000, followed by a formal PEB on 7 March 2000.  On 13 March 2000, the case was returned to the MTF for a psychiatric review of the entire case and to provide assessments of the applicant's possible cognitive disorder.  The PEB also requested a complete list of the applicant's medications.  On 1 May 2000, another neuropsychological evaluation was administered.  It confirmed the prior testing that showed no significant problem areas.  The only thing noted was the applicant's claims of headaches.  On 13 April 2000, the Chief of Psychiatry found that the applicant met medical retention standards for his claims of cognitive disorder.  On 31 July 2000, the formal PEB reviewed all the additional evidence and found the applicant's headaches were not so severe as to significantly interfere with his ability to perform in an industrial capacity.  However, due to the headaches, the PEB found the applicant unfit because of the potential need for future care and the possible imposition on the applicant's command should he be returned to active duty.  He was rated at zero-percent disabled since the headaches were not found so severe as to be prostrating.  On 14 September 2000, the formal PEB findings were updated to include the most recent neuropsychological testing.  The applicant twice appealed the PEB determination.  On 2 November 2000, the PEB found that the appeals did not provide any new evidence and reaffirmed its findings.

37.  The applicant, through his counsel, submitted a 9-page rebuttal to the advisory opinion, to include a 6-page list of doctor's visits and prescribed medications.  In summary, the rebuttal states:

	a.  that the applicant not only disagrees with the PEB rating, but also with the manner in which the content was assembled and the omissions of medical evidence;

	b.  that the VA rated the applicant at 100 percent which is in stark contrast with the PEB rating of zero percent;
	c.  that Doctor P____'s reevaluation summary was improper;

	d.  that, had the doctors listened to the applicant and his family, they would have seen ample evidence for a disability rating greater than zero percent;

	e.  that the PEB inquiry was narrowed to the applicant's headaches, which was only one of the symptoms of the residual incapacitation;

	f.  that the VA correctly recognized and rated the other disabling conditions;

	g.  that supervisory presence tainted the reevaluation process;

	h.  that the astronomical difference between the VA evaluation and the PEB demonstrates error by the Army;

	i.  that the PEB concentrated on the issue of the applicant's residual mental condition and provided no explanation for not evaluating his other medical conditions and physical disabilities;

	j.  that the applicant was denied a full and fair hearing on his disability retirement;

	k.  that the applicant's residual symptoms continue to disable him from duty and a normal life; and

	l.  that the great weight of the evidence contradicts the PEB findings.

38.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has an impairment rated at less than 30-percent disabling.  It further provides at section 1201 for the physical disability retirement of a member who has an impairment rated at least 30-percent disabling.

39.  Title 38, U.S. Code, sections 310 and 331, permit the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered physically unfit for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

DISCUSSION AND CONCLUSIONS:

1.  The applicant, through his counsel, contends that he was given an incorrect disability rating that resulted in his removal from the TDRL.  He further contends that the doctor assigned to his case was unable to separate his personal feelings from his professional opinion resulting in an unjust removal from the TDRL.

2.  The available evidence clearly shows that the applicant was medically disabled and evaluated by a PEB.  He initially received a 40-percent disability rating and was placed on the TDRL.  Upon subsequent reexamination, the PEB determined that his medical condition had improved but that he was still unfit for duty.  Therefore, he was rated at zero-percent disabled and discharged with severance pay.

3.  In response to the applicant's disagreement with the PEB findings, he was revaluated by both an informal and formal PEB.  The PEB acknowledged the applicant's concern about the examining doctor's ability to be objective.  Therefore, the PEB requested and received testing and evaluations from different doctors.  The resulting evidence showed no change from the original PEB findings.  Consequently, the PEB reaffirmed its findings.

4.  An award of a VA rating does not establish entitlement to medical retirement or separation from the Army.  Operating under its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military duty, awards ratings because a medical condition is related to service (service connected) and affects the individual's civilian employability and/or social functioning.  Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

5.  An award of a higher VA rating does not establish error or injustice in the Army rating.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's social or industrial adaptability.  Accordingly, it is not unusual for the two agencies of the government, operating under different policies, to arrive at a different disability rating based on the same impairment.

6.  The applicant requested a personal appearance before the Board; however, since there is sufficient evidence on the record to fully consider this case, a formal hearing is not warranted.

7.  In view of the above, the applicant's request should be denied.

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.




      ____________XXX_____________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20090002079



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ABCMR Record of Proceedings (cont)                                         AR20090002079



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