IN THE CASE OF:	  

		BOARD DATE:	 22 December 2009 

		DOCKET NUMBER:  AR20090008751 


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, in effect, that her first Physical Evaluation Board (PEB) disability rating of 60 percent be reinstated and that she be allowed to medically retire with benefits.

2.  The applicant states, in effect, that she had two PEBs.  After the first PEB the Personnel Office did not process her transition application in a timely manner causing an administrative termination of her initial transition orders.  The second PEB, which resulted in a lower rating, gave her a disability separation with severance pay.  She states that she should have been allowed to medically retire based on the findings of the first PEB.  This error has negatively affected her and the financial well-being of her children.  

3.  The applicant provides the following documents in support of her application:  

	a.  a memorandum from the U.S. Army Physical Evaluation Board, dated 28 June 2004;

	b.  a copy of a DA Form 199 (PEB Proceedings), dated 3 September 2004;

	c.  a copy of a DA Form 199, dated 29 November 2004;

	d.  a copy of her discharge orders, dated 7 December 2004; 

	e.  a copy of a Transition Processing report from Fort Campbell (KY), dated  December 2004; and
	f.  a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 20 February 2001.

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 U.S. Army Reserve in the Delayed Entry Program on 6 July 2001.  She enlisted in the Regular Army on 21 August 2001 for a 3-year service period.  She successfully completed basic and advanced individual training.  She was awarded military occupational specialty 92F (Petroleum Supply Specialist).  Records show she served in Kuwait/Iraq from 28 February 2003 to 15 August 2003 in support of Operation Iraqi Freedom.

3.  The applicant, in her intake interview for the Medical Evaluation Board (MEBD), stated that her headaches started during her deployment to Iraq and were accompanied by episodes of abnormal body movements that included tingling of her hands and her left upper extremities, progressing to the right upper extremities, and into her feet.  She stated that in June 2003, while in Iraq, she was taken to the military hospital and medically treated for a possible panic/anxiety disorder.  She states she had three episodes where her "eyes rolled back in her head" and body rigidity with one episode witnessed and recorded by medical staff in the hospital.  

4.  During the applicant's physical examination in preparation for the MEBD on 24 December 2003, the applicant's chief complaint was "I need to be medically boarded because of the side effects of my medications that are preventing me from performing my duties."  Records show that her physical evaluation was for a physician directed MEBD.  Her two self-reported medical conditions were migraine headaches and pain in her left ankle.  The evaluating physician stated, "Soldier is well-developed . . . in no acute distress."  During the physical examination the doctor found no abnormalities, stating that the applicant's cognitive, language, and cranial nerves II through XII were normal.  In addition, her motor functions, sensory, cerebella, reflexes, and gait were normal with no abnormalities or deformities noted.  The applicant's laboratory and x-ray data were also found to be within normal tolerances.  The physician referred the applicant to neurology for an MEBD consultation. 

5.  In January 2004, a civilian neurologist, acting upon a referral from the applicant's military medical treatment facility, provided medical documentation to show the medical support and treatment the applicant had received for her seizures and headaches.  He stated that he discussed with her the various medications he had prescribed during earlier appointments and reiterated the appropriate medication management regimen.  His medical assessment was partial onset of epilepsy (with or without secondary generalization), common migraine headache, and sleepiness due to seizure prevention medication. 

6.  As part of the MEBD, the applicant was referred to the Neurology Clinic at Blanchfield Army Community Hospital.  The military neurologist, who had been treating her for epilepsy symptoms, conducted the examination.  The neurologist stated the applicant had normal findings for her cognitive, language, cranial nerves, motor (normal spontaneous movement of all four extremities) and gait.  The neurologist's first impression was the applicant had episodes of abnormal movement, with characteristics of both potential epileptic and non-epileptic origin.  She was responsive to specific medications that suggested epileptic origin, and the epileptic movements were medically controlled through medication.  The medications he noted had side effects to include significant somnolence that interfered with her functioning during the day.  His second impression was she had migraines with visual aura that were possibly triggered by seizures.  His recommendation was the applicant not be deployed.  He issued a profile that directed no driving, no working at heights, no firearms, no deployment to regions where definitive medical care was not available, and no assignments where sudden loss of consciousness could lead to injuring herself or others.  

7.  On 12 March 2004, after consideration of all clinical records, laboratory findings, and physical evaluations, the MEBD found the following medical conditions/defects:

	a.  abnormal movements with characteristics of both epileptiform seizures and pseudoseizures that were medically acceptable; and

	b.  migraine headaches that were medically unacceptable in accordance with Army Regulation 40-501, Chapter 3-30g.

8.  The MEBD Proceedings shows that the approximate date of origin for the migraines was in 2003, that they were incurred while she was entitled to base pay, and her migraines did not exist prior to service.  The applicant indicated in item 12 of DA Form 3947 (MEBD Proceedings) that she would not present views on her own behalf.  The applicant further indicated she did not desire to continue on active duty under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

9.  On 1 April 2004, the appropriate authority approved the findings and recommendations of the MEBD, which referred the applicant to a PEB.  She also received a permanent profile, which shows that her P-U-L-H-E-S factors were rated P (physical capacity or stamina) "3," U (upper extremities) "1," L (lower extremities) "1," H (hearing) "1," E (eyes) "1," and S (psychiatric) "1," with "1" being a high level of medical fitness, "2" a medical condition or physical defect that requires some activity limitations, "3" shows a Soldier has one or more medical conditions that may require significant duty performance limitations, and "4" means a Soldier has a medical condition or limitation that severely limits her duty performance.

10.  The applicant's company commander stated, in effect, that her physical limitations and medical profile affected her ability to perform her assigned duties within her primary MOS.  As a fuel handler, she was required to drive a fuel truck and distribute fuel.  With her history of seizures, the medication used to control or prevent the seizures, and her current physical profile she could not perform the duties required of her grade and MOS.  

11.  On 6 April 2004, the applicant concurred with the MEBD's findings and recommendations.  The applicant's case was referred to the PEB.

12.  The U.S. Army Physical Evaluation Board (USAPEB) discontinued the applicant's PEB on 8 April 2004 and returned the MEBD to Blanchfield Army Community Hospital with a 60-day suspense for the following reasons:   

	a.  the DA Form 3947 states abnormal movements met retention standards; however, the DA Form 3349 (Physical Profile) only lists a seizure disorder;

	b.  a medication that the neurologist noted on his evaluation was not listed on the applicant's automated medication profile;

	c.  contradictory information on the frequency of headaches reported between the military neurologist's report and the applicant's self-reporting; and
	
	d.  questions the authority of the MEBD examining official by stating only Orthopedic Physician's Assistants (or above) may evaluate MEBDs.

13.  On 28 June 2004, the USAPEB terminated the applicant's PEB proceedings for lack of compliance with the 60-day suspense as defined in their 8 April 2004 memorandum to Blanchfield Army Community Hospital.

14.  The applicant's treating military neurologist reexamined her on 11 August 2004 and prepared an addendum to the MEBD.  In his neurologic examination, he found her cognitive, language, cranial nerves VII and VIII (facial expressions), motor, and gait within normal baseline standards.  His medical impression was episodic abnormal movements with characteristics of both potential epileptic and non-epileptic origin.  The seizures were moderately controlled by medication with the medication side effects causing significant somnolence.  His second impression was migraines with visual aura possibly triggering seizures.  

15.  The neurologist's recommendations were that for the purpose of the MEBD, the patient reported one to two headaches per week that required the administration of Relpax, a migraine-abortive therapy causing her to sleep for two hours.  Her migraine headaches interfered with normal functioning to include her inability to perform her military duties.  

16.  In response to the USAPEB memorandum of 8 April 2004, the neurologist provided the following:

	a.  a civilian neurologist prescribed the medication Relpax;

	b.  the Trileptal medication resolved her headaches, when taken as directed.  However, the medication's physical side effects caused her somnolence requiring her to decrease the Trileptal dosage, which resulted in the reoccurrence of headaches a rate of one to two a week; 

	c.  recommended a two-year period of anti-convulsant therapy, then consideration of medication withdrawal and repeat electroencephalographs (EEGs);

	d.  stated the applicant is nondeployable and poses a risk to herself and others;

	e.  he reiterated his physical profile recommendations and stated he advised the applicant that her current restrictions were severe, but with reevaluation in six to twelve months they could be modified;

	f.  recommended she continuously follow up with the neurology clinic every three months; and 

	g.  recommend a Behavioral Health evaluation for possible anxiety and depression as either a primary underlying condition or as an appropriate reaction to her medical condition.

17.  A second MEBD was conducted at Blanchield Army Community Hospital on 13 August 2004.  The applicant's second MEBD shows that after consideration of all clinical records, laboratory findings, and physical evaluations it found the following medical conditions/defects.

	a.  episodes of abnormal movements, with characteristics of both potential epileptic and non-epileptic origin.  Response to medications Topomax and Trileptal suggests epileptic origin although prior EEG is negative and clinical description of carpopedal spasm may support non-epileptic etiology.  Seizures are moderately controlled, with no generalization but with persistent possible focal/partial events and with side effects of significant somnolence that interferes with daytime function.  This condition is medically unacceptable in accordance with (IAW) Army Regulation 40-501, chapter 3-30i; and

	b.  migraine headaches, found to be medically unacceptable IAW Army Regulation 40-501, chapter 3-30g.     

18.  The MEBD shows that the approximate date of origin for all conditions/defects was in 2003, that all were incurred while entitled to base pay, and that none existed prior to service.  The applicant indicated in item 12 of DA Form 3947 that she would not present views on her own behalf.  The applicant further indicated she did not desire to continue on active duty under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). 

19.  On 13 August 2004, the appropriate authority approved the findings and recommendations of the MEBD, which referred her to a PEB.  

20.  On 25 August 2004, the applicant concurred with the second MEBD findings and recommendations.  The applicant's case was again referred to the PEB.

21.  On 26 August 2004, an informal PEB convened and determined that the applicant was physically unfit.  She was rated as 60 percent disabled.  The two disability descriptions are as follows:

	a.  migraine headaches, prostrating twice a week with a recommended disability rating of 50 percent; and

	b.  episodes of abnormal movement, response to Topamax and Trileptal suggests epileptic origin, persistent possible focal/partial events, without generalization, significant somnolence secondary to medication side-effect with four to five episodes since Topamax started in September 2003.  The recommended disability rating was 20 percent.

22.  This PEB found that these medical and physical impairments prevented the applicant from reasonable performance of duties required of her grade and specialty.  The PEB recommended that the applicant be transferred to the Temporary Disability Retired List (TDRL). 

23.  On 27 August 2004, the applicant concurred with the PEB findings and recommendations and waived a formal hearing.  She provided no rebuttal statements to the PEB's findings nor did she request representation by counsel at the proceedings.  

24.  By memorandum, dated 15 September 2004, the U.S. Army Physical Disability Agency (USAPDA) returned the applicant's PEB to the USAPEB for reconsideration.  A representative from the USAPDA stated the applicant's headaches were not prostrating as defined by the Department of Defense Instruction (DoDI) Number 1332.39,E2.A1.4.1.4.  She stated that the applicant's headaches were resolved by medication and that there was no evidence she had to leave work and seek immediate medical care for her headaches.  To get a 
50 percent disability rating it must be "productive of severe economic inadaptability."  Further, the abnormal movements described appeared to be a part of the migraine complex as noted in Adams Principles of Neurology, "The neurological part of the migraine syndrome may resemble focal epilepsy…."  The USAPDA concluded that rating the headaches and focal (partial) epilepsy separately would be pyramiding.

25.  The USAPEB discontinued the applicant's PEB proceedings on                  23 September 2004 citing the reasons identified in the 15 September 2004 memorandum.  The PEB proceedings were returned to the applicant's primary medical treatment facility, the Blanchfield Army Community Hospital.  Specifically in question was the word "prostrating" which the USAPEB defined as a Soldier who must stop what they are doing and seek immediate medical attention.  The PEB shows that the applicant may not be experiencing prostrating headaches.  The USAPEB requested clarification on the episodes of abnormal movements as part of the applicant's headache pattern.  

26.  On 28 October 2004, the applicant's military neurologist at the Blanchfield Army Community Hospital responded to the questions raised by the USAPEB memorandum dated 23 September 2004, as follows:
	a.   He reports via a medical addendum that the applicant is unable to seek immediate medical treatment for her migraine headaches due to lack of transportation (medically imposed driving restrictions).  He states the applicant leaves work and goes to her quarters as reported by her chain of command.  The neurologist states that the applicant's leaving her appointed place of duty to seek relief from her migraine headaches is in his medical opinion a "prostrating" headache.  

	b.  He states the second question concerning the association between the migraine headaches and her physical movements (epileptical) is complicated.  A person who has a seizure often complains of headaches, which may have migraine characteristics.  Further, the quote from Adams' text says the neurologic abnormalities of migraine headaches "may resemble focal epilepsy"; while the common migraine accompaniments are visual, changes or sensory paresthesias and these phenomena may produce focal seizures.  He states he does not support aggregating the two into one diagnosis, and continues to advocate separate diagnoses.  The typical neurologic accompaniments (auras) typically seen with a migraine do not arise from seizure activity, but rather from a different electrical phenomenon. 

	c.  The third question concerning her drug treatment for headaches shows that she is less responsive when she decreases her medication dosage.  He states that due to extreme somnolence she reduced her prescribed medication dosage so she could function.  When she reduced her own medication dosage, her headaches reoccurred on average of one to two a week.  He concluded by stating she initially responded to the medications as he prescribed them, but that her reported complications from the medication shows she did not tolerate the prescribed medical treatment. 

27.  The applicant agreed with the cited medical addendum on 28 October 2004.

28.  On 1 November 2004, a medical officer senior to the applicant's neurologist approved the medical addendum.  The medical addendum was forwarded with the PEB to the USAPEB for adjudication. 

29.  On 5 November 2004, a second informal PEB found the applicant physically unfit and recommended a combined rating of 20 percent and separation with severance pay.   The unfitting conditions under the VASRD diagnostic codes were 8912 and 8100, as noted below. 

	a.  VASRD 8912 episodes of abnormal movement, response to Topamax and Trileptal suggests epileptic origin, persistent possible focal/partial events, without generalization, significant somnolence secondary to medication side-effect with four to five episodes since Topamax started in September 2003.  The recommended disability rating was 20 percent.

	b.  VASRD 8100 migraine headaches, without evidence of having to stop what she is doing and seek medical attention over the last several months (based on MEBD Diagnosis 2, Neurology Addendum, Neurology Memorandum, dated 28 October 2004) disability rating of 0 percent was recommended. 

30.  Based on a medical review of the objective evidence of record, the PEB findings were that the applicant was medically and physically impaired preventing her from reasonably performing the duties required of her grade and MOS.  In addition, these PEB proceedings rescinded the PEB dated 26 August 2004. 

31.  On 19 November 2004, the applicant indicated she did not concur with these findings, and she waived a formal hearing.  She did not provide a written appeal. In addition, she indicated that she understood that failure to submit a written appeal could result in the final processing of her case without review by the USAPDA.  

32.  On 29 November 2004, the appropriate authority approved the PEB.

33.  Accordingly, on 20 February 2005, the applicant was discharged from the Regular Army in accordance with Orders 342-0006 issued by Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell on 7 December 2004.  She was authorized disability severance pay in the grade of sergeant and her severance pay was calculated based on 3 years and 6 months of service.  

34.  Title 10, U.S. Code, section 1201, provides for the permanent retirement of Soldiers who incur a physical disability in the line of duty while serving on active duty over 30 days.  Section 1202 of this Code provides for the placement of Soldiers on the TDRL if they meet the provisions of section 1201, but the disability has not yet been determined to be of a permanent nature.  

35.  Title 10, U.S. Code, section 1203, provides for the physical disability separation with severance pay of a Service member who has less than 20 years service and a disability rated at less than 30 percent.

36.  Department of Defense Directive (DoDD) 1332.38, paragraph E3.P1.2.3., states that MEBD's shall document the full clinical information of all medical conditions the Service member has and state whether each condition is cause for referral to a PEB. 

37.  Army Regulation 635-40 states, in pertinent part, that MEBDs are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualification for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement).  If the MEBD determines the Soldier does not meet Army retention standards, the MEBD will recommend referral to a PEB. 

38.  Title 38, Part 4 of the Code of Federal Regulations, Book C—Schedule for Rating Disabilities is a compilation of federal regulations affecting the Department 
of Veterans Affairs.  

	a.  The VASRD code 8100 applies to migraine (headache).  A 50 percent disabling rating is defined as very frequent migraines that are completely prostrating and prolonged attacks with the patient experiencing severe economic inadaptability.  A 30 percent disabling rating is defined as migraine(s) with characteristic prostrating attacks occurring on average once or twice a month over the last several months.  A 10 percent disabling rating is defined as migraine(s) with characteristic prostrating attacks averaging one in two months over the last several months and less frequent attacks are rated 0 percent disabling.     

	b.  The VASRD code 8912 applies to epilepsy, Jacksonian and focal motor seizure (muscle spasm) or sensory.  Jasksonian epilepsy is a brief alteration in movement, sensation or nerve function caused by abnormal electrical activity in a localized area of the brain.  A major seizure is defined as a generalized tonic-clonic convulsion with unconsciousness.  A minor seizure is defined as a brief interruption in consciousness or conscious control associated with staring, rhythmic blinking of the eyes, nodding of the head, or sudden jerking movements of the arms, trunk, or head, or loss of postural control.  A 40 percent disabling rating is defined as one major seizure in the last six months or two in the last year; or averaging five to eight minor seizures weekly.  A 20 percent disabling rating is defined as at least one major seizure in the last two years or at least two minor seizures in the last six months.  A 10 percent disabling rating is defined as a confirmed diagnosis of epilepsy with a history of seizures.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's contention that the Personnel Office did not properly process her for separation after the first informal PEB.  In fact, two informal PEBs were conducted on two separate dates because when appropriate authorities reviewed the first informal PEB before its final approval by the designated Secretary of the Army's appointee, it was found to be insufficient based on several factors, including a pyramiding of diagnoses.

2.  The first informal PEB, which had a combined rating of 60 percent disability, was returned and the applicant's military neurologist provided a second medical addendum.  In his addendum, he continued to support two diagnoses and refuted the pyramiding presumption.  He supported his medical evaluation and the MEBDs decision that both diagnoses were medically unfitting.   

3.  Upon reconsideration, the second informal PEB determined that the VASRD code 8912 for episodes of abnormal movements with appropriate responses to medication (Jacksonian epilepsy) was rated at 20 percent disabling and code 8100 for migraine headaches was rated at 0 percent disabling.  The PEB findings were that her unfitting conditions prevented her from performing the military duties required of her grade and MOS.  The PEB combined rating was 20 percent based upon the applicant's recorded medical condition and the proper application of the governing directives.  As the applicant had less than four years of active duty, she was entitled to separation with severance pay.

4.  While the issue of whether the applicant being sent to her quarters because of her migraine headaches was prostrating was challenged by her treating physician, the PEB took the conventional definition of prostrating, to leave work and seek immediate medical care for her headaches, and changed its rating from 50 percent to zero percent.  Since all ratings for migraine headaches other than a zero percent rating require the migraine headaches to be prostrating, such a correction was reasonable and appropriate.

5.  She was afforded the opportunity after receiving the second PEB's recommendation to demand a formal hearing and to have counsel represent her.  However, she waived her opportunity to a formal hearing and counsel representation.

6.  As such, she waived her right to have the USAPDA adjudicate the second PEB.  Therefore, the appropriate Secretarial authority approved the PEB.

7.  While it may appear that the applicant's personnel office did not prepare her orders after the first PEB, the evidence shows that when the appropriate authority approved the PEB, separation orders were published and she was separated with severance pay.



8.  The applicant has not submitted any evidence or argument that would show an error or injustice occurred in her case.

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
      
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)                                         AR20090008751



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ABCMR Record of Proceedings (cont)                                         AR20090008751



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