IN THE CASE OF:	  

		BOARD DATE:	  12 August 2010

		DOCKET NUMBER:  AR20090019796 


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 records to show he was awarded a combined disability rating of at least 30% instead of 10% and that he was medically retired instead of honorably discharged with entitlement to severance pay.

2.  He states, in effect, the disability percentage he was found to have was incorrect based upon the Department of Veterans Affairs (DVA) Schedule for Rating Disabilities (VASRD) and should be upgraded from 10% to at least 30% in order to make him eligible for medical retirement.  He contends the Physical Evaluation Board (PEB) misapplied the rating criteria for VASRD code 8910 [for Epilepsy, grand mal].  He attests he suffered one minor and one major seizure and according to VASRD code 8910 he should have been found 40% disabled.  He concludes these seizures cut his career short and the finding of the PEB nearly ruined his life.

3.  He provides copies of:

* an abbreviated Aeromedical Summary
* a DD Form 199 (PEB Proceedings)
* three DA Forms 67-9 (Officer Evaluation Report)
* a DD Form 214 (Certificate of Release or Discharge from Active Duty)
* an Electroencephalogram (EEG) Interpretation
* an Automated Optional Form 275-E (Medical Record Report)
* an extract from the VASRD

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.  His records show that following periods of enlisted service in the U.S. Army Reserve (USAR), the Army National Guard, and the Regular Army, he applied for and was selected to attend the Warrant Officer Candidate Course and Flight School.  On 7 May 1998, he was honorably discharged from active duty for the purpose of accepting appointment as a warrant officer.

3.  On 8 May 1998, he was ordered to active duty in the rank of warrant officer one for a period of 6 years upon successful completion of flight school.

4.  On 22 July 2002, he experienced an episode of loss of consciousness that occurred while he was flying "front seat" in an AH64 (Apache Attack Helicopter) military aircraft.  As a result, he underwent a physical examination and an Abbreviated Aeromedical Summary was rendered by the Battalion Surgeon of 1st Battalion, 501st Aviation Regiment in regard to the episode.  

	a.  The pilot of the aircraft reported he "suddenly stiffened, was not responding and was interfering with the control of the aircraft."  Upon removal from the aircraft it was noted that he was drooling and had bitten his tongue several times.  No tonic-clonic movement was seen.  

	b.  The surgeon noted he was transported to a German hospital where an electrocardiogram (EKG), Carotid Ultrasound, and Echocardiogram were all conducted and reported as normal.

	c.  The following day, he was transferred to Landstuhl Army Medical Center where magnetic resonance imaging (MRI) and head computed axial tomography (CAT or CT) scan were conducted and reported as normal.

	d.  An EEG was conducted and reported as mildly abnormal with three bursts of left posterior parasagittal dominant sharp theta.  (The applicant provides a copy of the EEG Interpretation).

	e.  A neurological consult was obtained and he was diagnosed with "a single event strongly suggestive of seizure."

	f.  He was not placed on any medication and remained asymptomatic until at least the date the summary was rendered.

	g.  The surgeon noted that in accordance with the provisions of paragraph 
4-22 of Army Regulation 40-501 (Standards of Medical Fitness) and Aeromedical policy letters, his episode was considered disqualifying with no waiver recommended.  He had been grounded and a Medical Evaluation Board (MEB) had been initiated.  The surgeon recommended considering him for separation from Army service.

5.  He was issued a permanent profile with assignment limitations restricting him from driving, possessing firearms and weapons, 24-hour duty, and performing any duties where his loss of consciousness could result in harm to himself or others.

6.  His company commander provided a memorandum to an MEB on 5 September 2002.  The commander informed the MEB that the applicant's performance had been outstanding, he was a true professional, and he performed all of his duties to the highest level.  However, the special limitations caused by his medical condition rendered him unable to perform the duties of an Army Attack Pilot and required him to be removed from flight status permanently.

7.  An MEB was conducted by the U.S. Army Medical Department Activity based in Heidelberg, Germany, and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed as having the medically-unacceptable condition of epilepsy.  The MEB determined he did not meet the retention standards of Army Regulation 40-501, recommended his entry into the Physical Disability Evaluation System (PDES) and referred him to a PEB.

8.  On 17 October 2002, an informal PEB convened at Walter Reed Army Medical Center (WRAMC) located in Washington, DC.  The PEB found the applicant's condition prevented him from performing the duties required of his grade and specialty and determined that he was physically unfit due to epilepsy.

	a.  He was rated under the VASRD and was granted a 10% disability rating for code 8910.

	b.  The PEB informed him that ratings of less than 30% for Soldiers with less than 20 years active service required separation with severance pay in lieu of retirement and the amount of severance pay would be based on his active duty service time and not his disability rating.  He was also informed he would receive the same amount of severance pay regardless of whether his overall rating was 10% or 20% and advised to contact a DVA counselor to learn about his eligibility for additional benefits.

	c.  The PEB recommended that he be separated with entitlement to severance pay if otherwise qualified.

	d.  On 24 October 2002, he did not concur with the PEB's finding and recommendations and demanded to appear in person before a formal hearing.

9.  On 1 November 2002, the physician who conducted his MEB rendered an MEB Addendum in support of the applicant's appeal of the PEB's findings and recommendations.  His observations were as follows:

	a.  His initial seizure occurred on 22 July 2002 during flight.  He reports he experienced acute onset of amaurosis with tinnitus followed abruptly by loss of consciousness and fell to one side of his seat.  When he was pulled from the helicopter, he was unresponsive with increased salivation and drooling and had bitten his tongue.  It is not clear if he was stiff and no jerking movements [tonic-clonic convulsions] were observed at that point.

	b.  and since then he had "experienced another brief unprovoked event manifested by tinnitus and a similar aura as that preceding his initial seizures."

	c.  The results from his EKG, Carotid Ultrasound, Echocardiogram, MRI, and head CT scan were all reported as normal.

	d.  His EEG results were mildly abnormal and demonstrated occasional bursts of sharp activity with a slight predominance over the left posterior parasagittal region, suggestive of a degree of cortical hyperexcitability accentuated over the left parasagittal region.

	e.  The attending physician's final impression was that he had "experienced a single episode of loss of consciousness which is felt to have been an epileptic seizure [emphasis added].  Since the initial convulsive seizure, he has most likely experienced another minor seizure [emphasis added] which did not result in loss of consciousness."  He concluded the applicant "had one major epileptic seizure and most certainly also a minor epileptic seizure in the past 6 months."

10.  On 29 July 2003, the applicant sent a memorandum to the President of the PEB at the WRAMC in support of his appeal.  He essentially stated he felt his disability rating of 10% was too low.  He stated he was currently on anti-convulsant medication and fortunately his seizures were controllable.  He also contended the VASRD is very clear on appropriate ratings for seizures and attested that his case met the criteria for 40% disability based upon the rating formula for VASRD code 8911 (Epilepsy, petit mal): 1 major seizure within the last 6 months or 2 in the last year; or averaging at least 5 to 8 minor seizures weekly.  He further contended his need for continuous medication should increase his overall disability rating to 50%.

11.  On 30 October 2003, a formal PEB convened at WRAMC.  The PEB noted he had a generalized seizure disorder with a history of two seizures prior to being placed on medication and none since using medication.  Based on a review of the medical evidence of record, the PEB concluded his condition prevented him from performing the duties required of his grade and specialty and determined that he was physically unfit due to epilepsy. 

	a.  He was rated under the VASRD and was granted a 10% disability rating for code 8910.

	b.  The PEB informed him that ratings of less than 30% for Soldiers with less than 20 years active service required separation with severance pay in lieu of retirement and the amount of severance pay would be based on his active duty service time and not his disability rating.  He was also informed he would receive the same amount of severance pay regardless of whether his overall rating was 10% or 20% and advised to contact a DVA counselor to learn about his eligibility for additional benefits.

	c.  The PEB recommended that he be separated with entitlement to severance pay if otherwise qualified.

12.  He was honorably discharged on 1 April 2004 under the provisions of paragraph 4-24b(3) of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of disability with entitlement to severance pay.  His DD Form 214 shows he received $73,075.20 in severance pay based upon his completion of 10 years and 6 months of active service.


13.  On 10 June 2010, an advisory opinion was rendered by the U.S. Army Physical Disability Agency located at WRAMC.  The opinion determined the applicant was properly separated by the Army with severance pay and not disability retirement and recommended no change to his records.  The opinion's findings and recommendations were based upon the following observations:

	a.  His first seizure occurred on 22 July 2002.  Approximately 2 months later (September 2002) he claims to have experienced another seizure-like event, "which did not evolve into a secondarily generalized convulsion."  He did not have any additional seizures.  These facts were contained in his 29 July 
2003 MEB, with which he concurred.

	b.  His formal PEB was held on 30 October 2003 (more than a year after his last reported seizure-like event).  The PEB found he did not have any additional seizures since September 2002, and had been taking medication for the condition since June 2003.  Based upon the evidence, the PEB determined he did not meet the criteria for disability retirement:  "At least 1 major seizure in the last 6 months or 2 in the last year; or averaging at least 5 to 8 minor seizures weekly" (the aforementioned VASRD criteria for a 40% disability rating).

	c.  Since he had no seizures for the last 14 months, he only met the VASRD criteria for separation with severance pay.  After being counseled on his rights by his assigned attorney, he concurred with the formal PEB findings and submitted no appeal.

14.  On 19 June 2010, he provided a response to the advisory opinion wherein he contended the advisory opinion failed to note that his first MEB was conducted on 7 October 2002, and at that time he had experienced 1 major (on 22 July 2002) and 1 minor (in September 2002) seizure within a 6 month period; which qualified him for a disability rating of no less than 40%.  After the 17 October 2002 PEB, he appealed the decision and was scheduled to appear in front of the PEB with counsel.  He flew to Washington, DC, met with his Army appointed counsel, and prepared himself for the board.  Minutes before he stepped into the room, his lawyer informed him his case was administratively terminated and he would have to go through the whole process again; which ultimately resulted in the 20 October 2003 PEB which found him unfit and awarded him a disability rating of 10%.  He concludes that had the criteria of the VASRD been properly applied by his initial PEB there was no doubt at that time he had experienced 1 major and 1 minor seizure within a 6 month period, which qualified him for a disability rating of no less than 40%.  


15.  Army Regulation 635-40 establishes the Army PDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  It provides for MEB's, which 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 qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

16.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD.

17.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30 percent.

18.  Subsection 4-121 of Army Regulation 40-501 provides for identification of epilepsy and states:

	a.  A major seizure is characterized by the generalized tonic-clonic convulsion with unconsciousness.

	b.  A minor seizure consists of a brief interruption in consciousness or conscious control associated with staring or rhythmic blinking of the eyes or nodding of the head, or sudden jerking movements of the arms, trunk, or head or sudden loss of postural control.

19.  The VASRD provides:

	a.  A 10% disability rating when a confirmed diagnosis of epilepsy occurs with a history of seizures.

	b.  When continuous medication is shown as necessary for the control of epilepsy, the minimum evaluation is 10%.

	c.  A 20% disability rating is given when there is at least 1 major seizure in the last 2 years or at least 2 minor seizures in the last 6 months.

	d.  A 40% disability rating is given when there is at least 1 major seizure in the last 6 months or 2 in the last year, or averaging at least 5 to 8 minor seizures weekly.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should be corrected to show he was awarded a combined disability rating of at least 30% instead of 10% and that he was medically retired instead of honorably discharged with entitlement to severance pay.

2.  PEB's are established to evaluate all cases of physical disability for the Soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.

3.  He sustained an illness and subsequently underwent an MEB which recommended he be considered by a PEB.  He agreed with this recommendation.  The PEB found his epilepsy prevented him from performing his duties and determined that he was physically unfit for further military service.  The PEB recommended his separation with entitlement to severance pay.  

4.  The fact he experienced 2 seizure episodes within 6 months is acknowledged.
However, as specifically noted in both the abbreviated Aeromedical Summary rendered by his Battalion Surgeon and the MEB Addendum, neither of his seizures resulted in tonic-clonic convulsions.  Therefore, his seizures did not meet the VASRD definition of a major seizure.

5.  Accordingly, he was appropriately awarded a 10% disability rating based upon his confirmed diagnosis of epilepsy with a history of seizures.  Additionally, by his own admission, he has not experienced another seizure episode since he began taking medication.

6.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES.  He was properly rated for his epilepsy condition.  There is no evidence to support a higher rating or medical retirement.

7.  His disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the recommendation of the PEB.  There is no error or injustice in this 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)                                         AR20090019796





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ABCMR Record of Proceedings (cont)                                         AR20090019796



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