IN THE CASE OF:	  

		BOARD DATE:	  10 August 2010

		DOCKET NUMBER:  AR20100001152 


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, correction of his records to show he was medically retired instead of honorably discharged with entitlement to severance pay.

2.  The applicant states he was evaluated by the Department of Veterans Affairs (VA) and he was awarded a 50-percent service-connected disability.

3.  The applicant provides a copy of his VA rating decision, dated 14 August 2007.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he initially enlisted in the Regular Army on 28 February 2000 and held military occupational specialty 21B (Combat Engineer).  He served in Iraq from 2 April 2003 to 1 April 2004.  He was honorably released from active duty on 27 February 2004 and transferred to the U.S. Army Reserve Control Group (Reinforcement) for completion of his Reserve obligation.

2.  However, he executed a 3-year and 2-week enlistment in the Regular Army on 6 December 2004.  He was assigned to Fort Drum, NY.

3.  On 15 November 2006, he underwent a physical examination at Guthrie Army Community Hospital, Fort Drum, NY, after a referral for epilepsy.  His narrative summary, dated 30 November 2006, shows the following:
	a.  He previously had a seizure in September 2005 and was treated at an emergency room.  He was then referred to the Neurology Department of the Samaritan Medical Center, Watertown, NY, but he had another seizure in November 2005 prior to seeing the neurologist.  He was started on Dilantin in November 2005 and was finally seen by the neurologist in February 2006.  He then underwent an electroencephalogram on 4 March 2006 which read as "normal wake, drowsy, and sleep tracing."  He was then started on Topamax and was diagnosed with epilepsy.  The narrative summary also shows he complained of headaches and hypertension.

	b.  The attending physician determined he did not meet the retention standards of Army Regulation 40-501 (Standards of Medical Fitness) and recommended his entry into the Physical Disability Evaluation System.

4.  On 30 November 2006, a medical evaluation board (MEB) convened at Guthrie Army Community Hospital 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 and the medically-acceptable conditions of headaches and hypertension.  The MEB recommended that he be referred to a physical evaluation board (PEB).  He agreed with the MEB's findings and recommendation and indicated that he desired not to continue on active duty.

5.  On 22 December 2006, an informal PEB convened at Walter Reed Army Medical Center.  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 Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) and was granted a 0-percent disability rating for code 8910.  The PEB indicated that a rating of 0 percent does not mean he did not have a disability; the 0 percent is assigned when a condition does not meet the criteria for a minimum rating; and he would receive the same amount of severance pay whether his overall rating was 0 percent, 10 percent, or 20 percent.  The PEB also considered his other medical conditions (headaches and hypertension) and found them not to be unfitting and therefore not ratable.  The PEB noted his intermittent use of the prescribed anti-seizure medications.

	b.  The PEB recommended that the applicant be separated with entitlement to severance pay if otherwise qualified.  The applicant concurred with the PEB's finding and recommendation and waived his right to a formal hearing on the same date.

6.  He was honorably discharged on 25 January 2007 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.  The DD Form 214 he was issued shows he completed 2 years, 1 month, and 20 days of active service during this period of enlistment.  This form also shows he received $20,750.40 in severance pay.

7.  On 14 August 2007, the VA awarded the applicant a combined evaluation of 50-percent service-connected disability compensation effective 26 January 2007 as follows: 40 percent for seizure disorder, 10 percent for migraine, and 0 percent for hypertension.  The VA also deferred a decision regarding post-traumatic stress disorder, left foot high arch, and hyperlipidemia.

8.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (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.

9.  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.

10.  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.

11.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish an error or injustice in the Army rating.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  As a result, these two government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

12.  Chapter 1 (Department of Veterans Affairs), part 4 (Schedule for Rating Disabilities), of Title 38, U.S. Code, subsection 4-31, states that in every instance where the schedule does not provide a 0-percent evaluation for a diagnostic code, a 0-percent evaluation shall be assigned when the requirements for a compensable evaluation are not met.

13.  Subsection 4-121 provides for identification of epilepsy and states that when there is doubt as to the true nature of epileptiform attacks, neurological observation in a hospital adequate to make such a study is necessary.  To warrant a rating for epilepsy, the seizures must be witnessed or verified at some time by a physician.  As to frequency, competent, consistent lay testimony emphasizing convulsive and immediate post-convulsive characteristics may be accepted.  The frequency of seizures should be ascertained under the ordinary conditions of life (while not hospitalized).

14.  The VASRD assigns a 10-percent disability rating when a confirmed diagnosis of epilepsy occurs with a history of seizures.  When the continuous medication is shown as necessary for the control of epilepsy, the minimum evaluation is 10 percent.  A 20-percent disability rating is given when there is at least one major seizure in the last 2 years or at least two minor seizures in the last 6 months.  A 40-percent disability rating is given when there is at least one major seizure in the last 6 months or two in the last year, or averaging at least five to eight minor seizures weekly.  The VASRD also states that when continuous medication is shown necessary for the control of epilepsy, the minimum evaluation is 10 percent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should be corrected to show he was medically retired instead of honorably discharged for disability with entitlement to severance pay.

2.  The applicant had a witnessed seizure in September 2005 and November 2005.  He was started on medications in November 2005.  He was ultimately seen in consultation by neurology and his medication was managed by neurology until his discharge.  He was seizure-free while on medication.  In general, epilepsy is disqualifying unless the Soldier can be maintained free of clinical seizures of all types by nontoxic doses of medications.  The Soldier's compliance with a therapeutic program is essential in qualifying or disqualifying a Soldier for retention.

3.  Although he was seizure-free while on medication, he admitted to poor therapeutic compliance and claimed to have a seizure while not on medication.  He might have avoided an MEB by continuing his medication.  It appears he was awarded a 0-percent rating because he did not use his anti-seizure medication on a regular basis.  If he had used his medication on a regular basis, he might have been awarded a higher rating or he may not have been found to be unfit for retention.

4.  Nevertheless, he 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.

5.  The VASRD does not allow for a 0-percent rating for epilepsy.  The VASRD states that when continuous medication is shown necessary for the control of epilepsy, the minimum evaluation is 10 percent.  In the applicant's case, the appropriate rating should have been 10 percent.  However, since there is no difference in compensation or benefits between a 0-percent and a 10-percent rating, this administrative irregularity appears to be a harmless error.

6.  He now believes he should have received full retirement for his seizure because the VA granted him a higher rating percentage.  However, an award of a different rating by another agency does not establish error in the rating assigned by the Army's PDES.  Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service.  The VA may award ratings because of a medical condition related to service (service connected) that affects the individual's civilian employability.  For example, it is noted that the VA awarded the applicant a 
10-percent disability rating for migraine.  However, there is no evidence to show this condition rendered him unable to perform his Army duties.

7.  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.  The applicant was properly rated for his epilepsy condition.  There is no evidence to support a higher rating or medical retirement.

8.  The applicant's physical 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)                                         AR20100001152



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ABCMR Record of Proceedings (cont)                                         AR20100001152



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