IN THE CASE OF:	  

		BOARD DATE:	  14 September 2010

		DOCKET NUMBER:  AR20100010037 


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 reconsideration of her earlier request that her first physical evaluation board (PEB) disability rating of 60% be reinstated and that she be allowed to medically retire with benefits.

2.  The applicant states she had two PEBs.  After the first PEB, her personnel officer did not process her transition application in a timely manner causing an administrative termination of her initial transition orders.  The second PEB had a lower rating and resulted in her disability separation with severance pay.  She should have been allowed to medically retire based on the findings of the first PEB.  She adds:

	a.  She was awarded an Army Commendation Medal for her service during Operation Iraqi/Enduring Freedom for performing her duties within 500 meters of a live fire.  She was also awarded an Army Achievement Medal and a Good Conduct Medal and she was promoted to sergeant (SGT)/E-5 during her short 
3 1/2 years of service.  Despite her medical condition, she fulfilled her contract and served for an additional 6 months.  She also states:

	b. While being reevaluated by the 101st Airborne Division psychologist in Iraq, she indicated her abnormal movements were not caused by anxiety or panic attacks but they were actually seizures.  But there were no seizure medications in the field and she was prescribed an anti-depressant (Zoloft) on a daily basis and muscle relaxer (Morphine).  She has no memories of her seizure episode other than waking up at an Army hospital surrounded by medics.  She had been medically evacuated through Kuwait to Landstuhl Regional Medical Center (LRMC), Germany, and ultimately to Walter Reed Army Medical Center (WRAMC).

	c.  During a recent visit to Charleston Veterans Hospital, Charleston S.C. she was told by the attending physician that she could have been misdiagnosed while serving in Iraq.  This attending physician believes she may have suffered from a heat stroke that caused nerve damage as well as seizures.  

	d.  She has many documented reports of migraine headaches and seizure activity which she continues to be treated for today.  These complaints led her Veterans Advisor to the discovery of the first medical evaluation board (MEB) rating that was terminated due to exceeding deadlines.  The medications only made matters worse because it made her lethargic and she began to suffer from somnolence [drowsiness].  

	e.  The acting commander told her not to report for duty because of she had a no-driving physical profile which meant someone from the unit would have had to come get her.  She was assigned to the medical hold unit and instructed to call every morning to check in.  No one checked on her to see if she needed anything. 

	f.  She is unable to work full time or hold a permanent position as a teacher because of migraine headaches and seizure activity that has not improved.  She is also under the care of a neurologist.  Her Department of Veterans Affairs (VA) service-connected disability rating was increased from 20% to 80% for a combined rating of 60%. 

	g.  She did not concur with the second PEB but after a few weeks of consideration and consultation with her PEB advisor, she accepted the 20% rating.  She chose not to ask for a formal hearing of her case because she was told she could be held in a medical hold unit for an additional 12 or 13 months.  Her children were living with her elderly parents and her mother-in-law had just died in July 2004.  Her situation felt hopeless because she had suffered a lot.  She was a SGT who did not fully understand the MEB/PEB process.  She is now permanently disabled.  She did not suffer from migraines or epilepsy prior to military service.  She also suffers from post-traumatic stress disorder (PTSD) and she is having extreme difficulty dealing with her health issues.

	h.  She does not believe she should be denied the benefits she has earned by her service.  Her family is suffering because of her service.  She would like the Government to do the right thing for her and other veterans who have not been treated fairly.  

3.  The applicant provides the following documents:

* An internet article about PTSD
* An internet article about PEB discrepancies
* A Post-Deployment Health Peer Review and Audit Form
* A letter from the VA to her Member of Congress
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090008751 on 22 December 2009.  

2.  The applicant submitted a copy of an internet article about PTSD, a copy of an internet article about PEB discrepancies, a Post-Deployment Health Peer Review and Audit Form, and a letter from the VA to her Member of Congress, which were not previously reviewed by the ABCMR; therefore, they are considered new evidence and as such warrant consideration by the Board.

3.  The applicant's records show she enlisted in the Regular Army on 21 August 2001 and held military occupational specialty 92F (Petroleum Supply Specialist). She was promoted through the ranks to SGT/E-5.  Her records also show she served in Kuwait/Iraq from 28 February to 15 August 2003.

4.  Her records show she was awarded the Army Achievement Medal, Army Commendation Medal, Good Conduct Medal, Global War on Terrorism Service and Expeditionary Medals, National Defense Service Medal, Army Service Ribbon, overseas service bar, and Expert Marksmanship Qualification Badge with Rifle and Grenade Bars. 

5.  In April 2003, while serving in Iraq, she complained of episodes of abnormal movements with characteristics of both epileptic and non-epileptic origin.  She felt tingling in her hands starting in the left upper extremity and progressing to the right and into her feet.  Furthermore, in June 2003, she felt the same tingling in her hands followed by tightness of her chest and hyperventilation.  She was taken to a local hospital and she was given medications.  This was followed by treatment 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.  

6.  In December 2003, she underwent a thorough medical examination for a physician-directed MEB.  She had also complained of the need to be medically boarded because of two self-reported medical conditions of migraine headaches and pain in her left ankle.  The evaluating physician stated in his report that she was well-developed and was in no acute distress.  Her laboratory and x-ray data were also found to be within normal tolerances.  

7.  In January 2004, a civilian neurologist, acting on a referral from the applicant's military medical treatment facility, discussed with the applicant the various medications she had been prescribed during earlier appointments and reiterated the appropriate medication management regimen.  The neurologist's medical assessment was that of a partial onset of epilepsy (with or without secondary generalization), common migraine headaches, and sleepiness due to seizure prevention medication. 

8.  On 13 February 2004, she underwent a neurology examination by a military neurologist, who had been treating her for epilepsy symptoms, at the Neurology Clinic, Blanchfield Army Community Hospital (BACH), Fort Campbell, KY.  The neurologist stated that she had normal findings for her cognitive, language, cranial nerves, motor (normal spontaneous movement of all four extremities), and gait.  His first impression was that she 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 controlled through medication.  The medications had side effects to include significant somnolence that interfered with her functioning during the day.  The second impression was she had migraines with visual aura that were possibly triggered by seizures.  The recommendation was that she not be deployed.  He issued a physical 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.  

9.  The applicant's narrative summary, dictated on 12 March 2004, shows her response to the Topamax medication suggested epileptic origin with an additional history of events favoring epilepsy.  Her headaches had migranous features and likely represented migraines with visual aura with the possibility of being triggered by seizures.  She was unable to perform her duties at the time secondary to the medications' side effects, and headaches.  She was recommended for entry into the Physical Disability Evaluation System (PDES). 



10.  On 12 March 2004, an MEB convened at BACH, Fort Campbell, KY, and after consideration of clinical records, laboratory findings, and physical evaluations, the MEB diagnosed the applicant as having the medically acceptable condition of abnormal movements with characteristics of both epileptiform seizures and pseudo seizures and the medically unacceptable condition of migraine headaches.  The MEB recommended she be referred to a PEB.  She agreed with the MEB's findings and recommendations and indicated she would not present views on her own behalf and did not desire to continue on active duty.  Additionally, on 1 April 2004, the appropriate authority approved the findings and recommendations of the MEB.

11.  On 8 April 2004, the U.S. Army Physical Evaluation Board (USAPEB), 
Fort Sam Houston, TX, discontinued the applicant's PEB and returned the MEB to BACH with a 60-day suspense for the following reasons:   

* DA Form 3947 (MEB Proceedings) stated abnormal movements met retention standards; however, the DA Form 3349 (Physical Profile) only listed a seizure disorder
* A medication that the neurologist noted on his evaluation was not listed on her automated medication profile
* Contradictory information on the frequency of headaches reported between the military neurologist's report and the applicant's self-reporting
* Questions the authority of the MEB examining official by stating only Orthopedic Physician's Assistants (or above) may evaluate MEBs

12.  On 28 June 2004, the USAPEB terminated her PEB proceedings for lack of compliance with the 60-day suspense as defined in their 8 April 2004 memorandum to BACH.

13.  On 11 August 2004, she was reexamined by her military neurologist.  His first 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.  His recommendations were that for the purpose of the MEB, the applicant 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.  Additionally, 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 at 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.  the applicant was non-deployable and possessed a risk to herself and others;

	e.  reiterated his physical profile recommendations and stated he advised the applicant that her current restrictions were severe, but with reevaluation in 6 to 12 months they could be modified;

	f.  recommended she continuously follow-up with the neurology clinic every 
3 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.

14.  On 12 August 2004, a second MEB convened at BACH, Fort Campbell, KY, and after consideration of all clinical records, laboratory findings, and physical evaluations the MEB found she was diagnosed as having the medically unacceptable condition of episodes of abnormal movements, with characteristics of both potential epileptic and non-epileptic origin.  Response to medications Topomax and Trileptal suggests epileptic origin although the 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.  She also had the medically unacceptable condition of migraine headaches.  The MEB recommended she be referred to a PEB.  The applicant agreed with the MEB’s findings and recommendation and indicated she did not desire to continue on active duty. 

15.  On 26 August 2004, an informal PEB convened at Fort Sam Houston and found the applicant's conditions prevented her from performing the duties required of her grade and specialty and determined she was physically unfit due to migraine headaches and episodes of abnormal movement.  She was rated under the VA Schedule for Rating Disabilities (VASRD) and she was assigned a 50% disability rating for code 8100 (migraine headaches) and 20% for code 8911 (episodes of abnormal movement).  The PEB recommended placing her on the temporary disability retired list (TDRL) with reexamination during September 2005.  On 27 August 2004, the applicant concurred with the PEB’s finding and recommendation and waived her right to a formal hearing.

16.  On 15 September 2004, the U.S. Army Physical Disability Agency (USAPDA) returned her PEB to the USAPEB for reconsideration.  A USAPDA official stated the applicant's headaches were not prostrating as defined by the DOD Instructions Number 1332.39, E2.A1.4.1.4.  The official stated 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% 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.

17.  On 23 September 2004, the USAPEB discontinued the applicant's PEB proceedings citing the reasons identified above.  The PEB proceedings were returned to the applicant's primary medical treatment facility, BACH.  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.  

18.  On 28 October 2004, her military neurologist responded to the questions raised by the USAPEB memorandum dated 23 September 2004, as follows:

	a.  He reported via a medical addendum the applicant was unable to seek immediate medical treatment for her migraine headaches due to lack of transportation (medically imposed driving restrictions).  She left work and went 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 was in his medical opinion a "prostrating" headache.  

	b.  The 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 added he did 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 showed that she was less responsive when she decreased her medication dosage.  He added 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, but that her reported complications from the medication show she did not tolerate the prescribed medical treatment. 

19.  On 28 October 2004, the applicant agreed with the cited medical addendum and, 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. 

20.  On 5 November 2004, a second informal PEB convened at Fort Sam Houston and found the applicant's conditions prevented her from performing the duties required of her grade and specialty and determined she was physically unfit due to migraine headaches and episodes of abnormal movement.  She was rated under the VASRD and assigned a 20% disability rating for code 8912, episodes of abnormal movement and she was also assigned a 0% disability rating for code 8100 migraine headaches, without evidence of having to stop what she is doing and seek medical attention over the last several months.  The PEB recommended her separation with entitlement to severance pay, if otherwise qualified. 

21.  On 19 November 2004, the applicant indicated she did not concur with the PEB's findings and recommendations, waived a formal hearing of her case, and elected not to 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.  The USAPDA ultimately approved the PEB on 29 November 2004 on behalf of the Secretary of the Army. 

22.  She was honorably discharged on 20 February 2005.  The DD Form 214 she was issued shows she was discharged under the provisions of paragraph 
4-24B(2) of Army Regulation 635-40 with entitlement to severance pay ($15,741.12).  She had completed 3 years and 6 months of creditable active service.
23.  She submitted the following documents:

	a.  An internet article regarding an increase in the disability rating for PTSD retirees and an internet article regarding PEB discrepancies and the need to reform the PDES process.

	b.  A Post-Deployment Health Peer Review and Adult Form in the form of questions and answers, used to screen and monitor post-deployment guideline implementations at the clinic level. 

	c.  A letter, from the VA to the applicant's Member of Congress wherein a VA official states the applicant's records were thoroughly reviewed and she was receiving service-connected disability compensation at the rate of 30% for migraine headaches, 30% for PTSD, and 20% for a seizure disorder.  

24.  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.  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.

25.  DOD Directive 1332.38, paragraph E3.P1.2.3., states MEBs 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. 

26.  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 office, grade, rank, or rating.  It provides for MEBs 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 (Standards of Medical Fitness).  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.  

27.  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.  Ratings can range from 0% to 100%, rising in increments of 10 percent.  
28.  The VASRD contains the rating criteria that the PEB uses to assign ratings.  VASRD Code 8100 and 8912 as follows:
 
	a.  The VASRD code 8100 applies to migraine (headache).  A 50% disabling rating is defined as very frequent migraines that are completely prostrating and prolonged attacks with the patient experiencing severe economic inadaptability.  A 30% 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% 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% 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% disabling rating is defined as one major seizure in the last 6 months or two in the last year; or averaging five to eight minor seizures weekly.  A 20% disabling rating is defined as at least one major seizure in the last 2 years or at least two minor seizures in the last 6 months.  A 10% disabling rating is defined as a confirmed diagnosis of epilepsy with a history of seizures. 

29.  Appendix B of Army Regulation 635-40, Paragraph B-4 states pyramiding is the term used to describe the application of more than one rating to any area or system of the body when the total functional impairment of that area or system can be reflected under a single code.  All diagnoses that contribute to total functional impairment of any area or system of the body will be merged with the principal diagnosis, for rating purposes, unless specifically exempted.

30.  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 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her first PEB disability rating of 60% should be reinstated and she should be allowed to medically retire with benefits. 

2.  The evidence of record shows the applicant suffered from a medical condition that rendered her unable to satisfactorily perform the duties of her grade and specialty.  Her immediate commander and medical personnel recommended referral to an MEB due to abnormal movements with characteristics of both epileptiform seizures and pseudo seizures and migraine headaches.  Consequently, her records were evaluated by an MEB and she was referred to a PEB. 

3.  The available evidence shows her first informal PEB which awarded her a combined rating of 60% was returned for insufficiency.  Her military neurologist provided a second medical addendum wherein he continued to support two diagnoses and refuted the pyramiding presumption.  He supported his medical evaluation and the MEBs decision that both diagnoses were medically unfitting.   

4.  Upon reconsideration, including the addendum submitted by her neurologist, the second informal PEB found her unfitting conditions prevented her from performing the military duties required of her grade and MOS and awarded her a combined rating of 20% based upon her recorded medical condition and the proper application of governing directives.  She was rated under the VASRD and awarded a 20% disability rating for episodes of abnormal movements with appropriate responses to medication (Jacksonian epilepsy) and a 0% disability rating for migraine headaches.  Since she had less than 4 years of active service she was entitled to separation with severance pay.

5.  The claim that she was sent to her quarters because of migraine headaches that were 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% to 0%.  In order to support a higher rating, she would have had to prove more frequent migraines that were either completely prostrating and prolonged attacks with severe economic inadaptability (50%); migraine(s) with characteristic prostrating attacks occurring on an average of once or twice a month over the last several months (30%); or migraine(s) with characteristic prostrating (10%). Since all ratings for migraine headaches other than a 0% rating require the migraine headaches to be prostrating, such a correction was reasonable and appropriate.

6.  The applicant was afforded the opportunity after receiving the second PEB's findings and recommendation to request a formal hearing and to have counsel represent her but she did not do so and did not provide any additional medical documentary evidence at the time to support her disagreement with the second PEB's findings and recommendation.  As such, she waived her right to have the USAPDA adjudicate the second PEB.  Therefore, the appropriate Secretarial authority approved the PEB.

7.  With respect to the PTSD, there is no evidence she was diagnosed with PTSD while she was in the military.  It is possible she has developed PTSD or her condition may have worsened since she was separated; however, the Army’s rating is dependent on the existence and severity of the condition at the time of separation.  The VA has the responsibility and jurisdiction to recognize any changes in a condition over time by adjusting a disability rating.

8.  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 their 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) and affects the individual's civilian employability.  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.

9.  The applicant's physical disability evaluation was conducted in accordance with law and regulations and there does not appear to be an error or an injustice in his case.  She has not submitted any evidence or argument that would show an error or injustice occurred in her case.  Therefore, in view of the circumstances in this case, she is not entitled to the requested relief.

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 to amend the decision of the ABCMR set forth in Docket Number AR20090008751, dated 22 December 2009.



      _______ _  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)                                         AR20100010037



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ABCMR Record of Proceedings (cont)                                         AR20100010037



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