IN THE CASE OF:	  

		BOARD DATE:	  13 December 2011

		DOCKET NUMBER:  AR20110010586 


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

2.  He states it has been his contention the injustice that needs to be corrected occurred on his first physical evaluation board (PEB) that was conducted regarding the seizure he suffered on 22 July 2002.

	a.  The Army Board for Correction of Military Records (ABCMR) Record of Proceedings, dated 12 August 2010, fully explained to him why the PEB did not make a finding of 30-percent disability for his seizure.  The reason was because there was no evidence of tonic-clonic [unresponsive and stiff – rapidly alternating muscular contraction and relaxation] convulsions and that the seizure did not meet the Department of Veterans Affairs (VA) Schedule for Rating Disabilities (VASRD) definition of "major seizure."

	b.  He contacted the treating neurologist and shared this information with her.  She does not concur with this conclusion and provided a memorandum that expresses her expert opinion.

	c.  The applicant concludes that the initial PEB finding was arrived at without all of the pertinent evidence.  The evidence he now provides supports increasing the finding from 10 percent to the 30-percent threshold and correcting his records to show he was retired based on permanent disability.

3.  The applicant provides a memorandum from the treating neurologist, Dr. (Colonel (COL)) M____ E. E____, Medical Corps (MC), U.S. Army, dated 1 April 2011.  [Dr. (COL) E____ was a lieutenant colonel (LTC) at the time of initial treatment.]

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 ABCMR in Docket Number AR20090019796 on 12 August 2010.

2.  The applicant provides an expert medical opinion from the treating neurologist which was not previously considered by the Board.  Therefore, this new evidence warrants consideration by the Board.

3.  The applicant was ordered to active duty as a Reserve warrant officer on 8 May 1998 and he completed warrant officer aviation training.

4.  On 22 July 2002, he experienced an episode of loss of consciousness that occurred while he was flying "front seat" in an Apache attack helicopter.  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 the applicant "suddenly stiffened, was not responding, and was interfering with the control of the aircraft."  Upon his 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 the applicant was transported to a German hospital where an electrocardiogram (EKG), carotid ultrasound, and echocardiogram (ECG) were all conducted and reported as normal.

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

	d.  On 2 August 2002, Dr. (LTC) M____ E. E____, MC, Pediatric and Adult Neurology, LRMC, reported the results of a routine 32-channel digital electroencephalogram (EEG) that she conducted on the applicant.  Her interpretation was "a mildly abnormal EEG due to the occasional bursts of sharp activity."

	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 battalion 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.  The applicant had been grounded and a medical evaluation board (MEB) had been initiated.  The surgeon recommended considering him for separation from Army service.

5.  On 14 August 2002, Dr. (LTC) E____ initiated a permanent physical profile [the available copy has only one signature].  The diagnosis was "seizure" 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 commander provided a memorandum to an MEB on 5 September 2002.  The commander advised the MEB that the applicant's 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.  On 7 October 2002, 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 seizure.  (The MEB Narrative Summary and original neurology consultation is not available.)  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) in Washington, DC.  The PEB found the applicant's condition (i.e., a single seizure-like episode without any recurrence; not on any medications) 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 granted a 10-percent disability rating for code 8910.

	b.  The PEB informed him that ratings of less than 30 percent for Soldiers with less than 20 years of 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 percent or 20 percent and he was advised to contact a VA 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, the applicant indicated 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 in support of the applicant's appeal of the PEB's findings and recommendations, Dr. (LTC) E____, MC, LRMC Neurology Service (the physician who conducted his EEG), rendered an MEB Addendum.  Dr. (LTC) E____'s observations, in part, were as follows:

	a.  The applicant's initial seizure occurred on 22 July 2002 during flight.  He experienced acute onset of amaurosis [total loss of vision] with tinnitus [a sound in the ears] followed abruptly by loss of consciousness and he 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 were observed at that point.

	b.  Since then he "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, ECG, 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.  Dr. (LTC) E____'s impression was that the applicant had "experienced a single episode of loss of consciousness which is felt to have been an epileptic seizure [physician's emphasis].  Since the initial convulsive seizure, he has most likely experienced another minor seizure [physician's emphasis] which did not result in loss of consciousness."  She indicated that he was started on seizure medication and concluded the applicant "had one major epileptic seizure and most certainly also a minor epileptic seizure in the past 6 months."

10.  A copy of the applicant's 29 July 2003 MEB is not in the available records.

11.  On 29 July 2003, the applicant sent a memorandum to the President of the PEB at WRAMC in support of his appeal.  He essentially stated he felt his disability rating of 10 percent was too low.

	a.  He noted that he flew to Washington in December 2002 and was prepared to present his case to the formal PEB.  However, before the Board would see him, his lawyer informed him that the board felt he had not received maximum benefit of care and his case was being remanded back to the LMRC in Germany and he would receive further care.

	b.  He stated the correct amount of time had passed and he was in the MEB/PEB system once again.  He added he was on anti-convulsant medication and fortunately his seizures were controllable.

	c.  He contended the VASRD is very clear on appropriate ratings for seizures and attested that his case met the criteria for 40-percent disability based on the rating formula for VASRD code 8911 (epilepsy, petit mal) of one major seizure within the last 6 months or two in the last year, or averaging at least five to eight minor seizures weekly.  He further contended his need for continuous medication should increase his overall disability rating to 50 percent.

12.  On 30 October 2003, a formal PEB convened at WRAMC.  The PEB noted the applicant had a generalized seizure disorder with a history of two seizures prior to being placed on medication and none since using medication.  The applicant elected not to appear, but was represented by appointed counsel.

	a.  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.

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

	c.  The PEB informed him that ratings of less than 30 percent for Soldiers with less than 20 years of 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 percent or 20 percent and he was advised to contact a VA counselor to learn about his eligibility for additional benefits.

	d.  The PEB recommended his separation with entitlement to severance pay if otherwise qualified.

	e.  The applicant's counsel acknowledged receipt of a complete transcript of the formal hearing.

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

14.  On 10 June 2010, an advisory opinion was rendered by the U.S. Army Physical Disability Agency 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 advisory official's opinion was based upon the following:

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

	b.  "The applicant's formal PEB was held on 30 October 2003 (more than a year after the applicant's last reported seizure-like event).  The PEB found that the applicant 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 that the applicant did not meet the criteria for disability retirement:  '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' (rating for 40 percent – VASRD)."

	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.

15.  On 19 June 2010, the applicant 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 one major seizure on 22 July 2002 and one minor seizure in September 2002 within a 
6-month period which qualified him for a disability rating of no less than 40 percent.  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 a disability rating of 10 percent.  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 one major and one minor seizure within a 6-month period which qualified him for a disability rating of no less than 40 percent.

16.  In support of his request for reconsideration, the applicant provides a memorandum from Dr. (COL) M____ E. E____, MC, WRAMC Department of Neurology, dated 1 April 2011, subject:  [Applicant], ABCMR Docket Number AR2000019796.

	a.  Dr. (COL) E____ states the applicant suffered a generalized convulsion (grand mal seizure), also referred to as a major seizure during a military flight on 22 July 2002 when he was the co-pilot.

		(1)  The aircraft's pilot reported that during the seizure the applicant became unresponsive and stiff to the point that the tonic posturing was interfering with the control of the aircraft.  The applicant remained unresponsive for 20 minutes and then confused for another 20 minutes.  He complained of headache and myalgias [muscular rheumatism] following the convulsion and had bitten his tongue.

		(2)  Dr. (COL) E____ states a major seizure, commonly referred to as a tonic-clonic seizure, also called generalized convulsion, may variably exhibit more or less of tonic and/or clonic activity and that the major component may be either tonic or clonic.  She offers that the description provided by witnesses is often limited because some of the event is not observed or not recognized.  In addition, the clonic phase may be unrecognized because the movements are brief and/or low amplitude, the position of the victim obscures them from view, the witnesses are so alarmed at seeing a convulsion, and/or they are busy trying to help the victim.  Lack of observation of features of the seizure cannot be interpreted as lack of occurrence because rarely is a comprehensive description of an initial seizure obtained from witnesses.

	b.  The Task Force on Classification and Terminology of the International League Against Epilepsy identifies generalized convulsions as "seizures with tonic and/or clonic manifestations" and subdivides them into tonic-clonic, tonic, and clonic.  Therefore, major seizures involving loss of consciousness, motor activity, and postictal symptoms may be manifested in a number of ways and may not exhibit either a tonic or a clonic phase.

	c.  Dr. (COL) E____ refers to Department of Defense (DOD) Instruction 1332.29 (Application of the VASRD), dated 14 November 1996, and DOD Directive 1332.18 (Separation or Retirement for Physical Disability), dated 4 November 1996.  She specifically cites paragraph 6.2 (Higher of Two Evaluations) that states, "When the circumstances of a case are such that two percentage evaluations could be applied, the higher percentage will be assigned only if the service member's disability more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  When, after careful consideration of all reasonably procurable and assembled data, there remains a reasonable doubt as to which rating should be applied, such doubt will be resolved in favor to the member."

	d.  Dr. (COL) E____ concludes that there is no question that the applicant experienced a generalized tonic-clonic (major) seizure on 22 July 2002 and within two months he experienced another minor seizure.  On the basis of recurrent seizure activity, anticonvulsant medication was initiated and the medication was successful in controlling his seizures.  Dr. (COL) E____ adds that non-occurrence of seizures while on medication does not negate the diagnosis of epilepsy.

17.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.

	a.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD.

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

		(1)  A major seizure is characterized by the generalized tonic-clonic convulsion with unconsciousness.

		(2)  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.

18.  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.

19.  The VASRD shows for:

	a.  code 8910 (epilepsy, grand mal) – rate under the general rating formula for major seizures and

	b.  code 8911 (epilepsy, petit mal) – rate under the general rating formula for minor seizures.

		(1)  Note 1:  A major seizure is characterized by the generalized tonic-clonic convulsion with unconsciousness.

		(2)  Note 2:  A minor seizure is characterized by the generalized tonic-clonic convulsion with consciousness or conscious control associated with staring or rhythmic blinking of the eyes or nodding of the head ("pure" petit mal), or sudden jerking movements of the arms, trunk, or head (myoclonic type) or sudden loss of postural control (akinetic type).

	c.  The general rating formula for major and minor epileptic seizures shows:

* averaging at least 1 major seizure per month over the last 
year …………………………………………………………….. 100 percent
* averaging at least 1 major seizure in 3 months over the 
last year or more than 10 minor seizures weekly …………... 80 percent
* averaging at least 1 major seizure in 4 months over the 
* last year or 9-10 minor seizures per week …………………... 60 percent
* at least 1 major seizure in the last 6 months or 2 major 
seizures in the last year or averaging at least 5-8 minor 
seizures weekly ………………………………………………… 40 percent
* at least 1 major seizure in the last 2 years or at least 
2 minor seizures in the last 6 months ………………………... 20 percent
* a confirmed diagnosis of epilepsy with a history of 
seizures …………………………………………………………. 10 percent

		(1)  Note 1:  When continuous medication is shown necessary for the control of epilepsy, the minimum evaluation will be 10 percent.  This rating will not be combined with any other rating for epilepsy.

		(2)  Note 2:  In the presence of major and minor seizures, rate the predominating type.

20.  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.

21.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active 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.  The VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  However, these changes do not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicant's processing through the Army PDES.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his request for correction of his initial informal PEB should be reconsidered to show he was awarded a combined disability rating of at least 30 percent and that he was medically retired because he has obtained new evidence that shows he had a major seizure followed by a minor seizure 2 months later.

2.  On 7 October 2002, an MEB found the applicant as having the medically-unacceptable condition of seizure and he was referred to a PEB.

3.  On 17 October 2002, an informal PEB found the applicant's condition (i.e., a single seizure-like episode without any recurrence, not on any medications) was unfitting and recommended a combined rating of 10 percent with separation and separation pay.

	a.  At this point in time, there was no evidence of a diagnosis of epilepsy nor was the seizure characterized as major (grand mal, tonic-clonic).  As an aviator, the applicant was unfit for further service and the informal rating of 10 percent was appropriate.

	b.  The applicant non-concurred with the findings and the board directed his return to Germany for further care and treatment at the LRMC.

4.  On 1 November 2002, Dr. (LTC) E____ documented in an MEB Addendum that the applicant had one major epileptic seizure on 22 July 2002 and the applicant [then] reported another brief event that occurred in September 2002 consisting of ringing in the ears and a similar aura (i.e., a minor seizure).  The neurologist also noted the applicant had started anticonvulsant medication.

5.  The formal PEB that was scheduled in December 2002 was now faced with a Soldier who, instead of having a poorly characterized, isolated seizure, now had a history of two seizure events and had been placed on medication subsequent to his informal PEB.  It would not have been proper to rate the applicant until it was determined that he was stable.  The PEB needed to know if the applicant's seizures were adequately treated with medication in order to determine the appropriate rating.  Accordingly, the formal PEB was postponed.

6.  On 30 October 2003, a formal PEB convened.  At this point, 15 months after his original seizure, the PEB had additional information that was not present at the informal PEB.  For reasons that are not known, the formal PEB did not accept the diagnosis of "major seizure."  However, with no new evidence other than the applicant's report of a subsequent event, it is probable and reasonable that the PEB rejected the neurologist's subsequent opinion that the seizure was a "major seizure."

	a.  In any event, the formal PEB found the applicant's condition (i.e., a generalized seizure disorder with a history of two seizures prior to being placed on medication and none since using medication [for approximately 1 year]) was unfitting and recommended a combined rating of 10 percent and separation with separation pay.

	b.  His counsel was present at the formal PEB and he acknowledged receipt of the record of proceedings.

7.  The applicant's contention that the 17 October 2002 informal PEB should have rated him for a diagnosis that he did not receive until weeks after the board convened and that included an event that was not reported by the applicant until after the informal PEB rendered its findings was carefully considered.

	a.  In the original consult, the neurologist diagnosed the applicant's 22 July 2002 event as "a single event strongly suggestive of seizure."  The neurologist did not opine that it was a major seizure.  The profile issued indicated "seizure." With regard to the applicant's informal PEB, the VASRD general rating formula for major and minor epileptic seizures shows for the presence of major and minor seizures, rate the predominating type – a history of seizures (10 percent).

	b.  In the 1 November 2002 Addendum, the neurologist stated the applicant's first seizure was a major seizure.  The applicant reported a subsequent episode manifested by tinnitus and an aura and that he had started anticonvulsant medication.  As relates to the applicant's formal PEB, the VASRD general rating formula for major and minor epileptic seizures shows that when continuous medication is shown necessary for the control of epilepsy, the minimum evaluation will be 10 percent.  This rating will not be combined with any other rating for epilepsy.

8.  Thus, the evidence of record supports the findings of the applicant's informal and formal PEBs.  In view of all of the foregoing, there is no basis to grant the applicant's 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 the overall merits of this case are 


insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20090019796, dated 12 August 2010.



      ___________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)                                         AR20110010586



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ABCMR Record of Proceedings (cont)                                         AR20110010586



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