IN THE CASE OF:	  

		BOARD DATE:  8 October 2013

		DOCKET NUMBER:  AR20130001698 


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 2003 disability separation to show post-traumatic stress disorder (PTSD) and traumatic brain injury (TBI) were considered by the Physical Evaluation Board (PEB) and an increase to his disability rating to 30 percent (30%) or higher. 

2.  The applicant states he was being treated for PTSD and TBI.  These conditions were not considered at the time of his disability processing.  He was denied full retirement benefits as a result. 

3.  The applicant provides:

* 2003 DD Form 214 (Certificate of Release or Discharge from Active Duty)
* 2003 DA Form 199 (PEB Proceedings)
* Letter regarding consideration by the Department of Defense Physical Disability Board of Review
* Department of Veterans Affairs (VA) Form 3288 (Request and Consent to Release of Information from Individual's Records)
* Brief in support of correction of his military records
* Adult Psychiatry Intake and Emergency Medical Note

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests correction of the applicant's PEB, specifically his disability percentage, and all appropriate records to reflect the applicant's medical retirement. 
2.  Counsel states:  

	a.  The applicant was a prison guard at the prison in Fort Leavenworth in February 2003.  On or about 10 February 2003, he was violently attacked by one of the prisoners incarcerated there.  The man grabbed him around the neck and pushed him to the floor, attacked his eyes, and kicked him.  During the attack, his head slammed against the floor.  He was taken to the VA Hospital in Leavenworth, KS, where CAT scans are reported to have appeared normal. However, he began reporting intermittent dizziness, sleepiness, and difficulty concentrating.  He then began to experience losses of consciousness and staring spells.  He subsequently underwent an electroencephalogram (EEG), which revealed abnormality due to "frequent phase reversible, phenomenon confined to the left anterior and central temporary regions." 

	b.  These findings were suggestive of focal seizure disorder and left focal cerebral dysfunction.  He was diagnosed with acute stress disorder and closed head injury and possible seizure disorder.  He subsequently underwent psychiatric therapy in an attempt to prevent PTSD, at one point being admitted to Eisenhower VA Medical Center.  A record from that visit indicates an existing diagnosis of PTSD.  After much therapy, he was declared unfit for service, and medically discharged.  However, despite an apparent diagnosis of PTSD, the only disability listed on his PEB was Seizure Disorder, which resulted in a disability rating of 10%.  

	c.  The applicant was subsequently diagnosed with Axis I: personality change due to TBI and PTSD, and Axis III; migraines, post-traumatic epilepsy, and EIC, and was given a Global Assessment of Functioning (GAF) score of 31.  A later diagnosis shows Axis I: PTSD, personality change due to TBI and Axis III: TBI, right eye blindness, with a GAF of 40.  

	d.  As the Board is likely aware, DSM-IV, Axis I includes diagnoses of clinical disorders and Axis III includes acute medical conditions and physical disorders. The post-discharge diagnoses on Axis I indicate clear diagnoses of PTSD.  While these are subsequent to his discharge, there are no intervening records to indicate trauma caused elsewhere, and are not inconsistent with the pre-discharge note of PTSD, or the Diagnosis in his Adult Psychiatry Intake.  That diagnosis includes Axis I findings of acute stress disorder and adjustment disorder with mixed features of anxiety and depression.  These are symptoms consistent with PTSD.  A review of his complete record should help you realize that PTSD should have been reported on his PEB, and used to determine a higher disability rating.  Prior to his discharge, the applicant was denied an eye examination, despite his eye injury which occurred during the attack.  After his discharge, he was finally able to obtain an eye examination with the VA.  His first examination revealed severe injury to his eye, described as a central retinal vein occlusion, resulting in Visual Acuity corrected to 20/200.  This is attributable to the attack, and he was subsequently awarded a Traumatic Servicemembers' Group Life Insurance benefit as a result.

3.  Counsel did not provide any evidence. 

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's records show he enlisted in the Regular Army (RA) on 13 November 1997 and he held military occupational specialty (MOS) 95C (Corrections Specialist).  

3.  He reenlisted in the RA on 14 March 2001 and he attained the rank/grade of sergeant (SGT)/E-5 on 1 March 2002.  He was assigned to Fort Leavenworth, KS.  

4.  His medical records are not available for review with this case.  However, he provides the following documents: 

	a.  A medical record, dated 7 April 2003, that shows he complained of anxiety and emotional instability.  One of the doctors recommended his admittance to a psychiatric clinic due to his hostile behavior, crying and shaking episodes, and problems with his command.  He was extremely anxious and very emotional about an incident at the Disciplinary Barracks where he was attacked by an inmate.  It appeared he was diagnosed with PTSD after that and his wife, who was also anxious and appeared to add to the anxiety, was concerned about seizures.  

	b.  An Adult Psychiatry Intake, dated 14 April 2003.  His chief complaint is listed as his need for an opinion whether to stay in the military.  This documents show:

		(1)  The applicant's history for the current event begins on 10 February 2003.  Apparently, according to him, he wrote up an inmate for not closing a cell door.  Sometime after that the inmate assaulted him by grabbing him around the neck and pushing him to the floor.  He also states he hit the floor and then was kicked in the groin.  He further states when he hit the floor he felt a large bang on the back of his head.  He was taken to the VA Hospital in Leavenworth, KS.  A CT scan of the head was performed at that time without contrast.  It is dated, and reviewed by that physician on 10 February 2003.  According to the CAT scan there was no evidence of intracranial bleeding, no shift of the midline structures and no detectable bony fractures were noted.  In addition, the applicant underwent a CAT scan of the facial bones and that CAT scan was also noted to be negative.  Since the time of the assault, he had complaints of being intermittently dizzy, sleepy, and having difficulty concentrating.  He has worked every day since but his duties have been restricted to work in the Orderly Room. There is some question as to whether he in fact has been suffering from newly diagnosed seizure disorder since the episode of 10 February 2003. 

		(2)  On 10 March 2003, he underwent an EEG.  He told the neurologist that he had had a closed head injury which resulted in a loss of consciousness and that he has had staring spells since that time.  He states he has a localized headache confined to the right temporal area.  It is not associated with nausea, vomiting, or diplopia.  The result of the EEG is that the EEG is abnormal because of frequent phase reversible, phenomenon confined to the left anterior and central temporal regions.  These findings were suggestive of focal seizure disorder and left focal cerebral dysfunction.  At that time, he was started on Carbamazepine and a complete sleep study was recommended. Subsequently, he says, his mood has been irritable, he gets angry easily, and he may have had some of these focal-like seizures with loss of attention but not associated with any major motoric activity.  He has been taking Tegreto as well as Ativan and Clonazepam.

		(3)  Neurovegetative symptoms:  He complained that his appetite is diminished, his sleep is generally OK.  There has been no weight loss associated with the decreased appetite.  His memory has diminished his ability to focus and maintained concentration has diminished.  He states his libido is diminished.  He does not feel hopeless or helpless nor does he feel suicidal.  He does, however, report vivid dreams of the face of the prisoner who assaulted him although the assault did occur from the rear.  At the time of this examination, he reported the above-mentioned neurovegetative symptoms.  His diagnosis was as follows: 
* Axis I: Acute Stress Disorder; Adjustment Disorder with mixed features of Anxiety and Depression.
* Axis II: Deferred.
* Axis III:  Status post closed head injury and possible seizure disorder.
* Axis VI: Blank
* Axis V:  GAF score of 65-70, best GAF in the past 12 yrs, 75-80

		(4)  The military doctor recommended including continuation on Tegretol; counseling at the next visit regarding reduction/restriction of use of benzodiazepines; discussion of the possibility of starting an anti-depressant to deal with the acute stress disorder in order to prevent it from progressing to a PTSD syndrome; restriction regarding driving a vehicle; a clarification regarding definitive diagnosis of seizure disorder; education about the medications that he is currently taking and the need for ongoing therapy to deal with his current job stressors, recent injury and dissatisfaction with military life; and a recommendation for a Medical Evaluation Board (MEB).  

5.  On 16 May 2003, he underwent a physician-referred MEB.  His narrative summary (NARSUM) shows: 

	a.  He presented with a seizure disorder following acute head trauma which occurred on 10 February 2003.  He reports that he was assaulted at the U.S. Disciplinary Barracks by an inmate.  He states that he was struck multiple times in the head, kicked in the groin and taken to the VA for evaluation.  At that time he received a CT scan which was reportedly negative and was diagnosed at that time with a mild concussion secondary to the assault.  On 19 February 2003, he was referred to Psychiatry for evaluation of possible PTSD related to the assault. He was having a number of symptoms to include headaches and mood lability.  

	b.  On 27 February 2003, he was again seen in the Primary Care Clinic for issues related to the assault.  His social worker brought the issue to the attention of the NARSUM author and reported that the applicant had a sudden episode of nausea and vomiting and was concerned about an episode where he "blacked out" for approximately 1 minute.  His wife states that he was standing and was completely unresponsive at that time.  He was sent for a second CT scan with and without contrast and again no abnormalities were detected.  He followed up with me on the next day, on the 28th, and reported that in addition to being hit in the head several times, he was pushed down and hit the occipital area of his skull on a cement floor.  He reports that at that time there were several episodes of loss of consciousness and that since that time he has had a "continuous headache."  

	c.  He has also had several episodes as reported of "falling asleep" while standing up and he does state that his wife reports he was difficult to awaken.  He denies any prior history of neurologic problems that could be associated with these current episodes.  He was referred to Neurology for an evaluation of the episodes of falling asleep while standing up.  He had an EEG at that time which was abnormal due to frequent phase reversal phenomenon that was confined to the left anterior and central temporal regions.  It was interpreted as suggested of focal seizure disorder with left focal cerebral dysfunction.  At that time, he started on Carbamazepine and has been doing fairly well with decreased number of spells since that time.  He also was recommended to have a sleep study due to excessive daytime sleepiness which was reportedly normal.

	d.  He requested referral for an MEB due to the inability to perform his current MOS which is a prison guard.  Based upon Army Regulation 40-501 (Standards of Medical Fitness), section 3-30, paragraph I, subsection 1, active duty Soldiers with suspected epilepsy may be given a trial therapy on active duty or referred directly to an MEB.  Given this situation, he requests an MEB.

	e.  His present condition was stable on anticonvulsants but has significant restrictions in duty.  He is also very unwilling to return to regular duty as a prison guard at the Disciplinary Barracks.  His diagnosis was that of seizure disorder, status post head trauma.  His assignment limitations included no driving, no weapons, no duty involving heights, no duty in which occurrence of a seizure could endanger him or others, light duty, physical training as tolerated, and no use of heavy machinery.  

	f.  Although he was fit for duty with mentioned limitations, it is recommended that he be reclassified to an MOS that would be more amenable to his current condition.  Also, he was not recommended to work in the penitentiary system at this time.

6.  On 16 May 2003, an MEB convened, 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 disorder.  The MEB recommended his referral to an informal physical evaluation board (PEB).  On 19 May 2003, he was counseled and agreed with the MEB's findings and recommendation.

7.  On 20 June 2003, an informal PEB convened and found the applicant's condition of seizure disorder prevented him from performing the duties required of his grade and military specialty and determined that he was physically unfit due to this condition.  The PEB rated his condition under the VA Schedule for Rating Disabilities Code 8911 and awarded him a 10% disability rating.  The PEB recommended the applicant be separated with entitlement to severance pay if otherwise qualified.

8.  Throughout the disability process, he was counseled by a PEB Liaison Officer (PEBLO) and informed of his rights at each step of the process.  His counseling culminated on 23 June 2003 when he was counseled by a PEBLO regarding his medical condition, the findings of the MEB, the PEB process, and his rights under law.  Subsequent to this counseling, the applicant concurred with the PEB's finding and recommendation and waived his right to a formal hearing.

9.  He was honorably discharged on 15 August 2003 in accordance with paragraph 4-24b(3), Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), due to disability, with entitlement to severance pay.  

10.  He also provides selected post-service VA progress notes, dated 25 July 2005, that show he was diagnosed by the VA with PTSD and occupational problems.  

11.  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.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.  

12.  Army Regulation 40-501 (Standards of Medical Fitness) 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 VA schedule of rating disabilities. Paragraph 3-33 (anxiety, somatoform, or dissociative disorders) states the causes for referral to an MEB under this paragraph require persistence or recurrence of symptoms sufficient to require extended or recurrent hospitalization; or persistence or recurrence of symptoms necessitating limitations of duty or duty in protected environment; or persistence or recurrence of symptoms resulting in interference with effective military performance.

13.  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.  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 he should have been diagnosed with the medical conditions of PTSD and TBI at the time of his disability separation in 2003 and thus an additional finding of unfitness and compensation.  

2.  The applicant's complete medical records are not available for review with this case.  However, the available evidence shows he complained of anxiety subsequent to an altercation with an inmate at his place of work.  It appears his functional limitations in maintaining the appropriate level of reliability, caused by this incident, led to a diagnosis of a medically unacceptable condition of seizure disorder.  

3.  He was considered by an MEB in May 2003 that referred him to a PEB.  His MEB indicated that he had only one condition that did not meet medical retention standards: seizure disorder.  There is no indication the applicant was diagnosed with any other medically-unacceptable conditions such as PTSD or TBI that failed medical retention standards.  In order for the MEB to list a condition, there must be a medical diagnosis of such condition and an indication whether such condition met or failed retention standards.  On 19 May 2003, he concurred with the MEB findings and did not file an appeal.  The MEB referred himr to a PEB.

4.  In June 2003, an informal PEB found his seizure disorder condition was unfitting and rated it at 10%.  The PEB recommended his separation with entitlement to severance pay.  On 15 August 2003, after being counseled on his rights, the applicant concurred with the PEB findings and waived his right to a formal hearing of his case.

5.  Nearly 10 years later, and based on a post-service VA diagnosis, he now claims he was diagnosed with PTSD and TBI at the time.  His contention is unsupported because the Adult Psychiatry Intake he provides clearly shows the doctor discussed the possibility of anti-depressants in order to prevent his seizure disorder from progressing to a PTSD syndrome.  
6.  But even if the condition of PTSD/TBI had been included in the MEB it would still have met medical retention standards.  The mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability and only those conditions found to be unfitting are compensable in the military disability system.

7.  The applicant and his counsel provided insufficient evidence that the applicant was diagnosed with the conditions of PTSD and TBI, and/or that these conditions were unfitting at the time of her separation in 2003.  The fact that the VA diagnosed him with and may or may not have awarded him service-connected disability compensation for PTSD or any other condition is not evidence of any error in the military disability system in 2003.

8.  The PEB's findings are supported by a preponderance of the evidence, were not arbitrary or capricious, and were not in violation of any statute, directive, or regulation.  Based upon the existing military medical and performance evidence reviewed, and the criteria for retention standards in 2003, there is no basis to conclude that the conditions of PTSD or TBI should have been included in the applicant's MEB as a condition that did not meet medical retention standards.

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)                                         AR20130001698





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130001698



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1