IN THE CASE OF:	  

		BOARD DATE:	  4 September 2014

		DOCKET NUMBER:  AR20140014068 


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 a reconsideration of her earlier request for correction of her records to show she was medically retired instead of honorably discharged with entitlement to severance pay. 

2.  The applicant states, in effect, the medical board did not rate all her conditions and she did not have the opportunity to dispute the rating.  The Department of Veterans Affairs (VA) awarded her a disability rating for various service-connected conditions as follows: 

* Epilepsy, 100 percent
* Post-Traumatic Stress Disorder (PTSD), 70 percent
* Sleep Apnea with Asthma, 50 percent
* Migraines, 30 percent
* Osteoarthritis bilateral knees, 10 percent
* Osteoarthritis, right shoulder 10 percent
* Osteoarthritis, left shoulder, 10 percent
* Degenerative disc disease lumbar spine, 10 percent
* Tinnitus, 10 percent
* Gastroesophageal reflux disease (GERD) and diverticulitis, 10 percent 
* Bilateral pes planus, zero percent
* Hearing loss, right ear, zero percent
* Allergic rhinitis/sinusitis, zero percent
* Hemorrhoids, zero percent
* Right temporal/venous malformation, zero percent

3.  The applicant provides: 

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Army Board for Correction of Military Records (ABCMR) Docket Number AR20110016515, dated 17 April 2012

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 AR20110016515, on 17 April 2012. 

2.  The applicant does not meet the two-tiered criteria for a request for reconsideration in that her request was neither received within 1 year of the original Board's decision nor does it contain new evidence.  Her original case was adjudicated on 17 April 2012.  Her current application is dated 12 November 2013.  However: 

	a.  She previously submitted an application to the ABCMR and her case was denied on 17 April 2012.  Since she elected to petition the ABCMR vice the DOD Physical Disability Board of Review (PDBR) at the time, once her case was adjudicated by the ABCMR she was no longer entitled to a PDBR review.  

	b.  Nevertheless, she submitted an application to the DOD PDBR on 12 November 2013.  The PDBR requested verification from the ABCMR (regarding any prior applications to the ABCMR).  However, due to technical problems and/or computer encryption glitches, her name was not detected as a prior applicant.  As such, the PDBR was not aware that the applicant had previously applied to the ABCMR.  The PDBR accepted and adjudicated her case and ultimately forwarded the results on 3 June 2014 to this Board.  

	c.  The PDBR results are considered new evidence and serve the same as an advisory opinion that the ABCMR normally requests from outside agencies as authorized by Army Regulation 15-185 (ABCMR).  Therefore, as a one-time exception to policy, her request will be reconsidered by the Board.

3.  The applicant enlisted in the Regular Army on 14 September 1995 and she held military occupational specialty 92G (Food Service Specialist).  She later served through a reenlistment and an extension and she attained the rank/grade of sergeant (SGT)/E-5.  

4.  On 21 August 1999, she was issued a permanent physical profile for the medical condition of pes planus.  She had complained of foot pain with running, jumping, and marching. 

5.  A subsequent physical examination determined her pes planus with slight bilateral pain did not meet retention standards in accordance with Army Regulation (AR) 40-501 (Standards of Medical Fitness), chapter 3.  The examining physician opined that her case should be adjudicated through the Army Physical Disability Evaluation System (PDES). 

6.  On 3 December 1999, a medical evaluation board (MEB) convened and, after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed with the medical condition of pes planus that failed retention standards.  The MEB recommended her referral to a physical evaluation board (PEB).  She was counseled and agreed.

7.  On 10 December 1999, an informal PEB considered her case.  The PEB found her condition of bilateral foot pain due to pes planus was a congenital condition for which she received a waiver upon her entry and was symptomatic during basic training.  It was a condition that existed prior to service (EPTS) and was not aggravated by service.  The PEB recommended her separation with entitlement to severance pay.  She did not concur and demanded a formal hearing of her case.  

8.  On 15 December 1999, a formal PEB reconsidered her case.  Based on the review of objective medical and personnel evidence of record and considering the physical requirements for reasonable performance of duties required by her former grade and military specialty, the formal PEB found her fit for duty within the limitations of her profile.  Her disposition was "Returned to duty as fit."  She was counseled and concurred. 

9.  On 31 March 2000, she executed a 3-year reenlistment in the RA.  She was   re-trained and awarded MOS 91B (Medical Specialist).  She was initially assigned to Fort Knox, KY, and later to Fort Leonard Wood, MO. 

10.  In January 2004, she was issued a physical profile that affected her duty performance as indicated by her Noncommissioned Officer Evaluation Report for the rating period August 2004 through July 2005.  

11.  On 2 June 2005, she was followed up at the neurology clinic after having previously experienced two seizures.  Her narrative summary (NARSUM) shows 

she had had a history of epilepsy associated with a right temporal venous malformation.  The previously-done electroencephalogram (EEG) was normal.  She had multiple seizures, at least 7 in the past 2 years, and had problems with maintaining adequate Dilantin levels.  In view of multiple seizures, she was disqualified from further military service under Army Regulation 40-501, paragraph 3-30i and should be referred to an MEB for further disposition.  

12.  An Addendum to her MEB NARSUM, dated 1 August 2005, shows the following diagnosis: 

	a.  Axis I: depressive disorder, not otherwise specified (NOS) manifested by recurrent episodes of brief but severe depressive spells, episodes of impulsivity, episodic problems with insomnia, appetite changes with stress usually with cravings for high carbohydrate type foods and episodic problems with guilt and feelings of worthlessness.

	b.  Axis II:  While there are some personality traits present there is no history that is severe enough to warrant diagnosis of personality disorder.  Degree of impairment for military duty as well as civilian/industrial impairment is mild.  

	c.  Axis III: Epilepsy. 

	d.  Axis IV: Long-term relationship problems and occasional occupational problems.  Global Assessment of Functioning (GAF) is 60. 

13.  On 1 August 2005, an MEB convened and, after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed with the below conditions.  The MEB recommended her referral to a PEB.  She was counseled and agreed.

Diagnosis
Met Retention Standards
Did Not Meet Retention Standards
1.  Epilepsy

X
2.  Atypical depressive disorder
X

3.  painful flat feet 
X

14.  On 24 October 2005, a second MEB convened and, after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed with the below conditions.  The MEB recommended her referral to a PEB.  She was counseled and agreed.



Diagnosis
Met Retention Standards
Did Not Meet Retention Standards
1.  Epilepsy

X
2.  Bulging disk at L4-5, L5-S1, chronic low back scroiliitis

X
3.  Tinnitus
X

4.  Gastroesophageal reflux syndrome
X

5.  Hyperlipidemia
X

6.  severe pes planus with plantar fasciitis
X

7.  Allergic rhinitis
X

8.  Colonic diverticulitis
X

9.  Atopic dermatitis
X

10.  Obesity
X

11.  Atypical depressive disorder
X

15.  On 19 August 2005, an informal PEB considered her case.  

	a.  The PEB found her condition of epilepsy, grand mal; associated with right  Epilepsy, grand mal; associated with right temporal venous malformation (EPTS), was unfitting.  She has had several seizures since the initial episode due to noncompliance with medication (Dilantin prescribed at 500 to 600 alternating days, plasma level 0).  Several seizures have occurred during sleep.  Extensive profile restrictions are unfitting.  This disability is EPTS and was not permanently aggravated by service, but is compensable in accordance with Title 10, U.S. Code (USC), section 1207a (eight-year rule).  The PEB also considered her other two conditions but since they were not unfitting they were not ratable.  

	b.  The PEB rated the applicant's medically-unacceptable conditions under the VA Schedule for Rating Disabilities (VASRD) 8910 and awarded her a 10 percent disability rating.  The PEB recommended her separation with entitlement to severance pay.  The applicant elected not to concur with the informal PEB's findings and recommendations and demanded a formal hearing of her case.  

16.  On 4 November 2005, a formal PEB reconsidered his case.  The PEB found the applicant's condition(s) prevented her from performing the duties required of her grade and military specialty and determined she was physically unfit due to the below conditions.  The PEB rated her medically-unacceptable conditions under the VASRD as follows:

VASRD Code
Condition 
Percentage
8910
Epilepsy
10 percent
5299/5237
Chronic low back pain
10 percent
	a.  The formal PEB also considered the applicant's other conditions but since those conditions did not fail retention standards and/or were not unfitting, they were not ratable.  The PEB recommended a 20 percent combined disability rating and the applicant's separation with entitlement to severance pay if otherwise qualified.  

	b.  Subsequent to counseling, the applicant elected the box marked "I do not concur.  Attached or written below is a statement of rebuttal explaining why I do not agree with the findings and recommendations."  She wrote the statement "I have had two major seizures in the past 2 years and feel that this should be rate [sic] at 20 percent."  

17.  She also submitted a memorandum to the PEB.  She stated: "I have received a memorandum from Dr. Lu----- stating that I have been compliant in regards to taking my medication.  I am also rebutting the issue of the diurnal and nocturnal seizures according to the Code of Federal Regulations it states there will be no distinction between the two if the seizures are major seizures (grand mal, clonic tonic).  Dr Lu----- would not give me a statement on the fact that I have had several diurnal seizures but they are annotated in my medical records."

18.  On 21 November 2005, the PEB received her election in which she did not concur with the findings and recommendations of her formal hearing.  It is noted that she provided information to the PEB, specifically her personal statement, with supporting documentation.  Her appeal was carefully considered and her case reviewed.  Following its review of her case, the PEB adhered to the original findings and recommendations of the formal hearing.

19.  On 30 November 2005, the U.S. Army Physical Disability Agency (USAPDA) reviewed her case.  An official advised her that the USAPDA has noted her disagreement with the findings of the PEB and has reviewed her entire case. The USAPDA’s conclusion is that her case was properly adjudicated by the PEB which correctly applied the rules that govern the PDES in making its determination.  The findings and recommendations of the PEB are supported by substantial evidence and are therefore affirmed.  

20.  She was honorably discharged on 13 January 2006 in accordance with 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.  

21.  On 17 April 2012, the ABCMR denied her request for correction of her records to show she should have been medically retired.  There was insufficient evidence to support her request. 
22.  On 3 June 2014, the PDBR adjudicated her case.  She had requested consideration of her fitting and unfitting conditions.  The PDBR Record of Proceedings shows: 

	a.  Epilepsy, Grand Mal.  The MEB NARSUM noted she presented to the neurology clinic in 2004 after having two seizures.  

		(1)  Her first seizure, in 2003, occurred in her sleep.  She awoke in the morning and noticed she had bitten her tongue.  She had been incontinent of urine and complained of a generalized headache.  She did not have a second seizure until May 2004.  She reported she went to the emergency room the night after the seizure.  She was placed on Dilantin.  On 19 May 2004, she was admitted to the hospital overnight for observation and she received a Dilantin load as part of the evaluation process.  No seizure activity was recorded.  She was profiled and discharged with the diagnosis of seizure disorder, "most likely partial complex by history."  At the neurology consultation visit on 29 June 2004 she reported she was taking 100mg of Dilantin daily.  The neurologist noted she had been prescribed 300mg daily.  She reported a 2 or 3?year history of a head injury without loss of consciousness.  She denied pre?military seizure history.  

		(2)  All three EEGs performed prior to separation were normal.  Brain magnetic resonance imaging (MRI) performed on 14 July 2004 was abnormal.  She underwent two magnetic resonance angiographies; both were unremarkable and demonstrated no evidence of a vascular malformation.  She reported she had another nocturnal seizure on 15 July 2004 (2 in 2004).  On 30 August 2004, she was evaluated by a civilian neurosurgeon who noted the MRI had been suspicious for a vascular anomaly in the right temporal lobe; however, no focal deficits were found on examination.  She reportedly had a third nocturnal seizure in December 2004 and presented to the emergency room with a 2.5 cm superficial laceration on the left side of the tongue.  In a follow?up neurosurgery visit on 10 January 2005, the physician noted the report of three seizures in one month and that her Dilantin level was zero.  The physician stated, without reference to time, "After being re?dosed and on appropriate regimen, she did not have any seizure activity."  On 24 March 2005, neurology diagnosed generalized convulsive grand mal epilepsy of unknown etiology and noted the Dilantin level had been zero on three occasions in December 2004.  At the 2 June 2005 NARSUM, the neurologist noted multiple drug levels for Dilantin had been zero, and suspected the applicant had issues with medication compliance.  The physician noted she had at least seven seizures over a 2?year period and had problems with maintaining adequate Dilantin levels.  The neurological examination was normal and the physician opined the seizure disorder was medically disqualifying. 

		(3)  After deliberation, the PDBR members agreed the 10 percent rating for a condition controlled by medication most adequately reflected the condition at the time of separation.  After due deliberation in consideration of the preponderance of the evidence and mindful of VASRD 4.3 (reasonable doubt), the PDBR concluded that there was not sufficient cause to recommend a change in the PEB adjudication for the epilepsy condition.

	b.  Chronic Low Back Pain.  The available treatment records noted she reported her back pain began in 1995.  She described her pain as dull, located in the low back region.   

		(1)  A 10 July 1996 acute medical screening visit recorded the report of back pain that began during her advanced individual training, precipitated with running, jumping and repetitive bending.  A possible muscle strain was diagnosed.  On 5 October 2001, she presented to primary care with the report of low back pain radiating down the right leg and to her left thigh.  The physician noted that the MRI had shown minimal broad bulge of L4?L5 and L5?S1 without foraminal compression.  Treatment records regarding the back were silent until 2005.  During a June 2005 visit, she reported right sided low back pain with radiation to the ankle, foot and toes.  Her pain was chronic and intermittent, worse in the morning, worsened when standing, walking and bending.  Physical examination recorded no sensory abnormalities, no motor dysfunction or coordination issues.  

		(2)  Her gait revealed a right sided limp and there was mild muscle spasm of the left paraspinal region of the lower back.  The profile allowed for walking at own pace and distance.  The commander’s statement did not implicate the back as limiting her ability to function in her MOS.  The MEB addendum dated 24 October 2005 recorded the presence of mild bilateral muscle spasms in the back with a normal gait.  Range?of?motion (ROM) recorded for the MEB on 28 October 2005, approximately 2 months prior to separation, noted flexion of 43, and extension of 20.  The VA Compensation and Pension (C&P) examination, approximately 7 months after separation on 9 August 2006, recorded ROM forward flexion of 80 degrees, with no evidence of lack of endurance following repetitive use.  The PEB rated the condition 10 percent, coded analogously 5299?5237 (lumbosacral strain).  The VA rated 10 percent coded 5243 (degenerative disc disease).  The higher rating of 20 percent requires spasms producing abnormal gait, or abnormal curvature of the spine, or forward flexion not greater than 60 degrees.  The PDBR noted ROM recorded at the MEB was 43, for forward flexion.  There was no evidence the measurement was performed with the aid of a goniometer.  Although spasms were noted on the MEB examination, the examiner did not record any abnormality of the spine.  The VA recorded a measure of 80 degrees of flexion was performed by goniometer, and therefore, considered to have the greater probative value.  The PDBR considered rating under 5243; however, there was no evidence of ratable peripheral nerve impairment in this case, since no motor weakness was present and sensory symptoms had no functional implication.  There was no evidence of incapacitating episodes for a higher rating under 5243.  There was no evidence of incapacitating episodes for a higher rating under 5243.

		(3)  After due deliberation, considering all of the evidence and mindful of the reasonable doubt rule, the PDBR concluded that there was insufficient cause to recommend a change in the PEB adjudication for the low back condition. 

	c.  The PDBR also considered those conditions that were found not unfitting.  The PDBR's main charge is to assess the fairness of the PEB’s determination that the conditions of tinnitus, GERD, hyperlipidemia, pes planus with plantar fasciitis, allergic rhinitis, colonic diverticulitis, atopic dermatitis, and obesity were not unfitting.  The PDBR’s threshold for countering fitness determinations is higher than the reasonable doubt standard used for its rating recommendations, but remains adherent to the DODI 6040.44 "fair and equitable" standard.  These conditions were not profiled or implicated in the commander’s statement and were not judged to fail retention standards.  All were reviewed by the action officer and considered by the PDBR. There was no performance?based evidence from the record that any of these conditions significantly interfered with satisfactory duty performance.  After due deliberation in consideration of the preponderance of the evidence, the PDBR concluded that there was insufficient cause to recommend a change in the PEB fitness determination for any of the above-noted contended conditions.

	d.  The PDBR considered the condition of atypical depression.  

		(1)  The PDBR acknowledged the VA examiner’s diagnosis of PTSD; however, it concluded there was insufficient evidence that she met the exposure criterion for PTSD.  The profile recorded the atypical depression condition as an S2 without specifying mental health (MH) limitations (although seizure restrictions would be similar to MH restrictions).  The MEB psychiatry addendum stated the staff at work had noted she was pleasant and did a good job but occasionally had spells of mood lability that required "a little more counseling and reassurance than an average soldier."  The psychiatrist opined the applicant met retention standards.  There was no performance?based evidence from the record that this condition significantly interfered with satisfactory duty performance; however, the PDBR noted that approximately 2 weeks prior to separation, the applicant was admitted to the psychiatry unit for 6 days.  Hospital discharge records noted she did reasonably well, but required medications to produce mood stability.  The applicant was discharged with a GAF of 60 (borderline mild?moderate).  The record also noted a 2004 psychiatric hospitalization for suicidal ideation.  The C&P mental examination reported she had two psychiatric hospitalizations for suicide attempt via prescription drug overdose (narcotic) since separation in January 2006 and prior to the August 2006 C&P examination (evidence not among the record).

		(2)  After due deliberation, the PDBR agreed that the preponderance of the evidence with regard to the functional impairment of the atypical depression condition favors its recommendation as an additionally unfitting condition for disability rating.  All members agreed application of VARSD 4.129 was not applicable.  The PDBR next considered the VARSD 4.130 rating and determined by a majority consensus that the evidence supported a 10 percent disability rating, coded 9435 (mood disorder not otherwise specified [NOS]).

	e.  The PDBR’s final recommendation is that the applicant's prior determination be modified as follows and that the discharge with severance pay be re-characterized to reflect permanent disability retirement at a combined rating of 30 percent, effective as of the date of her prior medical separation:

VASRD Code
Condition 
Percentage
5299/5237
Chronic low back pain
10 percent
8910
Seizure disorder
10 percent
9435
Atypical depression
10 percent
23.  The applicant was provided with a copy of the PDBR's advisory opinion to give her an opportunity to submit a rebuttal, if desired, but she did not respond.  

24.  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.  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.  Paragraph 4-17 provides guidance for PEBs.  Specifically, it states PEBs are established to evaluate all cases of physical disability equitably for the Soldier and the Army.  The PEB is not a statutory board.  Its findings and recommendation may be revised.

25.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was considered by an MEB in October 2005 that referred her to a PEB.  Her MEB listed several conditions that failed retention standards and several other conditions that met retention standards.  

2.  The PEB found her unfitting conditions prevented her from performing the duties required of her grade and military specialty and determined she was physically unfit due to epilepsy (rated at 10 percent) and chronic low back pain (also rated at 10 percent).  The PEB recommended a combined rating of 20 percent.  The PEB also considered her other conditions but since those conditions did not fail retention standards and/or were not unfitting, they were not ratable.  The PEB recommended separation with entitlement to severance pay.  She was discharged in January 2006. 

3.  Although her atypical depression was not found to have failed retention standards, a subsequent review by the PDRB determined that based on the functional impairments of this condition, symptomatic with mood disorder NOS, there was sufficient evidence to support a finding of unfitness for this condition and a rating of 10 percent.  

4.  In view of this finding, the applicant's prior determination should be modified as follows and her 2005 discharge with severance pay should be                       re-characterized to reflect permanent disability retirement at a combined rating of 30 percent, effective as of the date of her prior medical separation:

VASRD Code
Condition 
Percentage
5299/5237
Chronic low back pain
10 percent
8910
Seizure disorder
10 percent
9435
Atypical depression
10 percent
5.  A Survivor Benefit Plan (SBP) election must be made prior to the effective date of retirement or the SBP will, by law, default to automatic SBP spouse coverage (if married).  This correction of records may have an effect on the applicant’s SBP status/coverage.  The applicant is advised to contact her nearest Retirement Services Officer (RSO) for information and assistance immediately.  A listing of RSOs by country, state, and installation is available on the Internet at website http://www.armyg1.army.mil/RSO/rso.asp.  The RSO can also assist with any TRICARE questions the applicant may have.


BOARD VOTE:

____X____  ___X_____  ___X_____  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant amendment of the ABCMR’s decision in Docket Number AR20110016515, on 17 April 2012.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing she was found by the PEB to be eligible for permanent disability retirement at a combined rating of 30 percent for the conditions shown below effective 13 January 2006:

VASRD Code
Condition 
Percentage
5299/5237
Chronic low back pain
10 percent
8910
Seizure disorder
10 percent
9435
Atypical depression
10 percent


      _______ _   __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)                                         AR20140014068





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ABCMR Record of Proceedings (cont)                                         AR20140014068



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