IN THE CASE OF:	   

		BOARD DATE:	  28 May 2015

		DOCKET NUMBER:  AR20150007051 


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, through a court-remand of his case, in effect, that his discharge be voided and that he be retired by reason of permanent disability with an effective date of 17 July 2013 and entitlement to all back pay and allowances.

2.  The applicant states, in effect, that he was originally referred to a Physical Evaluation Board for an unfitting seizure disorder rated with a 20% disability rating by the Department of Veterans Affairs (VA) and the PEB under the Integrated Disability Evaluation System (IDES), and on 28 February 2013 the PEB recommended that he be separated by reason of disability with severance pay.  At the time (18 January 2013), the Seattle VA explained that in order to receive a 40% rating he would have had to have had at least one major seizure in the last 6 months or two major seizures in the last year or average at least five to eight minor seizures weekly.  He was hospitalized at the Department of Veterans Affairs Medical Center in Birmingham, Alabama and experienced a grand mal seizure on 11 February 2013.  The information was forwarded to the Atlanta VA Regional Office, which increased his disability rating to 40% effective 11 February 2013.  However, the United States Army Physical Disability Agency (USAPDA) denied his appeal to change his disability rating to 40% because it was done by the Atlanta Regional VA instead of the Seattle Regional VA.  Accordingly, he was discharged on 17 July 2013 with a 20% disability rating and authorized severance pay.

3.  The applicant provides pertinent documents through his counsel.


COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the Board take action to void his 17 July 2013 discharge and issue him orders retiring him by reason of permanent disability with a 40% disability rating with entitlement to all back pay and allowances.

2.  Counsel states, in effect, that the applicant was originally rated with a 20% disability rating.  His condition worsened before he was discharged and the Atlanta Regional VA increased his disability rating to 40%; however, because the increase was not made by the original VA Regional Office (Seattle), the USAPDA would not recognize the increase and unjustly discharged him with a 20% disability rating instead of retiring him for permanent disability with a 40% disability rating.

3.  Counsel provides an 8-page supplemental brief explaining the applicant’s application along with a list of exhibits (13).

CONSIDERATION OF EVIDENCE:

1.  The applicant was serving as a public affairs noncommissioned officer in the United States Army Reserve (USAR) in the pay grade of E-7 when a Medical Evaluation Board conducted at Eisenhower Army Medical Center, Fort Gordon, Georgia on 28 December 2012 determined he had an unfitting condition of seizure disorder, etiology unclear and recommended that he be referred to a Physical Evaluation Board (PEB).

2.  The applicant was evaluated under the IDES on 18 January 2013 and the Seattle VA Regional Office rendered a rating decision granting the applicant a 20% service – connected disability rating for evaluation of seizure disorder, etiology unclear, for the Disability Evaluation System (DES) and explained that the rating of 20% was assigned based on at least one major seizure in the last 2 years.  The rating decision also explained that a higher evaluation of 40% is not warranted unless he had one major seizure in the last 6 months or two major seizures in the last year or averaged at least five to eight minor seizures weekly.   The applicant concurred with the findings and requested a re-evaluation of the VA Rating Decision.

3.  On 11 February 2013, the applicant was admitted to the VA Medical Center in Birmingham, Alabama for the purpose of inpatient video EEG monitoring, and on 13 February 2013, he experienced a seizure which was captured on the video EEG study. 

4.  On 28 February 2013, a PEB convened at Fort Sam Houston, Texas and determined that the applicant should be rated at 20% for his seizure disorder and discharged with severance pay.  The applicant concurred with the findings and waived his right to a formal hearing.  He also formally requested a re-evaluation of the VA Rating Decision through the PEB to the Seattle Disability Evaluation Rating System (VA) in Ashburn, Washington on 15 March 2013.

5.  The Seattle VA Regional Office responded on 9 April 2013 to the effect that there was insufficient evidence to determine if the seizure he experienced in February 2013 was classified as a major seizure and that his 20% disability rating was confirmed and continued.

6.  On 10 April 2013, the PEB at Fort Sam Houston advised the applicant that his request to change his VA Rating has been denied, that he had concurred with the PEB findings, and that his case was being forwarded to the USAPDA for approval.

7.   On 30 April 2013, the Atlanta VA Regional Office advised the applicant that his VA Rating Decision had been increased to 40% effective 11 February 2013 based on his hospital admission for seizure study.

8.  On 12 June 2013, Orders Number D163-29, published by the USAPDA, directed that he be honorably discharged in the pay grade of E-7, effective        17 July 2013, with a 20% disability rating and entitlement to severance pay. 

9.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has an impairment rated at least 30-percent disabling.

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states disability compensation is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  This regulation also provides for Soldiers to appeal the decisions of the various boards and agencies involved in determining a Soldier's disability ratings.

11.  Directive-Type Memorandum (DTM) 11-015 – Integrated Disability Evaluation System (IDES) provides, in pertinent part, that upon separation from the service for medical disability and consistent with Board for Correction of Military Records (BCMR) procedures of the Military Department concerned, the service member (or his or designated representative) may request correction of his or her military records through his or her respective military department BCMR if new information regarding his or her service or condition during service is made available that may result in a different disposition.  For example, a veteran appeals VA’s disability rating of an unfitting condition based on a portion of his or her service treatment record that was missing during the IDES process.  If VA changes the disability rating for the unfitting condition based on records that were not available during the IDES process and the change to the disability rating may result in a different disposition, the service member may request correction of his or her records through his or her respective Military Department BCMR.  

12.  The Army's determination of a Soldier's physical fitness or unfitness is a factual finding based on the individual's ability to perform the duties of his or her grade, rank, or rating.  If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature.  The Army system requires that the Soldier only be rated as the condition(s) exist(s) at the time of the Physical Evaluation Board hearing.  The VA may find a Soldier unfit by reason of a service-connected disability and may even initially assign a higher rating.  The VA's ratings are based on an individual's ability to gain employment as a civilian and may fluctuate within a period of time depending on the changes in the disability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his discharge should be voided and he should be retired by reason of permanent disability with a 40% disability rating has been noted and appears to have merit.

2.  The available evidence suggests that the applicant was properly evaluated under the IDES and was given a 20% service-connected disability rating based on his condition at the time the PEB was conducted; however, it appears that his condition changed to a point where a different disposition of his case was necessary in order to afford the applicant proper adjudication of his case, which did not occur.

3.  It is noted that the purpose of the IDES was to level the playing field between the Department of Defense and the VA by ensuring that there was consistency between the two agencies with regard to ratings for disabilities.  However, it appears that there were inconsistencies within the VA because one VA Regional Office would not accept another VA Regional Office’s evaluation of the applicant’s condition and there is no evidence that the two offices attempted to resolve the difference.  Accordingly, the USAPDA did not have the authority to change the rating until such time as the VA resolved the matter.

4.  In any event, the Atlanta VA Regional Office issued an increase in the applicant’s disability rating from 20% to 40% prior to his discharge and given the circumstances in this case, it is apparent that the applicant should have been given any benefit of doubt that may have existed and retired by reason of permanent disability instead of being discharged.

5.  Therefore, as a matter of equity and fairness to the applicant, his discharge of 17 July 2013 should be voided and he should be retired by reason of permanent disability with a 40% disability rating and paid all back pay and allowances that flow from that change.

6.  Additionally, 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 his 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:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

   a.  voiding Orders D163-29, dated 12 June 2013, showing he was discharged by reason of disability with severance pay and a 20% disability rating, effective 17 July 2013;

   b.  issuing him new orders, effective 17 July 2013, showing he was retired due to permanent disability with a 40% disability rating; and

   c.  paying him all back retired pay that flows from that change.
   
2.  The Board wants the applicant and all others to know that the sacrifices he made in service to the United States are deeply appreciated.  The applicant and all Americans should be justifiably proud of his service in arms.



      _______ _   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)                                         AR20150007051





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ABCMR Record of Proceedings (cont)                                         AR20150007051



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