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NAVY | BCNR | CY2004 | 08923-04
Original file (08923-04.rtf) Auto-classification: Approved
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100


 JRE
 Docket No. 08923-04
13 September 2005
From:    Chairman, Board for Correction of Naval Records
To:      Secretary of the Navy
Subj:    FORMER REVIEW OF NAVAL RECORD

Ref:     (a) 10 U.S.C. 1552
End:     (1) DD Form 149
 (2)      R. Moquin ltr 12 Jan 05
(3)      Dir, SNCORB ltr 5220 CORB:OOS,16 May 05
(4)      Subject’s naval record
1.       Pursuant to the provisions of reference (a), Petitioner, father and guardian of Subject, filed enclosure (1) with this Board requesting, in effect, that the applicable naval records be corrected to show that he was retired by reason of physical disability.
2.       The Board, consisting of Mses an d Mr. and Mr. reviewed Petitioner’s allegations of error and injustice on 18 August 2005. A majority, consisting of Ms. Gilbert and Mr. Swarens, determined that the corrective action indicated below should be taken on the available evidence of record. Documentary material considered by the Board consisted of the enclosures, naval records, and applicable statutes, regulations and policies.
3.       The Board, having reviewed all the facts of record pertaining to Petitioner’s allegations of error and injustice, finds as follows:
a.       Before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulations within the Department of the Navy.
b.       Subject enlisted in the Marine Corps on 5 July 2000. He underwent surgery on 30 January 2004 for removal of a benign mass from the septum peliucidum of his brain. The
 lesion was not completely removed, as doing so might have injured Subject. He was discharged “to command, stable” on 6 February 2004. An MRI done on 12 May 2004 showed “stable septum pellucidum lesion no hydrocephalus” He underwent a preseparation physical assessment on 14 May 2004. He disclosed that he had frequent headaches before undergoing surgery on 30 January 2004. The physician who conducted the assessment commented that Subject had fully recovered from his brain surgery. Subject had a follow-up appointment with his surgeon on 27 May 2004, and had no complaints at that time. His condition was assessed as “status/post v~ shunt placement and attempted removal of septum pellucidum lesion. Doing very well. To be discharged from USMC within 2 wks.” Subject was instructed to obtain copies of his MRI, MRI reports and discharge summaries, and to have another MRi done in three to six months. Subject was released from active duty on 4 July 2004 and transferred to the Marine Corps Reserve. He was assigned a reentry code of RE-lA, to indicate that he was eligible and recommended for reenlistment. He was involved in an automobile accident on 21 August 2004 in which he sustained severe traumatic brain injuries. Petitioner believes that the accident was “due to a migraine attack, or even a blackout” caused by Subject’s brain tumor. On 20 October 2004, the VA awarded Subject a combined disability rating of 70% for a benign growth of the brain (60%), left shoulder strain (10%), tendonitis, left knee(10%), and right knee strain (0%).
c.       In correspondence attached as enclosure (2), a designee of the Specialty Leader for Neurosurgery advised the Board, in effect, that Subject was status/post craniotomy for a neoplasm. It appears that he had hydrocephalus secondary to the tumor or the treatment of the tumor. Regardless of the etiology of the hydrocephalus, being shunt dependent for the treatment of any sort of hydrocephalus is not compatible with service in the USMC. It is reasonable that he was separated from active duty in the USMC as there was no further active treatment required. Management of the hydrocephalus should be done [on a long-term basis though Temporary Disability Retired List (TDRL) channels or in the Department of Veterans Affairs (VA) system. He does not agree with the assignment of a reentry code of RE-lA, because Subject will not be fit for duty as long as he is shunt dependant. With a shunt being in place and there being a change in the quality or quantity of headaches, then the question must be asked, did shunt failure have something to do with the headaches? This question may be difficult to answer if there was significant anatomic disruption of the brain with the car accident. He states that over the course of the twenty years he


2
has been involved with neurosurgery in the Department of Defense, usually, active duty service members who have brain tumors requiring surgery and shunting, are usually placed on the TDRL to monitor their progress and render further treatment. If Subject had been his patient, he would have recommended that Subject be placed on TDRL, “at least”.
d.       In correspondence attached as enclosure (3), the Director, Secretary of the Navy Council of Review Boards, advised the Board, in effect, that Subject underwent a craniotomy for partial removal of a benign colloid cyst from the septum pellucidum of his brain on 30 January 2004 with successful placement of a ventriculo-peritoneal (VP) shunt. The post-operative course appears to have been uneventful. A 6—week follow-up health record entry by his neurosurgeon indicates that Subject “has occasional headaches, otherwise doing well” and that he was, basically, under no medical restrictions but “cannot stay on full duty with VP shunt—refer to PEB” due to the following duty limitations: “no contact activities, no deployment to areas without neurosurgical capability.” Notwithstanding the foregoing, it does not appear that the case was ever referred to Disability Evaluation System (DES), as the DES database has no record of a Medical Evaluation Board (MEB) report on Subject being received by the Physical Evaluation Board (PEB). Subject was reportedly discharged from the USMC on or about 4 July 2004, and applied for VA compensation and pension evaluation on or about 19 July 2004,but it does not appear that he sought treatment at that time. There appears to be no record of required medical attention until a tragic motor vehicle accident (MVA), which reportedly occurred on 21 August 2004 and left Subject with massive traumatic brain injury (TBI). The available record does not contain any evidence from Subject’s command or his service or medical record that he suffered from residuals of his neurosurgical condition that significantly impaired his ability to perform his military duties during his five months of active duty service following the brain surgery. In addition, there is no evidence that Subject sought neurosurgical, medical, or psychiatric treatment for any ailments until the aforementioned MVA. In the Director’s opinion, a linkage of the MVA and neurological condition is tenuous and highly speculative, notwithstanding the contents of the touching letter from his father dated 28 October 2004. Finally, it is not uncommon that even experienced active duty clinicians confuse fitness for “full” duty with the standard of fitness mandated for PEB determinations. The latter is, simply, fitness for the basic job requirements of one’s military occupational specialty (MOS) apart from special
          -       
circumstances such as deployability. Such misunderstanding may have played a role in generating the above-noted health record entry indicating an intent to submit an MEB due, basically, to medical restrictions on deployability and specialized physical capabilities. The decision to release Subject from active duty, or in the alternative, to retain him on active duty for a period of further observation on limited duty, would not have been within the puryiew of the PEB; however, after extrapolating from the sparse active duty and post discharge, pre-MVA health record evidence, it is unlikely that the PEB would have determined that Subject was unfit for continued service when released from active duty
MAJORITY CONCLUSION:
Upon review and consideration of all the evidence of record, and not withstanding the comments contained in enclosure (3), the majority the Board concluded that Subject should have been retained on active duty and referred to the PEB for a determination of his fitness for further service. Accordingly, and in view of the circumstances of the motor vehicle accident that occurred shortly after he was released from active duty, the Board finds the existence of an injustice warranting the following corrective action
MAJORITY RECOMMENDATION:
a.       That Subject’s naval record be corrected to show that he was not released from active duty on 4 July 2004.
b.       That Subject was released from active duty on 30 September 2004, and transferred to the Temporary Disability Retired List the following day, pursuant to 10 USC 1202, with a disability rating of 100% under VA code 8045-9304, for status/post traumatic brain injury.
c.       That a copy of this Report of Proceedings be filed in Subject’s naval record.
MINORITY CONCLUSION:
The minority found that the evidence submitted was insufficient to establish the existence of probable material error or injustice. In this regard, she substantially concurred with the comments contained in enclosure (3)

MINORITY RECOMMENDATION:
That the application for correction of Subject’s naval record be denied.

4. It is certified that a quorum was present at the Board’s review and deliberations, and that the foregoing is a true and complete record of the Board’s proceedings in the above entitled matter.

ROBERT D. ZSALMAN                                    JAMES EXNICIOS
Recorder                                                       Acting Recorder

5. The foregoing report of the Board is submitted for your review and action.

                                                     
W.       DEAN PFEIFFER
 Executive Director






Approved majority conclusion and recommendation:




Robert T. C a ll
 Manpower and Reserve Affairs)
Approved minority conclusion and recommendation:
order

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