APPLICANT REQUESTS:  Permanent retirement in lieu of severance pay.

APPLICANT STATES:  In effect, that he was poorly represented by the       Army-appointed legal counsel at his Physical Evaluation Board (PEB) hearing.  He insisted that his skull defect should have been compensible, but counsel said there was no legal precedent or regulatory guidance to support his claim for retirement disability.  Also, with regard to his seizure disorder, why does the government still have him undergo periodic neurological check-ups and MRI scans if it was never a problem for the Army?

EVIDENCE OF RECORD:  The applicant’s military records show:

He was born on 22 April 1955.  He initially served in the U.S. Marine Corps from June 1976 - August 1982.  He enlisted in the U.S. Army Reserve on 22 October 1986.  He enlisted in the Regular Army on 11 January 1988 and served as a Special Forces Weapons Sergeant.

After suffering seizures in November 1988 and May 1989, the applicant underwent a right temporal craniotomy with hematoma drainage on 17 May 1989 and a biopsy of the left parietal mass on 23 May 1989.  Final pathology of the left parietal lesion revealed a grade II astrocytoma (tumor).

On 28 October 1989, the applicant was placed on the Temporary Disability Retired List (TDRL) with 100 percent disability.

While on the TDRL, the applicant developed an infection of the cranial plate and had a skull defect for some time afterwards.  A second neurosurgical procedure attempted to correct the skull defect cosmetically.  This left an assymetry which surrounds the 8 x 7 cm acrylic cranioplasty.

On 15 October 1992, the applicant underwent his second TDRL evaluation.  At that time he had had no seizures or interval change since the initial TDRL evaluation.  He denied numbness, tingling, weakness, double vision, new headaches, bowel or bladder incontinence.  He was alert and oriented.  Judgment, orientation, memory and cognitive functions were intact.  Dilantin was controlling his seizures.  A head CT scan revealed no new tumor growth and no interval change when compared to the CT scan of March 1991.  He was diagnosed with astrocytoma, grade II - stable without evidence of new tumor growth and seizure disorder - secondary to the first diagnosis, stable on Dilantin anti-seizure medications.  He was recommended to be referred to the PEB for further disposition.
On 23 October 1992, the applicant concurred with the medical report and its recommendations.

On 9 November 1992, a PEB found the applicant unfit for military service due to seizure disorder secondary to astrocytoma and recommended that he be separated with severance pay at 10 percent.

On 16 November 1992, the applicant nonconcurred with the PEB findings and requested a formal hearing.

On 11 January 1993, the applicant withdrew his request for a formal hearing.

On 11 February 1993, the applicant was removed from the TDRL because of permanent disability at 10 percent and given severance pay.

On 14 June 1996, the applicant filed for correction of his military records.  In support of his application he submitted a memorandum for the Neurology Section, VA Medical Center, Asheville, NC.  The memo noted that while there is no persistent infection of the cranioplasty cite, the cosmetic resect is imperfect.  The memo also notes that the applicant has no cognitive problems, having completed college and joined the workforce, and that he has a well-controlled seizure disorder.

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  The regulation defines “physically unfit” as unfitness due to physical disability.  The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purpose of his employment on active duty.  “Physically unfit” is synonymous with “unfit because of physical disability.”

Appendix B of that regulation states that loss of part of the skull is not ratable if the defect has been successfully repaired with a prosthetic plate.  Cosmetic deformity will be rated separately if appropriate.  Although the applicant’s residual skull deformity repair might be cosmetically imperfect, it would not render the applicant unfit for his duties as a Special Forces Weapons Sergeant; therefore, he could receive no disability rating for it.

The Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) is the standard under which percentage rating decisions are to be made for disabled military personnel.  The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  Unlike the VA, the Army must first determine whether or not a soldier is fit to reasonably perform the duties of his office, grade, rank or rating.  Once a soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD.  These percentages are applied  based on the severity of the condition.

The VASRD gives a disability rating of 10 percent for a confirmed diagnosis of an epilepsy-related disease with a history of seizures.  At the time of the applicant’s second TDRL evaluation, his seizures were well controlled by medication.  This condition was found unfitting for duty because as a Special Forces Weapons Sergeant it could not be guaranteed that he could always have access to his medication under his normal, wartime working conditions.  However, because the seizures were controlled, having had no major seizure in the 2 years nor at least 2 minor seizures in the 6 months since his second TDRL evaluation, he could not be rated higher than 10 percent.  

Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.

Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The applicant’s disability for seizure disorder was properly rated in accordance with the VASRD.  His skull deformity was properly found to be not unfitting for duty.  His separation with severance pay was in compliance with law and regulation.

3.  The rating action by the VA does not necessarily demonstrate an error or injustice in the Army rating.  The VA, operating under its own policies and regulation, assigns disability ratings as it sees fit.  Any rating action by the VA does not compel the Army to modify its rating.  If the applicant has a relapse of the tumor or seizures in the future, the VA is responsible for treating him and upgrading his disability rating as appropriate.

4.  Iin view of the foregoing, there is no basis for granting the applicant’s request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

                       GRANT

                       GRANT FORMAL HEARING

                       DENY APPLICATION

                                 Loren G. Harrell
					 	 Director