PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:            31 March 1999                  
	DOCKET NUMBER:   AR1998001176

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Loren G. Harrell		Director	
	Mr. Ed Clark .		Analyst	

  The following members, a quorum, were present:

	Mr. Curtis W. Barbee		Chairperson	
	Mr. John H. Kerr		Member	
	Mr. Walter T. Morrison		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his military records be corrected to show that he was separated by reason of physical disability.  He states, in essence, that following a temporary disability retirement list (TDRL) reevaluation medical examination he was determined to be physically fit for further military service; however, his attending physician disagrees with that finding; that he is still (as of 9 June 1997) taking a medication (Dilantin) to prevent seizures; and that he continues to suffer both grand mal and petite mal seizures, blurred vision, headaches and disorientation which affects his employment.  In support of the application, he submitted a statement signed by a neurologist assigned to Walter Reed Army Medical Center (WRAMC), dated 2 May 1994. 

3.  The applicant entered active duty on 19 November 1991.  He served as an infantryman and attained pay grade E-3.

4.  A Medical Evaluation Board (MEBD) Narrative Summary shows, in part, "The patient is a 19 year old active duty US Army E-3 assigned to Fort Drum, N.Y. who was in his usual state of excellent health until 5 June 1992 when he describes suffering a back blast injury while standing behind a Viper (an anti-tank weapon) which was fired by a friend standing approximately two feet in front of him.  [A subsequent letter signed by his commander shows that the weapon was accidentally discharged and that the applicant was hit by flying debris and fire].  He describes being thrown back approximately four to ten feet."  In essence, five days later, while hospitalized, he lost consciousness, fell to the floor, and remained unconscious for approximately 20 minutes followed by a period of 
15 minutes in a state of confusion.  His mother verified that he had suffered a similar episode the previous evening and that she observed leg and arm twitching at that time.  He was subsequently discharged from the hospital to a limited duty status; however, he continued to experience episodes of loss of consciousness and, following a medical evaluation board and a physical evaluation board (PEB), he was placed in TDRL status on 18 February 1993 with a 30 percent disability rating under VA Schedule for Rating Disabilities (VASRD) Codes 8045 (brain disease) and 8100 (migraine headaches).  The diagnosis is shown on the PEB Proceedings as "Brain trauma with frequent migraine headaches and loss of consciousness."

5.  On 23 December 1993 the applicant underwent a TDRL reevaluation.  That evaluation shows, in part, that his headaches had decreased to "about two times a week…seem to be exacerbated by flickering lights…His last episode of loss of consciousness was in January 1993…he was given a trial of Dilantin with improvement of headaches and decreased episodes of loss of consciousness…Prognosis is good with a moderate ability to return to work…recommend that he be removed from TDRL status and found medically fit for return to duty…."  A PEB subsequently found him physically fit for further military service.  The applicant did not respond to documents advising him that he could return to active duty.

6.  On 11 February 1994 he was removed from TDRL status and honorably discharged.

7.  The 2 May 1994 statement signed by the applicant's attending physician, a WRAMC neurologist, shows that in October 1993 the applicant reported to him that his only problem was headaches and therefore he (the neurologist) felt that the applicant could return to a duty status.  "He did not tell me (because he was unaware of these episodes) of events of loss of consciousness.  When I and other Neurologists in this department asked [for] more details of these events from family members who witnessed these events, they were felt to be more consistent with seizures.  Because he had been on Dilantin while on TDRL, I would consider this an adequate trial of medications to control those seizures, and they did not.  Therefore I do not feel that he is fit to return to duty…"

8.  On 8 October 1998 the Board was advised by the Physical Disability Agency (USAPDA) that the applicant's TDRL reevaluation indicated general improvement, that an EEG (electroencephalograph) was normal, that the frequency of his headaches had decreased, that his condition was under control with Dilantin, and that the attending physician (the same named physician as is shown in the above paragraph) recommended the applicant's removal from TDRL status.  The USAPDA opined that the applicant was adequately evaluated at the time and had no abnormal EEG findings; therefore, there was no basis to grant his request.

9.  On 13 October 1998 the applicant was provided a copy of the advisory opinion and notified that he could submit a rebuttal within 30 days.  He did not respond.

10.  On 25 February 1999 a staff member of the Board notified the applicant that his case would be reviewed by the Board in March 1998; and that he should provide copies of any documents in his possession or that he could obtain from the VA indicating that he suffered from a seizure disorder.

11.  On 8 March 1999 the applicant provided documents which show that on 
30 December 1997 he was admitted to a hospital after suffering a seizure; and that a blood test reflected that he was taking a proper dosage of Dilantin at the time.  A VA Compensation and Pension Exam Report shows that the applicant was evaluated the following day and indicates that, despite medication, he suffered from both grand mal and petite mal seizures with grand mal seizures occurring usually once a month and complex partial seizures occurring "nearly daily."  A VA Rating Decision shows that his rating was increased from zero to 
40 percent, effective 23 January 1998.  On 14 July 1998, following an appeal, the applicant was notified by his counsel that his VA disability rating was increased to 100 percent effective 30 April 1997.

12.  The VASRD, page 4.124a-14, shows that major (grand mal) seizures are characterized by tonic-clonic convulsion with unconsciousness, and that petit mal (minor) seizures consists of a brief interruption in consciousness or conscious control associated with staring or rhythmic blinking of the eyes, nodding of the head, or sudden jerking movements  of the arms, trunk, or head, or sudden loss of postural control.  Individuals suffering from grand mal epilepsy and petit mal epilepsy will be rated under Codes 8910 and 8911, respectively.  A 40 percent rating is appropriate when an individual has had at least one major seizure in the last 6 months or two in the last year; or is averaging at least 5 to 8 minor seizures weekly.

13. Army Regulation 635-40, Physical Evaluation for Retention, Retirement, or Separation, paragraph 7-2, provides that an individual may be placed in TDRL status for the maximum period of 5 years when it is determined that the individual's physical disability is not stable and he or she may recover and be fit for duty, or the individual's disability is not stable and the degree of severity may change within the next 5 years so as to change the disability rating.

14.  Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has an impairment rated at least 
30 percent disabling.

15.  Army Regulation 635-40, paragraph 4-19, shows that with the passage of the Tax Reform Act (TRA) of 1976, (title 26, United States Code (USC), section 104, tax exemption is provided for those individuals whose disability pay is awarded by reason of a combat-related injury which is defined in title 26, USC 104 as an injury resulting from actual armed conflict or conditions simulating war, e.g., a tactical exercise, bayonet training, or grenade and live fire weapons practice.

16.  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.

CONCLUSIONS:

1.  Following his hospitalization after the back blast injury, the applicant suffered a period of unconsciousness.  His mother verified that he had suffered a similar episode the previous evening and that she had observed leg and arm twitching at that time, thereby describing a grand mal seizure.  The applicant was subsequently discharged from the hospital to a limited duty status; however, he continued to experience episodes of loss of consciousness.

2.  Notwithstanding the advisory opinion provided by the USAPDA, the evidence of record, in particular, the 2 May 1994 letter signed by the applicant's attending physician at the time, indicates that, despite seizure medication, the applicant continued to suffer from a seizure disorder following the 5 June 1992 back blast injury and his placement in TDRL status; that he failed to report episodes of unconsciousness at the time of his TDRL reevaluation; that his failure to do so led to him being found fit for duty; and that, had he reported such signs and symptoms, he would have been found physically unfit for further military service at the time.

3.  Although the applicant was not initially rated under VASRD Codes 
8910/8911, it appears that a 40 percent rating under those VASRD Codes, rather than Codes 8045/ 8100, would have been appropriate at the time of his removal from TDRL status.

4.  The higher awards by the VA are based on information which indicates an increase in the occurrences of the seizure disorder in 1997 and do not establish a basis for a higher award in 1994.

5.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected:

a.  by voiding the action by which the individual concerned was removed from TDRL status and honorably discharged on 11 February 1994; 

	b.  by showing that on 11 February 1994 he was physically unfit to perform the duties of his office, grade, rank or rating by reason of a seizure disorder rated 40 percent disabling under Codes 8910/8911 of the VASRD; that the disability was incurred while he was entitled to receive basic pay as a member of the Regular Army; that it did not result from misconduct or willful neglect; that it was not incurred during a period of unauthorized absence; that it was not the direct result of armed conflict; and that it was caused by an instrumentality of war; and

	c.  by showing that he was relieved from active duty on 11 February 
1994 by reason of physical disability, rated 40 percent disabling in accordance with the VASRD; and that, effective 12 February 1994, he was permanently retired under the provisions of title 10, United States Code, section 1201, with entitlement to retired pay of the highest grade satisfactorily held within the meaning of title 10, United States Code, section 1372.
 
BOARD VOTE:  

CWB____  JHK_____  WTM___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AC97-09519/ar1998001176	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	1999 March 31	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	108.04	
2.		
3.		
4.		
5.		
6.