RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-02156
		INDEX NUMBER:  108.00
	XXXXXXX	COUNSEL:  None

	XXXXXXX	HEARING DESIRED:  No

MANDATORY CASE COMPLETION DATE:  3 Feb 06

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APPLICANT REQUESTS THAT:

He be medically retired instead of medically discharged as of the date he was removed from the Temporary Disability Retired List (TDRL).

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APPLICANT CONTENDS THAT:

In a two-page statement, applicant’s spouse states that she and her husband have suffered financial and emotional hardships since her husband was medically discharged.  Applicant poses four questions that address the problems she and her husband have experienced:

	  a.  How is it that the applicant was relieved from active duty without the opportunity to cross-train and to continue his military service?

	  b.  How is it that the applicant was removed from the TDRL after only one medical evaluation, even though he had not undergone periodic physical evaluations as stated in Title 10, Subtitle A, Part II, Chapter61, Section 1210?

	  c.  How is it that the military has not formally diagnosed the applicant with epilepsy, but is treating him with epileptic drugs?  Moreover, why doesn’t the military find it prudent to conduct additional examinations to determine if the applicant’s recurrent seizures could be a result of cardiovascular causes or syncope, which are common seizure-like episodes easily mistaken as epilepsy?

	  d.  How is it the applicant’s military medical records prohibit him from being medically cleared to work in his field of expertise of training, yet he is denied military compensation?

In support of the applicant’s appeal, he provides an extract from the applicable US code, a copy of the Medical Evaluation Board (MEB) Narrative Summary, a copy of the Commander’s impact statement, and other medical documentation.

The applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

The applicant entered active duty in the Air Force on 18 Jan 96.  A full copy of the applicant’s medical service record was not available for review in this case.  According to records present in the applicant’s military personnel service records, while stationed in Japan in 2001, the applicant was hospitalized from 10-12 Aug 01 after experiencing a seizure.  Medical evaluation concluded the applicant suffered an epileptic seizure possibly related to head trauma (twice in high school, dietary supplements he was taking, or “idiopathic” (no Known cause)).  Since the seizure was a single episode possibly related to dietary supplements and he had a normal brain imaging and electroencephalogram (EEG), the applicant was observed over time and was not placed on medication.  A Medical Evaluation Board (MEB) was convened in Nov 01 in accordance with Air Force policy and initially returned the applicant to duty based on his only having a singe seizure episode and being recurrence free without medication for three months.  However, while undergoing the MEB evaluation, the applicant suffered a second seizure and was placed on anti-seizure medication.  He was referred to an Informal PEB (IPEB) which found his condition unfitting and placed him on the TDRL effective 11 Feb 02 with a 40% compensable rating.

While on the TDRL, members are to have periodic reevaluations not more than 18 months apart.  Based on the particular clinical condition, the PEB may direct reevaluation at periods less than 18 months and typically direct reevaluations approximately 12 months following the MEB.  The applicant was directed to undergo a reevaluation in Nov 02.  A senior Air Force neurologist performed the evaluation.  According to the report, dated 4 Feb 03, and records submitted by the applicant, he experienced a seizure in the early morning in Mar 02 shortly after returning from Japan to the United States.  The evaluation concluded with a diagnosis of “Epilepsy, generalized stable” and the recommendation to continue current medications with adjustments to maintain therapeutic levels as needed.  Based on stable, seizure free epilepsy, the IPEB rated the applicant’s seizure disorder at 10% and controlled by medication according to guidance in the VA Schedule for Rating Disabilities (VASRD).  The IPEB recommended discharge with severance pay.  The applicant did not appeal the decision and was removed from the TDRL and separated with disability severance pay effective 7 Apr 03.

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AIR FORCE EVALUATION:

The AFBCMR Medical Consultant recommends denial of the applicant’s request.  The evidence of record shows that the Air Force Disability Branch followed established policy and law in processing the applicant’s case.  Medical evaluation at the military hospitals and clinics in Japan were appropriate including specialty examination and no medical documentation subsequent to that time has been submitted that shows the presence of an alternative diagnosis (including cardiac conditions causing passing out) that in retrospect should have been investigated at the time he was on active duty.  The applicant questions why he was not returned to duty and cross-trained into another specialty when his seizures were controlled with medication.  Seizure disorder controlled with medication limits the utilization of military personnel and members are only retained under unusual circumstances when other members cannot serve the needs of the Air Force.

TDRL status is only reserved for those individuals whose newly diagnosed disease or condition has not achieved a state of stability to accurately assign a disability rating.  Placement in TDRL status enables temporary retirement with compensation pending further treatment and observation before final adjudication of the compensation rating.  Disability ratings awarded when a member is placed on the TDRL are often generous to allow for fluctuating severity associated with a new diagnosis in its early stages.

The DoD is required to use the VASRD as a guideline to rate disabilities that are unfitting for continued military service as modified by DoD policy in DoD Instruction 1332.39.  The intent is to rate the degree of civilian occupational disability using the VASRD as a guide.  It is not intended to rate for limitations for a specific occupational specialty or in recreational activities.  At the time of the applicant’s TDRL evaluation the applicant had been seizure free for nearly a year on a well-tolerated medication regimen.  His first two seizures are not considered in establishing a final rating since they were in the untreated state.  It was not known if the March 2002 seizure, which may be considered a nocturnal seizure (and also not considered in rating), was related to sub-therapeutic drug levels since the applicant was experiencing side effects, was traveling and may have been missing doses.  Assuming the applicant’s drug levels were therapeutic, counting this seizure in his rating would have the same end result of discharge with severance pay.  However, the emergency room record indicated this was a nocturnal seizure and according to DoD policy, nocturnal seizures are not considered when rating seizure disorder.  The applicant reported recurrent seizures since discharge with severance pay, but there is no medical documentation for evaluation.

The complete evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 17 May 05 for review and comment within 30 days.  On 20 Jun 05, the applicant requested an extension of time to respond to 

the Air Force evaluation.  On 27 Jun 05, he was granted an extension until 17 Jul 05.  To date, a response has not been received.

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THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the BCMR Medical Consultant and adopt his rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.

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The following members of the Board considered Docket Number BC-2004-02156 in Executive Session on 3 August 2005, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 29 Jul 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, BCMR Medical Consultant,
                dated 13 May 05.
    Exhibit D.  Letter, SAF/MRBR, dated 17 May 05.
    Exhibit E.  Letter, Applicant, dated 20 Jun 05.