RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-00136
BRANCH OF SERVICE:  Army	BOARD DATE:  20140520
SEPARATION DATE:  20050520

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PFC/E-3 (11B/Infantry) medically separated for a seizure condition.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was issued a permanent P3 profile and referred for a Medical Evaluation Board (MEB).  The seizure disorder and hypertension conditions were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The Informal PEB adjudicated “simple partial seizure” as unfitting, rated 10%, with likely application of the VA Schedule for Rating Disabilities (VASRD).  The PEB adjudicated the hypertension as not unfitting and therefore not ratable.  The CI made no appeals and was medically separated.

CI CONTENTION:  “I've been 70 percent disabled for a while now. I'm only 27 years old and have to take over 10 pills a day to keep myself going. I’ve just now been diagnosed with arthritis in my knee that is due to my days in the airborne infantry. It is also service connected through the VA.”

SCOPE OF REVIEW: The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2).  It is limited to those conditions determined by the PEB to be unfitting for continued military service and those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The rating for the unfitting seizure condition is addressed below.  A contention for the PEB not unfit hypertension is implied and is considered below.  No additional conditions are within the DoDI 6040.44 defined purview of the Board.  Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Board for Correction of Military Records.

The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues to burden him; but, must emphasize that the Military Disability Evaluation System has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation.  That role and authority is granted by Congress to the Department of Veterans Affairs (DVA), operating under a different set of laws. The Board considers DVA evidence proximate to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence.  Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.

RATING COMPARISON:

Service IPEB – Dated 20050502	VA - (4 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Simple Partial Seizures	8912	10%	Seizure Disorder	8911	10%	20050906	
Hypertension	Not Unfit	Hypertension	7101	0%	20050906	
No Other Items In Scope	Other x 1	20050906	
Combined:  10%	Combined:  10%	
Derived from VA Rating Decision (VARD) dated 20050926 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Simple Partial Seizures Condition.  The CI presented on 13 July 2004 to his troop medical clinic for three episodes of “blackouts” or “passing out” in the preceding 3.5 months following a head injury during parachute training.  One of these episodes was reported to include uncontrolled spasms of his left arm.  Computed axial tomography scanning of the brain was normal (no abnormalities of the brain or skull to explain his episodes).  The episodes increased in frequency to approximately four per day by the end of July and was transferred to a regional military medical center for specialty evaluation.  On the day of transfer on 30 July 2004, he was administered a dose of an anti-seizure medication (Dilantin).  He was hospitalized for evaluation from 31 July 2004 to 6 August 2004 at a regional military medical center.  According to the hospital summary, he reported episodes of involuntary left arm movements suspicious for seizures since the head injury 4 months previously.  Since starting the anti-seizure medication he had no further seizures.  Magnetic resonance imaging scan of the brain was normal.  While hospitalized, his electroencephalogram (EEG) was continuously monitored and showed no seizure activity or EEG activity suspicious for seizure disorder and was considered normal (occasional “transient sharps” in the left temporal region were noted but considered to be of doubtful significance).  Anti-seizure medication was withheld and allowed to wear off during the hospitalization; however no episodes were experienced by the CI during the hospital stay, and no suspicious activity was seen on EEG.  Despite the falling medication level, he remained free of episodes and attempts at provoking a seizure were unsuccessful.  His symptoms were concluded to be possibly due to seizures which were very responsive to anti-seizure medication.  He was restarted on an anti-seizure medication (Topamax) at the time of discharge from the hospital and transferred back to his home base for continued care by his primary physician.  After return to his home base, clinic encounters from 9 August 2004 and 25 August 2004 make no mention of problems with recurrent episodes.  The narrative summary (NARSUM) for a MOS/Medical Review Board (MMRB) dated 14 September 2004, reported that the CI had been seizure free since starting Topamax.  Apparently the MMRB did not recommend retention in another military specialty and recommended referral to MEB.  At the time of the clinic visit for his MEB physical examination on 26 October 2004, the CI reported “occasional activity of the left hand and arm.”  At a 3 November 2004 clinic encounter, the CI reported episodes occurring 2 to 4 times per day manifested as the left side of the body going numb for 30 to 150 seconds and returning to normal.  The MEB narrative summary on 18 November 2004 summarized the forgoing information indicating continued seizure despite treatment with Topamax.  Review of treatment records do not document prescriptions for anti-seizure medication following return home from the medical center evaluation in August 2004 although clinic notes list Topamax as a medication on 9 August 2004, 26 October 2004 and 3 November 2004.  The medication profile listing medication prescriptions filled by the military pharmacy covering the time frame from 30 July 2004 to 22 March 2005 indicates no prescriptions for anti-seizure medication until February 2005 (when Trileptal was prescribed and dispensed).  There was no evidence the CI was receiving any medical care outside his home base medical treatment facility where he was receiving his medication until the December 2004 neurology evaluation at the nearby Air Force base.  At an initial neurology evaluation at a nearby Air Force base on 9 December 2004 the CI reported taking Topamax and experiencing seizures about 4 times a day, described as left sided numbness including the left side of the face followed by left arm dystonia and sometimes left leg writhing/dystonia.  The episodes lasted 30 to 90 seconds and spontaneously resolved with return to normal.  No altered consciousness occurred and there were no generalized seizures.  The neurologist noted the CI reported he experienced excessive sedation from the Topamax.  The neurologic examination was normal.  The neurologist did not have records to review and concluded the reported history was consistent with focal seizures.  There is no indication that the neurologist refilled the Topamax at this time.  According to a memorandum on 15 December 2004, to the PEB from the CI’s primary provider, the CI now reported that he was having seizures contrary to his report in September before the MMRB.  A 3 February 2005 internal medicine evaluation note reported the CI was still having seizures.  The next day on 4 February 2005, at a neurology appointment, the CI reported he had stopped taking his seizure medication (Topamax) about a month before due to sedation.  He continued to experience four spells per day without any change in consciousness.  The neurologist noted that the MEB process had been placed on hold due to blood levels of the Topamax that were in the ineffective range.  The neurologist prescribed a new seizure medication (Trileptal).  Follow-up treatment record entries on 25 February 2005 and 1 April 2005 (neurology) indicated the new medication was working well and there had been no seizures on the new medication.  There had been one seizure due to medication non-compliance (neurology on 1 April 2005).  The neurologist noted the seizures were well controlled with the new medication despite sub-therapeutic levels of the new medication on blood testing.  At the time of the VA Compensation and Pension (C&P) examination on 25 August 2005, 3 months after separation, the CI reported there had been no seizures since his last neurology appointment in April 2005.  The examiner concluded with diagnosis of simple partial seizure well controlled with medication.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB rated the simple partial seizure condition of 10% coded 8912, (epilepsy, Jacksonian and focal motor or sensory) citing “Only one seizure since medication change in Feb 05 and that was during a lapse in medication compliance.”  The VA also rated the seizure disorder 10% coded  8911 (epilepsy, petit mal) noting “A higher evaluation of 20 percent is not warranted unless evidence demonstrates at least one major seizure in the last two years, or at least two minor seizures in the last six months.”  According to VASRD §4.121 (identification of epilepsy), to warrant a rating for epilepsy, the seizures must be witnessed or verified at some time by a physician.  There is no documentation that an episode was ever witnessed by a physician.  The diagnosis was made by CI report of the symptoms which were considered consistent with the diagnosis rendered.  The CI’s seizures are defined as minor seizures for purposes of rating (a minor seizure consists of a brief interruption in consciousness or conscious control associated with staring or rhythmic blinking of the eyes or nodding of the head (“pure” petit mal), or sudden jerking movements of the arms, trunk, or head (myoclonic type) or sudden loss of postural control (akinetic type).  At no time did the CI experience a major seizure.  Ratings are based on the frequency of seizures under ordinary conditions of life and the subject’s report of frequency may be accepted.  The Board discussed that the reported daily seizure frequency prior to February 2005 would support a rating higher than that adjudicated by the PEB or VA.  However, the Board noted that specialists at the medical center evaluation in August 2004 and the neurologist in April 2005 noted that the CI’s seizures were very responsive to even low levels of seizure medication (and therefore easily controlled with a single medication).  The Board further noted that when the CI was taking anti-seizure medication, he was free of seizures.  There was a period of several months between September 2004 and February 2005 when records do not show indication of any actual prescription for medication.  Once the CI was treated with a medication with which he tolerated the side effects and was compliant he was completely free of seizures between February 2005 and the August 2005 VA C&P examination, 3 months after separation.  Considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), Board members agreed that a disability rating of 10% for the simple partial seizure condition was appropriately recommended in this case.

Contended PEB Condition.  The contended condition adjudicated as not unfitting by the PEB was hypertension.  The Board’s first charge with respect to this condition is an assessment of the appropriateness of the PEB’s fitness adjudication.  The Board’s threshold for countering fitness determinations is based on a preponderance of evidence.  The CI was diagnosed with hypertension in 2004 and treated with medications resulting in control.  The service treatment record contains no documentation of complications due hypertension.  The hypertension was not clinically or occupationally significant during the MEB period, was not profiled, implicated in the commander’s statement, or judged to fail retention standards.  The condition was reviewed and considered by the Board.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended hypertension condition and, therefore, no additional disability ratings can be recommended.

BOARD FINDINGS:  IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication.  The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised.  In the matter of the simple partial seizures condition and IAW VASRD §4.124a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended hypertension condition, the Board unanimously recommends no change from the PEB determination as not unfitting.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130208, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

				

SAMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXX, AR20140020797 (PD201300136)

I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual.  Under the authority of Title 10, United States Code, section 1554a,   I accept the Board’s recommendation and hereby deny the individual’s application.  
This decision is final.  The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

 BY ORDER OF THE SECRETARY OF THE ARMY:

Encl						     
						         
CF: 
(  ) DoD PDBR
(  ) DVA