RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  	CASE: PD1300267
BRANCH OF SERVICE: Army	BOARD DATE: 20130828
SEPARATION DATE: 20070121

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5(92Y/UNIT SUPPLY) medically separated for seizures.  The CI was playing basketball in 1995 when he was shoved into the bleachers, hitting his head.  He was involved in a motor vehicle accident (MVA) in 1996, and off and on, had what appeared to be minor seizures until 2006 where he lost consciousness and was witnessed to have a jerking movement.  The seizure condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  He was issued a permanent P3 profile and referred for a Medical Evaluation Board (MEB).  The seizure condition, characterized as seizures, was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB. The PEB adjudicated seizures as unfitting rated 20% with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  The CI elaborated no specific contention in his application.

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.  In addition, the CI was notified by the Army that his case may eligible for review of the military disability evaluation of his mental health condition in accordance with Secretary of Defense directive for a comprehensive review of Service members who were referred to a disability evaluation process between 11 September 2001 and 30 April 2012 and whose mental health diagnoses were changed during that process.  The CI is also eligible for PDBR review of other conditions evaluated by the PEB and has elected review by the PDBR.

The rating for the unfitting seizure condition is addressed below. There are no formally contended conditions for review.  However, in accordance with Secretary of Defense directive for a comprehensive review of mental health diagnoses during the Disability Evaluation System process, the applicant’s case file will be reviewed regarding diagnosis change, fitness determination, and rating of unfitting mental health diagnoses in accordance with the VASRD §4.129 and §4.130.  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.

RATING COMPARISON:

Service IPEB – Dated 20061016	VA - (2 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
SEIZURES	8911	20%	EPILEPSY	8910	40%	20070316	
No Additional MEB/PEB Entries	Other x 3	20070316	
Combined:  20%	Combined:  50%*	
Derived from VA Rating Decision (VARD) dated 20061016 (most proximate to date of separation [DOS]).  VARD of 20071105 awards PTSD, 9411, 30%, increasing combined to 70%.

ANALYSIS SUMMARY:

Seizure Condition.  Service treatment records indicated the CI presented to the emergency department (ED) on 12 January 1995, with report of headache and dizziness following hitting his head on the bleachers while playing basketball.  He was diagnosed with muscular neck pain and discharged with muscle relaxant medication.  In 1998, the CI complained of black-out spells and referred to radiology for CT head scan.  CT head scan, performed on 20 April 1998, was normal.  A neurology consult dated 29 May 1998 indicated the CI had continued with dizzy spells that occurred abruptly followed by a headache that lasted 2 to 3 minutes in duration.  The CI reported if he does not stop what he is doing then he will have a “blackout;” drinking water and massaging the temples aborts the episode.  The CI also reported a recent MVA without loss of consciousness (LOC).  The neurologist opined the symptoms were not consistent with epilepsy and noted the neurological examination finding was non-focal and recommended an electroencephalography (EEG).  Treatment records were silent going forward until 2006.  Treatment entry note on 24 April 2006 noted a recent ED visit secondary to new onset seizure.  The CI indicated he had been drinking, was taken to the ED and had his stomach pumped.  He developed a mild tremor and had a seizure less than 24 hours after the cessation of alcohol use.  He was not incontinent and on examination there was no evidence of tongue biting.  The physician diagnosed epilepsy, possibly secondary to alcoholism and made a referral to neurology.  A clinic visit on 19 May 2006 documented a history of concussion with LOC of a minute (1997) with witnessed seizure lasting “several minutes,” evaluated at a civilian hospital.  The CI reported multiple episodes per week of 30-60 seconds of “passing out” over the past 12 months.  The CI was seen in the ED in late June after he became overheated while playing basketball and experienced LOC.  Treatment records are not available, but no change in the CI’s seizure medication was performed and no reference to seizure or treatment thereof is contained in the records of the clinic visit the following day.  A magnetic resonance imaging of the brain performed 27 June 2006 was normal.  EEG performed on 28 June 2006 was abnormal, but nonfocal with no clinical seizure activity occurring during the tracing.  At some time prior to the EEG, the CI was prescribed anticonvulsant medication.  No further neurology visits were recorded.  An unsigned record entry note dated 11 September 2006 (likely MEB) recorded a diagnosis of seizures, indicated “no major seizure since April 2006.”  On 15 September 2006, the CI began a ‘seizure log’ apparently for the MEB.  Data from this log revealed two un-observed episodes of dizziness, one observed episode of standing, staring with ‘extremely bad’ shaking of hands with verbal response after four questions, and one observed episode of ‘staring into space with shaking’ while sitting at his computer, lasting ‘a brief time, like 3-5 minutes’ in a one week period.  There was no evidence in the treatment record of witnessed seizures by medical personnel and no report of any seizure with tongue biting or loss of continence or post-ictal state.

The MEB/narrative summary (NARSUM) evaluation, performed on 11 September 2006, 4 months prior to separation, noted the description of the CI’s first convulsion was consistent with a grand mal seizure.  The physical examination was normal.  The examiner recorded no major seizure since April 2006.  At the VA Compensation & Pension exam, performed on 16 March 2007, approximately 2 months after separation, the CI reported he was working as a janitor and had not missed any work or had any incapacitating episodes in the past year.  The examiner recorded the history of one grand mal seizure, in April 2006, and the CI report of an October 2006 seizure.  Although this seizure was not described, the examiner noted it as a ‘generalized seizure.’  The neurological examination was normal.

The PEB and VA chose different coding options for the condition, but both are rated under general rating formula for major and minor epileptic seizures IAW §4.124a.  The PEB assigned a 20% rating, coded 8911, epilepsy, petite mal (minor seizures), and citing one major seizure in April 2006 and less than five minor seizures weekly.  The VA assigned a rating of 40%, coded 8910, epilepsy, grand mal (major seizures) citing two major seizures in the last year.  Under both codes a rating of 20% requires “at least one major seizure in the last 2 years; or at least two minor seizures in the last 6 months.”  The higher rating of 40% requires at least one major seizure in the last 6 months or 2 in the past year, or averaging at least 5-8 minor seizures per week.  The Board noted the VASRD to characterize a major seizure as generalized tonic-clonic (grand mal) convulsion with LOC (usually with falling to the ground, biting of tongue and loss of continence with a post-ictal state of unresponsiveness) and a minor seizure as 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).  After review of the records the Board unanimously agreed the CI in the last year prior to separation, had one documented grand mal seizure, in April 2006.  The Board unanimously agreed the episodes of 25 June 2006 and 6 October 2006 were not major seizure activity.  The Board unanimously agreed that the quantitative ‘seizure log’ of September 2006 identified the presence of four minor seizures a week.  The Board agreed the record in evidence does not support the higher rating of 40%.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the seizure condition.

Contended Mental Health Conditions.  The Board noted no mental health (MH) conditions were referred to the MEB or PEB for adjudication.  The Board adjudged this to constitute a de facto determination by medical providers that no mental health condition failed to meet retention standards or was unfitting for continued military service.  The Board’s first charge with respect to these conditions is an assessment of the fitness based on a preponderance of evidence.  In the NARSUM a ‘past history of PTSD’ is recorded; on the DD Form 2808, ‘PTSD with insomnia’ is recorded; on a DD Form 2807, ‘depression due to marital issues: resolved’ and ‘insomnia with PTSD under treatment’ are recorded.  The Board notes no elaboration on or discussion of these statements in any of these documents.  No MH conditions were specifically profiled for duty restriction, were implicated in the commander’s statement, and, none were judged to fail retention standards.  All were reviewed by the action officer and considered by the Board.  There was no indication from the record that any MH condition significantly interfered with satisfactory duty performance.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a determination of unfit for a mental health 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 seizure condition and IAW VASRD §4.124a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the mental health conditions, no additional unfitting conditions, and therefore, no additional disability ratings are recommended.

RECOMMENDATION:  The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows:

UNFITTING CONDITION	VASRD CODE	RATING	
Seizure	8911	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130518, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

Physical Disability Board of Review

SFMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(TAPD-ZB), 

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for AR20130016483 (PD201300267)

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						
						         (Army Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA