RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-00768
BRANCH OF SERVICE:  Army	BOARD DATE:  20140507
SEPARATION DATE:  20060203

SUMMARY OF CASE:  The evidence of record indicates this covered individual (CI) was an active duty SGT/E-5 (88M/Motor Transport Operator) medically separated for headaches and seizures.  These conditions could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty (MOS) or physical fitness standards, so he was issued a permanent P3 profile and referred for a Medical Evaluation Board (MEB).  The conditions, characterized as “refractory chronic headaches” (medically unacceptable) and “seizure activity” (medically acceptable), were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The Informal PEB adjudicated “chronic headaches…” as unfitting rated 10%, citing criteria of the VA Schedule for Rating Disabilities (VASRD).  The seizure activity was adjudicated as not unfitting.  The CI did not concur with the PEB and demanded a formal hearing with personal appearance and counsel, but did not submit an appeal.  A Formal PEB (FPEB) adjudicated both conditions unfit with each condition rated at 10% disability (combined 20% disability).  An administrative correction was made to the FPEB clarifying that the headaches were not migraines.  The CI made no further appeals and was medically separated.

CI CONTENTION:  “My first rating by the VA was for 70%.  I received this rating in April 2006 and another letter in August 2006.  VA rated at 30% for the chronic headaches and 20% for a seizure disorder.  When I received my 1st rating from the MEB board, it was 10%.  I have daily migraines since my skull was fractured from an IED [improvised explosive device] blast and then it was cut open to stop the internal bleeding.  I decided that the 10% rating was too low.  I appealed the decision.  I was the first person whom my court appointed lawyer represented.  The young captain seemed like she did not know the procedure during the appeal.  The board president asked her to be quite [sic].  Then he instructed me explain why I was there.  It seemed like I represented myself.  At that time, I had two major seizures within the last years, the rating for that alone should have been 20% just like VA rated me or 40% depending on which date the board used to count the time backwards.  The headaches were/are not normal or minor headaches.  My neurologist described them as migraines.  They can be so intense that I need to stop everything that I am doing and just hold my head until the pain goes away.  I take medicine daily.  The Army rated me at 10% and the VA rated at 30%.  The board never rated me for bone loss from the surgery.  I also developed sleep apnea from the head injury.  I complained frequently of being tired constantly since the head injury.  Several of my neurologists over the years had me try several different anti-seizure medicines to reduce the fatigue.  A sleep study in 2008 revealed that I had borderline sleep apnea.  I assume that it was a night where I did not stop breathing as frequently.  In June 2012, a sleep study in Landstuhl hospital showed that I had sleep apnea and a seizure while sleeping.  I do believe that I have seizures often when I sleep.  It may also be a reason why I have been waking up extremely tired every day since the head injury.  I use a CPAC machine to sleep with now.  It seems to me that the doctors overlooked this problem since I had the head injury since I never wake up anymore feeling well rested.  After I had the head injury, I cannot remember waking up one day and feeling well rested.”[sic]

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 ratings for the unfitting headache and seizure conditions, along with any conditions directly associated with the head injury (such as contended bone loss) are addressed below; no additional conditions are within the DoDI 6040.44 defined purview of the Board.  The contended sleep apnea was identified by neither the MEB nor PEB, so is not in the purview of this Board.  Any conditions or contention not requested in this application or otherwise outside the Board’s defined scope of review remain eligible for consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Service FPEB – Dated 20051102	VA - (2 Days Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Headaches…	8045-9304	10%	Chronic Headaches	8100	30%	20060201	
Seizure Disorder…	8045-8910	10%	Seizure Disorder	8910	20%	STR	
No Additional MEB/PEB Entries in Scope	Other x 6 (Not In Scope)		
Combined:  20%	Combined:  70%	
Derived from VA Rating Decision (VARD) dated 20060519

ANALYSIS SUMMARY:   The Board acknowledges the CI’s information regarding the significant impairment imposed by his service-connected condition, but must emphasize that the Disability Evaluation System has neither the role nor the authority to compensate members for later severity or complications of conditions that caused medical separation.  That role and authority is granted by Congress to the Department of Veterans Affairs (DVA), which operates under a different set of laws.  The Board considers DVA evidence proximate to separation in 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 it reasonably reflects the disability at the time of separation.  The Board’s authority is limited to recommendations to correct disability determinations.  The Board reviews medical records and other available evidence to assess the fairness of PEB rating determinations, using VASRD standards in in effect at the time of separation, based on ratable severity at the time of separation.

Chronic Headache Condition.  On 23 November 2003, the CI suffered severe head trauma when his vehicle was struck by an IED while he was deployed to Iraq.  He suffered multiple facial and skull fractures with a penetrating injury to left side of his brain.  His immediate treatment in Iraq consisted of a left frontal craniotomy to treat intracranial bleeding and placement of a drain.  By 4 December 2003, he arrived at a major medical center where he underwent several surgical procedures to treat his numerous facial-cranial injuries.  His post-operative course was complicated by the development of a deep vein thrombosis (which was treated).  He was then transferred back to his local medical treatment facility for convalescence.

The narrative summary (NARSUM) prepared 6 months prior to separation noted the CI developed daily headaches (HAs) sometime in February 2004.  These lasted all day and were intense enough to limit performance of duties.  In October 2004, he underwent surgery for removal of the cranial plate.  In March 2005, with follow-up at the regional medical center, the CI was evaluated secondary to the continuation of HAs and was prescribed a new medication, Gabapentin, which did not provide relief.  The commander’s statement added the following:

[The CI] now suffers a continuous mild headache that gets worse with physical exertion and when wearing his Kevlar.  The pain is located over the region of his left frontal craniotomy.  Due to the increasing severity of these headaches in relation to physical exertion it is often makes impossible for [CI] to meet the physical demands of his MOS.”
His physical exam was significant for mild tenderness to pressure over the frontal-temporal area on the left at the surgical site; otherwise it was essentially normal.  A CT scan of the head, performed in February 2004, showed no acute intracranial processes status post left frontal craniotomy.  At the VA Compensation and Pension (C&P) exam, performed 2 days before separation, the CI reported daily headaches on the left side; these were more severe in the mornings.  They were sharp, dull and aching and the CI indicated they did respond to the prescribed medications.  On 16 January 2006, he began working in landscaping and had not lost any time from work, though he left early on occasion due to the HAs.  There was no indication of incapacitation.  The physical exam revealed a normal neurologic exam.  The VA examiner’s diagnoses did not mention any HA-related diagnosis.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB adjudicated the HA condition by applying the analogous VASRD code of 8045-9304, (dementia due to head trauma) rated 10% as specified in the VASRD.  The VA applied VASRD code 8100 (migraine HA), rated 30% (“with characteristic prostrating attacks occurring on an average once a month over last several months”).  The record reflects the CI had daily headaches that worsened with physical exertion.  The C&P exam documented the CI was working and had not missed any work days due to his HA condition.  There is no doubt the CI’s HAs were the result of head trauma.  Under the rating guidelines for brain disease due to trauma, the purely subjective HA condition is appropriately rated 10% as applied by the PEB.  The Board reviewed the record for objective evidence of incapacitation as required for rating under code 8100 and could not find evidence to support that conclusion.  Considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), members agreed a disability rating of 10% for the chronic headache condition was most appropriate.

Seizure Disorder Condition.  The record indicates the CI suffered his first seizure on 24 February 2004, after which he was evaluated and started on anti-seizure medication.  He did well until 30 April 2005, when he had a second seizure.  After evaluation, the neurologist indicated the second seizure was probably due to sleep deprivation.  The only pre-separation evidence of an electroencephalogram (EEG) was a note dated 9 November 2005 that cited: “EEG in May with intermittent theta activity left frontal emphasis with individual sharp waves.”  The NARSUM noted the same history as that outlined above.  The neurologic exam was essentially normal and imaging studies showed no evidence of fresh intracranial hemorrhage, ischemia or cerebrospinal fluid circulation disturbance.  There was no cerebral edema (swelling), but there was chronic inflammation of the sinuses between the eyes and the nose, which required no treatment at that time.  There was a brain defect and bone graft.  The assessment was “no acute findings.”  The examiner diagnosed the CI with “seizure activity... presently under relative control, medically acceptable.”  The C&P exam documented the CI’s seizures were “grand mal” and that he was taking an anti-seizure medication three times a day to control them.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB applied VASRD code 8045-8910 (grand mal epilepsy), rated 10%, citing “controlled by medication.”  The VA applied code 8910, rated 20%, citing “…the evidence shows least one major seizure in the last two years or at least two minor seizures in the last six months.”  The VASRD makes the following statement concerning brain disease due to trauma, “purely neurological disabilities, such as hemiplegia, epileptiform seizures, facial nerve paralysis, etc., following trauma to the brain, will be rated under the diagnostic codes specifically dealing with such disabilities, with citation of a hyphenated diagnostic code (e.g., 8045–8207).”  The PEB complied with that requirement, but did not correctly apply the General Rating Formula for Major and Minor Epileptic Seizures as required under code 8910.  That rating formula is copied below for the reader’s convenience:

Averaging at least 1 major seizure per month over the last year...................................................................................... 100
Averaging at least 1 major seizure in 3 months over the last year; or more than 10 minor seizures weekly ...................... 80
Averaging at least 1 major seizure in 4 months over the last year; or 9–10 minor seizures per week................................. 60
At least 1 major seizure in the last 6 months or 2 in the last year; or averaging at least 5 to 8 minor seizures weekly ...... 40
At least 1 major seizure in the last 2 years; or at least 2 minor seizures in the last 6 months ............................................. 20
A confirmed diagnosis of epilepsy with a history of seizures ............................................................................................... 10

NOTE (1):   When continuous medication is shown necessary for the control of epilepsy, the minimum evaluation will be 10 percent.  This rating will not be combined with any other rating for epilepsy.
NOTE (2): In the presence of major and minor seizures, rate the predominating type.
NOTE (3): There will be no distinction between diurnal and nocturnal major seizures.

The Board noted the CI had his first grand mal seizure almost 24 months prior to separation, with his second one approximately 9 months prior to separation.  Those dates are consistent with the 20% rating under the general rating formula for major and minor epileptic seizures.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the seizure disorder.

Contended Bone Loss.  The Board’s main charge is to assess the “fitness” of the bone loss, since it was not identified by the MEB or adjudicated by the PEB.  The Board’s threshold for making a fitness determination is higher than the VASRD §4.3 (reasonable doubt) standards used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard and should be “reasonably justified.”  The bone loss condition was not profiled or implicated in the commander’s statement.  All clinical documentation was reviewed by the action officer and considered by the Board.  There was no performance-based evidence from the record to indicate bone loss significantly interfered with satisfactory duty performance.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded there was insufficient cause to add the bone loss condition as “unfitting” to the CI’s disability, so no additional disability rating is 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 chronic headache condition, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the seizure disorder condition, the Board unanimously recommends a disability rating of 20%, coded 8045-8910 IAW VASRD §4.71a.  In the matter of the contended bone loss, the Board unanimously agreed no additional disability rating is warranted.  There were no other conditions within the Board’s scope of review.

RECOMMENDATION:  The Board recommends the CI’s prior determination be modified as follows, and that discharge with severance pay be recharacterized to reflect permanent disability retirement effective the date of medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Chronic Headache	8045-9304	10%	
Seizure Disorder	8045-8910	20%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130605, 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, AR20140019396 (PD201300768)

1.  Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 30% effective the date of the individual’s original medical separation for disability with severance pay.  

2.  I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum:

	a.  Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay.

	b.  Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 30% effective the date of the original medical separation for disability with severance pay.

	d.  Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.

3.  I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures.

BY ORDER OF THE SECRETARY OF THE ARMY:

Encl						     
						
CF: 
(  ) DoD PDBR
(  ) DVA