RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXX	CASE:  PD-2013-01455
BRANCH OF SERVICE:  AIR FORCE	BOARD DATE:  20140911
SEPARATION DATE:  20041206

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSgt/E-5 (3P0/Security Forces) medically separated for epilepsy.  The epilepsy condition could not be adequately rehabilitated to meet the physical requirements of her Air Force Specialty.  She was issued a P4 profile and referred for a Medical Evaluation Board (MEB).  The epilepsy condition, characterized as “generalized epilepsy,” was forwarded to the Physical Evaluation Board (PEB) IAW AFI 48-123.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “generalized epilepsy” as unfitting, rated 10%, citing criteria of the Department of Defense Instruction (DoDI) 1332.39 and Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated. 

CI CONTENTION:  “I had planned to stay in the military until retirement.  I was devastated when I got medically separated for epilepsy.  My disability rating was 20% and I already felt like that was not enough.  Then to my surprise they reduced the disability to 10%.  I feel that was completely wrong.  I have to take medicine twice a day and go see my neurologist once a year.  I feel my disability should be higher and that it was wrong for them to reduce it from 20% to 10 %.”

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 epilepsy condition is addressed below and 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 Department of Veteran Affairs (DAV) compensation rating change from 20% to 10% for epilepsy; but, must emphasize that the Disability Evaluation System has neither the role nor the authority to address DAV compensation claims.  That role and authority is granted by Congress to the DAV under a different set of laws.

RATING COMPARISON:  
   
Service IPEB – Dated 20041007	VA - (3.5 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Generalized Epilepsy	8910	10%	Generalized Epilepsy	8910	20%	20041206	
Other x 0  (Not in Scope)	Other x 4 (Not in Scope)	20041206	
Combined:  10%	Combined:  20%	
Derived from VA Rating Decision (VARD) dated 20050119 (most proximate to date of separation).   

ANALYSIS SUMMARY:  

Generalized Epilepsy Condition.  While shopping in June 2004, the CI was observed to have an unprovoked period of unconsciousness with tonic-clonic (jerking-like) seizure activity.  Witness described her with pre-seizure dizziness, two minutes of jerking movements and 20 to 45 minutes of confusion.  There was no associated vomiting or bowel/urine incontinence.  A cardiology work-up was normal.  A computer tomography (CT) of the head was normal.  An electroencephalogram (monitor of brain electrical activity) revealed abnormal tracings suggestive of a generalized seizure disorder.  On 22 July 2004, neurology definitively diagnosed generalized epilepsy syndrome, single generalized tonic-clonic seizure and initiated anti-seizure medication.  A P3 temporary profile was issued with the following limitations: “…may not carry a firearm or driving until profile expires.”  The commander’s statement corroborated the above historical review and limitations in addition documented that the profile impeded her from meeting deployment obligations.  At the MEB narrative summary (NARSUM) examination on 8 September 2004 (3 months prior to separation), the CI summarized her initial event with a denial of any past history or antecedent illness or injury.  An in-depth, neurologically focused physical examination was normal.  Her diagnosis remained generalized epilepsy.  Her prognosis was listed as “guarded.”  There was no original VA C&P examination contained in the case file, but the original VARD referenced the missing examination citing the history of a single major seizure in the last year for a 20% impairment rating.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB and VA chose the same coding option, 8910 (epilepsy, grand mal), for the condition and both were IAW §4.124a, schedule of ratings neurological conditions and convulsive disorders.  The PEB rated 10% citing no specific rating criteria other than IAW DoD and VASRD guidelines.  The VA rated 20% based on a “single major seizure in the last year.”  A higher evaluation of 40% was not warranted unless there was evidence of at least a major seizure in the last 6 months or two in the last year, or averaging at least five to eight minor seizures weekly.  Having no evidence of any minor seizure activity or activity onset greater than a year prior to service separation, the Board strictly focused on the time interval from seizure onset to separation knowing its impact on the recommendation of a higher impairment rating.  The difference between the 20% and 40% VASRD criteria for a single major seizure is the occurrence within 6 months or later from the time of separation.  This case hovers very near to the 6-month cut-off and therefore, the Board carefully considered and calculated the time interval after symptom onset.  Strictly, by the time interval number of days, the higher rating was not supported by a margin of 7 days.  Board members carefully considered §4.7 (higher of two evaluations) which states, “Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned.”  Member’s concluded that the overall disability picture in this case, as evidenced by a single seizure, most closely relates to the lower rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the seizure disorder condition.

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, the Board unanimously recommends a disability rating of 20%, coded 8910 IAW VASRD §4.124a.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of her prior medical separation.

UNFITTING CONDITION	VASRD CODE	RATING	
Generalized Epilepsy 	8910	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130913, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

		

SAF/MRB

Dear XXXXXXXXXXXXXX:

	Reference your application submitted under the provisions of DoDI 6040.44 (Title 10 U.S.C. § 1554a), PDBR Case Number PD-2013-01455.

	After careful consideration of your application and treatment records, the Physical Disability Board of Review determined that the rating assigned at the time of final disposition of your disability evaluation system processing was not appropriate under the guidelines of the Veterans Affairs Schedule for Rating Disabilities.  Accordingly, the Board recommended modification of your assigned disability rating without re-characterization of your separation with severance pay. 

	I have carefully reviewed the evidence of record and the recommendation of the Board.  I concur with that finding, accept their recommendation and direct that your records be corrected as set forth in the attached copy of a Memorandum for the Chief of Staff, United States Air Force.  The office responsible for making the correction will inform you when your records have been changed.

							

Attachments:
1.  Directive
2.  Record of Proceedings

cc:
SAF/MRBR