RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-01572
BRANCH OF SERVICE:  ARMY	BOARD DATE:  20150305
SEPARATION DATE:  20040729

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated Reserve E-4 (Human Resource Specialist) medically separated for a seizure disorder.  The 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 “idiopathic generalized seizure disorder” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition (post-concussive headaches) for PEB adjudication.  The Informal PEB (IPEB) adjudicated the seizure disorder as unfitting, rated 10%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  Although the MEB Board Proceedings and narrative summary (NARSUM) included the remaining headaches condition, it was not included in the IPEB Board Proceeding.  The CI made no appeals and was medically separated.

CI CONTENTION:  “The percentage I was given should have been 20% or greater and I should have been medically retired.  I also should have been given a rating for migraines that I suffered while in the military.”

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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the VASRD standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation. 

RATING COMPARISON:

IPEB – Dated 20040628	VA* - (~7 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Generalized Seizure Disorder…	8910	10%	Generalized Seizure Disorder	8910	20%	20050204	
Post-Concussive Headaches	Not Included by PEB	No VA Placement	
Other x 0 (Not In Scope)	Other x 0	
RATING:  10%	RATING:  20%	
*Derived from VA Rating Decision (VARD) dated 20050303 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Seizure Disorder Condition.  Treatment records evidence that the CI was brought to the emergency department in Kuwait on 14 May 2003.  Witnesses reported he fell head first into a door and was unconscious on the floor.  When he regained consciousness, he was “disoriented with slight memory loss.”  He was hospitalized, diagnosed with syncope (a short loss of consciousness), and treated with hydration, activity modification and rest.  The records were silent for further syncopal episodes until on 7 February 2004 when the CI was found on the ground twitching, jaws clenched, and gasping for air.  At that time the CI stated he did not recall the seizure incident.  He was treated with rehydration and rest.  An emergency department follow-up dated 8 February 2004 noted that the CI sustained a tongue laceration as a result of the seizure and woke up with a headache.  The CI was admitted, diagnosed with generalized seizure disorder, and subsequently medically evacuated from theater for further evaluation.  The NARSUM notes the CI had computed tomography of the head, magnetic resonance imaging of the brain, an electroencephalogram study, and laboratory studies that were normal.  The CI was started on anticonvulsant medication.  The physical examination was normal.  The examiner opined the idiopathic generalized seizure disorder was medically unacceptable.  At the VA Compensation and Pension (C&P) examination performed 7 months after separation, the CI reported three seizures in February 2003, February 2004, and September 2004.  He was taking anticonvulsant medication.  He reported tremors with the medication.  The physical examination revealed mild postural tremors, right greater than left.  A diagnosis of partial complex seizures with secondary generalization was rendered.

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB adjudicated the generalized seizure disorder as unfitting with a 10% disability rating based on no seizure activity since beginning anticonvulsant therapy; coded 8910 (epilepsy, grand mal).  The VA rated the generalized seizure disorder at 20%.  The Board considered whether the evidence supported a higher than 10% disability rating.  The VASRD defines a major seizure as one “characterized by the generalized tonic-clonic convulsion with unconsciousness.”  The Board noted that 5 months prior to separation the CI had a witnessed tonic clonic seizure, was diagnosed a seizure disorder and started on anticonvulsant medication.  The Board determined this met the criterion of one major seizure in the last 6 months under VASRD coded 8910 for a disability rating of 40%.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 40% for the generalized seizure disorder.

Contended PEB Conditions:

Headaches Condition.  Treatment records evidence that the CI initially presented with severe headaches in August 2001.  At that time he was diagnosed with an ear infection and treated with antibiotic medication.  The records were silent for headaches until after a fall in May 2003.  At that time he was diagnosed with post-traumatic headaches.  He was treated with Motrin and narcotic medication.  On 4 September 2003 the CI presented with reports of a headache for 2 weeks and not responding to over the counter medications.  The physical examination was significant for pain with chin to chest neck flexion.  He was diagnosed with tension headaches and treated with pain and muscle relaxing medications.  The CI reported severe headaches on DD Form 2807-1, Report of Medical History.  The MEB examiner noted the headaches were secondary to a head injury and the CI was being treated with medication.  At the NARSUM examination dated 27 April 2004, the CI reported nearly daily headaches described as dull, constant pain at the top of his head.  He rated the pain as 7-8/10 that varied in intensity.  The CI reported light sensitivity, but denied nausea.  The headaches were often triggered by bright sunlight.  The pain was not relieved by anti-inflammatory medication.  The CI was prescribed preventative and abortive headache medications.  The examiner rendered a diagnosis of post-concussive headaches.  The MEB forwarded post-concussive headache as medically acceptable.  The PEB did not address the post-concussive headache condition.  The VA C&P examination dated 20 April 2007 (2 years and 2 months after separation) noted recurring constant headaches since 15 January 2007.  There was no evidence of post-separation headaches prior to this presentation.  A diagnosis of migraine with several prostrating headaches a month was rendered.

The Board directed its attention to its fitness recommendation based on the above evidence.  Although the CI reported daily headaches, there was no evidence of emergency department visits and quarters for headaches.  The Board noted the post-concussive headache condition was not profiled or implicated in the commander’s statement and was judged medically acceptable by the MEB.  There was no performance based evidence from the record that post-concussive headache condition 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 recommend unfit determination for the contended headache condition and therefore, a disability rating is not 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 generalized seizure disorder condition, the Board unanimously recommends a disability rating of 40%, coded 8910 IAW VASRD §4.124a.  In the matter of the contended migraine condition, the Board unanimously agrees that it was not unfitting and cannot recommend it for additional disability rating.  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; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

CONDITION	VASRD CODE	RATING	
Generalized seizure disorder 	8910	40%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130923, 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, AR20150011089 (PD201301572)

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 40% 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 40% 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