RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD1301708
BRANCH OF SERVICE:  army	BOARD DATE:  20140603
Separation Date:  20120520

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (19D/Cavalry Scout) medically separated for seizure disorder.  The CI was placed into the Integrated Disability Evaluation System (IDES) system and separated for non-mental health (MH) conditions.  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 condition, characterized as “unfitting” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501 operating under the Pilot DES (PDES) process.  The MEB also identified and forwarded seven other conditions for PEB adjudication one of which was a MH condition of adjustment disorder, meeting retention standards.  The VA only rated the non-MH condition and did not address the adjustment disorder.  The initial Compensation and Pension (C&P) exam; however, did diagnose posttraumatic stress disorder (PTSD) and traumatic brain injury (TBI).  The MH condition was addressed in a diagnostic variance and independent medical review as adjustment disorder.  The PEB adjudicated “seizure disorder” as unfitting and accepted the VA’s proposed 20% rating with application of the VA Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be not unfitting.  The MH diagnosis of adjustment disorder with anxious mood was not considered a physical disability and therefore not compensable IAW DoDI 1338.38, encl. 5.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Army gave me percentage based on Adjustment Disorder instead of PTSD.  The VA changed this diagnosis to PTSD immediately after my separation form the Army.” [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.  In addition, the CI was notified by the Army that his case may be eligible for review of the military disability evaluation of his MH 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 MH 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 disorder condition is addressed below, along with a review of the adjustment disorder with anxious mood that was determined to be not unfitting.  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 20120323	VA - (11 Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Seizure Disorder	8910	20%	Complex Partial Seizure with Secondary Generalized Tonic Clonic Activity	8910	20%	20110415	
Adjustment Disorder	Not Compensable	Post-Traumatic Stress Disorder	9411	50%	20110607	
	Other x4	 	
Combined:  20%	Combined:  60%	
Derived from VA Rating Decision (VARD) dated 20120610 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:  IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations.  The Board reviews medical records and other available evidence to assess the fairness of PEB rating determinations, using VASRD standards, based on ratable severity at the time of separation; and, to review those fitness determinations within its scope (as elaborated above) consistent with performance-based criteria in evidence at separation.

Seizure Disorder Condition.  The CI was diagnosed with a seizure disorder in 2005 while in theater.  A fellow serviceman found the CI was unconscious and exhibiting a jerking motion on his cot.  He was exposed to three to five explosions that caused concussions.  A head CT scan was normal while his first electroencephalogram (EEG) performed on 9 January 2010 was abnormal and the examiner recommended clinical correlation for complex partial seizures.  The CI was seen by a civilian neurologist who documented that the CI had a history of blackout spells which would start with bi-temporal shooting pains that radiated to the top of his head and then he would pass out causing his body to tense up and start shaking.  The shaking was verified by the CI’s wife who observed these movements.  The CI reported that the shaking lasted for 5 minutes, and then he would be unresponsive for approximately a half hour.  The neurologist diagnosed possible convulsions of unknown etiology.  The second EEG performed on 9 March 2010 was mildly abnormal which raised a question of a potentially epileptogenic right frontal dysfunction.  The civilian neurologist reviewed the EEG results and after a reexamination of the CI, he opined that the CI had focal motor seizures with secondary generalized tonic clonic seizure activity.  A third EEG performed on 29 June 2010 had a single episode of abnormal activity and the examiner recommended clinical correlation for a complex partial seizure with secondary generalized tonic clonic seizure activity.  The CI was seen in an emergency room (ER) for seizure activity on four occasions prior to VA C&P exam with the last seizure occurring in December 2010.  The CI was given a permanent P3 profile for seizure disorder.  The VA IDES C&P exam approximately 13.5 months prior to separation documented that the CI was unable to carry out his duties due to the risk of an unexpected seizure.  The examiner continued the diagnosis of complex partial seizures with secondary generalized tonic clonic activity.  After the C&P exam, the CI was seen on 7 May 2011 for seizure activity; 12.5 months prior to separation.  The MEB narrative summary (NARSUM) exam approximately 10 months prior to separation documented that the CI’s seizures were not controlled with his current medication and although the condition was presently stable, the condition would not improve even when he was no longer in the military.  The examiner addressed the medication non-compliance issue and noted that the CI’s medication blood level was low and that he was probably not taking his medication.  The commander’s statement indicated that the CI could not perform his MOS due to his seizure disorder and he did not recommend retention.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB and VA both used the 8910 code (epilepsy, grand mal) and both assigned a 20% rating, at least one major seizure in the last 2 years.  The Board must correlate the above clinical data with the VASRD §4.124 rating criteria which, for convenience, is excerpted below:

General Rating Formula for Major and Minor Epileptic Seizures:

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

The evidence supports that the CI experienced no seizures in the 12 month period prior to his date of separation.  He did however, have at least one major seizure in the last two years prior to separation.  His most recent seizure prior to separation occurred on 7 May 2011 which was just over a year prior to separation; meeting the 20% criteria as proposed by the VA and adopted by the PEB.  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 disorder condition.

Contended PEB Conditions.  The Board reviewed the records for evidence of inappropriate changes in diagnosis of the MH condition during processing through the DES.  The evidence of the available records show a diagnosis of PTSD was identified by the VA (as part of the IDES) while adjustment disorder with anxiety was identified by the Service DES and a diagnostic variance memo was prepared as required.  This case did not meet the inclusion criteria in the Terms of Reference of the MH Review Project.  The CI underwent a psychiatric evaluation on 1 December 2010 because of past outpatient MH treatment, reportedly for PTSD while stationed at Fort Hood, but those records were not available.  The examiner concluded that there were no significant limitations in duty related to MEB ratable MH conditions.  The examiner diagnosed “No Diagnosis” for Axis I and further opined that he did not have a psychiatric condition that warranted disposition though medical or administrative channels nor did it warrant a psychiatric addendum to the MEB.  This documented was signed by two psychiatrists as well as the CI.  The VA C&P psychiatric exam noted sleep impairment, obsessive compulsive behavior and violence with his wife and emotional isolation.  The examiner opined that the CI did not seem to take responsibility for his own actions.  The examiner diagnosed PTSD with a Global Assessment of Functioning (GAF) at 42 (serious impairment in social, occupational, or school functioning).  The MEB NARSUM documented that the diagnosis of adjustment disorder with anxious mood was a recent diagnosis by Behavioral Health and there was no indication of suicidal or homicidal ideation.  A Diagnostic Variance Memo indicated that the CI was diagnosed with adjustment disorder with anxiety by both psychiatry and social work, and no MH provider ever saw the CI demonstrating any symptoms of PTSD.  The most recent GAF in 15 July 2011 was 60-65 (some difficulty in social, occupational, or school functioning, but generally functioning pretty well, has some meaningful interpersonal relationships).  The examiner noted that the VA C&P added no new assessment instruments to the understanding of the CI’s diagnosis and although the diagnosis of PTSD was given and duty limitations were referred to, they were not described.  The examiner further stated that the diagnosis of adjustment disorder with anxiety made on 1 December 2010 stands as it was supported in the medical record and no evidence existed in the medical record to support a diagnosis of PTSD.  An Independent Medical Review performed on 13 September 2011 noted that PTSD was not a legitimate diagnosis for the following reasons:  the diagnosis was made by a psychologist at the VA Medical Center; however, this was overruled in favor of the diagnosis of adjustment disorder with anxiety by a staff psychiatrist at Irwin Army Hospital;  the document submitted by a Social Worker who entered the “No Diagnosis” was prepared from misinformation provide by the CI and his wife in an attempt to expedite the MEB process.  Based on these reasons, the examiner concluded that the PTSD diagnosis needed to be excluded on DA Form 3947 and replaced by adjustment disorder with anxiety.  The CI signed off on this document.  An Independent Practitioner Review was performed on 14 October 2011 and documented that the CI did not now meet or ever appeared to have met the criteria for PTSD and furthermore, the examiner opined that somatic concerns were paramount in his case and any residual affective symptoms were largely stress induced, situational and self-limiting. The CI also signed off on that document.  The VA also completed a C&P exam for TBI 13 months prior to separation and granted service-connection for TBI.  The service treatment records contain numerous TBI related evaluation and treatment notes as his seizure disorder was related to TBI.

The contended condition adjudicated as non-compensable by the PEB was adjustment disorder with anxious mood.  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 higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations and requires a preponderance of evidence.  The CI’s profile remained “S1” throughout the DES process.  The commander’s statement did identify duty impairment not related to the CI’s seizure disorder that involved decreased performance under stress, ineffective work relationships, mild difficulties completing tasks to standards and “If things don't go the soldier’s way or if he is caught in a lie he will get agitated over it.”  Deliberations settled on consideration of these potentially duty limiting impairments and the evidence was reviewed for additional indications of MH related impairment.  Board members agreed that the CI did not meet the diagnostic criteria for PTSD and that adjustment disorder was the most appropriate diagnosis.  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 MH condition and 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.  As discussed above, PEB reliance on DoDI 1332.38 for rating adjustment disorder was operant in this case and the condition was adjudicated independently of that instruction by the Board.  In the matter of the seizure disorder condition and IAW VASRD §4.124a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended MH condition, the Board unanimously agrees that it cannot recommend it for additional disability rating.  There were no other conditions within the Board’s scope of review for consideration.

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

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 XXXXXXXXXXXXXXXXXX, AR20140019621 (PD201301708)

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