RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	 	CASE:  PD-2013-01863
BRANCH OF SERVICE:  Army 	 	SEPARATION DATE:  20050920

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a mobilized Reserve E-5 (Motor Transport Operator) medically separated for major depressive disorder rated at 10% and complex partial seizure disorder/generalized convulsion, which was determined to have existed prior to service.  

CI CONTENTION:  His conditions continue to worsen and negatively impact his daily activities.  His complete submission is at Exhibit A. 

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 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:  
   
PDA Admin Corr – Dated 20050907	VA - (3.5 Years Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
MDD	9434	10%	PTSD	9411	50%	20090318	
PTSD	Not Unfitting					
Complex Partial Seizure Disorder/Generalized Convulsion	8914	EPTS/NOT PSA	Epilepsy	8999-8912	NSC	STR	
Other MEB/PEB Conditions x 0 (Not is Scope)	Other x 1		
Rating:  10%	Combined:  50%	
Derived from VA Rating Decision (VARD) dated 20090414 (most proximate to date of separation [DOS]).   

ANALYSIS SUMMARY: 

The PEB rating, as described above, was derived from DoDI 1332.39 and preceded the promulgation of the National Defense Authorization Act (NDAA) 2008 mandate for DoD adherence to Veterans’ Administration Schedule for Rating Disabilities (VASRD) §4.129.  The Board, IAW DoDI 6040.44 and DoD guidance (which applies current VASRD §4.129 to all Board cases as appropriate), must consider if the definition of §4.129 is met for any psychiatric condition resulting in medical separation; i.e., “a mental disorder that develops in service as a result of a highly stressful event.”  If the Board judges that application of §4.129 is appropriate, it will recommend a minimum 50% rating for a retroactive 6-month period on the Temporary Disability Retired List (TDRL).  The Board must then determine the most appropriate fit with VASRD 4.130 criteria at 6 months for its permanent rating recommendation, based on the facts in evidence which were most probative for that interval.

Major Depressive Disorder/PTSD.  There were no treatment records for a mental health condition prior to separation (from active duty) in evidence.  At the initial MEB history and physical (DD Form 2807, Report of Medical History and DD Form 2808, Report of Medical Examination, dated 22 July 2004), the CI reported no mental health condition.  The initial MEB narrative summary (NARSUM) dated 30 July 2004 was silent for a mental health diagnosis as was the MEB dated 1 October 2004 and subsequent PEB.  In a letter to the PEB dated 13 December 2004, the CI noted that he had recently been diagnosed with PTSD.  On 25 February 2005, the PEB administratively terminated the case pending a psychiatric addendum and updated MEB.  The psychiatric addendum was dated 4 May 2005.  It noted that the CI served in-theater during the Gulf War (1991-1992) at which time, as a combat engineer, he reported that he was exposed to scud missiles and bombs overhead, saw a child killed, and viewed an Iraqi soldier’s remains.  He never sought treatment.  In 2003, he received orders to deploy to Kuwait.  During pre-deployment preparation, he received an anthrax vaccination; 2 days later, he had a seizure which he later attributed to the vaccination.  He did ultimately deploy to Kuwait where he was “re-exposed to a high probability of danger” as well as had additional seizures that truncated his deployment.  As a result of the deployment, he experienced recurring nightmares.  Because of the seizure disorder he became depressed by his inability to drive a vehicle and “restrictions on his capacity for employment.”  Additionally, his wife had cancer and lived in another state.  He was treated with an anti-depressant and sleep medication along with counseling in weekly PTSD and anger management groups and relaxation therapy.  On mental status examination, his speech was mildly slow and with low volume, but was clear.  His mood was mainly depressed, but ranged from dysphoric to euthymic.  Affect was mildly constricted, but he was able to show a wide range of emotions.  Cognition was intact.  He was diagnosed with PTSD and recurrent MDD and assigned a Global Assessment of Function (GAF) of 55, indicative of moderate symptoms or impairment.  He was thought to be unable to meet his duties to full capacity and to be marginally stable.  On-going treatment was recommended.  The commander’s statement dated 11 May 2005 addressed only the seizure disorder in detail.  It noted that the CI was on medications for PTSD, but did not attribute duty impairment to it.  A profile issued that same day was P3S3 for “epilepsy; symptoms of depression, nightmares, irritability; (and) sleep problems following deployment (OIF).”  The profile precluded him from deployment, access to weapons, driving and regular duty.  At the MEB examination dated 20 May 2005, the CI reported that he had PTSD and epilepsy.  The CI’s 14 July 2005 rebuttal to the PEB, which had rated the mental health condition at 10%, the CI only addressed the seizure disorder.  The VA Compensation and Pension (C&P) examination was performed 3 years after separation and outside the normal 12-month window assigned higher probative value for rating at separation.  

The Board directed attention to its rating recommendation based on the above evidence.  The Board first considered if the criteria to support application of VASRD §4.129 were met.  The PEB found the CI unfit and rated him 10%, coded 9434 (MDD), for MDD associated with symptoms similar to those of PTSD secondary to service in Operation Desert Storm in 1991 and service in Kuwait in 2003 and a seizure disorder.  PTSD was determined to be “not separately unfitting.”  The PEB clearly linked the unfitting MDD to his deployments even though there were other stressors in his life such as his wife’s illness and the underlying seizure disorder.  Accordingly, the Board determined that the provisions of VASRD §4.129 were met.  The Board then considered if a rating higher than the minimum 50% rating under VASRD §4.129 was met under the provisions of VASRD §4.130.  The Board noted that the initial MEB did not mention a mental health condition.  The CI was issued an S3 profile, but this followed a rebuttal to the PEB noting that he had been recently diagnosed with PTSD.  The subsequent MEB mental health addendum did note that he had moderate problems, but the commander did not mention any impairment from a mental health condition in his letter written one week later and only noted that the CI was being treated for PTSD.  The Board determined that the 70% rating criteria (deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood) were not met and that the minimum 50% rating should be assigned at the entry into the constructive TDRL period.  

The Board then considered the permanent rating for the mental health condition.  There was no relevant VA outpatient or civilian provider evidence providing specific details regarding psychiatric impairment during the 6-month interval of constructional TDRL.  The only sources of comprehensive evidence on which to base either the TDRL or permanent rating recommendations in this case are the MEB psychiatric addendum and the VA C&P examination.  The latter was performed approximately 3 post-separation and of reduced probative value.  This deprives the Board of evidence for judging the stress of transition to civilian life which is the key intent of §4.129 and a significant element underlying the Board’s permanent rating recommendation.  In cases such as this, the Board of necessity must base its permanent rating recommendation on the evidence at separation, mitigated (to the extent possible) by the anticipated prognosis at 6 months.  The latter imposes a degree of speculation, and the Board must remain compliant with VASRD §4.3 (reasonable doubt); but, the absence of any continuing psychiatric treatment by the VA (or submitted civilian evidence of same) must logically be interpreted as a favorable post-separation course; this premised on an assumption that an unfavorable course should have resulted in continuing treatment and reevaluation.  The CI had no documented treatment for the mental health conditions between the time of separation and the VA examination 3.5 years after separation.  The VA examination recorded that the CI was on psychiatric medication for his depression, but also that he was not involved in any mental health therapies at the time of the evaluation.  His potential job performance was limited by the seizure disorder, but he still continued working albeit with his employer’s and family’s support.  As noted already, there were no comments by the commander regarding a mental health condition other than recording that the CI was on medications.  A mental health diagnosis was not even apparent during the initial MEB evaluation and symptoms were denied on the DD Form 2807.  In the second PEB rebuttal, aided by legal counsel, the CI did not challenge the 10% rating.  The evidence does not support a rating higher than the 10% permanent rating adjudicated by the PEB.  The Board did note that the diagnoses of both MDD and PTSD were used by the MEB and PEB and the symptoms were thought to overlap.  Accordingly, a dual code of 9411 (PTSD) and 9434 (MDD) is recommended.  This had no impact on the rating recommended.  

Complex Partial Seizure Disorder/Generalized Convulsion.  The CI was on training status for pre-deployment preparations for 4 days, 19-23 November 2003, when he received an anthrax vaccination.  Two days after receiving an anthrax vaccination, the CI, with flu-like symptoms, had an episode of speech arrest followed by loss of consciousness on 21 November 2004.  He was apparently evaluated in an emergency room and was sent home without further workup.  He was subsequently activated on 28 January 2004 and deployed to Southwest Asia.  There, he again had seizure activity and was returned to the United States via Landstuhl Medical Center in Germany.  He was evaluated in neurology on 3 May 2004 at Landstuhl; the examiner documented a history of four episodes of seizure activity.  These were manifested by stuttering speech followed by a blank stare, foaming at the mouth, and becoming rigid with shaking.  The CI denied incontinence or tongue biting.  He was thought to have a complex partial seizure disorder with rapid generalization.  The examiner documented that the CI had multiple head injuries throughout his life and one episode of loss consciousness as a child.  An EEG (electroencephalogram, a test of the electrical activity of the brain) was abnormal for bifrontal sharp waves during hyperventilation, indicative of possible seizure like activity.  An MRI was read as normal, although the neurologist thought that there was an abnormal white matter signal on review.  The physical examination was normal.  He was then sent on to his home station for further evaluation.  A neurology evaluation dated 30 July 2004 listed the diagnoses as complex partial epilepsy and generalized convulsion and indicated the neurological condition interfered with the reasonable performance of assigned duties.  In a smaller type font, the report concluded “No further anthrax vaccinations recommended.”  The MEB proceedings dated 1 October 2004 referred the CI to the PEB for complex partial epilepsy and generalized convulsion, both medically unacceptable IAW with AR 40-501.  Both conditions were checked “YES” as having been incurred while entitled to base pay and both were checked “NO” in regard to existed prior to service.  However, initial IPEB, dated 26 October 2004 determined that the seizure disorder was an EPTS condition which was not permanently service aggravated.  The CI non-concurred and demanded a FPEB which upheld the IPEB adjudication.  In a letter dated 5 November 2004, the physician who evaluated the CI for a seizure disorder in May 2004 indicated the CI had contacted him and requested a change in the record to indicate that he, the CI, “did not have multiple head injuries throughout his life.”  The service treatment record did note the CI “had one episode of lost consciousness as child.”  A Statement of Medical Examination and Duty Status (DA Form 2173) dated 7 December 2004 indicated the “USAR soldier on active duty orders was at the airport in Atlanta, GA preparing to get on a plane when he had an episode of speech arrest and loss of consciousness” on 21 November 2003.  The document further indicated the CI was on Active Duty for Training that began 19 November 2003 and ended 22 November 2003.  Line of duty questions 31 and 32 were left blank.  Another Statement of Medical Examination and Duty Status also dated 7 December 2004 indicated that “o/a (on or about) 29 March 2004 in Arifjan, Kuwait “USAR soldier activated for OIF had 2d seizure while riding as a passenger in a convoy.  Soldier undergoing MEB/PEB and LOD is requested.”  Both the Active Duty and Active Duty for Training boxes were checked and MOB was inserted between the two boxes and the training was between 31 January 2004 and 31 July 2005.  The CI submitted a rebuttal on 13 December 2004 and noted that the seizures started while on active duty as well as noting the PTSD diagnosis.  The Formal PEB reconsideration on 7 February 2005 noted that the presumption of service-connection was not overcome by preponderance of evidence.  The case was then administratively terminated on 25 February 2005 to address the mental health condition.  The second MEB NARSUM, dated 22 June 2005, noted that the CI had the onset of flu like symptoms after the anthrax shot.  He was diagnosed with complex partial epilepsy, generalized convulsions.  No further anthrax vaccinations were recommended.  Those findings were reconfirmed in the second MEB dated 8 July 2005.  The CI wrote a letter dated 14 July 2005 indicating that he received anthrax “injections” in Fort Jackson, SC supported with affidavits from two members of the 227th Transportation Company on 20 November 2003.  He additionally stated “I did not have seizures until after taking the anthrax injections.”  Furthermore, he had signed notes from a sister and a cousin, “to show that this is not hereditary condition.”  While both women indicated they had seizures, one indicated she had none since the “age of 7” and had not taken medication since “age 7”and the other noted “not had any seizures of any kind since the age of five. . .I am now fourty [sic] years old.  No meds for seizures.”  On 29 July 2005, the CI again met the IPEB which determined that the seizure disorder was an EPTS condition which was not permanently service aggravated.  The CI non-concurred and demanded a FPEB.  On 22 August 2005, the CI withdrew his request for a FPEB, but CI did not concur with the IPEB findings.  On 7 September, the USAPDA upheld the FPEB adjudication.  It noted that the “eight year” rule did not apply and that the condition was EPTS and not permanently service connected.  The CI made no further appeals.  

The Board directed attention the above evidence.  It first considered the PEB adjudication that the seizure disorder condition was an EPTS condition without permanent service aggravation.  The Board noted that PEB reversed the EPTS determination several times during the adjudication, but that the final adjudication by the USAPDA was that it was an EPTS condition and not permanently service aggravated.  The initial recorded seizure activity followed the anthrax vaccination by 2 days.  A literature search of the US Military and the National Institutes of Health sites did not show that the anthrax vaccine is reported as causal for seizures.  Hence, a contention that the seizure condition is linked to the vaccine is not supported.  The Board next considered if the onset while on training status is sufficient to justify a “line of duty yes” determination and rating.  The CI was on active training status for four days for the pre-deployment preparation and then not activated until 2 months after the initial seizure.  The applicable instruction is DoDI 1332.38 E.3.P.4 which indicates that the service member must be on active duty for 30 days or more for presumptive service aggravation unless the evidence supports direct causation due to “line of duty yes” activities while in active status.  The CI does not meet either criterion.  The Board considered the records available for review and concluded that there is not a preponderance of evidence to overturn the USAPDA adjudication that the complex partial epilepsy, generalized convulsions condition was either “not an EPTS condition” or was not “permanently service aggravated.”  Therefore, no change in the PEB adjudication 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 mental health disorder (PTSD-MDD), the Board unanimously recommends a constructive TDRL disability rating of 50% for 6 months and a permanent rating of 10%, coded 9411-9434 IAW VASRD §4.129 and §4.130.  In the matter of the complex partial seizure disorder, the Board unanimously recommends no change in the PEB adjudication 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 his prior medical separation:  

UNFITTING CONDITION	VASRD CODE	RATING	
		TDRL 	PERMANENT 	
PTSD-MDD	9411-9434	50%	10%	
Complex Partial Seizure Disorder	8999-8912	EPTS
NO PSA	EPST
NO PSA	
RATING	50%	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131018, 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 XXXXXXXXXXXXXX, AR20160001682 (PD201301863)

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  constructively place the individual on the Temporary Disability Retired List (TDRL) at 
50 disability for six months effective the date of the individual’s original medical separation for disability with severance pay and then following this six month period no recharacterization of the individual’s separation or modification of the permanent disability rating of 10%.

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 as follows:

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

	b.  Providing orders showing that the individual was separated with a permanent combined rating of 10% effective the day following the six month TDRL period with no recharacterization of the individual’s separation.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will provide 50% retired pay for the constructive temporary disability retired six month period effective the date of the individual’s original medical separation and adjusting severance pay as necessary to account for the additional TDRL time in service.

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:

Enclosures

CF: 
(  ) DoD PDBR
(  ) DVA