RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2013-01909
BRANCH OF SERVICE:  Army	BOARD DATE:  20140610
DATE OF PLACEMENT ON TDRL:  19981213
Date of Permanent SEPARATION:  20041213

SUMMARY OF CASE:  Available evidence indicates this covered individual (CI) was an active duty PFC/E-3 (63W/Wheel Vehicle Repairer) medically separated for a seizure disorder.  Despite medication, this condition could not be rehabilitated to meet the requirements of her Military Occupational Specialty or physical fitness standards.  She was issued a permanent P3 profile and referred for a Medical Evaluation Board (MEB).  The seizure condition, characterized as “PCS (partial complex seizures) with secondary generalization,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501 with no other conditions submitted by the MEB.  The PEB adjudicated “partial complex seizure disorder with secondary generalization,” rated 40%, citing criteria of the VA Schedule for Rating Disabilities (VASRD) and placed the CI on the Temporary Disability Retired List (TDRL) effective on 13 December 1998 to allow the condition to stabilize.  In 2004 a TDRL PEB found the condition had stabilized sufficiently; adjudicated “generalized seizure disorder” as still unfitting, rated 10% and removed the CI from the TDRL.  The CI submitted no appeals and was medically separated.

CI CONTENTION:  “Epilepsy, hearing loss, Bell palsy, high blood pressure, reflux, carpal tunnel (both hands)”

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 seizure condition is addressed below.  No additional conditions are within the DoDI 6040.44 defined purview of the Board; neither hearing loss, Bell’s Palsy, high blood pressure, reflux, nor carpal tunnel syndrome were identified by the MEB so these conditions are not in scope.  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:

Final Service PEB - 20040809	VA (~31 Mo. Prior to Adjudication Date*) - Effective 19981213	
On TDRL - 19981213	Code	Rating	Condition	Code	Rating	Exam	
Condition		TDRL	Sep.					
Partial Complex Seizure d/o with Secondary Generalization	8910	40%	10%	Post-Concussion Syndrome with Seizure Disorder	8911	20%	20020122	
No Other MEB/PEB Entries	Other x3	19981229	
Combined:  40% → 10%	Combined: 30%	
*Reflects VA rating exam proximate to TDRL removal.

ANALYSIS SUMMARY:  The Board acknowledges the presence of hearing loss as a service-connected condition by the VA, but notes that the scope of its recommendations does not extend to conditions which were not diagnosed or in evidence at the time of medical separation, specifically the Bell palsy, high blood pressure, reflux and carpal tunnel.  This includes conditions which may have had early manifestations during active service, since such sub-clinical conditions cannot be correlated with a fitness determination requisite for a Service rating.

Seizure Condition.  The CI suffered a closed head injury when she was kicked in the head while participating in a live fire exercise during basic training.  The evidence is equivocal about a loss of consciousness; however, the evidence is clear that the CI had her first seizure within a month of that injury.  Her seizures were described as tonic-clonic in nature and are preceded by “not feeling well” with numbness/tingling of her hands and feet.  She has incontinence of urine and post seizure confusion.  She had been evaluated with magnetic resonance imaging of the brain and electroencephalograms (EEG), all of which were reportedly normal.  She continued to suffer seizures throughout Advanced Individualized Training and when her seizures continued at her first duty station she was referred into the Disability Evaluation System.  The narrative summary prepared approximately 3 months prior to TDRL entry, documented that the CI had at least three seizures within 12 months of TDRL entry.  Her neurologic examination was normal and her anti-seizure medication level was within normal range on 30 June 1998 (she did have a seizure in early July 1998).  The neurologist diagnosed partial complex seizures with secondary generalization and noted “[The CI] is unable to drive or work on heavy machinery and must be constantly supervised.”  At the VA Compensation and Pension (C&P) exam performed a week after TDRL entry, the CI reported since the original injury she had five seizure-like episodes with the last seizure-like episode in mid-December 1998.  She had a normal neurologic exam and was scheduled for a neurologic C&P examination.  That neurologic C&P exam was accomplished 25 months after TDRL entry and documented the following, “Her last Sz (seizure) was five days ago and involved an MVA (motor vehicle accident).  She has had four seizures in the past six months and has never been Sz-free since onset.”  The examiner stated that the CI took anti-seizure medications daily and her neurologic exam was normal.  The impression was history is consistent with post-closed head injury seizure disorder-poorly controlled (possibly uncontrolled) in spite of previously therapeutic anti-seizure medication levels that are producing sedation.  This is a substantially disabling condition interfering with employment and such activities as driving (should not do).

The Board directs attention to its TDRL entry rating recommendation based on the above evidence.  The PEB adjudicated the seizure disorder by applying the analogous VASRD code of 8999-8911, petit mal Epilepsy and rated it 40% citing “two seizures in the past year while on medication” and placed her on TDRL.  The VA applied code 8911 and rated it 20%.  The evidence documents seizure activity that fits into the major seizure category IAW VASRD guidelines and the rating formula is copied below for convenience:

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

At the time of TDRL entry, the evidence supports that she had at least three major seizures within 12 months, with one being within 6 months of TDRL entry.  That frequency of seizures correlates with the 60% rating using the above rating guidelines.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 60% for the partial complex seizures with secondary generalization condition at TDRL entry.

The Board next considered its rating recommendation at TDRL exit noting the following evidence.  The TDRL exam performed 4.5 months prior to TDRL exit documented that the CI reported having seizures “every couple of months” since September 1998.  She reported she had bitten her tongue with events, has bruised herself, and had headaches afterward, with a couple of episodes of bladder incontinence (no bowel incontinence).  That same exam later states the following:

She reports that her seizure frequency decreased after 1998, to one seizure approximately every 5-6 months, from 1998 to 2003.  Dilantin was started in mid-2003 in an attempt to obtain improved control of seizures; she reports she had gotten to a high dose of the Tegretol without control of seizures.  She denies difficulty with taking Tegretol except for feeling 'out of it' at high doses.  Reports she is not driving, with increased difficulty with driving as well with high doses of Tegretol.

She reported that she had a seizure in February and again in March, was taken to the hospital with anti-seizure medication given intravenously for recurrent seizure and a low Dilantin level and her last prior seizure was June of 2003.  She doesn't work due to troubles with driving.  The TDRL examiner diagnosed generalized seizure disorder, clinical diagnosis without confirmatory EEG findings, with partial response to anti-seizure medications, but remaining refractory to therapy, with normal neurologic examination and neuroimaging results.  Also noted was medication non-compliance, based on the only available Tegretol (anti-seizure medication) level for review.  The evidence contains a C&P exam that was accomplished approximately eight months after TDRL exit and documented the following:

“She had been most recently treated with both Tegretol and Dilantin; however, she ran out of these medications approximately one month ago and has not been taking them.  These medications cause both nausea and drowsiness.  She experienced approximately 2-3 seizures per month.  She states this is unchanged whether she is on the medications or not.  In February of 2005, she was driving and actually had a wreck because she had a seizure while she was driving.”

Her neurologic exam was normal and she was diagnosed with status post closed head injury with post-concussion syndrome and seizures.

The Board directs attention to its TDRL exit rating recommendation based on the above evidence.  At TDRL exit, the PEB adjudicated the generalized seizure disorder by applying code 8910 (grand-mal Epilepsy) and rated it 10% citing “although neurologist reports three seizures (Jun 03, Jan 04 and Mar 04), medication non-compliance is noted.  Tegretol and Dilantin levels below lower limit of detection.”  CI self-reporting was the only other evidence of seizure frequency.  The Board deliberated on the lack of objective documentation such as emergency room or treatment notes and agreed to base its rating recommendation on the seizure frequency documented on the PEB document.  While non-compliance with generally acceptable medical standards of care can affect the severity of a ratable condition, in this case the evidence supports that the CI experienced seizures while having normal anti-seizure medication levels.  Additionally documented was that her seizures were refractory to medications even at levels that caused nausea and sedation.  In the absence of clear evidence supporting a deliberate resort to non-compliance to affect severity and disability rating, the Board must rate the condition as it was at the time of TDRL exit, not how it would have been if the CI’s seizure disorder responded to medication.  The evidence supports that there were at least two seizures within 12 months of TDRL exit which correlates with the 40% rating level.  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 condition at TDRL exit.
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 PCS disorder with secondary generalization condition, the Board unanimously recommends a disability rating of 60%, coded 8045-8910 IAW VASRD §4.124a at entry and a 40% rating at exit from TDRL.  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 recharacterized to reflect permanent disability retirement, effective as of the date of her prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
Partial Complex Seizure Disorder with Secondary Generalization	8045-8910	60%	40%	
COMBINED	60%	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130915, 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 XXXXXXXXXXXXXXXXX, AR20150001312 (PD201301909)

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 
60% disability rather than 40% for the period 13 December 1998 to 11 December 2003 and then following this period recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 40%.

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 memroandum:

	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 retired with permanent disability effective the day following the TDRL period.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will account for recoupment of severance pay, provide 60% retired pay for the temporary disability retired period effective the date of the individual’s original medical separation and then payment of permanent disability retired pay at 40% effective the day following the TDRL period.  

	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