RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00173
BRANCH OF SERVICE:  Army	BOARD DATE:  20150311
Separation Date:  20070115

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Health Care 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 seizure condition, characterized as “seizure disorder,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition (migraine headaches) for PEB adjudication.  The Informal PEB adjudicated “seizure disorder” as unfitting, rated 0%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The migraine headache condition was determined to be not unfitting.  The CI appealed to the Formal PEB (FPEB) which increased the seizure disorder rating to 10%.  The CI further appealed to the US Army Physical Disability Agency (USAPDA), which affirmed the FPEB findings, and was medically separated.

CI CONTENTION:  “Issues regarding migraine headaches were left out of PEB.”

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 Veterans Affairs Schedule for Rating Disabilities (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:

Service FPEB – Dated 20061011	VA* - (2 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Seizure Disorder	8910	10%	Petite Mal Seizures	8911	20%	20070323	
			Fracture of the Nose and Cheek Associated With Petite Mal Seizure	5299-5296	NSC	20070323	
			Cognitive Disorder Associated with Petite Mal Seizure	9399-9326	NSC	20070521	
Migraine Headaches	Not Unfitting	Migraine Headaches	8100	0%**	20070323	
Other x0	Other x3	
RATING:  10%	RATING:  40%	
*Derived from VA Rating Decision (VARD) dated 20070607 (most proximate to date of separation)
**Increased to 50% effective on 20090707 by VARD dated 20100125

ANALYSIS SUMMARY:

Seizure Disorder Condition.  The CI had his first seizure on 25 October 2004 with symptoms of right hand twitching first at the fingertips, then progression up the hand arm and then shoulder over a few minutes.  He was found face down on the floor unresponsive and jerking all limbs.  During the seizure he had bitten his tongue and had multiple cuts and bruises to his nose and forehead.  He was post tictal with fatigue and confusion.  The CI was transported via ambulance to Walter Reed where he was admitted.  He had an episode of right arm myoclonic jerking while hospitalized.  During the admission, an electroencephalogram (EEG) demonstrated a mild abnormality that was consistent with a seizure disorder.  A brain magnetic resonance imaging was normal.  The neurologist noted that a second EEG also showed potential epileptic activity in the fronto-temporal cortex.  The CI’s wife reported that he had an episode prior to this appointment that started with three to four shakes of his arm, moved up his shoulder and down the other side involving his legs; however, there was no loss of consciousness.  The examiner adjusted his medications and opined that the CI could be having simplex or complex partial seizures.  The CI underwent video EEG monitoring on 28 November 2005 which was normal.  The CI was given a P3 profile for seizure disorder with additional restrictions noted on the profile.

The MEB narrative summary exam, 9 months prior to separation, documented that the CI had stopped his seizure medications because he felt that his increased headache frequency was due to the seizure medications.  He did not want another trial of seizure medication because he could not tolerate the side effects and felt that it negatively impacted his relationship with his family.  The physical exam findings were normal.  The examiner opined that the chance of a repeat seizure while off medications was higher than would be acceptable in an active duty soldier.  The commander’s statement noted that the CI was no longer able to deploy because of the severe limitations of his permanent profile.  The CI was seen in the emergency room for an episode the prior evening of 10-15 minutes of left arm tremors with post tictal symptoms of fatigue and lightheadedness.

The VA Compensation and Pension (C&P) exam, approximately 2 months after separation, documented that the CI had a minor seizure disorder described as a “phasing out and no recall of the event followed by a severe headache.”  He reported such an event approximately 4 days prior to this exam and had 24 attacks in total, averaging one each month.  He was not on medication for the seizure disorder.  The VA Neurologist documented a plan to increase the antiepileptic medication until a maximum dose was reached and then evaluate him.  The Neurologist documented that the CI was taking his medication; however, he was still having seizures.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB coded the seizure disorder condition as 8910 and rated at 10%.  The VA coded the petite mal seizures (Claimed as Seizure Disorder Secondary to Meningitis) condition as 8911 and rated at 20%.  There was consistent documentation that the CI had an initial seizure which manifested itself as starting with arm shaking and progressing up to his shoulders and down the other side of his body.  The CI continued to have episodes of staring into space, tremors in his arm and no recall of the event.  The VA examiner documented that the CI experienced an event 4 days prior to the C&P exam and the CI further reported 24 such episodes in total averaging one per month.  The Board agreed that the CI’s condition exceeded the 10% rating criteria (a confirmed diagnosis of epilepsy with a history of seizures).  The Board agreed that the 24 episodes in total averaging one per month more closely aligned to the 20% rating criteria (at least 2 minor seizures in the last 6 months).  The next higher 40% rating level requires averaging at least 5 to 8 minor seizures weekly, which is not supported by the evidence present for Board review.  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 IAW §4.124a.

Contended PEB Conditions.  The contended condition adjudicated as not unfitting by the PEB was migraine headaches.  The Board’s first charge with respect to these conditions is an assessment of the appropriateness of the PEB’s fitness adjudications.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The migraine headaches condition was not profiled; nor was this condition implicated in the commander’s statement.  The migraine headaches were not judged to fail retention standards.  This condition was reviewed by the action officer and considered by the Board.  There was no indication from the record that this condition significantly interfered with satisfactory duty performance.  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 Migraine Headaches contended condition and, therefore, no additional disability ratings can be 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 seizure disorder condition, the Board unanimously recommends a disability rating of 20%, coded 8911 IAW VASRD §4.124a.  In the matter of the contended migraine headaches condition, the Board unanimously recommends no change from the PEB determinations as not unfitting.  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	
Seizure Disorder	8911	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131216, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXX 
President 
DoD Physical Disability Board of Review

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 XXXXXXXXXXXXXXXXXXXX, AR20150014352 (PD201400173)

1.  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 to modify the individual’s disability rating to 20% without recharacterization of the individual’s separation.  This decision is final.  

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.   

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						 XXXXXXXXXXXXXXXXXXXX						    			 Deputy Assistant Secretary of the Army
						     (Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA