RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00512
BRANCH OF SERVICE:  Army	DATE ON TDRL:  20050329
	DAte off TDRL:  20070409

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated Reserve E-4 (Administrative Specialist) medically separated for as seizure disorder.  The condition could not be adequately rehabilitated to meet the requirements of her Military Occupational Specialty (MOS).  She was issued a permanent P3U2 profile and referred for a Medical Evaluation Board (MEB).  The “seizure disorder” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition (subluxation left shoulder) for PEB adjudication.  The Informal PEB (IPEB) adjudicated the seizure disorder as unfitting, rated 40%.  The CI made no appeals and was placed on the Temporary Disability Retired List (TDRL).  Approximately 2 years later, the IPEB adjudicated the seizure condition as unfitting, rated 10%.  The CI appealed to the Formal PEB (FPEB), which affirmed the IPEB findings and rating, and was medically separated.

CI CONTENTION:  Her seizure disorder condition continues to worsen and negatively impact her daily activities. Also, she has a migraine headache condition.  Her 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/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:  

Final PEB – 20070409	VA Rating Decision1 - 20060216	
TDRL Placement – 20050329	Code	Rating	Condition	Code	Rating
Proximate	
Condition		TDRL
Placement	TDRL Removal			TDRL2
Placement	TDRL3 Removal	
Seizure Disorder	8910	40%	10%	Seizure Disorder, Grand Mal	8999-8910	20%	20%	
Other x 1 (Not in Scope)	Other x 3	
RATING:  40% → 10%	RATING:  20%	
1. Most proximate to TDRL Placement
2. Rating derived from C&P exam dated 20051003, ~6 mos. post-TDRL placement 
3. Rating derived from C&P exam dated 20081113, ~16 mos. post-TDRL removal 

ANALYSIS SUMMARY:  

Seizure Disorder.  The CI initially had two seizures in 2003. An electroencephalogram (EEG) performed on 22 April 2003 was demonstrative cortical hypersensitivity.  The CI was started on anti-seizure medication and had two addition seizures in September 2003 and May 2004.  The narrative summary (NARSUM) examiner noted that the CI continued to have convulsive activity with impairment of consciousness despite treatment with therapeutic doses of Tegretol (anti-seizure medication).  The physical examination was normal.  At the VA Compensation and Pension (C&P) examination performed 6 months after TDRL placement, the CI reported the she remained seizure free since June 2004.  The neurologic examination was normal.  At a neurology follow-up dated 30 November 2006 the examiner noted two normal EEGs (September 2004 and November 2006).  

The Board directed its attention to its rating recommendation based on the above evidence.  At TDRL placement the PEB rated the seizure condition at 40%, coded 8910 (Epilepsy, grand mal).  The VA rated the condition at 20%, coded 8999-8910.  The Board considered whether the evidence supported a higher than 40% rating at the time of TDRL placement.  There was no evidence of seizure activity to support a higher rating at TDRL placement.  At TRDL removal the PEB rated the seizure disorder at 10% and VA continued the 20% rating.  The Board considered whether the evidence support a higher than 10% at the time of TDRL removal.  The available treatment records documented the absence of seizures since June 2004.  Considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), members agreed Board consensus was that a disability rating of 10% for the seizure condition was appropriately recommended at TDRL removal.  The Board concluded therefore that this condition could not be recommended for additional disability rating.  

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.  Thle 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 condition and IAW VASRD §4.124a, the Board unanimously recommends no change in the PEB adjudication.  There were no other conditions within the Board’s scope of review for consideration.  

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

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140113, with attachments
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 XXXXXXXXXXXXXXXXXXXXXXXXX, AR20160000246 (PD201400512)

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:

Enclosure

CF: 
(  ) DoD PDBR
(  ) DVA