RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00676
BRANCH OF SERVICE:  NAVY	SEPARATION DATE:  20020831

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (C-130T Loadmaster) medically separated for seizure condition.  The condition could not be adequately rehabilitated to meet the physical requirements of his Rating or satisfy physical fitness standards.  He was placed on limited duty (LIMDU) and referred for a Medical Evaluation Board (MEB).  Seizure disorder was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other condition was submitted by the MEB.  The Informal PEB adjudicated generalized convulsive seizure disorder as unfitting, rated 20% with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  Within 12 months of his discharge, the VA rated him 100% for the same disability that resulted in his discharge.  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 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 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:

IPEB – Dated 20060424	VA* - (~1 Mos. Pre -Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Generalized Convulsive Seizure Disorder	8910	20%	Epilepsy with Generalized Tonic-Clonic Seizures	8910	10%	20060717	
Other MEB/PEB Conditions x 1 (Not In Scope)	Other x 3(Not In Scope)	
RATING:  20%	RATING:  20%	
*Derived from VA Rating Decision (VARD) dated 20070501 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:

Generalized Convulsive Seizure Disorder.  The record shows that on 17 October 2004, the CI had a witnessed generalized seizure with loss of consciousness.  A computer tomography scan and magnetic resonance imaging of the head were normal.  His evaluation for a cause was negative, but an electroencephalogram (EEG) was abnormal and consistent with a seizure disorder.  He did report that he had been struck on the head by an aircraft part with a secondary laceration 2 weeks earlier, but no loss of consciousness or confusion.  He was begun on an anti-convulsant medication and did well initially, but had a break through seizure on 25 January 2005.  Again, this was a witnessed seizure.  His medication dosage was increased and he was placed on LIMDU for stabilization pending medical discharge.  A second EEG on 3 February 2005 was also abnormal.  On 21 July 2005, he had been seizure free for 6 months and was cleared to drive.  The MEB narrative summary (NARSUM) was dated 15 March 2006.  It noted that the CI had been seizure free since the second seizure on 25 January 2005, over one year earlier.  It also noted that there was no history of trauma.  His neurological examination was normal.  He was referred for PEB due to the generalized convulsive disorder.  The commander’s assessment dated 18 March 2006 noted that the CI continued to excel in his duty assignments despite the limitations placed on him secondary to the seizure disorder diagnosis.  

At the VA Compensation and Pension (C&P) examination performed on 17 July 2006, a month before separation, the CI reported that he had headaches after his seizures.  His neurological examination was normal.  The CI was medically separated on 31 August 2006.  The next record in evidence is a primary care note dated 7 December 2006.  The CI reported that he had been in a car accident on 8 October 2006 which was secondary to a seizure.  His examination was normal and he was advised not to drive due to the reported break through seizure.  There were no records in evidence to support the statements that he had a seizure or a car accident, which pre-dated this visit.

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB and VA both coded the seizure disorder 8910 (Grand mal epilepsy), but rated it 20% and 10%, respectively.  However, on the 1 October 2007 VA rating decision (VARD), the VA increased the rating to 20% retroactive to separation.  The criteria for a 20% rating are at least one major seizure in the last 2 years; or at least two minor seizures in the last 6 months.  For a higher 40% rating, the criteria are at least 1 major seizure in the last 6 months or 2 in the last year; or averaging at least five to eight minor seizures weekly.  The Board noted that the CI had the index seizure in October 2004 and a breakthrough seizure in Jan 2005, over 17 months prior to separation.  There was a reported third seizure in October 2006, post-separation.  However, this was unwitnessed and no documentation from the time of the reported seizure is in evidence.  The probative value of this reported seizure for rating purposes is therefore reduced.  The Board found no route to a rating higher than the 20% adjudicated by the PEB.  It did note that the CI contended that the VA raised his rating to 100% in 2007 within 12 months of separation.  Review of the records shows that the rating for the seizure condition was increased from 10% to 20% on the VARD dated 1 October 2007, but not to 100% until the VARD dated 8 May 2014, effective 11 June 2013.  The CI was rated at 100% for a traumatic brain injury (TBI) effective 31 August 2006 (the date of separation) on the VARD dated 1 October 2007.  Neither the MEB nor PEB considered a TBI condition.  TBI is, therefore, outside of the scope of the Board and remains in the purview of the BCNR.  The Board notes for the record that the commander supported retention and stated that the CI excelled in his duties; this is not consistent with the effects from an unfitting TBI at separation.  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 seizure condition.

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 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 20131223 w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW
               BOARDS 

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS
 
Ref:   (a) DoDI 6040.44
       (b) CORB ltr dtd 22 Dec 15

      In accordance with reference (a), I have reviewed the cases forwarded by reference (b), and, for the reasons provided in their forwarding memorandums, approve the recommendations of the PDBR that the following individual’s records not be corrected to reflect a change in either characterization of separation or in the disability rating previously assigned by the Department of the Navy’s Physical Evaluation Board:

- XXXXXXXXXXXXXXXXXXXX former USN
- XXXXXXXXXXXXXXXXXXXX former USN
- XXXXXXXXXXXXXXXXXXXX former USN  
- XXXXXXXXXXXXXXXXXXXX former USN
- XXXXXXXXXXXXXXXXXXXX former USN
- XXXXXXXXXXXXXXXXXXXX former USN 
- XXXXXXXXXXXXXXXXXXXX former USN