RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00687
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20070115

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E5, Helicopter Mechanic, medically separated for “seizure disorder,” with a disability rating of 10%. 

CI CONTENTION:  The applicant contends his VA rating was higher.  The CI’s complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  It is limited to those conditions determined by the Physical Evaluation Board (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 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 PEB – 20061115	VARD - 20070430	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Seizure Disorder	8045-8910	10%	Status Post Concussion with Partial Complex Seizure Disorder	8910	20%	20070110	
			Status Post Concussion with Short Term Memory Loss	9304-8045	10%		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Seizure Disorder.  The record showed that the CI was first evaluated for syncope (fainting) on 2 October 2000.  The first episode was after an immunization and the next two while standing in line.  Then, on 30 November 2000, he was unresponsive in class and found to be staring straight ahead.  He reported a history of a fall from 20 feet, but head trauma or loss of consciousness (LOC) was not recorded in the initial records.  He was begun on an anti-convulsant.  He ran out of medications and was then seen for another spell on 18 January 2001.  It was noted that he should meet a Medical Evaluation Board (MEB), but the record does not show that this was accomplished.  Brain magnetic imaging conducted on 16 October 2001 showed non-specific findings in the mid-brain on the right.  On 16 January 2002, the CI was the restrained driver in a motor vehicle accident (MVA) in a single vehicle accident.  The car slid and partially rolled, but the airbag did not deploy and the passenger compartment remained intact.  He denied seizure activity and LOC was not recorded.  The record then falls silent for seizure activity until 29 May 2006.  He was the restrained driver and rear-ended another vehicle.  He reported feeling “weird” prior to the accident, but did not recall the accident itself.  His examination was unremarkable other than an abrasion to the right cheek; LOC was not recorded.  An electro-encephalogram (EEG) was done the next day and suggestive of seizure activity.  He was diagnosed with a partial complex seizure disorder and begun on an anti-convulsant.  There was a fatality in the car he struck and he was command directed to be seen in psychology.  The next day, on 31 May 2006, he reported no significant distress from the incident.  On 19 July 2006, in neurology, he reported a total of 3 seizures since 2001.  His neurological examination was normal including cognition.  He was thought to possibly have a complex partial seizure.  He was subsequently entered into the MEB process.  At the MEB examination on 25 July 2006, the CI reported the fall in October 2006 with LOC, but did not report memory issues or problems with cognition.  The commander noted in his assessment dated 31 July 2006, 2 months after the MVA and 6 months prior to separation, that the performance of the CI was outstanding and the “model of excellent work.”  A neurology evaluation on 4 August 2006 documented no additional seizures since May 2006 and a normal neurological examination including cognitive function.  The narrative summary (NARSUM) was dated 20 August 2006 and noted a history of three seizures with the last in May 2006 (above).  He was determined to fail retention standards secondary to epilepsy.  The neurology addendum to the NARSUM dictated by the treating neurologist and dated 3 October 2006, 3 months prior to separation.  It also noted that the CI had a total of three seizures with the last in May 2006.  However, he also noted that the CI had two seizures on medications in July and August, thought to be secondary to sub-therapeutic blood levels of medications.  The Board could not reconcile the inconsistency in these statements or with the previous history in the records.  In addition, the nature of the episodes was not described.  The neurological examination including cognitive function was recorded as normal.  

At the VA Compensation and Pension (C&P) exam performed a week before separation, the CI reported an initial head injury with LOC.  Subsequently, he had several syncopal episodes which were thought to possibly be seizure activity.  In May 2006, while on medications, he had another seizure with LOC.  In addition, the CI and his wife reported an increase in seizures and poor memory since the MVA in May 2006.  The Board observed that this history is not completely consistent with contemporaneous records.  On examination, he demonstrated poor memory and mental processing.  His neurological examination was otherwise unremarkable.  On 24 August 2007, in primary care, the CI reported that his seizures were now 2-4 times a month and associated with incontinence.  He also had periods of “zoning out.”  These were not further characterized and it was not recorded that any were witnessed by medical personnel.  On 5 November 2007, a repeat EEG showed non-specific slowing, indicative of diffuse cerebral dysfunction which could have been secondary to his medications.  On 13 December 2007, he reported seven seizures a month which were witnessed by his wife.  A month later, on 22 January 2008, he reported two seizures per month.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the seizure disorder at 10%, coded 8045 (residuals of traumatic brain injury) and 8910 (grand mal epilepsy).  The VA rated the CI at 20% for a partial complex seizure disorder, coded 8910, but also rated the CI at 10% for short term memory loss after a concussion, coded 9304 (dementia due to head trauma) and 8045.  The Board first considered the seizure disorder.  The frequency of seizures prior to separation supports a 20% rating if the spell in May 2006 was a major seizure.  The code 8910 used by the PEB supports this determination; a minor seizure is coded 8911.  It is not clear if the CI did have two additional seizures in July/August 2006.  Most of the record indicated that these were not present; however, even if present, these would not support a rating higher than 20%.  The Board then considered the frequency.  VASRD §4.121 allows the use of lay testimony, but notes “competent, consistent lay testimony emphasizing convulsive and immediate post-convulsive characteristics may be accepted.”  The frequency and description of the spells was variable in the different clinical encounters.  In addition, a video EEG monitor for a total of 16 days done 2 years after separation did not show any seizure activity.  The CI was reporting three spells per month at that time and had reported as many as 7/month.  While a normal study does not exclude a seizure disorder, it does not support the frequency of seizures reported by the CI following separation.  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.  

The Board also noted that the CI had an implied contention for the other VA service connected conditions.  Of these, the memory loss/cognitive impairment secondary to the closed head injury is in the Scope of the Board.  Although neither the PEB nor the MEB specifically addressed cognitive issues, a closed head injury was cited by the PEB.  The Board noted that the CI was found to have normal cognition and memory on multiple neurology evaluations after the May 2006 MVA, which the CI cited as the onset of his cognitive impairment, and prior to separation.  The commander noted that the CI was an excellent performer in the assessment dated 2 months after the MVA and did not note any mental impairment. The CI endorsed the head trauma in October 2000, but did not report any trauma from the MVA on the MEB history dated 25 July 2006 and did not endorse memory or cognitive issues at all at this encounter.  The first report of memory or cognitive issues found in the record is in the VA C&P done 5 days prior to separation.  The CI reported the onset as after the May 2006 MVA.  This is not supported by the record as detailed above.  The evidence does not support the presence of a post-concussive memory impairment at separation.  The Board concluded therefore that this condition could not be recommended for additional disability rating.  

BOARD FINDINGS:  In the matter of the seizure disorder condition, the Board unanimously recommends a disability rating of 20%, coded 8910 IAW VASRD §4.124a.  In the matter of the contended post concussive memory loss condition, the Board unanimously agrees that it cannot recommend it for additional disability rating.  There were no other conditions within the Board’s scope of review for consideration.  The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:  

CONDITION	VASRD CODE	RATING	
Seizure Disorder	8910	20%	
RATING	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140129, 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 XXXXXXXXXXXXXXXXXX, AR20160006644 (PD201400687)

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, accept the Board’s recommendation to modify the individual’s disability rating to 20% without re-characterization 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:

CF: 
(  ) DoD PDBR
(  ) DVA