RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00985
BRANCH OF SERVICE:  Army 	
DATE PLACED ON TDRL:  20050718	DATE REMOVED FROM TDRL:  20070927

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Chemical Specialist, medically separated from the Temporary Disability Retired List (TDRL) for “juvenile myoclonic  epilepsy”; with a disability rating of 20%.  

CI CONTENTION:  The CI contends his epilepsy condition continues to worsen.  The applicant’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 – 20050328/20070802	VARD - 20070426	
Condition	Code	Rating	Condition	Code	Rating
Proximate	
		TDRL
Placement	TDRL Removal			TDRL
Placement	TDRL
Removal	
Juvenile Myoclonic  Epilepsy	8999- 8911	40%	20%	Generalized Seizure Disorder	8914	NSC	40%	
RATING:  40% → 20%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

Juvenile Myoclonic Epilepsy.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), dated October 2004, the CI’s seizure disorder condition began in late 2000.  He was referred to neurology while stationed in Germany for "shaking rigors."  Initial neurological examination and electroencephalogram (EEG) was normal.  The CI reported the spells occurred any time of day and any place without triggers.  They occurred in his sleep.  There was no loss of bowel/bladder function, amnesia, or tongue biting.  He felt lightheaded and tired after an episode.  At times he dropped objects.  The events could occur up to 20 times per day.  The shaking spells had become more rigorous.  There were three episodes that included loss of consciousness, last episode 2001, and episodes that occurred while driving.  One witness said his eyes rolled back and his body shook.  The records were silent until 2004.  His wife observed the CI had frequent shaking events during sleep which lasted 3 seconds at a time and were described as stiffening of his arms and legs.  He was confused if awakened during these events and had no recollection the next morning.  Magnetic resonance imaging brain seizure protocol (a test that can identify structural substrates) was normal.  Repeat EEG examinations in January and February 2004 showed generalized epileptiform activity discharges, some associated with jerking. A diagnosis of generalized seizure disorder was rendered and CI was treated with Depakote and issued a profile to ensure 6-8 hours of sleep and prevent deployment.  He had reactions to medications but was currently taking anti-seizure medicine twice daily with some reduction in jerking at night and during the day.  Significant breakthrough myoclonus was noted.  Physical examination, including neurological, was normal.  A diagnosis of generalized seizure disorder, likely juvenile myoclonic epilepsy, was rendered.  The commander’s statement noted he was working in his Military Occupational Specialty doing a superb job, but periodically could not perform his duties due to the frequencies and unpredictability of his seizures.

At the VA Compensation and Pension (C&P) examination on 31 October 2005, performed 3 months after separation, the CI reported a total of 10-15 grand mal seizures, the last one occurring May 2005.  He did have loss of urinary control.  Medication had improved control of seizures.  Physical examination showed a normal neurological examination.  A diagnosis of generalized seizure disorder was rendered.  The CI did not appear for scheduled TDRL examinations in 2006.  

At the TDRL neurological examination, dated 28 March 2007, the CI reported his seizure frequency had declined from 3-4 per week to about 2 per month.  Sleep deprivation and stress were triggers.  He was compliant with treatment regimen that included two medications.  He noted marked fatigue and low energy since seizure onset and was placed on anti-epileptic drugs.  Neurological examination was normal.  The diagnosis remained juvenile myoclonic epilepsy, stable for over a year with good compliance.

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB assigned a 40% rating, coded 8910-8911 (epilepsy, grand mal and petit mal) upon TDRL placement while the VA initially rated the condition did not service-connect (NSC), coded 8914 (generalized seizure disorder.)  The Board noted that juvenile myoclonic epilepsy is coded 8911 per VASRD 4.124.and the criteria for rating epilepsy are based on the frequency of major or minor seizures.  The rating of 40% required at least one major seizure in the last 6 months or two in the past year; or averaging at least five to eight minor seizures weekly.  The clinical description of the CI’s seizures is consistent with VA criteria for a major seizure (generalized tonic-clonic with loss of consciousness) as well as criteria for a minor seizure (shaking spells, 3 seconds at a time, EEG consistent with myoclonic activity.)  Both were described between the CI’s initial presentation in 2000 and separation in 2005.  

According to the NARSUM examination 7 months prior to separation, the episodes occurred both day and night but the medication reduced the frequency.  Specific seizure frequency was not noted.  The commander noted the CI was doing a superb job and the psychiatric evaluation noted the CI had a good marriage and normal MSE.  The Board concluded the evidence as a whole best matched the 40% criteria.  The Board reviewed and concurred with the TDRL placement rating of 40% IAW VASRD §4.124a.  

At TDRL removal the PEB assigned a 20% rating under an analogous 8911code (Epilepsy, petit mal), citing “about 2 minor seizures per month.”  The VA assigned a 40% rating using the 8914 code (Epilepsy, psychomotor) based on the VA C&P examination 3 months after separation, noting a lack of clarity as to whether seizures were grand mal vs. petit mal.  The VA cited “daily shaking events” and there was no further reference to grand mal seizures.  The CI reported a marked response to antiepileptic medication, resulting in a decline in seizure frequency to two seizures per month during the February 2007 TDRL neurological examination.  A diagnosis of juvenile myoclonic epilepsy was rendered.  The Board notes that the available evidence of the TDRL neurological examination 7 months prior to removal from the TDRL supported a 20% rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for epilepsy.  

BOARD FINDINGS:  In the matter of juvenile myoclonic epilepsy and IAW VASRD §4.71a, the Board recommends no change in the PEB adjudication. There were no other conditions within the Board’s scope of review for consideration.  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 20140121, 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 XXXXXXXXXXXXXXXXXX, AR20160007458 (PD201400985)

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