RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXX		 CASE:  PD-2014-01105
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20080618

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E5, M1 Abrams Tank System Maintainer, medically separated for “seizure disorder” and “headaches,” rated 20% and 0%, respectively, with a combined disability rating of 20%.  

CI CONTENTION:  The CI was given a higher rating by the Veterans Administration.  His 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 PEB to be unfitting for continued military service and when specifically requested by the CI, those conditions identified by the Physical Evaluation Board (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 - 20080516	VARD - 20081113	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Seizure Disorder	8914	20%	Partial Complex Seizure Disorder Status Post TBI	8999-8912	10%	20080714	
Headaches	8100	0%	S/P Concussion Syndrome/TBI with Residual Migraines	8100	0%	20080714	
Mild OSA Requiring CPAP	Not Unfitting	Obstructive Sleep Apnea	6847	50%	20080714	
GERD with Hiatal Hernia		GERD 	7399-7346	0%	20080714	
Prediabetes		No VA Placement	
Liver Hemangioma		Benign…Hemangioma	7299-7344	0%	20080714	
Varicocele		Right Orchialgia	7599-7525	NSC	20080714	
Low Back Pain		Lumbar Strain…	5237	10%	20080714	
Intermittent Hand Cramps Without Paresthesias		CTS Right Hand (Major)	8599-8513	20%	20080714	
		CTS Left Hand	8515	10%	20080714	
Adjustment Disorder	Not Compensable	PTSD…	9411	30%	20080707	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  90%	

ANALYSIS SUMMARY:  

Headaches Condition.  The first record in evidence for treatment of a migraine condition is the post-deployment survey dated 24 February 2006, 2 weeks after return from Theater.  The CI reported that he was seen twice in sick call and endorsed headaches, feeling tired after sleeping, and “dizziness, fainting, light headedness.”  He denied ringing in his ears (tinnitus), feeling in danger of being killed and also denied all the mental health screening questions.  The examiner noted that he had developed incapacitating headaches, but did not document a history of head trauma.  The CI also denied a history of head trauma (while deployed) when seen in neurology on 3 March 2006, a week later.  At that visit, a history of a skull fracture 11 years earlier was noted as was a history of working with metal.  He also endorsed occasional vision loss.  A sinus series to look for metal fragments was negative for a foreign body as was magnetic resonance imaging (MRI) of the brain and vascular structures.  He was begun on medications to prevent headaches and also to abort a break-through headache.  When seen in primary care on 20 September 2006, he noted that the prophylactic medication was no longer working.  He endorsed light sensitivity (photophobia) with the migraine, but denied visual problems.  At this visit, he reported a prior history of surgery on his head (not specified) and of a prior collapsed lung.  He was seen by a different neurologist on 30 October 2006 and his medication regimen changed.  The poor control was attributed to probable poor compliance (drowsiness was reported).  The neurological examination was normal including cognitive function.  He was then seen by a third neurologist on 13 February 2007 and reported good control on the new medications with rare prolonged headaches.  He denied a history of a mood disorder or of a seizure disorder.  His neurological examination, including a cognitive examination, was normal.  He was next seen by a neurologist on 5 March 2007 and again had a normal neurological examination, including cognition.  He reported one headache lasting 6 days and his prophylactic medication dosage was increased.  The next follow-up was on 14 May 2007.  He reported improvement on the increased dosage, but that running could precipitate headaches.  His examination remained normal and his prophylactic medication dosage was again increased.  The CI also endorsed sleep disturbances and a sleep study on 2 July 2007 showed obstructive sleep apnea (OSA).  In a neurology evaluation on 18 September 2007, he reported intractable headaches and the loss of 2 duty days a month from them.  

The CI reported, at the 28 August 2007 Soldier Readiness Program Site (SRP) evaluation, aggravation of his headaches following head trauma while deployed.  In an SRP follow-up on 11 September 2007 for his (self-reported) TBI, it was noted that he had not yet been evaluated by neurology (in fact, he had seen multiple times in neurology and by 3 different neurologists at this time.  He was then seen by a fourth neurologist on 18 September 2007 and his prophylactic regimen changed.  As noted above, neuropsychological testing on 15 October 2007 suggested over-reporting of symptoms.  His prophylactic medication dosage was increased in neurology on 19 October 2007.  In internal medicine on 21 November 2007, he reported that his headaches were frontal and always started at the area of his healed scar.  He had an injection in the area of the scar with improvement in his symptoms.  He also began acupuncture and reported improvement in his headaches at a follow-up on 6 March 2008.  An SRC [survival recovery center] note dated 4 April 2008 recorded that the CI had marked improvement in his headache control.  He still had headaches about once a week, but could abort them with Lidoderm patches or other medications.  He reported being unable to function about 6 hours once a week.  The narrative summary (NARSUM) was dated 21 April 2008.  The CI reported that his migraines began after he hit his head (while deployed).  An IED went off within a few hundred yards and he hit his head on a gun without loss of consciousness (LOC).  He then developed headaches a few days later.  He reported “hard headaches” that did not respond to an abortant.  For these, he took an analgesic and then slept for 5-6 hours.  This occurred 2-3 times a month.  However, 2 days later on 23 April 2008, he reported resolution of his headaches with acupuncture and being pain free for 3-4 days after treatment.  The commander, on 5 May 2008, did not comment on the headaches at all.  In fact, he noted that the CI had “never been late or missed formation and had never missed an appointment” and was “proactive in reporting to his squad leader in a timely manner.”  A SRC note dated 27 May 2008 documented fairly good control of his headaches.  The Board reviewed the record and did not find evidence that the CI had been placed on quarters for headaches in the year prior to separation.  At the VA Compensation and Pension (C&P) examination performed approximately on 14 July 2008, a month after separation, the CI reported post-concussive headaches after a 500-pound bomb exploded.  His head went forward, then backward, and then sideways.  He reported sensitivity to light and sound with his headaches.  His neurological examination was normal.  The Board noted that this history is not consistent with contemporaneous records.  Prostrating attacks were not recorded.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB and VA both rated the headache condition at 0%, coded 8100.  The PEB noted that the headaches were partially controlled with medications and were prostrating less than once every 2 months the previous few months.  The VA examiner noted that prostrating attacks were not recorded.  The VA attributed the migraines to a post-concussive syndrome/TBI.  The history cited by the VA C&P examiner for a TBI while deployed is not supported by the contemporaneous records.  The PEB specifically noted that the post-deployment survey did not support a TBI while deployed; the CI concurred with the PEB assessment and that an initial neurology evaluation documented no recent head trauma.  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 the migraine condition.  

Seizure Disorder Condition.  The record shows that the CI sustained significant injuries pre-service when struck by a car and does not support a TBI while deployed.  In internal medicine on 24 October 2007, he reported that he was struck by a drunk driver and thrown off of a bridge at age 14.  He was not certain if he had LOC, but was hospitalized multiple times for an infected scalp laceration.  He reported intermittent headaches afterwards, which worsened after he was struck in the area of his previous scar by a weapon after the IED (explosion).  However, he specifically denied a history of convulsions, fainting, a change in thought patterns, staring spells, memory lapses or loss, speech difficulties, etc.  He was noted to be markedly obese, but had a normal neurological examination.  Two days later though, on 26 October 2007, he endorsed feeling dizzy, poor concentration, forgetfulness, difficulty with decision making, slow thinking, and fatigue.  A repeat sleep study on 7 November 2007, to titrate a CPAP [continuous positive airway pressure] device, showed an abnormality which was thought to be a seizure (without expected changes afterwards) or an artifact.  At a psychology evaluation on 21 December 2007, the CI’s wife reported that he was a sleep walker and had been in an accident.  The sleep study was repeated on 26 December 2007 with additional leads to detect possible seizure activity; none was present.  The first record in evidence for a possible seizure is on 7 January 2008.  He reported that there was a “suspicious finding” on his sleep study and that he had a seizure the prior week reporting “sitting on the couch with wife and woke up with them standing over me all scared.”  He was not able to provide further details.  He did not seek evaluation at the time.  He was then seen in neurology on 11 January 2008 and his wife reported that, 2 weeks previously, she had heard a thud and found him on the floor.  He was confused for about 15 minutes.  She also noted that on 31 December 2007, he was watching a movie with her and sipping a coke.  He choked briefly and then stared straight ahead, unresponsive, for a few minutes and was then confused for 5 minutes.  He complained of a severe headache and went to bed.  This was thought to be consistent with complex partial seizure disorder and he was begun on an anti-convulsant medication.  At a neurology follow-up on 30 January 2008, he reported that he had a poor night’s sleep the previous day and when unlocking his car, had lost consciousness and woke up on the ground with facial abrasions.  This was not witnessed nor had there been other witnessed events since his last visit (on 11 January 2008).  That same day, he reported that he had a seizure at work the prior week.  Facial abrasions were present.  He was advised that his unit needed to provide him transportation to and from work since he could not drive and his wife had childcare and work responsibilities herself.  He was tested for blood levels of his anti-convulsant on 31 January 2008.  As recorded in a neurology evaluation (on 13 February 2008), these were zero indicating that he was not taking the medication.  On 12 February 2008, the CI reported that he had recurrent grand mal (major) and petit mal (minor) seizures which were improved on medications.  He could no longer drive or take a shower without someone else present.  He displayed slurred speech (not previously recorded).  The next day, he reported one event when he woke up on the floor after getting up from bed to go to the bathroom.  As already noted, on 14 February 2008, he reported the IED incident with anterograde amnesia and chronic headache since.  He endorsed dizziness, fainting with seizures, and memory impairment.  He also noted that his seizure activity was improved per his girlfriend.  (Note, the CI was seen by 2 different clinicians that day).  On 20 February 2008, he reported that he had been told by his wife that he had a petit mal seizure the previous day (19 February 2008).  On 26 February 2008, he reported two recent seizures.  His wife had found him standing outside smoking while the dog was barking on 15 February and then on 24 February, he was talking with a friend when his eyes rolled back and he was unresponsive for a few minutes.  His wife thought that, in retrospect, these had been present for a year.  In a neurology evaluation on 17 March 2008, he reported no seizure events or fainting episodes.  On 4 April 2008, he reported his first breakthrough seizure (petit mal) in 2 months on 28 March 2008; this was associated with high stress.  The NARSUM was dated 21 April 2008, 2 months prior to separation.  The CI reported that his shop foreman had noted that the CI was just staring at him in early 2006; this was also noted by his wife.  He reported episodes as often as 3 times a week, but that these had improved on medications.  He reported that the episodes lasted about 5 minutes followed by 15 minutes of confusion.  He denied generalized activity or incontinence.  The commander, on 5 May 2008, noted that the CI could not drive secondary to the seizure diagnosis.  However, the CI was never late for or missed a formation or appointment.  He had been a “great soldier” in the WTU.  No comment was made on any impact at duty from either his headache or seizure conditions.  On 12 May 2008, he reported a blackout witnessed by his wife.  

At the VA C&P examination performed a month after separation, the CI reported the seizure disorder following the IED exposure, a 500-pound bomb.  The examiner noted that throughout the examination, there were no neurological abnormalities.  He was noted to have a complex partial seizure disorder which was controlled on medications.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the seizure condition at 20%, coded 8914 (psychomotor), for seizures occurring about once a month.  The PEB noted that the medical records did not support a history of a TBI.  The VA rated the CI at 10%, coded 8999-8912 (analogous to Jacksonian and focal epilepsy), for a partial complex seizure disorder status post TBI, noting the use of continuous medications.  The history of seizures was not reported until the CI was in the MEB process and after he had been told that a sleep study showed an abnormality (not seen on a more detailed follow-up study).  There was no record found otherwise that these were observed by medical personnel, co-workers, or independent third parties.  The Board also noted that when precise dates were provided, these dates were inconsistent between different office visits.  Regardless, the evidence does not support the presence of a major seizure disorder or of 5-8 minor seizures (weekly), the criteria for a higher (40%) rating.  The Board found no route to a rating higher than the 20% adjudicated by the PEB.  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 the migraine condition.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that mild OSA, GERD with hiatal hernia, pre-diabetes, liver hemangioma, varicocele, low back pain (LBP), and intermittent hand cramps without paresthesia not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The OSA was specifically addressed by the PEB as not unfitting as electrical power was typically available and the OSA was controlled with CPAP.  The remaining conditions were not profiled, implicated in the commander’s statement, or judged to fail retention standards.  All were reviewed and considered by the Board.  There was no performance based evidence from the record that any of these conditions 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 any of the contended conditions and so no additional disability ratings are recommended.  The adjustment disorder was noted to be non-compensable (IAW DoDI 1332.38 E5.1.2.9.4.)  In addition, the Board noted that it was found to meet retention standards and that the CI carried a final S1 profile.  It also is not recommended as an unfitting condition.  The Board also noted for the record that while the MEB and PEB both considered the low frequency hearing loss, it was not specifically contested by the CI and is therefore outside the scope of the Board for consideration.  

BOARD FINDINGS:  In the matter of the migraine headache and complex partial seizure disorder conditions and IAW VASRD §4.124a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended OSA, GERD, pre-diabetes, liver hemangioma, varicocele, LBP, and intermittent hand cramps, 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.  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 20140228, with attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MEMORANDUM FOR Commander, US Army Physical Disability Agency (AHRC-00), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXXXXXXX AR20160005810  (PD201401105)

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
( ) OVA