RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXX	CASE:  PD-2014-01883
BRANCH OF SERVICE:  MARINE CORPS	BOARD DATE:  20140815
Separation Date:  20090331

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty Cpl/E-4 (1833/Amphibious Assault Vehicle Crewman) medically separated for a seizure disorder.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was placed on limited duty (LIMDU) and referred for a Medical Evaluation Board (MEB).  The record of evidence did not contain the MEB.  The Informal Physical Evaluation Board (IPEB) adjudicated the following three Category I conditions:  “other convulsions,” “possible pseudo-seizures” and “seizure disorder” as unfitting, existing prior to service (EPTS) and not aggravated by service.  In addition, the IPEB found “unspecified psychoactive substance abuse with Substance Abuse Rehabilitation Program [SARP] treatment completed” as a Category IV condition (“Conditions which does not constitute a physical disability”).  The IPEB recommended the CI be separated due to physical disability, without benefits.  The CI requested a reconsideration of the IPEB finding, specifically refuting the finding of EPTS for his seizure disorder.  The IPEB initially confirmed its original finding, but upon further reconsideration, changed its finding to unfit, ratable and compensable at 20% disabling, with no mention of EPTS or service aggravation.  The IPEB also re-categorized the conditions, calling the “seizure disorder” Category I, and annotating the “other convulsions” and “possible pseudo-seizures” conditions as Category II conditions (“Conditions that contribute to the unfitting condition”).  The Category IV condition remained as previously specified.  The CI withdrew his demand for a formal hearing and accepted the reconsidered IPEB findings.  The CI was then medically separated.

CI CONTENTION:  “Please consider all conditions”.

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 those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The rating for the unfitting seizure disorder as well as related Category II conditions, are addressed below.  The Board will also consider the Category IV condition regarding substance abuse, only as far as this condition can be found related to a compensable condition.  No additional conditions are within the DoDI 6040.44 defined purview of the Board.  Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Board for Correction of Naval Records.

RATING COMPARISON:

Service Recon IPEB – Dated 20090130	VA - (7 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Seizure Disorder	8910	20%	Seizure Disorder	8910	20%	20091102	
Other Convulsions	Category II					
Possible Pseudo-Seizures	Category II					
Psychoactive Substance Abuse	Category IV	No VA Entry	
Other x0 (Not in Scope)	Other x9	20091102	
Combined:  20%	Combined:  30%	
Derived from VA Rating Decision (VARD) dated 20090331 (most proximate to date of separation [DOS])
VARD 20120404 increased DC 8910 to 40%, effective 20120112

ANALYSIS SUMMARY:  The PEB coded the other convulsions condition and possible pseudo seizures as Category II conditions (“Conditions that contribute to the unfitting condition”) and will be discussed under the seizure disorder condition.

Seizure Disorder Condition.  On the morning of 26 July 2007 the CI had some nausea and vomiting and vertigo after breakfast and then had episodes of convulsing and felt drained.  He went to the Battalion Aid station and had a witnessed seizure with tonic clonic activity.  He had a normal CT scan and was started on medication for a seizure disorder (Keppra).  The CI underwent an electroencephalogram (measures brain wave activity which was normal).  The CI was placed on LIMDU on 30 July 2007 for seizure disorder until 30 January 2008 with restrictions of no deployment, no driving, no swimming and no operating a weapon or any activity that could result in a loss of consciousness with could result in injury to self or others.  The CI was followed by neurology and reported two unwitnessed “seizures” which the examiner deemed doubtful and although he considered them to probably be syncopal episodes, he was in agreement to stop the Keppra and start Topamax.  The CI experienced two episodes of unwitnessed loss of conscience and reported that he had a history of kidney stones and was having problems with Topamax.  The examiner agreed to change the medication to Depakote.  A magnetic resonance imaging of the brain revealed some temporal horn asymmetry, however otherwise normal imaging.  The medication Valium was added as a “whenever necessary” medication to the seizure disorder treatment regime.  A head CT scan was normal.  The commander’s statement noted that the CI could not operate any type of motor vehicle or participate in any type of physical training due to the danger of seizures and injuring himself or others.  The MEB narrative summary exam approximately 14 months prior to separation documented that the CI had at least one, possibly two episodes of changes in awareness consistent with a seizure disorder.  The neurological exam was normal with no further witnessed episodes of seizures.  The examiner suggested a possibility of pseudo seizures as well as a definite seizure disorder.  The CI was placed on a second LIMDU from 2 February 2008 to 4 August 2008 for seizure disorder with the same limitations as the previous LIMDU.  The MEB addendum from the Battalion Surgeon approximately 7 months prior to separation noted that based on the low Depakote blood level that the CI was non-compliant and was the likely cause of the breakthrough seizures.  The lack of medication compliance placed the CI at risk for further seizures.  The examiner reported that the CI experienced a change in awareness and thought that someone had broken into his home, called the police and was extremely agitated.  He was taken to the emergency room (ER) and there was concern about his use of Valium and other benzodiazepines.  A drug screen was done and was positive for cocaine.  The CI was extremely agitated at this visit about the drug test and possible consequences.  The blood test for Depakote was 19.6 (normal range 50-125) and this level indicated non-compliance with the medication.  The CI underwent treatment through the SARP program.  The CI was reevaluated and placed on a 6-month LIMDU and denied any other episodes of changes or awareness since 7 March 2008.  The VA Compensation and Pension exam approximately 7 months after separation documented that although the CI did not keep a seizure diary, he had 20 unwitnessed “attacks” in total averaging 2 each month.  He continued with functional impairments of an inability to drive or operate any machinery, an inability to swim or be left alone - for fear of a seizure.  The neurological exam showed physical findings of a somewhat slowed cognitive thought processing and delayed pupillary reflex.  The examiner documented that the medications for seizure control were Depakote and Valium.  The VA examiner diagnosed seizure disorder and possible pseudos-seizures.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB coded the seizure disorder condition as 8910 (epilepsy, grand mal) and rated at 20% “At least 1 major seizure in the last 2 years or at least two minor seizures in the last 6 months.”  The VA used the same coding and rating as the PEB.  The CI had one major seizure on 26 July 2007, which was witnessed and confirmed by the ER staff.  The MEB examiner documented that the CI had at least one, possibly two episodes of changes in awareness consistent with a seizure disorder.  The VA examiner diagnosed seizure disorder and possible pseudo-seizures.  The Board considered the 40% criteria of “At least 1 major seizure in the last 6 months or 2 in the last year; or averaging at least 5 to 8 minor seizures weekly”; however both the MEB neurologist and the VA examiner attributed the unwitnessed “attacks” as possible pseudo seizures.  Considering the totality of the evidence and mindful of the VA Schedule for Rating Disabilities (VASRD) §4.3 (reasonable doubt), members agreed that a disability rating of 20% for the seizure disorder condition was appropriately recommended in this case.

Contended PEB Conditions:  The contended conditions adjudicated as not unfitting by the PEB were other convulsions, possible pseudo seizures and psychoactive substance abuse.  The Board’s first charge with respect to these conditions is an assessment of the appropriateness of the PEB’s fitness adjudications.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard.  An established principle for fitness determinations is that they are performance-based and requires a preponderance of evidence to counter a PEB’s fitness adjudication.  The PEB adjudicated the other convulsions and possible pseudo seizures as related Category II conditions which were considered under the Category I unfitting condition.  The PEB adjudicated the psychoactive substance abuse condition as a Category IV condition (“Conditions which does not constitute a physical disability”).  None of these conditions were profiled; none were implicated in the commander’s statement; and, none were judged to fail retention standards.  All were reviewed by the action officer and considered by the Board.  There was no indication 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, therefore, no additional disability ratings can be recommended.

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.  In the matter of the seizure disorder condition and IAW VASRD §4.124, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended other convulsions, possible pseudo seizures and psychoactive substance abuse conditions, 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.

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 20140428, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

XXXXXXXXXXXXXX
President
Physical Disability Board of Review

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 8 Apr 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:

- XXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXX, former USMC 
- XXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXX, former USN

						  XXXXXXXXXXXXXX
	     				  Assistant General Counsel
						  (Manpower & Reserve Affairs)