RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	    CASE:  PD-2014-02447
BRANCH OF SERVICE:  Army	BOARD DATE:  20150603
SEPARATION DATE:  20050429

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Food Service Specialist) medically separated for a seizure disorder condition.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was issued a permanent P3 profile and referred for a Medical Evaluation Board (MEB).  The “epilepsy, generalized, tonic-clonic” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB (IPEB) adjudicated “seizure disorder” as unfitting, rated 10%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI submitted a written appeal to the IPEB, which affirmed their findings and ratings.  The CI then appealed to the Formal PEB, which he later withdrew this request and was medically separated.  

CI CONTENTION:  The CI requested that the Board review all of his conditions.  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 Military/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 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:  

IPEB – Dated 20050125	VA* - (~4 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Seizure Disorder	8910	10%	Residuals of Head Injury, Post Traumatic Seizures	8045-8910	40%	20050831	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 8 	
RATING:  10%	RATING:  50%	
*Derived from VA Rating Decision (VARD) dated 20051125 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

Seizure Disorder Condition.  The narrative summary (NARSUM) noted the CI was deployed in September 2003 and experienced a witnessed seizure.  According to the NARSUM the CI lost consciousness and fell from a truck.  Witnesses described tonic-clonic movements and the CI had no memory of the event.  He was transferred to a hospital and a lumbar puncture was normal.  Two additional seizure episodes were reportedly witnessed by bystanders, but no eye witness accounts were available.  The CI was medically evacuated from theater and at the receiving hospital physical exam was normal and the CI reported that after the additional two seizure events, he felt weakness on the left side, but denied altered mental status, sensory changes, problems with coordination, vision, or bowel or bladder incontinence.  No further seizure activity was observed and the CI was not placed on any medication and he was medically evacuated for further evaluation.  Magnetic resonance imaging of the brain on 15 October 2003 was normal and there was no seizure activity noted on electroencephalogram (EEG) performed 20 November 2003.  At a neurology evaluation on 14 November 2003 the CI reported jerking movements of his arms and legs during sleep.  The neurologist thought the CI may have periodic limb movement disorder and prescribed medication for that, which was a medication (benzodiazepine), used for some types of seizures, but not usually for generalized tonic-clonic seizures.  In December 2003, a primary care note indicated the medication was causing too much daytime sleepiness and the examiner advised the CI to stop it.  The CI was seen in the emergency room (ER) on 9 February 2004 for a seizure witnessed by his wife described as generalized tonic-clonic activity that lasted 1-2 minutes and was followed by a drowsy state, typical following seizures (post-ictal).  At the follow-up visit the neurologist indicated that the CI should take Dilantin (anti-epileptic medication) regularly and no further follow-up visits with neurology were necessary.  Another ER visit on 12 May 2004 documented that the CI’s wife brought him to the ER after a seizure and notes indicated the CI was sluggish and post-ictal and not able to answer questions.

At the MEB examination on 21 October 2004, 6 months before separation, the CI reported seizures.  The MEB physical exam noted a normal neurological exam and general physical exam.  The MEB NARSUM examiner noted five seizures since the original three episodes - one each in February and May 2004, two in July 2004, and one in September 2004.  An MEB addendum was written by the MEB NARSUM examiner on 4 February 2005 after the 25 January 2005 Informal PEB.  The MEB NARSUM examiner indicated that the initial seizure may have occurred after the fall from the truck due to head injury, but there was no way to substantiate whether the CI had a seizure and fell, or fell and had a seizure.  He also expressed his belief that the CI had done his best to be compliant with treatment and noted that variations in drug blood levels could be explained by other factors.  The PEB requested additional clarification of the types and number of seizures, and the associated blood levels of anti-epileptic medication.  The MEB NARSUM examiner indicated he had no further details he could provide and an additional MEB addendum dated 11 March 2005 was written by two authors, one a physician, the other not.  The addendum addressed the initial three seizures in the Fall of 2003 and concluded that the two seizures, about which there was not much information, were minor seizures.  The witnessed tonic-clonic seizures on 9 February 2004 and 12 May 2004 were noted to be due to lapses in taking medication as prescribed.  The authors noted the neurologist’s comment that the CI reported sleep deprivation prior to his first seizure and the normal EEG and concluded that this evidence indicated that the CI “has been having minor seizure activity.”   

The CI’s wife wrote a letter to the PEB and listed two seizures that she witnessed – the one in May 2004 that resulted in the ER visit noted above and one in July 2004.  She reported that in July while driving in the car the CI was restrained in a seat belt, but suddenly lurched forward and was shaking.  After several minutes she reported she helped him into the back seat to rest, but did not indicate any period of loss of consciousness (LOC) or altered mental status.  The CI wrote a letter to the PEB and reported those same seizures as well as others.  The CI reported a seizure episode in May 2004, during which a fellow soldier thought he looked sick and approached him and noted that he was clenching his jaw and fist, and an additional episode in July 2004.  The July 2004 seizure was corroborated in writing to the record by a family member who described it as a generalized tonic-clonic seizure and indicated that the CI was unresponsive for a time, and after he came to was incoherent and drowsy.  No mention of a seizure in September 2004 is made by the CI or his wife, though the NARSUM notes one.

At the VA Compensation and Pension (C&P) examination on 8 September 2005, 4 months after separation, the CI reported that while deployed a mortar round came in and he fell off his truck, struck his head, and had a seizure.  He reported treatment with anti-epileptic medications.  He reported “a few other seizures since that time, the last being in May 2005” and described the seizures “as loss of consciousness and shaking all over.”  The examiner noted there were no other neurological residuals than seizures.  The focused neurological exam was normal.  The diagnosis was “history of head injury, with seizure disorder, or post-traumatic epilepsy.”  

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB rated the seizure disorder condition 10%, coded 8910 (grand mal epilepsy) and the VA rated it 40%, 8045-8910 (grand mal epilepsy, residual of traumatic brain injury).  The PEB noted that there was questionable compliance with medication and that no therapeutic medication levels had been documented.  The Board first deliberated whether the question raised in the record regarding whether the CI had a seizure disorder or developed post-traumatic seizures had any implications for its rating recommendations.  The PEB adjudicated a single unfitting condition of seizure disorder and regardless of the etiology of the seizure disorder the VASRD 8910 rating criteria are applicable.  Therefore, the Board concluded that the order of occurrence of the reported head injury and seizures was not a factor in its rating recommendation.

The Board determined that the evidence in record supports that the CI was diagnosed with major seizures, defined by the VASRD as “…characterized by the generalized tonic-clonic convulsion with unconsciousness.”  The major seizures brought the CI to medical attention.  However, the evidence suggests the CI was also having some partial seizures, or minor seizures as noted by the second MEB addendum, defined by the VASRD as “…consists of a brief interruption in consciousness or conscious control associated with staring or rhythmic blinking of the eyes or nodding of the head (‘pure’ petit mal), or sudden jerking movements of the arms, trunk, or head (myoclonic type) or sudden loss of postural control (akinetic type).”  For rating purposes, VASRD 8910 criteria are based upon the number and frequency of major or minor seizures in the past 1-2 years and VASRD rules for rating seizures state “in the presence of major and minor seizures, rate the predominate type.”  Based on the evidence in record the Board determined the predominate type of seizure in this case was major seizures.  The Board noted that VASRD §4.121 states that the frequency of seizures should be ascertained under the ordinary conditions of life and also that “consistent lay testimony emphasizing convulsive and immediate post-convulsive characteristics may be accepted.”  Thus, confining attention to the period 29 April 2004 to 29 April 2005, the date of separation, there were two witnessed major seizures documented in the record, one brought the CI to the ER in May 2004 and one in July 2004 was witnessed by a family member and documented to the record by both the family member and the CI.  The account by the CI’s wife of a second seizure in July does not indicate any LOC or altered mental status.  The MEB NARSUM examiner also noted additional seizure activity in September 2004, but that is not corroborated anywhere else in the record, even by the CI.  At the post-separation C&P exam the CI reported his last seizure occurred sometime in May 2005, but no further details were documented.  The Board concluded that the evidence in record provides strong support for a 40% rating according to 8910 criteria for “At least 1 major seizure in the last 6 months or 2 in the last year.”  The Board acknowledges the PEB’s position with regards to non-compliance with seizure medication; however the VASRD does not consider compliance in its rating criteria.  The Board, therefore, agreed to disregard the influence of non-compliance for its permanent rating recommendation.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 40% for the seizure disorder 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 disorder condition, the Board unanimously recommends a disability rating of 40%, coded 8910 IAW VASRD §4.124a.  There were no other conditions within the Board’s scope of review for consideration.  

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:  

CONDITION	VASRD CODE	RATING	
Seizure Disorder Condition	8910	40%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140509, 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, AR20160000295 (PD201402447)

1.  Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 40% effective the date of the individual’s original medical separation for disability with severance pay.  

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:

	a.  Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay.

	b.  Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 40% effective the date of the original medical separation for disability with severance pay.

	d.  Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.

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:
						      					
Enclosure
					
CF: 
(  ) DoD PDBR
(  ) DVA