RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02495
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20060821

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E5, M1 Armor Crewman, medically separated for “partial complex (minor) seizures” rated 10%.  Cognitive disorder was determined to exist prior to service (EPTS) and not rated.

CI CONTENTION:  The CI contends his conditions should be rated at 60% (same as VA) for his unfitting conditions.  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 - 20060525	VARD - 20070306	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Partial Complex (Minor) Seizures...	8045-8914	10%	Post-Concussion Syndrome, Complex Partial Epilepsy	8045-8914	10%	20061213	
Cognitive Disorder with Impaired Memory...	9310	EPTS	Cognitive Disorder, Anxiety Disorder, and Major Depression	9327-9440	50%	20061213	
Anxiety Disorder with Depressed Mood	Not Unfitting					
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Partial Complex (Minor) Seizures.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s seizure condition began in September 2003 after he was exposed to an explosion.  The CI was sleeping in his cot when an explosion went off approximately 15 feet away.  He did not lose consciousness but noted dizziness and spots in his vision.  A TBI was not diagnosed, although he reportedly indicated that his memory loss had increased since the blast.  The CI had noted that since high school he had always had a poor memory, but he had noticed an increase in memory problems shortly after his deployment to Iraq in April 2003 (months before the blast).  Several days after the explosion, the CI began to experience “blackouts” without loss of consciousness (LOC).  He could hear but could not respond to anyone around him.  He remained with his unit in Iraq for the remainder of his tour.  After re-deploying to US in March 2004, he was evaluated due to his blackouts that were occurring twice a week.  In June 2004, the CI underwent a brain MRI and EEG studies.  The MRI was normal; however the EEG was consistent with temporal lobe seizures.  Based on the EEG findings, the CI was started on antiepileptic medications and was diagnosed with partial complex seizures.  Follow-up neurology visit in October 2004 noted that he had only one seizure since July 2004.  At the last follow-up neurology visit in January 2006, the CI denied having any further seizures or blackouts since January 2005.  He noted that he continued to feel some sedation and confusion on his antiepileptic medication, but otherwise he tolerated the medication well.

At the NARSUM dated 26 April 2006, 4 months before separation, the CI indicated that he has not had a seizure or blackout for over a year.  The examiner opined that most of the CI’s symptoms (cognitive, mood, sleep issues) were associated with his psychiatric medications; however, it appeared that Effexor (antidepressant) was the only psychiatric medication the CI was taking.  The CI endorsed that his condition affected his duty performance due to decreased alertness and limited memory while on medications for his seizure disorder.  The diagnosis of partial complex seizure disorder was opined to fail retention standards IAW AR 40-501, Chapter 3-30 i. (1).  It was also noted that the cognitive disorder condition was possibly related to a medication side effect or a TBI from an explosion in Iraq “most likely partially existing prior to service”, and that the condition failed to meet retention standards IAW AR 40-501, Chapter 3-34.  The conditions of anxiety disorder with depressed mood and smoking did not fall below retention standards.

The VA Compensation and Pension (C&P) neurological examination was accomplished 4 months after separation.  The CI was not employed and had remained on antiepileptic medication and the antidepressant.  It was also noted that he took medication to improve cognition.  The CI expressed concerns related to his ability to obtain employment because of his seizure diagnosis.  He noted that his poor memory increased his stress.  The CI acknowledged some difficulty with his memory prior to the military but noted it was worse after the explosion.  He also noted that he has not had a seizure since starting Topamax in May 2005. 

The Board directed attention to its rating recommendation based on the above evidence.  The PEB and VA chose the same coding option, 8045-8914 (psychomotor seizures associated with brain trauma), and both assigned 10% rating.  Psychomotor seizures are characterized in the VASRD by automatic states or by brief transient episodes of random motor movements, hallucinations, perceptual illusions, abnormalities of thinking, memory or mood, or autonomic disturbances.  A 10% rating under this code reflects that a confirmed diagnosis of epilepsy with a history of seizures documented.  The higher rating of 20% requires evidence of at least one major seizure in the last 2 years or at least two minor seizures in the last 6 months.  The CI had been seizure free for more than a year and did not have a history consistent with the description of a major seizure.  All Board members agreed, there was no justification for 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 sufficient cause to recommend a change in the PEB adjudication for the epilepsy condition.  

Cognitive Disorder with Impaired Memory.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s cognitive disorder condition was diagnosed by neuropsychological testing (NP) in March 2006.  The NARSUM noted that the CI reported memory difficulties since childhood; however, the CI reported that his memory problems were exacerbated after deployment to Iraq in April 2003, 5 months before the blast exposure.  In addition to worsening of memory, the CI had difficulties with concentration and sleep.  He was being treated for depression and anxiety issues.  The NP evaluation noted that the CI slept for approximately 6-7 hours per night, and worked 4-5 hours a day.  At the time of the evaluation, the CI indicated an improvement in mood since taking antidepressant medication.  NP testing showed mild to moderate memory deficits, and intellectual functioning was in the below average range.  The CI also score in the high range on measures that suggested some tendency to exaggerate his mood problems as well as his memory problems.  The diagnoses of cognitive disorder not otherwise specified was recorded, and generalized anxiety disorder with depressed mood.  The examiner opined that these conditions had not existed prior to service.  The psychologist stated, “It appears that his anxiety and depressive symptoms need to be treated a little more aggressively”, and opined that the CI did not meet physical standards for retention under provisions of “AR 40-501, Chapter 3-31 (disorders with psychotic features) due to his history of seizures and attendant neuropsychiatric impairment.”

At the VA Compensation and Pension (C&P) neurological examination in December 2006, performed 4 months after separation, the CI reported his memory problems included problems with focusing and concentrating, problems remembering things, short-term memory issues and forgetfulness.  The CI had no difficulty with reading maps and he did not have any problems with directions.  The neurologist opined that the CI’s cognitive complaints were “likely multifactorial”, noting that the CI’s depression and anxiety had not been fully treated at the time of the NP evaluation, nor was his symptoms of sleep apnea.  It was also noted that the CI had low normal B12 and elevated TSH which suggested metabolic contributors to his memory complaint.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB did not rate the cognitive disorder condition (VASRD code 9327).  The VA rated the cognitive disorder in combination with anxiety disorder and major depression at 50%, coded analogously 9327-9440.  The CI reported that he had suffered from memory issues since childhood, and that he experienced worsening of his condition during service, and prior to the explosion.  However, the CI made no assertion that he had a prior diagnosis of a memory condition.  The PEB found there was evidence to support a finding that the condition existed prior to service (EPTS) and was not permanently aggravated beyond natural progression by such service.  However, no specific evidence was documented.  

The PEB wrote on the DA Form 199 that the CI had “cognitive disorder with impaired memory dating back to teen years.  Discharged from USA in 1996 because of unsatisfactory performance.  Current medication side effects may add to problem.  Neuropsychometric testing verifies impaired memory.  Commander’s note indicates Soldier cannot perform effectively in PMOS.  The present symptoms are natural progression of his pre-existing problems.”

The Board reviewed the records in evidence and found no definitive determination by medical professional that the condition was EPTS with natural progression.  The PEB did not cite any well-established medical principle by which the determination was made.  Additionally, the PEB noted that the CI was discharged years earlier due to unsatisfactory performance; however, evidence of a cognitive disorder at the time of re-enlistment in 2002 was not presented.  The NP evaluation indicated that the cognitive disorder was not EPTS, but that his symptoms were in part related to medication side effects and inadequate treatment of his depression and anxiety.  The NARSUM examiner implicated possible medication side effects and possible TBI, but “most likely partially EPTS.”  The C&P neurologist implicated medications, sleep apnea, thyroid condition and nutritional deficits as possible causes of the cognitive problem.  All Board members agreed, there was not sufficient evidence that the condition was EPTS, and therefore, the Board proceeded with rating recommendation based on the evidence.  The Board noted that although there was a report of poor memory, there was no evidence that this condition interfered significantly with the CI’s performance.  The commander’s statement written 4 months before separation, did not implicate a memory issue.  The commander recommended that the CI be moved to an MOS which was low stress and not require any physical exertion.  The C&P examination indicated treatment of underlying cause might improve the CI’s cognitive complaints; however, noted that the CI had no difficulty with getting lost.  The CI submitted an affidavit 4 months before separation requesting to extend active duty beyond the scheduled date of expiration.  The NCOER dated March 2006 actually noted an improvement in performance.  It was noted that his overall potential for promotion and or service in positions of greater responsibility was considered fully capable.  His 2003 NCOER noted that overall potential was marginal.  All Board members agreed, the record demonstrated that the CI was formally diagnosed with a cognitive disorder.   However, evidence that his symptoms were severe enough either to interfere with occupational and social functioning was absent, therefore, resulting in a 0% rating which provides no advantage to the CI.  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 cognitive disorder condition.

Contended PEB Conditions.  Anxiety disorder with depressed mood. The mental health addendum to the MEB was performed 10 months before separation noted that the CI did not have any MH condition requiring treatment.  The anxiety disorder with depressed mood condition was not profiled or implicated in the commander’s statement and was not judged to fail retention standards.   There was no performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at separation.  After due deliberation, and 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 contended condition and so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the partial complex (minor) seizure disorder condition and IAW VASRD §4.124a, the Board recommends no change in the PEB adjudication.  In the matter of the cognitive disorder NOS condition and IAW VASRD §4.130, the Board recommends no change in the PEB adjudication.  In the matter of the contended anxiety disorder with depressed mood conditions, the Board 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 20140529, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAMR-RB						

14 NOV 2016

MEMORANDUM FOR Commander

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXX, AR20160016873 (PD201402495)

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