RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02515
BRANCH OF SERVICE:  Army	BOARD DATE:  20150630
SEPARATION DATE:  20090831

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-3 (Light Wheeled Vehicle Mechanic) medically separated for a seizure disorder.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  The profile allowed for an alternate aerobic event to satisfy physical fitness standards.  He was issued a permanent P3 profile and referred for an Medical Evaluation Board (MEB).  Seizure disorder was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded periodic headaches for PEB adjudication.  The Informal PEB adjudicated seizure disorder as unfitting, rated 20% with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining periodic headaches condition was determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Seizure disorder”

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 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 20090527	VA* - (~14 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Seizure Disorder	8999-8911	20%	Generalized Tonic Clonic Seizure Disorder	8910	40%	20101110	
Other MEB/PEB Conditions x 1 (Not In Scope)	Other x 12	
RATING:  20%	RATING:  60%	
*Derived from VA Rating Decision (VARD) dated 20110701 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Seizure Disorder Condition.  Review of the service treatment record found that the CI experienced a first seizure in December 2007.  The witnessed event was described as feeling “a knocking on both ears, hot and cold shivers of his whole body with subsequent black-out…his whole body was shaking.”  Immediate evaluation in a civilian emergency room noted that the CI had experienced a brief loss of consciousness.  Evaluation for secondary causes was negative, a diagnosis of “Epilepsy Seizure” was rendered and a medication for seizures (Ativan) was started.

Evaluation by a neurologist in March 2008 reported that he was recently re-experiencing the “knocking” in his ears (a pulsating sensation) and involuntary jaw motion with headache, but no loss of consciousness.  Although physical examination noted mild left sided weakness and there were non-specific findings on electroencephalography, the examiner could not conclude that a seizure disorder was present.  However, the neurologist prescribed an anti-seizure medication (Topamax).

On 30 August 2008, the CI was admitted to the hospital for evaluation of dizziness and unconsciousness for over 5 minutes.  Although a cardiac etiology was ruled out, the CI signed out against medical advice before neurologic evaluation could be completed.  However, subsequent clinic notes referred to this event as “a second seizure” and a witness provided details regarding the August 2008 episode that were consistent with a major seizure.

On 3 March 2009 the CI reported to the primary care clinic that he had a seizure on 1 March while on leave.  It was reportedly witnessed by a relative, occurred while sitting at home and was associated with loss of consciousness but not with incontinence.  He refused ambulance transport to the hospital, and was able to fly to his duty station the following day.  A subsequent neurology note stated that the episode was “likely c/w [consistent with] a generalized seizure.”

The MEB narrative summary examination on 14 April 2009 (5 months prior to separation) recorded normal neurologic findings.  The examiner rendered a diagnosis of “Seizure Disorder, likely Generalized.”

At the VA Compensation and Pension exam on 10 November 2010 (14 months after separation), the CI reported that he experienced a seizure in April 2010 and August 2010.  The examiner clarified that there were two generalized convulsive seizures in the last 20 months.  He was taking Topamax for control of seizures.

The Board directed attention to its rating recommendation based on the above evidence. The PEB assigned a 20% rating coded analogously to 8911 (epilepsy, petit mal) while the VA rated the condition at 40% using the 8910 code (epilepsy, grand mal).  The Board must correlate the above clinical data with the VASRD §4.124 rating criteria which, for convenience, are excerpted below:

General Rating Formula for Major and Minor Epileptic Seizures:

Averaging at least 1 major seizure per month over the last year………..…100
Averaging at least 1 major seizure in 3 months over the last year; 
or more than 10 minor seizures weekly………………..…………………..80
Averaging at least 1 major seizure in 4 months over the last year; 
or 9-10 minor seizures per week……………………………………………….60
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…………………….40
At least 1 major seizure in the last 2 years; or at least 2 minor seizures
in the last 6 months……………………………………………………………………20
A confirmed diagnosis of epilepsy with a history of seizures …………………..10

		Major and minor seizures are further defined:

			Note (1): A major seizure is characterized by the generalized tonic-clonic 
					convulsion with unconsciousness.  

			Note (2): A minor seizure 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).

The 8911 code chosen by the PEB requires rating based on the frequency of minor seizures, and the PEB cited a frequency of at least two minor seizures in 6 months as the rationale for rating.  However, the Board concluded that the seizures were better described as generalized tonic-clonic convulsions with unconsciousness (i.e. “major” seizures); rating under the 8910 code was therefore justified.  Leading up to the time of separation, the frequency of major seizures was 1 in 6 months, or 2 in the past year; thus the 40% rating was warranted.  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, coded 8910.

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	8910	40%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140603, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAMR-RB							
MEMORANDUM FOR Commander

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXXXXX, AR20160003674 (PD201402515)

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 re-characterize 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