RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  xxxxxxxxxxxxxxxxxxxx	CASE:  PD-2014-02653
BRANCH OF SERVICE:  Army	BOARD DATE:  20150508
SEPARATION DATE:  20050709

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an E-4 (Infantryman) medically separated for seizure disorder.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty. He was issued a permanent P3 and referred for a Medical Evaluation Board (MEB).  The “seizure disorder” condition was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB adjudicated “seizure disorder” as unfitting, rated 10%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  “Please review 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 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 20050523	VA* – ~7 Mos. Post-Separation 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Seizure Disorder	8914	10%	Seizure Disorder	8911	40%	20060203	
Other x 0 (Not In Scope)	Other x 0	
RATING:  10%	RATING:  40%	
*Derived from VA Rating Decision (VARD) dated 20060323 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Seizure Disorder:  The service treatment record (STR) showed that the CI had his first witnessed generalized tonic clonic (GTC) seizure on 24 September 2003 while asleep (nocturnal).  His physical examination was normal and a neurology consultation was ordered.  A neurology visit dated 27 October 2003 documented a second GTC seizure on 13 October 2003.  He was evaluated at Landstuhl Regional Medical Center, where radiologic studies showed normal head imaging and he was started on anti-seizure medication (Dilantin).  His examination was normal and further evaluations were ordered.  The provider discussed “seizure precautions, including a no driving P3 profile.”  A magnetic resonance imaging of the brain dated 6 November 2003 was normal.  A neurology visit dated 30 January 2004 documented no new seizures and that the CI was noncompliant with his medication dosing.  A Dilantin level was ordered and a return visit was recommended for April 2004.  At a visit dated 3 May 2004, the CI reported having had only one seizure since November 2003, on a day he had forgotten to take his medications.  At a neurology visit dated 1 July 2004, the CI reported a witnessed GTC seizure (he was found on the floor after going to sleep in bed).  He admitted to poor medication compliance.  The examiner referenced low Dilantin levels on 30 January 2004 and in March 2004.  The medication dosage was increased.  The examiner stated that normal Dilantin levels were obtained after a week of increased daily dosage and opined that “it is likely that the patient will continue to have breakthrough seizures if he is poorly compliant on these medications.  He is currently having approximately two GTC seizures per year, but again this is always due to documented low Dilantin levels.”  In the narrative summary dated 13 January 2005, the examiner documented electroencephalographic studies of the brain that showed bilateral temporal sharp waves (indicative of seizure activity), his medications were continued, and routine follow-up with the neurologist was recommended.  In a note dated 25 March 2005, the neurologist stated that the CI was taking his medications daily, had missed a recommended follow-up appointment 3 months after his appointment in July 2004 and had had two breakthrough seizures without medical documentation.  The examiner stated that the CI was “noncompliant with his medications or with his follow-up; his Dilantin level on 15 November 2004 was within normal limits; and his Dilantin level today was 9.8, which is borderline therapeutic.”  The examiner opined that “if he is compliant with his medication, he may be seizure-free.  Therefore, his prognosis is likely excellent.”  At the VA Compensation and Pension (C&P) examination dated 3 February 2006, performed 7 months after separation, the CI reported having been transported to the emergency room following a witnessed seizure in September 2005 after forgetting to take his medications, and while asleep.  He reported having a driver’s license, having a job since December 2005, and that his “medical condition [did] not affect his ability to do his job.”  He reported taking his medications without side effects, being seen by a neurologist, and getting Dilantin levels every 3 months.  His examination was normal.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB adjudicated the seizure disorder as unfit and rated 10% IAW DoDI 1332.39 instruction that stated “nocturnal seizures are not relevant to the determination of seizure frequency unless they can be shown to significantly impair industrial adaptability.”  The VA rated 40% as the STR documented approximately four generalized seizures in a 2-year period.  IAW with the VASRD §4.124a, there is to be “no distinction between diurnal (daytime) and nocturnal (nighttime) major seizures.  There was evidence of at least two major seizures per year prior to the DOS, to warrant a rating of 40%.  There was inconclusive evidence to determine a seizure frequency greater than two per year that would warrant a higher rating of 60%.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 40%, coded as 8914 (epilepsy, psychomotor).

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.  As discussed above, PEB reliance on DoDI 1332.39 for rating the seizure disorder was operant in this case and the condition was adjudicated independently of that instruction by this Board.  In the matter of the seizure disorder, the Board unanimously recommends a disability rating of 40%, coded 8914 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 	8914	40%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140929, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXXXXXXX
President
Physical Disability Board of Review

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 XXXXXXXXXXXXXXXXXXXX, AR20150014900 (PD201402653)

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:

Encl						     XXXXXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						          (Review Boards)