RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-02691
BRANCH OF SERVICE:  Army	BOARD DATE:  20150213
SEPARATION DATE:  20040729

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Ammunition Specialist) medically separated for a seizure condition.  This condition could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty or physical fitness standards, so he was issued a permanent P-3 profile and referred for a Medical Evaluation Board (MEB).  The “recurrent generalized seizures” condition was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded hypertension, which was listed as meeting retention standards, for PEB adjudication.  The Informal PEB adjudicated “generalized seizures…” as unfitting, rated 10%, with application of DoDI 1332.39 E2.A1.4.3.5. and likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The hypertension was determined to be not unfitting; the CI made no appeals and was 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 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 20040510	VA* - (~7 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Generalized Seizures…	8910	10%	Seizure Disorder	8911	10%	20050310	
Hypertension	Not Unfitting	Hypertension	Deferred**		
Other x 0	Other x 6	
RATING:  10%	RATING:  20%	
*Derived from VA Rating Decision (VARD) dated 20050531 (most proximate to date of separation (DOS)).  Later rated at 0%.

ANALYSIS SUMMARY:

Seizure Condition.  The CI was evaluated in neurology on 25 April 2003 and gave a history of seizures three times in his lifetime; the dates were not specified other than to record that the most recent had been the previous day.  The CI reported both chronic sleep deprivation, a potential trigger in individuals prone towards seizures, and that he consumed 6 beers a day, 5 days a week.  The action officer noted that alcohol withdrawal is a known etiology for seizures and that the CI had been treated for alcohol abuse and dependence in both an outpatient and intensive 6-week inpatient program.  He was next seen on 15 August 2003.  A magnetic resonance imaging was negative for pathology, which could explain the seizures.  The CI reported that he might have had another seizure 5 days earlier as he had woken up on the floor, but had no other manifestations of a seizure.  He reported that he was still drinking alcohol for his insomnia and that other treatments had not worked.  The CI was last seen in neurology while on active duty on 20 February 2004 for the dictation of the MEB narrative summary.  He reported the onset of seizures in March 2003 and another in April 2003.  Another spell was reported to have occurred while on vacation the previous December; it was associated with 2 minutes of movement of all four limbs and post-seizure confusion afterwards.  The note does not record who observed the spell.  There are no other records of this event.  An electroencephalogram (EEG) had been ordered previously as part of the evaluation, but was apparently never accomplished.  The CI continued to drink alcohol.  He was again admonished to discontinue alcohol and the EEG re-ordered.  The CI reported good compliance with his anti-seizure medication.  A neurological examination was normal.  The etiology was thought to be either from alcohol withdrawal or cryptogenic (from an unknown source after a negative evaluation for cause).  The CI was next seen in the emergency room on 9 June 2004, 7 weeks prior to separation, for a scalp laceration after a reported generalized tonic clonic movement (sudden tensing then rapid contractions and relaxation; typical of major seizures), while he was in the barracks, similar to his previous episodes.  Unconsciousness was not recorded.  He was not confused and was seen within minutes of arrival.  He had been brought to the hospital via ambulance.  He reported that he had stopped his medications which were re-initiated.  The examination was normal other than the laceration.  The history was apparently given by the CI rather than an observer.  At the VA Compensation and Pension examination performed on 10 March 2005, over 7 months after separation, the CI reported that he continued to drink 4 to 6 beers a day.  He continued to have seizure activity several times a month with the last seizure being 2 days ago while watching television.  His fiancé kept a diary of his seizures, documenting the frequency, but no description was recorded by the rater.  The neurological examination was normal other than a tremor in the bilateral upper extremities and decreased sensation (slight) on the inside aspect of the left foot.

The Board directed its attention to its rating recommendation based on the above evidence.  As per VASRD §4.121 (identification of epilepsy), seizures must be witnessed or verified by a physician.  For the frequency, “competent, consistent lay testimony emphasizing convulsive and immediate post-convulsive characteristics may be accepted.”  The attending neurologist determined that the CI had a seizure in March 2003, April 2003, some type of episode in August 2003, a report of a spell in December 2003, and the CI last reported a seizure while on active duty in June 2004.  After separation, the CI reported and his fiancé documented, frequent seizures; however, the documentation, as recorded, did not meet the requirements of VASRD §4.121.  This was also noted by the VA rater although the specific section of the VASRD was not cited.  The PEB and VA used the coding options of 8910 and 8911, for major and minor seizures (grand mal and petit mal), respectively, but both rated the condition at 10%.  The VA characterizes major seizures as those with generalized tonic-clonic convulsion followed by unconsciousness.  A minor seizure may have a brief interruption in consciousness with sudden jerking movements of the arms, trunk, or head or loss of postural control.  The Board considered the evidence.  The post-separation documentation regarding the diary kept by the fiancé was not detailed by the VA examiner.  The VA rater, in assigning the 10% rating, noted that this was not sufficient for rating purposes.  The Board observed that the 10% rating stood for almost 3 years when it was increased to 20% based on post-separation evidence.  The Board then considered the 1-year period prior to separation.  The spell in June 2004 did not have recorded impairment of consciousness and no post-seizure confusion was present on examination or otherwise documented.  The evidence does not support its classification as a major seizure for VA rating purposes.  The CI self-reported an episode in December 2003 of jerking of all limbs followed by confusion.  The neurologist described this as a spell and did not specifically diagnosis this as a major seizure.  The event in August 2003 was not determined to be a seizure by the examining clinician.  The CI woke up on the floor without further issues.  The action officer observed that there are multiple potential explanations for this besides seizures given the ongoing alcohol use/abuse and chronic sleep deprivation.  The Board is thus left with reliable documentation of one spell in December 2003, one minor seizure in June 2004, and one questionable event in August 2003.  Mindful of VASRD §4.3, after due deliberation and considering all of the evidence, the Board recommends no change in the PEB disability rating of 10% for the seizure disorder condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the hypertension was not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The hypertension was not profiled or implicated in the commander’s statement and was not judged to fail retention standards.  The value recorded on the MEB examination was normal as were other values prior to separation other than the emergency room record which showed an elevation during the evaluation for the laceration (the blood pressure is frequently elevated with pain).  The VA did note hypertension, but not to a compensable level.  The condition was reviewed and considered by the Board.  There was no performance based evidence from the record that it 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 hypertension condition and so no additional disability rating is 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.  As discussed above, PEB reliance on the 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 generalized seizures condition, the Board unanimously recommends no change in the PEB adjudication, IAW VASRD §4.7121, 4.122, and 4.124a.  In the matter of the contended hypertension condition, 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 20140506, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXX     
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 XXXXXXXXXXXXXXX, AR20150010993 (PD201402691)

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:

Encl			     XXXXXXXXXXXXXXX
				     Deputy Assistant Secretary of the Army
				          (Review Boards)
						         
CF: 
(  ) DoD PDBR
(  ) DVA