028RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE: PD-2014-02844 
BRANCH OF SERVICE:  MARINE CORPS	SEPARATION DATE: 20091030	

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Amphibious Assault Vehicle Operator, medically separated for “partial complex seizures,” with a disability rating of 10%.  

CI CONTENTION:  The CI requests the board consider all conditions.  The applicant’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 - 20090914	VARD - 20091204	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Partial Complex Seizures	8914	10%	Partial Complex Seizures with Residual Numbness in Arms
and Legs	8914	10%	20090507	
Headaches, Resolved	Not Unfitting Cat III	Headaches, Resolved	8100	NSC		
Left Shoulder Tendonitis	Not Unfitting Cat III	Left Shoulder Tendonitis	5201-5024	10%		
Bilateral Patellar Femoral Syndrome	Not Unfitting Cat III	Patellar Femoral Syndrome, Left Knee	5099-5010	0%		
		Patellar Femoral Syndrome, Right Knee	5099-5010	0%		
Obstructive Sleep Apnea	Not Unfitting Cat III	Sleep Apnea	6847	50%		
Heart Condition	Not entertained by PEB	Heart Condition	7099-7005	NSC		
Numbness to Bilateral Arms	Not entertained by PEB	Numbness to Bilateral Arms	Included with Complex Seizures Condition		
Numbness to Bilateral Legs	Not entertained by PEB	Numbness to Bilateral Legs			
Weight Condition	Not entertained by PEB	Fat	7999-7903	NSC		
Mid and Upper Back Condition	Not entertained by PEB	Mid and Upper back Condition	5237	NSC		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Partial Complex Seizures.  The service treatment record (STR) substantiated the Medical Evaluation Board (MEB) narrative summary (NARSUM) dated 1 April 2009, which indicated the CI, while in the galley, had a sudden intrusive, violent imagery lasting 1-2 seconds and then felt diaphoretic in February 2008.  A second event occurred in April 2008 marked by a sensation of smelling something burning followed by very violent imagery and an almost sense of depersonalization for a few seconds; thereafter, he was extremely diaphoretic.  The episodes were thought to be related to sleep deprivation and the CI reported having had occasional episodes of a “sweet flowery smell” and episodes of “marching numbness” on the left side of the head and a sensation of confusion with little recollection of events.  Neurologic examination was unremarkable.  An EEG on 1 July 2008 revealed sharply contoured waves of the left frontal temporal region of uncertain significance.  An EEG on 15 July 2008 was normal.  A neurology note dated 21 August 2008 reviewed the CI’s history and the neurologist ordered a series of tests to ascertain the diagnosis.  An MRI of the brain with and without contrast in September 2008 did not reveal any abnormal foci of concern or suggestive of an epileptogenic source.  A 72-hour EEG performed at a Center of Excellence revealed interictal spikes (a sign of epilepsy).  The findings were consistent with partial complex seizures and the CI was treated with Lamictal (lamotrigine, an anti-epileptic medication), which replaced Topamax (topiramate, an anticonvulsant medication) that caused paresthesias.  On 6 October 2008, the CI was referred to psychiatry as part of a workup for “blackout” and unusual behavior, which was identified as complex partial seizures.  The psychiatrist determined there was not a psychiatric diagnosis and the CI’s Global Assessment of Functioning (GAF) was 71 (If symptoms are present, they are transient and expectable reactions to psychosocial stressors; no more than slight impairment in social, occupational, or school functioning).  Further details of history relating to the seizures were obtained during neuropsychological evaluations and testing performed over a period of time from mid-September 2008 through October 2008.  Apparently, the CI around the age of 13 began experiencing “sudden episodes of blacking out or passing out.”  Testing at that time revealed a negative EEG and a negative spinal tap for spinal meningitis.   At a neurology follow-up visit, the CI reported he occasionally noted smells that resembled “sweet honey” and “burning metal.”

Limited duty (LIMDU) was instituted on 20 February 2009 for R/O seizure with limitations of no deployment, no driving, no swimming, no operating weapons, and no engaging in any activity when loss of consciousness may result in harm to self or others.  The non-medical assessment dated 8 April 2009 indicated the CI’s medical limitation prevented him from continuing to be a productive member of the command.  The CI could not drive and had severe restrictions placed on the duties he could perform due to the unpredictability and frequency of his seizures.

At the VA Compensation and Pension (C&P) examination performed 6 months before separation, the CI reported in August 2008 he started having problems with altered states of awareness. He had an EEG done which showed abnormalities left temporal lobe.  An MRI and CT scan were normal.  His last seizure was 3 weeks earlier in May 2009. The seizures lasted for about 3 seconds and he did have an "aura" which was numbness from his left side.  He would get "an uncomfortable weird feeling" almost like an out of body experience.  He did not have any fecal or bladder incontinence.  He was placed on Topamax, but had adverse reactions of shortness of breath.  Once his medication was changed to Lamictal at night he was okay and had no side effects from the medication.  Neurologic and psychiatric examinations were normal.

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating using code 8914 (Psychomotor epilepsy) for the Category I unfitting condition partial complex seizures.  The VA likewise assigned a 10% rating using code 8914 for partial complex seizures with residual numbness in the arms and legs.  A 20% rating requires at least two minor seizures in the last 6 months; however, the STR did not indicate how often the CI had the seizures, while the VA indicated the CI’s last seizure was 3 weeks prior to the C&P examination.  Therefore, it would be speculative to presume whether there were additional minor seizures in the prior 6 months in the absence of objective medical evidence.  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 partial complex seizures condition.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the headaches, resolved, left shoulder tendonitis, bilateral femoral syndrome, and obstructive sleep apnea were not unfitting.  The headaches, resolved, left shoulder tendonitis, bilateral femoral syndrome, and obstructive sleep apnea were not mentioned in the LIMDU document or implicated in the non-medical assessment.  

Headaches, Resolved.  The CI had flu-like symptoms with nasal congestion and headaches for 3 days in September 2008.  The CI felt the headaches were from Topamax (topiramate) he was taking for seizures for the prior 3 weeks.  In October 2008 the CI had a headache and dizziness, fell down, did not know where he was at that moment, and complained “this is the worst headache ever” and it felt “like electric shock inside the head.”  He recovered within 45 minutes with water and rest.  A neurologist noted in February 2009 the CI continued to have an occasional headache.  At the VA C&P examination a note indicated the CI experienced headaches, but since having his medication changed he no longer had any problems; however, later in the examination it was noted that his headaches often came after the seizures and lasted only 3 minutes, but he took no medication for the headaches.  On rare occasions he had slight nausea with the headaches, but he did not have to go and lay down with a headache.  

Left Shoulder Tendonitis.  At the VA C&P examination the CI reported that both of his shoulders ached in the absence of a specific injury since 2007, but the CI believed it came from wearing his flak vest and equipment.  Pain was sporadic and occurred with activity and repetitive lifting only.  The left shoulder was worse than the right shoulder; and, ibuprofen (an NSAID) worked well.  The shoulders did not swell, lock up or were not unstable, although the CI felt they were weak.  On examination in May 2009 there was no deformity or swelling, but there was moderate crepitus and moderate laxity, and the CI tended to guard his shoulder.  There was no pain to deep palpation.  Flexion was 0 to 170 degrees with loss of motion to 160 degrees with repetition with loud “clunking” and the shoulder slipped in and out of the joint.  Abduction was 0 to 180 degrees; external rotation was 0 to 70 degrees with complaints of pain at the end of motion; and internal rotation was 0-90 degrees without pain.  During a VA examination in October 2010 the left shoulder ranges-of-motion (ROMs) were 148 degrees flexion, 138 degrees abduction, 60 degrees external rotation, and 65 degrees internal rotation.   There was tenderness and guarding of movement but no instability and no subluxation.  The left shoulder X-ray findings were within normal limits.  

Bilateral Patellar Femoral Syndrome.  A note dated 28 November 2007 indicated the CI had right knee pain in the absence of an injury after a run and it was worse going up and down stairs.  The CI had a full ROM with pain laterally to posteriorly and no instability.  The examiner’s assessment was iliotibial band syndrome and treatment consisted of naproxen, an NSAID, and stretching exercises.  The VA C&P examination noted the CI had right knee problems since 2007 and pain most days with locking about every 2 weeks for a couple of minutes.  The CI did not take medication and he put hot towels on the knee.  He used no assistive devices.  The CI noted difficulty with marching, physical training, prolonged standing or squatting.  Examination of the right and left knees revealed mild crepitus, no laxity, no swelling, and mild tenderness over the patella.  ROMs were extension 0 degrees to 140 degrees of flexion without loss of motion with repetition.

Obstructive Sleep Apnea.  Sleep studies were ordered in June 2008 after the CI described episodes of seeing himself committing violent acts and having had an out of body experience type of feeling.  At the sleep study in September 2008 the CI complained of excessive daytime sleepiness, daytime fatigue, difficulty falling and staying asleep, and witnessed apneas during sleep.  The study revealed mild obstructive sleep apnea with oxygen desaturation of 88 percent.  Good sleep habits were reviewed.  At the VA C&P examination the CI indicated he was using a CPAP (continuous positive airway pressure) machine, which helped, and he had no difficulty sleeping.   

The aforementioned was reviewed and considered by the Board.   There was no performance based evidence from the record that any of these conditions 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 any of the contended conditions and so no additional disability ratings are recommended.

BOARD FINDINGS:  In the matter of the Category I partial complex seizures condition and IAW VASRD §4.121, §4.122, and §4.124a the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended Category III resolved headaches, left shoulder tendonitis, bilateral femoral syndrome, and obstructive sleep apnea conditions, 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.  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 20140609, with attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW
               BOARDS 

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS
 
Ref:   (a) DoDI 6040.44
       (b) CORB ltr dtd 15 Apr 16

      In accordance with reference (a), I have reviewed the cases forwarded by reference (b), and, for the reasons provided in their forwarding memorandums, approve the recommendations of the PDBR that the following individual’s records not be corrected to reflect a change in either characterization of separation or in the disability rating previously assigned by the Department of the Navy’s Physical Evaluation Board:

		- XXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXX, former USN