RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02921
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20081106

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-2 (M1 Armor Crewman) medically separated for epilepsy.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent P3 profile and referred for a Medical Evaluation Board (MEB).  The “epilepsy” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded two other conditions that met retention standards, for PEB adjudication (hypertension and acute renal failure).  The Informal PEB adjudicated “a seizure disorder” as unfitting, rated 10%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining conditions were 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 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 20081006 	VA* - (~1 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Soldier Developed Nausea, Vomiting and Malaise in July 2008, Following Completion of Basic Training…	8999-8910	10%	Generalized Tonic-Clonic Seizure Disorder	8999-8910	40%	20081216	
Hypertension 	Not Unfitting	Essential Hypertension	7101	NSC	20081216	
Acute Renal Failure	Not Unfitting 	Acute Renal Failure	7530	NSC	20081216	
Other x 0 (Not In Scope)	Other x 0	
RATING:  10%	RATING:  40%	
*Derived from VA Rating Decision (VARD) dated 20090219 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

Epilepsy Condition.  The narrative summary (NARSUM) noted the CI began to have abdominal pain nausea, vomiting, and felt weak and was found to have acute renal failure (ARF) and hypertension (HTN-high blood pressure).  Notes in the record indicated the CI was a new military recruit and began active duty 7 May 2008.  He had recently finished basic training when he began to have the symptoms noted above.  He was hospitalized 22 July 2008 and required kidney dialysis for the ARF.  While in the hospital after dialysis the CI had a generalized tonic-clonic seizure 26 July 2008 and was placed on anti-epileptic medication (Dilantin).  An electroencephalogram (EEG) did not note any seizure activity and a magnetic resonance imaging scan of the brain was normal.  The CI did not have any further seizures while hospitalized and was discharged 31 July 2008.  Notes in the record indicated the seizures may have been caused by a HTN crisis or “disequilibrium syndrome due to dialysis” (swelling of the brain during or after dialysis) and continued anti-epileptic medication for a month was recommended.  The neurologist indicated that after a month a repeat EEG should be performed and if normal the Dilantin could be stopped.  The NARSUM noted that the ARF had nearly resolved, with greatly improved, but slightly elevated kidney function study (serum creatinine), but otherwise normal testing related to the kidneys and no neurological cause of the seizures had been identified.  The NARSUM (based upon exams performed in September 2008) noted “seizures have persisted even subsequent to hospitalization.”

At the MEB exam 10 September 2008, 2 months before separation, the CI reported he was compliant with his seizure medication and self-reported a frequency of one seizure per month since discharge from the hospital (in early August).  The CI was on medications for the seizures and HTN.  The MEB physical exam noted mildly elevated blood pressure (BP) of 140/90 and an otherwise normal exam.  The CI appealed the findings of the Informal PEB and submitted a letter from his Service neurologist, dated 4 September 2008 and indicated that he had not obtained the letter until 8 October 2008.  The neurologist noted that the CI presented on 4 September 2008 stating that when he woke up that morning he “felt sore all over which persisted up to this time He did not bite his lips or tongue, neither did he wet himself.”  The neurologist advised the CI that he may have had another seizure before he woke up, which could explain the generalized soreness and his Dilantin dosage was increased.  

At the VA Compensation and Pension exam performed on 16 December 2008, a month after separation, the CI reported recurrent generalized seizures, with the last seizure approximately a month earlier.  The exam, including the neurological exam was normal.

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB and VA both coded the epilepsy condition 8999-8910.  The PEB rated it 10% and the VA rated it 40%.  The Board reviewed the 8910 rating criteria for major seizures (generalized).  A 10% rating is specified as “a confirmed diagnosis of epilepsy with a history of seizures”; a 20% is “1 major seizure in the last 2 years”; 40% is “at least 1 major seizure in the last 6 months or 2 in the last year”; and, 60% is “at least 1 major seizure in 4 months over the last year.”   The CI had a witnessed generalized tonic-clonic seizure while hospitalized 26 July 2008.  The CI then submitted the documentation noted above from the Service neurologist of a possible second seizure during sleep in September 2008.  The Board agreed it was unclear that the second episode was a true generalized seizure, which was cited by the PEB in response to the CI’s appeal.  However, the Board noted that its rating recommendation must be based upon VASRD rating criteria for major seizures, and whether or not the CI had a second seizure is a moot issue because the single witnessed seizure in record was within 6 months of the DOS.  Hence, the 40% rating is supported based upon the criterion of a major seizure within the last 6 months.  The Board noted that the next higher evaluation of 60% was not achieved as there was no evidence of three or more major seizures in record.  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 epilepsy condition.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that HTN and ARF conditions were 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.  

ARF Condition.  As noted in the discussion of the epilepsy condition, the CI initially presented with symptoms of abdominal pain, nausea, and vomiting and was diagnosed with ARF.  In the emergency room he had abnormal kidney function studies.  He was treated with fluids and ultimately two sessions of kidney dialysis.  Testing for common causes of kidney failure, including screening blood work, kidney ultrasound, and computed tomography of the abdomen were performed and notes indicated the cause of the ARF was unclear, possibly due to HTN or it may have been due to dehydration.  Serial blood and urine analysis indicated that the CI’s laboratory values returned toward normal with persistent slightly elevated serum creatinine level noted at the MEB exam.  Regarding the ARF, the NARSUM noted that “presumably, it was a combination of factors which effected (sic) him while in Basic Training.”  The MEB examiner indicated the CI had “essentially recovered” from the ARF and the slightly elevated creatinine level would not be enough to discharge the CI from the ARMY.  As noted above the MEB physical exam noted a mildly elevated BP and was otherwise unremarkable.  The MEB examiner noted the CI had recovered from ARF and indicated the ARF condition “currently meets retention standards.”

HTN Condition.  As indicated above the CI was noted to have elevated BP when he was admitted to the hospital for ARF.  According to the NARSUM his BP was approximately 200/100 millimeters of mercury (mmHg), normal readings are 120/80 or less.  Hospital progress notes in the record noted treatment with blood pressure medications and indicated his BP was “much better.”  The NARSUM noted that the CI continued with “modest hypertension” after he was discharged from the hospital.  As noted above the MEB physical exam noted a mildly elevated BP despite two medications, and was otherwise unremarkable.  The MEB examiner indicated that the BP was treatable with medication, even if it required three or four medications, the “situation could be addressed as it frequently is for many people in the Army” and indicated the HTN condition met retention standards.

The ARF and HTN conditions were not profiled or implicated in the commander’s statement and were not judged to fail retention standards.  They were reviewed and considered by the Board.   There was no performance based evidence from the record that either of these conditions significantly interfered with satisfactory duty performance following appropriate treatment.  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 either of these conditions and so no additional disability ratings are 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.  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 epilepsy condition, the Board unanimously recommends a disability rating of 40%, coded 8999-8910 IAW VASRD §4.124a.  In the matter of the contended ARF and HTN 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.  

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	
Epilepsy Condition	8999-8910	40%	
COMBINED	40%	

The following documentary evidence was considered:
Exhibit A.  DD Form 294, dated 20140617, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20160005494, 

Dear:

I accept the recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) to re-characterize your separation as a disability retirement with the combined disability rating of 40% effective the date of your medical separation for disability with severance pay. Enclosed is a copy of the Board's recommendation and record of proceedings for your Information.

The re-characterization of your separation as a disability retirement will result In an adjustment to your pay providing retirement pay from the date of your original medical separation minus the amount of severance pay you were previously paid at separation.

The accepted DoD PDBR recommendation has been forwarded to the Army Physical Disab11lty Agency for required correction of records and then to the U.S. Defense Finance and Accounting Service to make the necessary adjustment to your pay and allowances. These agencies will provide you with official notification by mail as soon as the directed corrections have been made and will provide Information on your retirement benefits. Due to the large number of cases in process, please be advised that it may be several months before you receive notification that the corrections are completed and pay adjusted. Inquiry concerning your correction of records should be addressed to the U.S. Army Physical Disability Agency, (AHRC-DO),.

A copy of this decision has also been provided to the Department of Veterans Affairs.

Sincerely,

 
Enclosure