RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00506
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20090128

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E3, Food Service Specialist, medically separated for “seizure disorder,” with a disability rating of 20%.  

CI CONTENTION:  “Epilepsy, physical injuries.”  The CI’s complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The panel’s scope of review is defined in DoDI 6040.44.  It is limited to review of disability ratings assigned 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 or non-compensable.  Any conditions outside the Panel’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 panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The panel’s assessment of the PEB rating determination is based on review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical conditions at the time of separation.  The panel has neither the role nor the authority to compensate for progression or complications of service connected conditions after separation.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The panel 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 - 20081218	VARD – NA	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Seizure Disorder	8911	20%	No VA Exam in Evidence	
Lumbago	Not Unfitting 		
Left Knee Pain			
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  NA	

ANALYSIS SUMMARY:  

Seizure Disorder.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s seizure disorder began in April 2008 after a witnessed generalized tonic-clonic seizure.  Anti-seizure medications were initiated.  Further investigations documented a normal head MRI, and normal electroencephalogram testing (EEG) in May 2008.  As studies were normal, anti-seizure medications were discontinued.  The panel majority determined that another witnessed seizure occurred in August 2008 which resulted in a motor vehicle accident (MVA).  

At the 29 September 2008 neurology NARSUM examination, 4 months before separation, the examiner documented that there had been one witnessed seizure on 14 April 2008 and on 4 August 2008 the CI caused a MVA, where the CI claimed that “he was found by witnesses to be convulsing, with his head through the windshield.” The physical and neurologic examinations were normal.  Anti-seizure medications were confirmed.  There was no VA Compensation and Pension examination in evidence as the CI had not submitted a claim.  

The panel directed attention to the rating recommendation based on the above evidence.  The PEB assigned a 20% rating under the 8911 code (epilepsy, petit mal), citing one major seizure in the past 2 years. The majority determined that there was confirmation of two major seizures occurring in the year before separation that supported a 40% rating under code 8910 (epilepsy, grand mal) IAW VASRD §4.121 and 4.124a.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel’s majority recommends a disability rating of 40% for the seizure condition, coded 8910.  

Contended PEB Conditions:  Lumbago and Left Knee Pain.  The panel’s main charge is to assess the fairness of the PEB’s determination that left knee and back pain were not unfitting.  The back and knee pain conditions were not profiled or implicated in the commander’s statement and were not judged to fail retention standards.  There was no performance-based evidence from the record that any of these conditions significantly interfered with satisfactory duty performance.  After due deliberation, and in consideration of the preponderance of the evidence, the panel concluded that there was insufficient cause to recommend a change in the PEB fitness determination for any of the contended conditions and so no additional disability ratings are recommended.  

PANEL FINDINGS:  In the matter of the seizure condition, the panel majority recommends a disability rating of 40%, coded 8910 IAW VASRD §4.124a.  The single voter for dissent recommended no re-characterization and elected to submit a minority opinion.  In the matter of the contended lumbago and left knee pain conditions, the panel unanimously recommends no change from the PEB determinations as not unfitting.  There were no other conditions within the panel’s scope of review for consideration.  The panel 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 prior to medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Seizure Disorder	8910	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150601, w/attachments
Exhibit B.  Service Treatment Record

MINORITY OPINION:  The minority dissent with the majority recommendation was based on the totality of the evidence in the STR for the seizure disorder condition.  The PEB correctly rated the seizure disorder condition at 20% base on VASRD rating for seizures:  at least one major seizure in the last 2 years. 

The minority agrees with the PEB’s determination that the CI only had one major seizure in the past 2 years.  The CI had one witnessed tonic-clonic (major) seizure while deployed to Iraq on 14 April 2008.  The CI contended that he had a second seizure that caused an MVA in August 2008 while home on leave.  The majority accepted the CI’s contention, whereas the minority voter disagrees.

The only evidence of the contended second seizure was from the CI; there were no witness statements.  According to the police accident report, the CI “stated that he did not know what happened, he thought he blacked out.”  In the NARSUM the CI reported that “he was found by witnesses to be convulsing, with his head through the windshield,” however, the convulsing may have resulted from his head going through the windshield. 

There was no documentation of a seizure on the police report nor evidence of alcohol.  There was evidence that clearly showed that the CI had a history of alcohol abuse and was diagnosed with an alcohol disorder.  The PEB used evidence from hospital records that documented a blood alcohol level of 0.231% at the time of the MVA, well above the 0.08% legal limit.  Historical evidence showed that the CI “drinks alcohol 7 drinks daily and 14 drinks on the weekend days.”  The MVA happened on a Monday evening at around 2100, while the CI was home on leave.       

The CI contended that his driver’s license was “taken away for five years,” and the record does not state why his license was suspended.  However, Tennessee does not suspend a license for seizures for a 5-year period; the law states that “license may be issued to those who are seizure-free for 6 months, and who receive a favorable review from state’s medical board.”  The minority voter believes that the above facts strongly indicate that the CI’s license was suspended for 5 years because he was driving drunk with a blood alcohol level well above the legal limit that resulted in a multi-vehicular accident.   

The CI cannot be considered to be a creditable witness for his own contended seizure.  VASRD §4.121 (identification of epilepsy) stipulates, “To warrant a rating for epilepsy, the seizures must be witnessed or verified at some time by a physician.”  The minority voter contends that this requirement was not satisfied in support of the majority rating recommendation reliant upon a major seizure at the time of the MVA.  There is even a defensible argument that the index seizure (the first one prior to diagnosis) is equivocally subject to rating since it does not reflect disability from a recognized and treated condition (not addressed in the VARSD).  There were no treatment records after separation in evidence for the CI’s seizure disorder and no VA claim for such, implying (although not establishing with certainty) that there have been no recurrent seizures.  This suggests clinically that the CI suffered the single seizure in Iraq from an unrecognized substrate, with a negative work-up and no recurrence.  A recurrent seizure at the time of the MVA would typically have heralded a permanent condition requiring ongoing treatment.  

The evidence presented to the panel, therefore, supports a history of only one witnessed (§4.121-compliant) seizure without other ratable major or minor seizures.    The totality of the evidence provided ample support for a conclusion that the PEB’s adjudication of the seizure condition was reasonable and fair, and consistent with criteria of VASRD §4.124a.  

The Secretary is respectfully requested to consider the minority recommendation that there be no re-characterization of the CI’s service disability determination. 

AR20170004777, XXXXXXXXXXXXXXXXXX 

Dear XXXXXXXXXXXXXXXXXX:

The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and recommended that your percent of disability be increased.  I have reviewed the Board’s record of proceedings, majority recommendation, and minority opinion (copy enclosed).  I regret to inform you that I reject the Board’s majority recommendation and accept the Board’s minority opinion as accurate that your final Physical Evaluation Board disability rating remains unchanged.  There is insufficient justification to support the Board’s recommendation in accordance with Army and Department of Defense regulations. 

This decision is final.  Recourse within the Department of Defense or the Department of the Army is exhausted; however, you have the option to seek relief by filing suit in a court of appropriate jurisdiction.

Sincerely,