RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00698
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20040501

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E3, Automated Logistics Specialist, medically separated for “tonic clonic seizure disorder” with a disability rating of 10%.  

CI CONTENTION:  The CI contends that his medical condition has worsened and he now has vertigo.  He requests that the PDBR review all conditions.  The CI’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 based upon a 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 - 20040219	VARD - 20040726	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Tonic Clonic Seizure Disorder	8910	10%	Tonic Clonic Seizure Disorder	8999-8910	20%	20040506	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Tonic Clonic Seizure Disorder.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI had his first seizure on 12 June 2003.  The CI apparently fell from his bed while sleeping and was found to have a decreased level of consciousness.  He was evaluated at a local civilian hospital and had an essentially normal examination.  He was seen the next day in the military clinic and reported that his roommate had told him that he (the CI) rolled over in bed, fell onto the floor, landed on his head and began shaking.  He reported neck and tongue pain and was found to have a small cut on his tongue.  He was thought to have a possible post-traumatic seizure and referred to neurology for additional testing.  He was seen on 17 June 2003 and the neurologist was able to interview the roommate by phone.  The latter reported that the CI was sleeping when he heard the CI laughing.  The CI then fell out of bed continuing to laugh.  This lasted about a minute and was followed by shaking of all 4 extremities for about a minute.  He then got up and was throwing his shoe around and “looking through” his roommate.  He then became unresponsive.  The neurological examination was normal.  He was thought to have a complex partial seizure with secondary generalization.  An electroencephalogram (EEG) done that day was abnormal.  He was not put on any medications and did well until 3 November 2003 when he had two additional seizures while in the field, at 0100 and 0500, both witnessed.  He was then started on medications.  One week later, when the neurologist returned to duty, the CI was transferred for another evaluation accomplished on 13 November 2003.  The CI reported that he had been extremely sleep deprived and under a lot of stress.  The neurological examination remained normal.  He was noted to have now had his second seizure, both occurring while sleep deprived, and begun on medications which were titrated up over the next few weeks.  The MEB NARSUM examination was dated 10 December 2003, 5 months prior to separation.  The examiner noted a history of two seizures, both occurring while asleep after sleep deprivation.  The examination remained normal.  He was thought to have a generalized tonic clonic epilepsy.  A family practice note dated 9 January 2004 noted that the CI reported another seizure on 29 December 2003 after he ran out of medications.  The Board noted that the sudden cessation of anti-seizure medications can be provocative for additional seizures.  At the MEB examination (recorded on DD Forms 2807 and 2808) dated 9 January 2004, 4 months prior to separation, the CI reported a total of three seizures: one in June and two in October.  He did not report a seizure in December 2003.  The MEB forwarded “generalized tonic clonic epilepsy” for PEB adjudication.  At the 6 May 2004 VA Compensation and Pension (C&P) evaluation, performed 5 days after separation, the CI reported a total of three seizures.  The first was in 2002, the second in 2003 after which he was placed on medications, and the third 6 weeks later in late 2003.  He reported none since.  The neurological examination was normal.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the seizure disorder 10%, coded 8910 (epilepsy, grand mal), citing “confirmed diagnosis of epilepsy with a history of seizures.”  The VA rated the seizure disorder 20% coded 8999-8910 (analogous to epilepsy), based on the VA C&P examination 5 days after separation, citing “at least one major seizure in the last two years, or at least two minor seizures in the last six months.”  The Board considered the evidence.  The information is somewhat conflicting, but it appears that the CI had an initial seizure on 12 June 2003 and a second in early November 2003.  Some records indicate that there two the same day in November and others, including the neurology evaluation and emergency room note, indicate that there was one.  The criteria for a 10% rating are a confirmed diagnosis of epilepsy with a history of seizures or the use of medications.  A 20% rating is for at least one major seizure in the past 2 years or two minor seizures in the past 6 months.  The CI clearly meets these criteria.  The next higher rating, 40%, is for at least one major seizure in the past 6 months or two in the last year, or averaging 5-8 minor seizures weekly.  The Board noted that the CI was separated less than 11 months after the initial seizure and the second was just under 6 months prior to separation.  Both meet the criteria for a 40% rating.  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 tonic clonic seizure disorder condition, coded 8910.  

BOARD FINDINGS:  In the matter of the seizure disorder, the Board unanimously recommends a disability rating of 40%, coded 8910 IAW VASRD §4.124a.  There were no other conditions within the Board’s scope of review for consideration.  

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 the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Tonic Clonic Seizure Disorder	8910	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150601, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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 
XXXXXXXXXXXXXXXXXX, AR20170000055 (PD201500698)

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 re-characterize 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:

			       
						      					
Enclosure
					
CF: 
(  ) DoD PDBR
(  ) DVA