RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00866
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20040330

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 “generalized tonic-clonic seizure” with a disability rating of 10%.  

CI CONTENTION:  The CI made no specific contention.  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 - 20040203	No VA Claim	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Generalized Tonic-Clonic Seizure	8914	10%	NA	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  NA	

ANALYSIS SUMMARY:  

Generalized Tonic-Clonic Seizure.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s seizure condition began in November 2002.  He had a witnessed generalized seizure on 30 April 2003, had negative brain imaging (CT), was started on antiepileptic medication (Depakote) and evacuated from theater.  Further brain imaging (MRI) and electroencephalogram (EEG) were normal.  The CI had “three or four more generalized tonic-clonic seizures” while on Depakote [May and June 2003]; evaluation of medication levels indicated sub-therapeutic values and medication was increased.  At least two of the seizures were related to physical training and an ordered cardiology evaluation including an echocardiogram and Holter monitor were normal.  
At the neurology examination dated 23 September 2003, 6 months prior to separation, the history indicated that the last spell was in May during running and while the CI was feeling dehydrated.  The assessment was that “phenomenology in the syncopal category given clinical association with running” and that the Depakote was being weaned (stopped) over the next three weeks.  The MEB NARSUM examination on 3 December 2003, 4 months prior to separation, noted the CI’s last seizure was in October 2003 while the CI was setting up a tent.  The CI was evaluated in the emergency department and restarted on Depakote after a low serum level was reported.  Depakote (Valproic acid therapeutic range 50-100) levels were reported as:  not detected (<10) in May 2003, 28 on 10 June 2003, 25 on 29 June 2003 and <10 on 3 December 2003.  Physical examination showed no neurologic deficits and was non-contributory.  The CI has not filed a VA claim.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the seizure condition 10%, coded 8914 (Epilepsy, psychomotor), citing “onset Nov 02, started on Depakote; however, has continued to have seizures, all with associated sub-therapeutic Depakote Levels.  Rated as confirmed diagnosis with history of seizures.”  The rating criteria for seizures depends on the type, frequency and proximity of seizures under the general rating formula for major and minor epileptic seizures.  The record indicated the CI had major seizures (generalized tonic-clonic) IAW VASRD §4.124a.  The record indicated that the CI had five generalized seizures in the 2 years prior to separation and at least one major seizure in the 6 months prior to separation.  The two initial seizures in November 2002 and April 2003 were prior to the CI being started on anti-epileptic medication (Depakote), and the most recent seizure in November 2003 was following a neurology evaluation that indicated the anti-epileptic medication was being stopped.  The intervening two seizures were noted to be during periods of sub-therapeutic medication levels, and were within the year prior to separation.  The Board discussed the three seizures in the year prior to separation and the differences between the VASRD rating criteria and the prior DODI 1332.39 (rescinded) which indicated that ratings could be reduced for failure to comply with treatment.  The sub-therapeutic medication levels may have been non-compliance, although the increased dose of medication did not indicate willfulness or negligence.  The neurologist’s note in September 2003 indicated that Depakote was being stopped prior to the October 2003 seizure, which was in the 6 months prior to separation.  The Board adjudged that there was sufficient evidence to support a major seizure in the last 6 months supporting the 40% rating criteria.  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 seizure disorder condition, coded 8914.  

BOARD FINDINGS:  In the matter of the generalized tonic-clonic seizure condition, the Board unanimously recommends a disability rating of 40%, coded 8914 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	
Generalized Tonic-Clonic Seizure	8914	40%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150601, with attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

	
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, AR20160013342 (PD-2015-00866)

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