RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00358
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20031018

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Infantryman, medically separated for “seizures, petit mal type”, with a disability rating of 10%.  

CI CONTENTION:  The CI contended for his seizure condition, traumatic brain injury (TBI) and he requested the panel “review all conditions.”  The 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 condition(s) at the time of separation.  The panel 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 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 - 20030806	VARD - 20040521	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Seizures, Petit Mal Type	8911	10%	Seizure Disorder	8911	10%	20040426	
Migraine Headaches, Non- prostrating	Not Unfitting	Migraine Headaches	8100	0%	20040426	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:  

Seizures, Petit Mal Type.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the seizure condition began in March 2002 after obtaining a head injury after completing a jump during airborne training.  In April 2002, he experienced a seizure with loss of consciousness.  Electrophysiologic testing (May 2002) and radiographic imaging (April 2002 MRI) of the head was normal.  At the May 2003 MEB examination (recorded on DD Forms 2807 and 2808), 5 months prior to separation, the CI reported passing out 4 times (in April 2002, May 2002, and July 2002).  The CI also reported a seizure the night of 25 September 2002 which was documented by his visit to his primary care clinic the next day.  Neurologic examination was checked “normal.  The 4 June 2003 MEB NARSUM examination, 4 months prior to separation, noted no specific complaints.  Physical examination showed that he was “mentally alert.”  The examiner stated that his epilepsy was “controlled by medication but with 15-20 seizures in the past 6 months.”  Although the 26 April 2004 VA Compensation and Pension (C&P) evaluation, performed 6 months after separation, was not in evidence, the VA rating decision documented that the CI reported no seizures in the past  year.  The neurologic examination was normal.  In a 9 July 2003 MEB Addendum, 3 month prior to separation, the examiner stated that the CI had had subtherapeutic levels of his anticonvulsant medication and averaged “about 1 seizure every 2 weeks.”  

The panel directed attention to the rating recommendation based on the above evidence.  

The PEB rated the seizure condition 10%, coded 8911 (epilepsy, petit mal), citing “without documented seizures in the presence of therapeutic anticonvulsant levels”.  

The VA also rated the seizure condition 10% coded 8911 (epilepsy, petit mal), based on the VA C&P examination 6 months after separation, citing a confirmed diagnosis of epilepsy, history of seizures, and the need for continuous medication, with denial of seizures in the past year.  

The panel considered the evidence for rating.  The VASRD §4.124a (rating schedule for neurologic conditions and convulsive disorders) 20% rating criteria stipulates having ‘at least one major seizure in the last 2 years; or at least 2 minor seizures in the last 6 months.’  The STR documented the both ‘major’ and ‘minor’ seizures, with the last major seizure (generalized tonic-clonic convulsion with unconsciousness) reported in September 2002 (13 months prior to separation).  A ‘minor’ seizure is characterized as a ‘brief interruption in consciousness or conscious control associated with …sudden loss of postural control.’  Minor seizures were reported, but not consistently witnessed at the time of the NARSUM examination, 4 months prior to separation.  The June 2003 MEB addendum summarized that anticonvulsant medication levels had been subtherapeutic and was consistent with continued seizure activity (averaging 1 seizure every 2 weeks, in support of a 20% rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 20% for the seizure condition, coded 8911.  

Migraine Headaches.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  The contended condition was not profiled or implicated in the commander’s statement or judged to fail retention standards.  There was no performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition and so no additional disability rating is recommended.    

BOARD FINDINGS:  In the matter of the epilepsy condition, the panel unanimously recommends a disability rating of 20%, coded 8911 IAW VASRD §4.121 and §4.122, and §4.124a. In the matter of the contended migraine headaches condition, the panel unanimously recommends no change from the PEB determination 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, effective as of the date of the prior medical separation:

CONDITION	VASRD CODE	PERMANENT RATING	
Seizures, Petit Mal Type	8911	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160601, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170015426, XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found that your disability rating should be modified but not to the degree that would justify changing your separation for disability with severance pay to a permanent retirement with disability.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed) and I accept its recommendation.  This will not result in any change to your separation document or the amount of severance pay.  A copy of this decision will be filed with your Physical Evaluation Board records.  I regret that the facts of the case did not provide you with the outcome you may have desired.
  
	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. 

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

Sincerely,	
Enclosure