RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00584
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20041122

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Auto Logistics Specialist, medically separated from the Temporary Disability Retired List (TDRL) for “transient dementia” and “seizure disorder,” rated 0% each, with a combined disability rating of 0%.   

CI CONTENTION:  The CI made no specific contention.  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 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 - 20041109	VARD - 20040623	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Transient Dementia	8045-9304	0%	Mood and Psychotic Disorders Due to History	9435	100%	20031001	
Seizure Disorder	8045-8914	0%	Seizure Disorder, Complex and Simple	8911	40%	20031001	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  100%	

Transient Dementia.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s dementia condition began in July 2001 following the CI sustaining a closed head injury while intoxicated.  The CI sustained a depressed skull fracture and days later underwent surgical reduction.  The CI was separated and placed on TDRL on 25 July 2003.  The 7 July 2004 neuro-psychological testing showed prominent psychiatric factors, supporting psychotic and mood problems with significant cognitive problems.  The 19 July 2004 neuropsychological follow up noted the CI reported he had just quit his job as a clerk and was worried about finding another job.  He revealed impaired mood and thought processes.  His last GAF score on 15 July 2004, was 35 (impaired reality testing).
The 21 July 2004 MEB TDRL NARSUM examination, 4 months prior to TDRL removal, noted he had been hospitalized for a seizure within the first month of his moving to another city to live with his parents.  Over the course of the next 8 months, the CI reported he was admitted to the hospital seven times for depressed mood with suicidal ideations or visual hallucinations.  The following four months, the CI enrolled in a program by the VA where the CI was seen by a counselor, who came to his home, twice weekly.  He reported the sessions were helpful and in part responsible for his staying out of the hospital for the last 4 months.  During this time he reported a persistent depressed mood with periodic suicidal ideation.  He adamantly refused medication management, saying the medications made him too tired.  In addition to anti-seizure medication, he had been prescribed an anti-psychotic/mood stabilizing agent, an anti-depression medication and had not seen a psychiatrist or a psychologist over the past 8 months.  He stopped the medications because they made him feel “too tired.”  He lived with his current roommate for the past 2 months and had no difficulty with activities of daily living.  He dating episodically and had a small network of friends and support in the area in which he lived.  The job he acquired in June 2003 was interrupted by frequent hospitalizations.  He had not returned to work until June 2004 and worked as a clerk at a convenience store.  He reported no difficulties at work with plans to pursue further education.  Several of his hospitalizations required 911 calls due to his having a weapon and threatening suicide.  He also reported the episodic use of alcohol and his last period of intoxication as about 4 months prior to the evaluation.  

Mental status examination (MSE) showed speech that was slightly pressured, occasionally perseverative verbalizations, occasional stereotypic behavior, rambling and at times tangential thought processes.  His current mood was described as “good” and he denied suicidal or homicidal ideation, and visual or auditory hallucinations.  There were occasional stereotypic behaviors involving picking at his shirt pocket.  Thought content was notable for perseveration on themes of financial concerns and his desire to return to active duty.  Attention and concentration were fair to limited.  Diagnoses of personality change due to closed head injury, mood disorder due to general medical condition, and cognitive disorder NOS were rendered with a Global Assessment of Functioning (GAF) score of 70 (mild symptoms, impairment.)  The examiner noted he was medication non-compliant but appeared to be involved and invested in his current outpatient treatment.  He had limited insight into the nature and severity of his illness and it was too early to consider his condition stabilized.  There were no VA Compensation & Pension (C&P) examinations in evidence proximate to separation.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the transient dementia condition 0%, coded 8045-9304 (dementia due to trauma) at the time of TDRL removal, citing non-compliance for medication and follow-up visits, and continued binge drinking of alcohol.  The PEB noted his GAF of 70 would be normal without the non-compensable factor of substance abuse.  The VA rated the mood and psychotic disorders due to history condition 100%, coded 9435 (mood disorder, NOS), dated to the time of TDRL placement, citing total occupational and social impairment, and active suicidality with hospitalization for treatment during the October 2003 Mental Disorders C&P examination TDRL placement.  

Application of VASRD §4.129 is considered by the panel for all cases of service-connected psychiatric conditions resulting in separation; but, all panel members agreed that the ‘highly stressful event’ requisite for §4.129 was not satisfied in this case.  The panel then considered the implied deduction (“the board argues that his GAF of 70 would be essentially normal without the non-compensable factor of substance abuse”), made by the PEB for alcohol abuse.  Per IAW DoDI alcohol and drug abuse do not constitute physical disabilities and are not ratable or compensable conditions.  The CI had acknowledged alcohol and marijuana abuse on his MEPS Form 93 at the time of admission into the service in June 1997.  As such no deduction is appropriate from the overall dementia rating.  He received treatment in the Alcohol Substance Abuse Program (ASAP) in 2001 and there was no record of performance deficit due to alcohol abuse prior to his mental health condition becoming a performance issue.  The TDRL NARSUM examination noted the current episodic use of alcohol and the CI’s report of last intoxication occurring 4 months previously.  However, the examiner recommended continuation of TDRL status due to persisting instability of his emotional condition and did not attribute the CI’s persisting depressed mood with periodic suicidal ideation to alcoholism.  Through 6 years of service and prior to TDRL removal, there was no evidence of legal involvement and the commander did not cite alcohol-related impediments to performance.  

The panel determined that the evidence is not sufficient to uphold any consideration for substance abuse as a contributing factor at separation.  Members thus agreed that its recommendation should concede the total 8045-9034 impairment in evidence as subject to rating.  As noted above, the TDRL NARSUM examiner noted the persistence of mood symptoms, although the CI was working as a clerk without difficulty.  However, he had a history of repeated psychiatric hospitalizations (7) over the past year due to depressed mood with suicidal ideations and a plan since TDRL placement.  Since his last discharge 4 months previously, he had not complied with medications due to side effects, but had been enrolled in a VA treatment program and attributed the program with helping him to stay out of the hospital.  The MSE showed clear signs of mood and behavioral problems.  The examiner found him not stabilized and noted despite medication non-compliance, he appeared to be involved and invested in his current outpatient treatment.  

Panel members agreed that the 8045-9304 code chosen by the PEB was technically accurate in this case and the transient dementia condition was properly rated under the VASRD rules in effect prior to October 23, 2008 which stated:  “This 10 percent rating will not be combined with any other rating for a disability due to brain trauma.  Ratings in excess of 10 percent for brain disease due to trauma under diagnostic code 9304 are not assignable in the absence of a diagnosis of multi-infarct dementia associated with brain trauma.”  This PEB coding approach was consistent with the VASRD in effect at the time, which required that subjective symptoms of traumatic brain injury (TBI) be rated in this manner and could not be rated separately.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the transient dementia condition, coded 8045-9034.  

Seizure Disorder.   According to STR and the MEB NARSUM, the CI’s seizure disorder condition began in July 2001 following the CI sustaining a closed head injury while intoxicated.  The CI sustained a depressed skull fracture and days later underwent surgical reduction.  The 1 October 2003 C&P examination noted it apparently was part of the complex seizure diagnosis.  From June 2003 until 4 months prior to this examination, he reported numbness and tingling in his neck region that was often associated with loss of time, dizziness and light-headedness.  He also had periodic hallucinations of threatening faces.  A repeat electroencephalogram (EEG) on March 2004 revealed an abnormal EEG with a non-specific abnormality.

The 21 July 2004 MEB NARSUM examination, 4 months prior to TDRL separation, noted complaints of seizures that began after the closed head injury described above.  There was documentation of head trauma and an abnormal EEG.  He characterized the seizures as dizziness, lightheadedness and numbness.  There was a one-time loss of consciousness.  Neurological evaluation resulted in diagnoses of partial complex and partial simple seizures which were treated with anti-seizure medication.  The seizures resulted in hospitalization on at least one occasion.  During the first month of TDRL, the CI reported feeling numbness all over his body and subsequently was hospitalized.  The CI reported he had not had any seizures in the past 8 months and did not feel medications were necessary.  The CI had been variably compliant with treatment for several reasons.  He had reported sedation so severe he had to take amphetamines to stay awake.  He also reported a lack of medical coverage since discharge from the military.  He reported the “episodic” use of alcohol, described as 1-2 beers when at a bar.  MSE and diagnoses were as described above.  An Axis 3 diagnosis of “history of seizure disorder” was rendered.  
The panel directed attention to its rating recommendation based on the above evidence.  The PEB acknowledged a diagnosis of post traumatic partial complex seizures and rated the condition 0%, coded 8045-8914 (epilepsy, psychomotor) at TDRL removal.  The FPEB cited documentation of one recorded seizure on 13 January 2002, at which time the presence of alcohol was detected.  The FPEB acknowledged a confirmed diagnosis of epilepsy with a history of seizures, apportioned down due to compliance.  The VA rated the seizure disorder, complex and simple condition 40%, coded 8911 (epilepsy, petit mal), based on the C&P examination 13 months before TDRL removal, citing one major seizure in the last 6 months or 2 in the last year, or averaging at least 5-8 minor seizures weekly post-TDRL placement.  

The TDRL NARSUM, noted the CI had not had any seizures in the past 8 months but had been hospitalized for a condition identified as a partial complex seizure in October 2003, 13 months prior to TRDL removal.  He reported symptoms consistent with partial complex and partial simple seizures within 4 months of the examination.  The CI reported ongoing symptoms consistent with complex partial seizures within 4 months of the examination and still had an abnormal EEG.  However, there was no neurological follow-up to document type and number of seizure episodes.  Furthermore, partial complex seizures are not alcoholic seizures, although it is medically known that alcohol may exacerbate a seizure disorder.  

The panel then considered the seizure disorder according to the VASRD in effect at that time, “Brain disease due to trauma i.e. purely neurological disabilities, such as hemiplegia, epileptiform seizures, facial nerve paralysis, etc., following trauma to the brain, will be rated under the diagnostic codes specifically dealing with such disabilities, with citation of a hyphenated diagnostic code (e.g., 8045–8207).”  The panel noted the General Rating Formula for Major and Minor Epileptic Seizures characterized partial complex and simple seizures as minor seizures.  Under this rating formula, a confirmed diagnosis of epilepsy with a history of seizures fulfilled criteria for a 10% disability.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the seizure disorder condition, coded 8045-8914.  

BOARD FINDINGS:  In the matter of the transient dementia condition, the panel unanimously recommends a disability rating of 10%, coded 8045-9034 IAW VASRD §4.124.  In the matter of the seizure disorder condition, the panel unanimously recommends a disability rating of 10%, coded 8045-8914 IAW VASRD §4.71a.  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	RATING	
		PERMANENT	
Transient Dementia	8045-9034	10%	
Seizure Disorder	8045-8914	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160913, w/attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170016273, 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