RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01343
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20040420

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E3, Fire Control Repairer, medically separated for “seizure disorder” with a disability rating of 10%.  

CI CONTENTION:  “Service member never had seizure till service, and currently still has and is treated for seizures at Nashville VA.  Currently rated 100% total and permanent through VA.”  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 Medical Evaluation Board (MEB), but determined by the PEB 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.  The panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections when appropriate.  The panel’s assessment of the PEB rating determination is based on review of medical records and all available evidence relevant to application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards for 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, which operates 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 disability at the time of separation.  

RATING COMPARISON:  

SERVICE PEB - 20040311	VARD - NA	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Seizure Disorder	8999-8914	10%	No VA Examination Proximate to Separation	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  NA	

ANALYSIS SUMMARY:  

Seizure Disorder.  According to the service treatment record and MEB narrative summary (NARSUM), along with a line of duty (LOD) determination dated 21 February 2003, the CI was found vomiting and having abdominal pains in bathroom in July 2002.  The LOD also noted that the CI began experiencing heavy (menstrual) bleeding and a seizure disorder during Advanced Individual Training.  A laboratory report from 21 February 2003 included a request for a Dilantin (an anti-seizure medication).  No contemporaneous records of the initial presentation or evaluation were in evidence.  

The CI presented to a civilian emergency room (ER) on 26 May 2003, 11 months prior to separation, reporting a grand mal seizure at home which was witnessed by her family who brought her to the ER.  She reported that her seizures began after she was hit in the head with a rifle butt.  On presentation, she did not respond to verbal commands, rolled her eyes back in her head, and was drooling.  She recovered and was released to home.  A Dilantin level was sub-therapeutic.  The discharge diagnosis listed seizure disorder.  On 29 December 2003, 4 months prior to separation, she was taken to the ER by an ambulance crew for a seizure and noted to be post-ictal (altered state of consciousness after an epileptic seizure) by the ambulance crew (per the nursing note).  In neurology on 10 February 2004, 2 months before separation, she reported three seizures since her last evaluation (not dated or in evidence) which occurred in October, November, and December.  These were not further described (petite or grand mal) and there was evidence in the records only for the December seizure.  

On the 18 February 2003 general MEB NARSUM, 2 months before separation, the CI reported a history of fainting spells since 2001 (accession history dated 5 January 2001 recorded these had been present the prior summer and followed standing in the heat for a long time).  She noted that she had blacked out and hit her head; the date was not recorded.  It was also noted that her seizures seemed to become more frequent when she was more anemic (from heavy menstrual periods).  She denied any specific injuries. The physical examination was unremarkable, but a history of anemia was noted in the laboratory findings.  At the 23 February 2004 neurology MEB NARSUM, 2 months before separation, the CI reported that her seizures began in 2002 and that she had a total of 4 seizures since July 2003.  She noted an aura of being “dizzy and lightheaded” with her fingers “numb and tingling”, and the medical officer observed that this was a good description of hyperventilation.  She reported that she had been told that she bit her tongue, gagged, drooled, had trouble breathing, and was incontinent of urine during her seizures.  She also endorsed episodic time loss, dèjá vu, and possibly myoclonic jerk.  An electroencephalogram was noted to show left hemispheric abnormalities without further elaboration.  Blood levels demonstrated compliance with her Dilantin prescription.  The physical examination was unremarkable.  The CI was seen in the ER on 24 March 2004, 1 month before separation for a possible seizure.  The ER visit also provided laboratory findings of a sub-therapeutic Dilantin level.  

At the general medical VA Compensation and Pension (C&P) evaluation performed on 23 April 2004, 3 days after separation, the CI reported that she was hospitalized in 2002 for lightheadedness, vomiting, and a seizure.  She was given a blood transfusion for anemia.  She also reported that she had been admitted on multiple occasions for her anemia and seizure conditions.  She reported a total of 10-20 seizures since her initial seizure in August 2002, but the recent history was not recorded.  She noted loss of consciousness on 2 occasions: after she was hit in the head with a rifle in basic training and also after she blacked out and her head hit a sink in 2002.  She denied alcohol use.  The physical examination was unremarkable.  

The CI continued to serve in the National Guard after active duty separation and was seen in an Army primary care clinic on 29 April 2004 where she reported that her last seizure was in January 2004 (not in evidence).  On 29 June 2004, 2 months after release from active duty, the CI was transported by ambulance to the ER for a possible seizure.  The note is partially legible.  It is clear from the note though, that she did not bite her tongue and that she appeared to be normal upon arrival at the ER.  The CI was seen in the ER on 19 December 2004 reporting a seizure earlier in the day.  It was not further described nor was there witness testimony in evidence.  On presentation, she was tearful and smelled of alcohol.  She reported that she did not want to live anymore.  She also reported that she had been out of medications for 3 months.  No description of the seizure was recorded.  The medical officer noted that both alcohol withdrawal and excessive alcohol consumption increase the risk of a seizure.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the seizure disorder condition 10%, coded analogously as 8914 (epilepsy, psychomotor), citing the “Soldier [was] non-compliant and records [failed] to disclose one documented seizure, although 4 seizures [were] reported to have occurred since Jul 03.”  There was no VA examination proximate to separation.  The VA rated the seizure disorder condition 80% coded 8910 (epilepsy, grand mal) based on the C&P examination 4 year and 10 months after separation, citing averaging 1 major seizure every 3 months over the past year.  The examination was reviewed for progression of the seizure condition but the panel could not consider the examination for rating purposes because the examination was not within the panels 12 month period for review.

On 26 May 2003, 11 months prior to separation, the CI was evaluated in an ER for a seizure which had been witnessed by her family and noted to still be confused.  On 29 December 2003, 18 months prior to separation, she was transported by ambulance to an ER and noted to be post-ictal by the ambulance crew per the nursing note.  The panel determined that this is sufficient documentation that the CI, more likely than not, had 2 major seizures in the 12 months leading up to separation from active duty.  In June 2004, 2 months after separation from active duty, the CI was transported to the ER via ambulance for a possible seizure.  The note was partially legible, but documentation that the CI actually had a seizure was not evident.  The CI was seen in the ER early on 19 December 2004 noting that she reported a seizure earlier that day.  The rating criteria for a seizure disorder is dependent upon both the type and frequency of seizures.  For a 20% rating, there must be 1 major seizure in the past 2 years or 2 minor seizures in the prior 6 months.  For a higher 40% rating, there must be 1 major seizure in the prior 6 months, 2 major seizures in the past year, or 5-8 minor seizures weekly.  In the year prior to separation from active duty, the CI had 2 likely seizures including 1 which was less than 6 months from separation.  This supported a 40% rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 40% for the seizure disorder condition, coded 8914.  

BOARD FINDINGS:  In the matter of the seizure disorder condition, the panel unanimously recommends a disability rating of 40%, coded 8914 IAW VASRD §4.124a.  There are 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 of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Seizure Disorder	8914	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20161005, w/attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20180002717, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

I accept the recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) to re-characterize your separation as a disability retirement with the combined disability rating of 40% effective the date of your medical separation for disability with severance pay.  Enclosed is a copy of the Board’s recommendation and record of proceedings for your information.

	The re-characterization of your separation as a disability retirement will result in an adjustment to your pay providing retirement pay from the date of your original medical separation minus the amount of severance pay you were previously paid at separation.
 
	The accepted DoD PDBR recommendation has been forwarded to the Army Physical Disability Agency for required correction of records and then to the U.S. Defense Finance and Accounting Service to make the necessary adjustment to your pay and allowances.  These agencies will provide you with official notification by mail as soon as the directed corrections have been made and will provide information on your retirement benefits.  Due to the large number of cases in process, please be advised that it may be several months before you receive notification that the corrections are completed and pay adjusted.  Inquiry concerning your correction of records should be addressed to the U.S. Army Physical Disability Agency, (AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557.

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

Sincerely,					      
Enclosure