RECORD OF PROCEEDINGS	
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01542
BRANCH OF SERVICE:  marine corps 	SEPARATION DATE:  20040831

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Career Retention Specialist, medically separated for “epilepsy” with a disability rating of 10%. 

CI CONTENTION:  “All conditions should be reviewed according to the VASRD.”  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 - 20040708	VARD - 20041019	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Epilepsy	8910	10%	Status Post Grand Mal Seizure	8911	20%	20040812	
Pes Planus	Cat III	Bilateral Pes Planus	5276	0%	20040812	
Central Disc Bulge L4-5, L5-S1	Cat III	Disc Bulging at L5-S1	5242	0%	20040812	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Epilepsy.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI reportedly experienced a syncopal episode followed by witnessed tonic clonic activity on 6 February 2004.  Head computed tomography (CT) in the emergency room was negative and the CI described a similar episode in 1999, which was not worked up for seizure disorder.  Neurological evaluation diagnosed epilepsy with a positive electroencephalogram.  The CI was started on anti-epileptic medication (Dilantin) and had no further seizures.  
During the 27 April 2004 MEB examination (recorded on DD Forms 2807-1 and 2808), 4 months prior to separation, the CI reported two grand mal seizures and loss of consciousness and memory.  The MEB NARSUM examination on the same day (by the same provider) noted complaints of a seizure and physical examination showed normal neurological findings.  The examiner opined that that the CI would not return to full duty due to her “history of seizures and necessity for treatment with Dilantin.”  At the 12 August 2004 VA Compensation and Pension (C&P) evaluation, 1 month before separation, the CI reported no seizures while on Dilantin.  Physical examination revealed normal neurological findings and mental status.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the epilepsy condition 10%, coded 8910 (epilepsy, grand mal).  The VA rated the grand mal seizure condition 20%, coded 8911 (epilepsy, petit mal), based on the C&P evaluation, citing at least one major seizure in the last 12 months.  Members agreed there was evidence to support a 20% rating under 8910 for “at least one major seizure in the last 2 years.”  There was no evidence of “at least one major seizure in the last 6 months” at the time of separation for the next higher 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 20% for the epilepsy condition, coded 8910.  

Contended PEB Conditions:  Bilateral Pes Planus (PP) and Central Disc Bulge L4-5 and L5-S1.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended conditions were Category III (not separately unfitting and do no contribute to the unfitting condition). 

Based on the STR and MEB NARSUM, the CI had a history of bilateral PP which did not carry attached duty limitations.  The 17 May 2004 non-medical assessment did specify a PP condition and the June 2004 Joint Disability Evaluation Tracking System (JDETS) findings did not mention a PP diagnoses nor were the feet judged to fail retention standards.  There was no performance-based evidence from the record that the PP condition significantly interfered with satisfactory duty performance at separation.  

According to the MEB NARSUM, the CI was on a limited duty board for a low back condition and had been improving in physical therapy until she experienced an exacerbation of back pain just prior to her seizure in February 2004.  The NARSUM examiner noted the low back pain continued to improve while she was on her first limited duty period and the JDETS findings also indicated improvement with radicular symptoms resolved and the central disc bulge L4-5, L5-S1 condition was not judged to fail retention standards.  Although the CI was to continue on limited duty until the PEB was completed, physical examination of the back during the NARSUM examination was normal with full ROM and no tenderness noted.  After due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB fitness determination for either of the contended conditions and so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the epilepsy condition, the panel recommends a disability rating of 20%, coded 8910 IAW VASRD §4.124a.  In the matter of the contended pes planus and central disc bulge L4-5, L5-S1 conditions, the panel recommends no change from the PEB determinations as not unfitting.  There are no other conditions within the panel’s scope of review for consideration. 

The panel recommends the CI’s prior determination be modified as follows, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Epilepsy	8910	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20161020, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record  

MEMORANDUM FOR DEPUTY COMMANDANT (Manpower and Reserve Affairs} COMMANDER, NAVY PERSONNEL COMMAND

Subj:		PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS 
Ref:	(a)	DoDI 6040.44

1.	Pursuant to reference (a), the recommendations of the Physical Disability Board of Review set forth in references (b) through (h) are approved.	The official records of the following individuals are to be corrected as follows:

a.	XXXXXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a 30 percent rating (increased from 10 percent) effective date of discharge.

b.	XXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from
10 percent) effective date of discharge.

c.	XXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.

d.	XXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.

e.	XXXXXXXXXXXXXXXXXX, former USN: Entitlement to  disability separation pay with a 20 percent disability rating (increased from
10 percent) effective date of discharge.

f.	XXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from
10 percent) effective date of discharge.

g.	XXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from
10 percent) effective date of discharge.

3.	Please take action to implement these decisions and provide notification
to the above individuals once thoseact

XXXXXXXXXXXXXXXXXX 
Acting