RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01726
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20040305

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve E5, Automated Logistical Specialist, medically separated for “convulsion manifested by aura, loss of consciousness and with tonic-clonic grand mal seizure” with a disability rating of 10%.  

CI CONTENTION:  “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 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 – 20040123	VARD – 20041005 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Convulsion 	8999-8910	10%	Cholesterol Brain Granuloma Associated with Episodic
Headaches, Seizures and Dizziness	8911	10%	20040728	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  30% 	

ANALYSIS SUMMARY:  

Convulsion.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s convulsion condition began in September 2003 while he was watching TV and suddenly experienced a visual aura of bright lights (green/blue/white) for 2minutes, then had a loss of consciousness and was told he had a grand mal seizure for 1 minute followed by a 30-minute postictal period.  There were no subsequent major seizures prior to separation.  Brain magnetic resonance imaging (MRI) showed no abnormalities that would explain the seizure and an electroencephalogram (EEG) showed electrical activity that is common in epilepsy.  
The 24 October 2003 MEB NARSUM examination, 4 months prior to separation, noted complaints of a single tonic-clonic seizure (major seizure) on 19 September 2003.  The CI also reported that he believed he had three “minor” unwitnessed seizures described as periods of confusion marked by waking up with his pillow and sheets on the floor.  Physical examination showed a normal neurological evaluation.  

At the 28 July 2004 VA Compensation and Pension (C&P) evaluation, 5 months after separation, the CI reported that in addition to his initial seizure in September of 2003, he believed he had a subsequent episode in May 2004 which was not acknowledged in a June 2004 neurology note.  Additionally, he felt as though “he would have a seizure but he did not.”  These episodes that did not result in a tonic-clonic seizure occurred 2 or 3 times per month.  Physical examination showed a normal neurological evaluation.  

At the 18 November 2004 Neurology follow-up evaluation, 8 months after separation, the CI reported he had a seizure 2 weeks earlier, which was unwitnessed.  He stated that while he was on the phone with a friend, the friend told him that he didn’t sound well.  After hanging up the phone he noted he felt his vision getting blurry and that things were spinning.  The CI said that he fell down and reported he “tried to fight it” and then his left arm was “contracting upwards in a flexed position” and then had loss of consciousness.  He denied loss of bladder continence and tongue biting.  The CI had a normal neurological evaluation and was started on a second anti-seizure medication at that evaluation.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the convulsion condition 10%, coded 8999-8910 (analogous to epilepsy, grand mal), citing a single tonic-clonic seizure with no witnessed seizure activity since, has not been diagnosed as epileptic, and on no anticonvulsant medication.  The VA also rated the convulsion condition 10%, coded 8911, (epilepsy, petit mal), citing the use of “medication for prevention of seizures.”    

In the 6 months prior to separation, the CI experienced one major seizure to satisfy the requirements for a 40% rating under the General Rating Formula for Major and Minor Epileptic Seizures.  The panel noted that the episodes of confusion the CI experienced met the VASRD characterization of minor seizures; however, there was no evidence of at least 9-10 minor seizures per week or evidence of 1 major seizure every 4 months prior to separation to satisfy the requirements for the next higher 60% rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel majority recommends a disability rating of 40% for the convulsion condition, coded 8999-8910.  

BOARD FINDINGS:  In the matter of the convulsion condition, the panel majority recommends a disability rating of 40%, coded 8999-8910 IAW VASRD §4.124a.  The single voter for dissent submitted the appended minority opinion.  There are no other conditions within the panel’s scope of review for consideration.  

The panel majority 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	
Convulsion 	8999-8910	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20161108, w/attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

MINORITY OPINION:  The minority dissent with the majority recommendation was based on the totality of evidence in the service treatment record and VA treatment record for the convulsion condition.  The minority member opines that the Formal PEB correctly adjudicated the convulsion at 10%.

The majority based their 40% rating of the convulsion condition increase on VASRD rating for major epileptic seizures, at least 1 major seizure in the last 6 months.  However, the PEB used an analogous code 8910 (epilepsy, grand mal), it was analogous because there was no diagnosis of epilepsy given to the CI.  A 10% rating stimulates “a confirmed diagnosis of epilepsy with history of seizures,” or “continuous medication is shown necessary for the control of epilepsy, the minimum evaluation will be 10%.”  

The panel reviewed evidence 2 years prior to separation and 1 year after separation, during this time period the CI only had one reported witnessed seizure.  The VA rated the condition as a cholesterol brain granuloma associated with episodic headaches, seizures and dizziness, and rated the condition 10%, citing the use of “medication for prevention of seizures.”

The minority opines that the condition is properly rated at 10% based on medication, only one reported major seizure in the 3 year evidence presented to the panel, and no diagnosis of epilepsy.  Consistent with the DoDI 6040.44 standard that Physical Disability Board of Review recommendations are fair and equitable to both the Service and the CI, the Secretary is respectfully requested to consider the minority recommendation that there be no modification or re-characterization of the CI’s disability and separation determination.

AR20170019806, 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