RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01762
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20041207

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

CI CONTENTION:  The CI’s conditions continues to worsen.  The complete submission is 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 - 20041103	VARD – 20030514	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Seizure Disorder	8999-8914	0%	Seizure Disorder	8911	20%	20030418	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

Seizure Disorder.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s seizure disorder condition began in April 2001 while in the field and riding in a vehicle.  He developed a severe left sided occipital headache which was accompanied by a sensation of intense pressure in his head which felt as if it was going to pop.  He was medically evacuated to a hospital for this headache as it caused him to become unresponsive for some time.  However, he was evaluated and released with the diagnosis of complex migraine.  He had a similar episode in August 2001 of headache accompanied by nausea, feeling clammy, shaking of his hands and blacking out.  From the end of August 2001 he continued to have these symptoms at intervals of about once a week, usually around 6 o'clock in the evening for 3-5 minutes where he would develop a severe headache, feel nauseated, clammy, and become shaky and confused.  However, he would recover relatively quickly from these symptoms afterwards.  He was referred to a civilian neurologist at the beginning of November 2001.  EEG (electroencephalogram) was abnormal with sharp and slow waves, and the CI was diagnosed with partial complex seizures and started on Depakote 500 mg twice a day as an anti-epilepsy medicine.  The TDRL-entry NARSUM diagnosed “partial complex seizures with epileptic and nonepileptic, as manifested by symptoms of tonic movements, confusion and loss of consciousness confirmed by elevated prolactin levels and abnormal EEGs.” He was placed on TDRL in July 2004 for seizure disorder, most likely probable partial complex seizures with generalization, with some non-epileptic spells.  He underwent an extensive evaluation to include a normal EEG and video EEG, which did not fully support epileptic seizures, though Prolactin levels were elevated at least twice during his evaluations for seizures.  Attempts on multiple medications to include Tegretol, Dilantin and Neurontin have not changed the frequency of this patient's seizures.  

At the 18 April 2003 VA Compensation and Pension (C&P) General and Neurologic Disorders evaluation, 20 months before separation, the CI reported his seizures interfered with his ability to work steadily.  Headaches started in the back of the head, then the CI had either a partial complex, generalized, or partial complex secondarily generalized seizure, with residual drowsiness.  Physical examination was essentially normal.  The examiner diagnosed “migraines, with seizures disorders” and referenced a neurology textbook (Mumenthaler, M. 1983. Neurology 2nd ED. Thieme-Stratton:NY. P319) describing dysphrenic migraines with epileptic manifestations associated with migraines.  

The 28 July 2004 MEB NARSUM examination, 4 months prior to separation, noted complaints of seizures approximately 2-3 every other month.  The CI had stopped his medications secondary to side effects and had no change in his clinical status.  He continued to experience the same number of seizures on medication as off medication.  He was unable to identify exacerbating factors or relieving factors.  He was taking no medications and was on no non-medical therapy.  His condition remained stable with time.  Physical examination was essentially normal.  The diagnosis was seizure disorder.  There was no VA examination in evidence proximate to the end of the TDRL period.  

The panel directed attention to its rating recommendation based on the above evidence.  The CI was removed from TDRL with a permanent disability disposition of separation with severance pay at 0%, coded analogously to 8914 (epilepsy, psychomotor).  The PEB cited that the CI experienced 2-3 seizures every other month whether or not he was on medication but there was no verification of seizures.  He was non-compliant with medications and worked in a civilian communication job.  Physical examination was without abnormalities.  The VA rated the seizure disorder condition 20%, coded 8911, (epilepsy, petit mal), based on the C&P examination 20 months before separation, citing at least one major seizure in the last two years, or at least two minor seizures in the last six months.  DoD instructions at the time of separation differed in rating considerations from the VASRD; however, the panel must apply the VASRD standards in effect at the time.  VASRD ratings for seizures are based on the type, frequency and timing of seizures.  

The CI had a diagnosis of partial complex seizures (including tonic movements) on entry into TDRL and subsequent neurologist’s notes, C&P examinations and the TDRL removal NARSUM also had seizures listed as a diagnosis.  The panel agreed that coding under 8914 (IAW VASRD §4.122) was predominant.  The history was unclear if the CI had a “major” seizure in the 2 years prior to separation or if the episodes were “minor” seizures IAW VASRD §4.124a; minor seizures includes generalized seizures with loss of consciousness and sudden jerking movements of the arms, trunk, or head (myoclonic type) or sudden loss of postural control (akinetic type).  A major seizure is characterized by the generalized tonic-clonic convulsion with unconsciousness.  The most detailed descriptions and diagnosis of the CI’s events was for partial complex seizures with symptoms of tonic movements, which are considered minor seizures IAW VASRD rating criteria.  
There is no VASRD-compliant mechanism for deductions for non-compliance, and the NARSUM at TDRL exit indicated that the CI was experiencing approximately 2-3 seizures every other month.  At the time of separation in December 2004, the CI had at least 2 minor seizures in the last 6 months, which met the 20% rating criteria.  There was insufficient evidence of averaging at least 5 to 8 minor seizures weekly proximate to separation for the next higher 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 disorder condition at the time of TDRL removal.  

BOARD FINDINGS:  In the matter of the seizure disorder condition, the panel unanimously recommends a disability rating of 20%, coded 8999-8914 IAW VASRD §4.124a, at the time of removal from TDRL and permanent disability disposition.  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, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Seizure Disorder	8999-8914	20%	

The following documentary evidence was considered:

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

AR20180000018, 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