RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXX		CASE: PD-2017-00302 BRANCH OF SERVICE: MARINE CORPS	SEPARATION DATE: 20050915

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E-4, Consolidated Automatic Support System Technician, medically separated for “epilepsy” with a disability rating of 10%.

CI CONTENTION: Review requested of all conditions and an additional condition not identified by the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB). 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 PEB to be unfitting for continued military service, and when specifically requested by the CI, those conditions identified by the 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 - 20050712	VARD - 20051022	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Epilepsy	8911	10%	Grand Mal Seizure Disorder	8910	20%	20050210	
COMBINED RATING: 10%	COMBINED RATING OF ALL VA CONDITIONS: 20%	

ANALYSIS SUMMARY:

Epilepsy. According to the service treatment record and MEB narrative summary (NARSUM), the CI experienced a single convulsive episode in the presence of his spouse on 19 September 2004, and an emergency room neurology consult noted a new onset tonic-clonic seizure; a head CT and brain MRI were normal. An October 2004 EEG noted questionable slow wave activity primarily on the right side of the brain. A second witnessed episode occurred on 27 December 2004 and the CI was treated with Depakote ER (anti-convulsant).

At the 10 February 2005 VA Compensation and Pension (C&P) examination, 7 months before separation, the CI reported “two attacks in total averaging 2 each year” over the past 2 years. Symptoms included loss of consciousness and impaired ability to perform daily functions during an attack; however, there was no functional impairment during the postictal periods. He was able to perform activities of daily living and his occupational duties as an avionics technician for the previous 4 years with negligible daily impact and no lost time from work.

A March 2005 neurology follow-up visit noted the convulsive events were both witnessed and characterized by activity consistent with generalized tonic-clonic (GTC) and postictal afterward. Neurological examination was normal, and a diagnosis of grand mal seizure disorder was rendered per reporting of events with objective factors; i.e. the eyewitness account by his wife and postictal state.  The CI was taking Depakote, but his valproic acid level was 38 (low).

The 21 April 2005 MEB NARSUM examination, 5 months prior to separation, noted the CI had no recurrent seizure activity since starting medication. His workup was essentially unremarkable and as described above. Physical examination (including neurological) showed no abnormalities. A diagnosis of epilepsy (unspecified) was rendered. The examination was conducted by the same neurologist who conducted the March follow-up visit and MRI, CT and EEG findings were noted.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the epilepsy condition 10%, coded 8911 (epilepsy, petit mal), citing mild industrial impairment and 2 weeks spent away from duties. The VA rated the epilepsy condition 20%, coded 8910 (epilepsy, grand mal), based on the C&P examination, noting one confirmed episode in September 2004 and that the CI did not meet the evidentiary standard for a higher evaluation of 40%. A major seizure disorder is coded 8910, and a minor seizure disorder is coded 8911 per VASRD 4.124., with the criteria for rating epilepsy based on the frequency of major or minor seizures. The NARSUM examiner rendered a diagnosis of “seizure disorder, unspecified,” and the PEB coded the seizures as minor in type for unclear reasons. Under the VASRD General Rating Formula for Major and Minor Epileptic Seizures, at least one major seizure in the last 2 years, or at least two minor seizures in the last 6 months, meets criteria for a 20% rating disability. The panel conducted a detailed discussion of the seizure type and its implications for rating. Two EEGs showed questionable slow activity on the right side of the brain, raising consideration of a right-sided focal seizure, which is considered a minor seizure per VASRD. The neurology consultant, who was also the NARSUM examiner, classified the seizure as unspecified. Members noted the C&P examiner diagnosed grand mal type seizures, based on spousal reporting in the emergency room. The panel majority concluded that the evidence best matched the 20% criteria, for at least one major seizure in the last 2 years. After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel majority recommends a disability rating of 20% for the seizure condition, coded 8910.

BOARD FINDINGS: In the matter of the epilepsy condition, the panel majority recommends a disability rating of 20%, coded 8910 IAW VASRD §4.124. The single voter for dissent recommends no change and did not elect to submit a minority opinion. 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 the date of medical separation:

CONDITION	VASRD CODE	PERMANENT RATING	
Epilepsy	8910	20%	

DEPARTMENT OF THE NAVY
SECRETARY OF THE NAVY COUNCIL OF REVIEW BOARDS 720 KENNON STREET SE STE 309
WASHINGTON NAVY YARD DC 20374-5023

IN REPLY REFER TO

1850
CORB:003
2 Jun 20

From: Director, Secretary of the Navy Council of Review Boards 

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR)

Ref:   (a) DoDI 6040.44
(b) PDBR ltr of 19 Oct 18

1.	Pursuant to reference (a), the PDBR reviewed your case and forwarded its recommendation to the Department of the Navy for appropriate action.

2.	On 27 May 2020, the Assistant Secretary of the Navy (Manpower & Reserve Affairs) took action in your case by accepting the recommendation of the PDBR.  Accordingly, your records will be corrected to reflect an increase in the disability rating awarded by the Department of the Navy Physical Evaluation Board (PEB) from 10% to 20% without re-characterization of your discharge.

3.	For your information, since all disability ratings from 0% to 20% qualify for disability severance pay, the above stated increase will not result in your entitlement to additional compensation.

4.	The Assistant Secretary’s determination, which represents final action in your case by the Department of the Navy, has been forwarded to the office of the Deputy Commandant, Manpower and Reserve Affairs, for appropriate changes to your personnel records and notification to you upon completion.