RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-00684
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20090629

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, D3 Cavalry Scout, medically separated from the Temporary Disability Retired List (TDRL) for “complex partial seizure disorder” with a disability rating of 20%.  

CI CONTENTION:  Review requested review of additional conditions (TBI and PTSD) 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 - 20090520	VARD - 20090115	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Complex Partial Seizure Disorder	8914	20%	Partial Complex Epilepsy	8045-8910	10%	NA	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  60%	
*VA treatment records

ANALYSIS SUMMARY:

Complex Partial Seizure Disorder.  According to the service treatment record and MEB narrative summary (NARSUM), the CI experienced a seizure on 19 February 2007 and was found in bed shaking, tonic and stiff, banging his head against the bed rail, and unresponsive. He had two other seizures on 9 March and 20 April 2007.  A 20 July 2007 neurology clinic appointment noted the CI had seizures on 20 April 2007 and another during his sleep, but did not provide the date.  He was diagnosed with partial complex epilepsy and subsequently separated and placed on the TDRL on 28 November 2007.  
During the VA polytrauma examination on 18 July 2008, 12 months before TDRL removal, the CI reported no seizures since May 2007.  Physical examination was unremarkable, and he was prescribed Keppra and Trileptal (anti-convulsants).  

At the 31 March 2009 TDRL evaluation, 3 months prior to TDRL removal, the CI reported his last seizure was in early May 2007 and stated that he was working, able to drive his car, and function normally with his condition. Physical examination was unremarkable with neurological findings intact.  Medications included Keppra and Trileptal.

There was no VA Compensation and Pension examination proximate to separation in evidence.  However, a 15 January 2009 VA rating decision decreased the rating for partial complex epilepsy from 40% to 10% effective 1 January 2009, citing VA medical records which showed that “on several occasions, most recently 15 December 2008 you stated you had not had a seizure since May 2007.  You no longer meet the criteria for a 40% evaluation.”  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the seizure disorder 20%, coded 8914 (epilepsy, psychomotor), citing at least one major seizure in the last 2 years.  The VA rated the seizure disorder 10%, dual coded 8045-8910 (residuals of TBI-epilepsy, grand mal), citing the evidence above.  Panel members noted the criteria for a 20% rating requires evidence of “at least one major seizure in the last 2 years or at least two minor seizures in the last 6 months” which was not supported at the time of TDRL removal; However, the panel is prohibited from lowering the PEB rating, and thus concluded there was no evidence to support a rating higher than that adjudicated by the PEB.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded there was insufficient cause to recommend a change in the PEB adjudication for the seizure disorder.  

BOARD FINDINGS:  In the matter of the complex partial seizure disorder and IAW VASRD §4.124a, the panel majority recommends no change in the PEB adjudication.  There are no other conditions within the panel’s scope of review for consideration. Therefore, the panel recommends no modification or re-characterization of the CI’s disability and separation determination.  

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Dear XXXXXXXXXXXXXXXXXX

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found your separation disability rating and your separation from the Army for disability with severance pay to be accurate.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed), and I accept its recommendation.  I regret to inform you that your application to the DoD PDBR is denied.  

	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.