RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-01459
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20060120

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Network Switching Systems Operator-Maintainer, medically separated for “epilepsy” with a disability rating of 10%.  

CI CONTENTION:  Review requested of additional conditions 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 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 - 20051014	VARD - 20060525	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Epilepsy Partial Complex with Secondary Generalization	8910	10%	Seizure Disorder	8910	10%	20060504	

ANALYSIS SUMMARY:  

Epilepsy Partial Complex with Secondary Generalization.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s epilepsy began in childhood, but he was seizure-free since the age of 5 years until August 2003.  He had additional seizures in September 2003 and again in October 2003 during which he felt a sense of blacking out, and was told he shook and foamed at the mouth.  An MRI in September 2003 was reportedly without evidence of brain pathology, but indicated chronic sinusitis.  An EEG done at the same time was reported to be markedly abnormal due to the presence of "generalized epileptiform activity.''   The CI was treated with Dilantin (phenytoin, an anti-epileptic drug) in October 2003 and his phenytoin level was 8.54 mcg/ml (normal 10-20) in January 2004. 

In February 2005 he reported having a near syncope/seizure and his Dilantin level was 3.0 mcg/ml around the time of having the flu.  An ECG on 15 February 2005 revealed sinus bradycardia (slow heart rate) and sinus arrhythmia (irregular heart rate) with first degree atrioventricular block, nonspecific intraventricular conduction delay, and nonspecific ST wave changes.  Cardiology evaluation was normal as was an echocardiogram.  He was seizure-free until March 2005, when he awakened with nausea, a bitten tongue, a headache, and some right arm and left knee pain.  At an emergency room visit, his serum phenytoin level was 5.76 mcg/ml, and he admitted that the day prior to the episode he had missed a dose of Dilantin and also had “a couple” of drinks and was dehydrated and sleep deprived.   A brain CT scan found no abnormality.  A note dated 11 April 2005 indicated the CI appeared to only have symptoms with a Dilantin level less than 5.0 mcg/ml.  He had another seizure in June 2005 and his Dilantin level was less than 0.5 mcg/ml.  

At the 15 June 2005 MEB neurology consultation examination, 7 months prior to separation, the CI reported seizures without any known triggers.  Physical examination showed that he was awake, alert, cooperative, and oriented to person, place, time and situation.  Language was fluent and goal-directed, and neurological evaluation of the cranial nerves was normal, as were muscle strength and sensation.  He was coordinated with symmetrical reflexes, and gait, to include toe, heel and tandem walking, was normal.  The examiner noted the CI’s epilepsy was well-controlled with appropriate anticonvulsant therapy, which he tolerated well.  However, he experienced seizure recurrences due to not taking medication or getting adequate amounts of sleep, and consuming alcohol.

The 8 August 2005 MEB NARSUM examination, 5 months before separation, noted complaints of a seizure disorder.  A focused neurology examination revealed normal mental status, cranial nerves, motor, sensory, coordination, reflexes and gait.  Dilantin levels were slightly below the therapeutic range except during the times of seizure activities when they were less than 0.5 mcg/ml.  

At the 4 May 2006 VA Compensation and Pension (C&P) examination, 4 months after separation, the CI reported epilepsy.  Physical examination showed two scars that occurred since service as a result of a fall from a seizure in April 2006.  Gait and stance were normal, as were pain, touch, temperature, vibratory sensations, and deep tendon reflexes.  Behavior and comprehension were good.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated epilepsy partial complex with secondary generalization 10%, coded 8910 (epilepsy, grand mal), citing seizures.  The VA rated seizure disorder 10%, also coded 8910, based on the C&P examination, citing a confirmed diagnosis of epilepsy with a history of seizures and taking continuous medication.  Members noted that the CI had at least two seizures in 2005, one in March 2005, approximately 10 months before separation, and another in June 2005, approximately 7 months before separation.  The PEB cited a problem with compliance and indicated that seizures that occurred “due to noncompliance or sub-therapeutic levels of anti-seizure medication are not counted.”  The CI reported an episode in February 2005 when he had the flu, and his Dilantin level was 3.0 mcg/ml.  The panel agreed that it was unclear whether this was a seizure or syncopal episode, and that the intervening illness and medication compliance should not be counted against him.  A second seizure occurred when a dose of Dilantin was missed and alcohol was consumed, and members agreed that determining whether the dose was missed as a result of willful noncompliance was speculative.  

Although the PEB made a rating deduction for treatment non-compliance, the panel considered its rating recommendation based solely on the impairment and the guidelines of the applicable VASRD diagnostic codes rather than on the criteria in DoDI 1332.39 6.1.3 (failure to comply with prescribed treatment).  Therefore, members determined the CI did not meet the criteria of non-compliance, and no reduction in the rating was warranted.  However, the CI did meet the criteria for a 40% rating using code, which states:  “At least 1 major seizure in the last 6 months or 2 in the last year; or averaging at least 5 to 8 minor seizures weekly.”  Because the record is unclear as to whether the CI had a seizure or syncopal episode in February 2005, a higher rating of 60%, which requires “averaging at least 1 major seizure in 4 months over the last year; or 9-10 minor seizures per week,” is not warranted.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 40% for epilepsy, coded 8910.  

BOARD FINDINGS:  In the matter of epilepsy, the panel recommends a disability rating of 40%, coded 8910 IAW VASRD §4.124a.  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; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Epilepsy	8910	40%	

AR20190004444, 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.