RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXX	CASE:  PD-2017-01652
BRANCH OF SERVICE:  Air Force 	SEPARATION DATE:  20050713

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Avionics Test and Station Components Journeyman, medically separated for “seizures” with a disability rating of 20%.  

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 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 - 20050531	VARD - 20060311	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Status Post Closed Head Injury w/ Subdural Hematoma Resolved; Seizure Disorder	8910-8999	20%	Residuals of Injury Resulting in an Intracranial Hemorrhage that was Inoperable with Resulting Seizures 	8910	20%	20051129	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  40% 	

ANALYSIS SUMMARY:  

Seizure Disorder.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s seizure condition began in 1 January 2004 after falling off a lifeguard stand 10 feet and hitting his head on the concrete floor.  The CI was admitted to the hospital for further evaluation on 3 January 2004, and a CT scan of the brain revealed a hemorrhage of the right temporal area, as well as a small epidural hematoma of the left occipital region.  A subsequent MRI confirmed hemorrhage in those areas.  Treatment consisted of mannitol (diuretic), Lasix (diuretic), Decadron (steroid), and Cerebyx (antiepileptic).  Future MRI scans of the brain were scheduled to follow the status of the hemorrhage.  

The CI had a seizure on 22 January 2004 and was hospitalized and treated with phenobarbital and Fioricet (acetaminophen, butalbital, and caffeine).  A neurosurgical note dated 6 February 2004 indicated a recent MRI showed good evolution of the frontal parietal hematoma.  However, the neurosurgeon suspected an arachnoid cyst or perhaps a mucocele (a benign lesion with mucoid secretions).  On 13 February 2004, the CI was seen for acute headache and ataxia associated with nausea, which subsided in a couple of hours.  An urgent MRI showed the previous hemorrhage measuring about 4 cm.  On 21 February 2004, at an ER visit, the CI reported blurred vision and weakness of the left side of the body after he ran out of medications some days earlier; his phenobarbital level was noted to be low.  A CT scan on 22 February 2004 showed an area of low attenuation in the right temporal lobe extending into the right parietal lobe; a subacute ischemic event could not be excluded.  On 1 March 2004, a neurologist indicated the CT findings were consistent with encephalomalacia (softening or loss of brain tissue), and noted the CI continued to have “partial complex seizures secondary to hemorrhage affecting the left side of his body, jerking and some confusion from time to time.”  Trileptal (antiepileptic drug) was instituted.  MRI on 2 April 2004 revealed right temporal lobe abnormal signal focus, most suggestive of late subacute hemorrhage.  At a neurologic follow-up on 4 November 2004, the CI was doing well on Trileptal and had not experienced any seizures for 9 months.  

The CI was seen in the ER with a seizure on 12 January 2005, and a brain CT scan showed the old trauma-related encephalomalacia but no evidence of any acute bleed, midline shift or mass effect.  He was treated with Ativan (anti-seizure/anxiety drug) and discharged on Trileptal in good condition.  At the 22 March 2005 neurological evaluation, 4 months before separation, findings were normal, and at a follow-up visit on 19 April 2005, the CI reported no further seizures since January 2005, and Trileptal was continued.  

At the MEB NARSUM examination the CI reported being seizure-free since January 2005, but had occasional headaches.  Physical examination showed cranial nerves II-XII grossly intact, symmetrical 2+ deep tendon reflexes, normal strength and normal gait.  The NARSUM examiner rendered a diagnosis of “seizure disorder.”

At the 1 December 2005 VA Compensation and Pension (C&P) neurology examination, 5 months after separation, the CI reported he developed a subdural hematoma that was not drained surgically and had a seizure 10 days after hitting his head.  The examiner noted an awake, alert and cooperative individual with “normal mentation and gait.”  He scored 28/30 (normal cognitive function) on a mini mental state examination; and strength, coordination, sensation and deep tendon reflexes were normal.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the seizure condition 20%, analogously coded 8999-8910 (epilepsy, grand mal), citing “recent seizure, Jan 2005, currently controlled on medication, normal EEG.”  The VA also rated the seizure disorder condition 20%, coded 8910, based on the C&P examination, citing one major seizure in the last 2 years, or at least two minor seizures in the last 6 months.  Members noted that the criteria for rating epilepsy are based on the frequency of major (8910) or minor (8911) seizures IAW VASRD §§4.121 and 4.124a.  The NARSUM examiner rendered a diagnosis of “seizure disorder” and the PEB’s code favored a condition consistent with grand mal seizures.  However, the neurologist, on 1 March 2005, diagnosed complex partial seizures, also called focal onset impaired awareness seizures, which could have appropriately been coded 8911 for petit mal seizures. Nevertheless, 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 STR and VA examination noted the CI had experienced two seizures post-trauma, one in January 2004 and another on 12 January 2005, which was 6 months before separation.  Furthermore, the neurologist’s reference to continued seizures strongly suggests there may have been more than two seizures, which meets criteria for a 40% rating for “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.”  However, the absence of specificity in regard to the exact number or timing of the partial complex seizures is speculative; therefore, a 60% rating, 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 of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 40% for the seizure disorder condition, coded 8999-8910.  

BOARD FINDINGS:  In the matter of the seizure disorder condition, the panel recommends a disability rating of 40%, coded 8999-8910 IAW VASRD §§4.121 and 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	
Seizure Disorder	8999-8910	40%	

SAF/MRB
1500 West Perimeter Road, Suite 3700
Joint Base Andrews, MD 20762

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Dear XXXXXXXXXX:

		Reference your application submitted under the provisions of DoDI 6040.44 (Section 1554, 10 USC), PDBR Case Number PD-2017-01652.

After careful consideration of your application and treatment records, the Physical Disability Board of Review determined that the rating assigned at the time of final disposition of your disability evaluation system processing was not appropriate under the guidelines of the Veterans Affairs Schedule for Rating Disabilities.  Accordingly, the Board recommended your separation be re-characterized to reflect disability retirement, rather than separation with severance pay

I have carefully reviewed the evidence of record and the recommendation of the Board.  I concur with that finding, accept their recommendation and determined that your records should be corrected accordingly.  The office responsible for making the correction will inform you when your records have been changed.

As a result of the aforementioned correction, you are entitled by law to elect coverage under the Survivor Benefit Plan (SBP).  Upon receipt of this letter, you must contact the Air Force Personnel Center at (210) 565-2273 to make arrangements to obtain an SBP briefing prior to rendering an election.  If a valid election is not received within 30 days from the date of this letter, you will not be enrolled in the SBP program unless at the time of your separation, you were married or had an eligible dependent child, in such a case, failure to render an election will result in automatic enrollment.