RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-02822
BRANCH OF SERVICE:  Air Force	SEPARATION DATE:  20090427

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E3, Security Forces Journeyman, medically separated for “complex partial seizures” with a disability rating of 10%.  

CI CONTENTION:  The condition continues to worsen.  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 - 20090121	VARD - 20090812	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Complex Partial Seizures	8911	10%	Complex Partial Seizure Disorder	8999-8910	20%	20090615	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Complex Partial Seizures.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI reported a seizure type episode with loss of consciousness (LOC) and post-ictal state in early September 2007.  An STR entry on 6 September 2007 stated that the CI “had [an] unwitnessed seizure 1 week ago with LOC and post ictal state.”  Another STR entry the next day stated that the CI “complained of LOC 2 days ago” while “accompanied by two other airmen that told him that he went a few minutes without responding to them at all.”  The NARSUM described the episodes as periods of staring into space, being unarousable, and sometimes shaking.  They occurred about once a week.  Neuroimaging was normal.  A neurology consultation conducted in October 2007 noted these events may have been going on for the past 10 years.  Temporal lobe epilepsy was suspected.  Awake and sleep deprived electroencephalograms were normal.  

The 6 December 2007 neurology evaluation noted the CI had a witnessed generalized tonic-clonic seizure in early September 2007 while taking a computer test, and started having staring spells after that episode at least once per week.  He was noted to be staring into space for a while.  On another occasion, he had some urinary incontinence in bed and on another occasion, awoke and was urinating in a drawer.  He also reported some twitching episodes while awake involving his arms.  This occasionally occurred in the morning.  The impression was mixed seizure disorder with some descriptions of myoclonus.  Treatment with Depakote (anti-convulsion) medication was introduced.  

During the 30 January 2008 neurology follow up visit the neurologist noted the CI had a complex partial seizure and just started walking around in a daze.  He had a spell two nights before; he awoke and did not know where he was.  The impression was complex partial seizure with recent breakthrough seizure.  He continued to have seizure activity in March 2008 despite a therapeutic level of Depakote.  Another anti-convulsion medication, Keppra, was added to treat the breakthrough seizures.  

At the 14 October 2008 MEB NARSUM examination, 6 months prior to separation, the CI reported he felt well; he denied any symptoms of weakness, numbness, loss of balance, or loss of coordination.  Physical examination showed no abnormalities and per neurology, he showed no impairment.  A diagnosis of complex partial seizure disorder was rendered and noted to be under good control with medication.  He was seizure free for greater than 6 months, which indicated seizure control.  However, he was not allowed to work night shifts since it added stress to the brain and made medication dosing difficult.  He had no other limitations.  The 15 June 2009 VA Compensation and Pension (C&P) examination, 2 months after separation, noted he had good treatment response to anti epileptics with no seizures of any type in the past 12 months.  Physical examination was unremarkable.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the seizure disorder 10%, coded 8911 (epilepsy, petit mal).  The VA rated the seizure disorder 20%, coded 8999-8910 (analogous to epilepsy, grand mal), based on the C&P examination, citing one major seizure in the last two years, or at least two minor seizures in the last six months.  The VA noted the CI had a generalized tonic-clonic seizure in September 2007 and a minor seizure in March 2008, after which he was seizure free.  

The VASRD notes that a petit-mal type seizure is a minor seizure and a tonic-clonic type seizure is a major seizure.  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 December 2007 neurology evaluation noted the CI had a witnessed tonic-clonic seizure in September 2007.  The panel noted this seizure was within the 2 year timeframe that would meet criteria for a 20% disability rating, coded under the predominant seizure type.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 20% for the seizure condition, coded 8999-8911  

BOARD FINDINGS:  In the matter of the seizure condition, the panel majority recommends a disability rating of 20%, coded 8999-8911 IAW VASRD §4.124a.  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	
Complex Partial Seizures	8999-8911	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170226, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

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

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX

		Reference your application submitted under the provisions of DoDI 6040.44 (Section 1554, 10 USC), PDBR Case Number PD-2017-02822.

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 modification of your assigned disability rating without re-characterization of your 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 direct that your records be corrected as set forth in the attached copy of a Memorandum for the Chief of Staff, United States Air Force.  This will not result in any change to your separation documents or the amount of severance pay you are entitled to.  Disability severance pay is computed the same regardless of a rating of 0, 10 or 20 percent.

						Sincerely,

		

								

Attachments:
1.  Directive 
2.  Record of Proceedings