RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXX		CASE: PD-2017-03286 BRANCH OF SERVICE: MARINE CORPS	SEPARATION DATE: 20070831

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Electronic Switching Equipment Technician, medically separated for “generalized clonic tonic status” with a disability rating of 20%.

CI CONTENTION: “Review all conditions…” as well as additional conditions not identified by the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB) was requested. 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 - 20070717	VARD - 20090426	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Generalized Clonic-Tonic Status	8910	20%	General Tonic Colonic Seizure	8910	20%	20080110	
Left Arm Pain and Weakness	Cat II	Left Arm Pain and Weakness Due to Seizure	5302	0%	20080110	
Bilateral Hearing Loss	Cat III	Hearing Loss, Bilateral	6100	0%	20080107	
Right Ear Peripheral Vestibulopathy	Cat III	No VA Placement	
COMBINED RATING: 20%	COMBINED RATING OF ALL VA CONDITIONS: 30%	
	
ANALYSIS SUMMARY:

Generalized Clonic Tonic Status. According to the service treatment record and MEB narrative summary (NARSUM), the left-handed CI had a single generalized clonic tonic seizure on 18 November 2006, 9 months prior to separation, which was prolonged, witnessed, and non- traumatic.         He  required an intravenous medication to break the  seizure  and was medically

evacuated from theater. Sleep-deprived EEG, MRI and CT brain studies were normal, and treatment included anti-epileptic medication (Keppra), with no recurrent spells.

The 15 June 2007 MEB NARSUM examination, 3 months prior to separation, noted CI complaints of a single spell (seizure), after which he had initial left upper extremity weakness, pain and the inability to raise his arm above his head; by the time of the NARSUM examination, he could raise his arm above his head and perform push-ups, but was still unable to do pull-ups. Physical examination showed normal non-focal neurologic findings except for left upper extremity weakness (4+/5) in the pectoralis region.

At the 11 January 2008 VA Compensation and Pension (C&P) examination, 4 months after separation, the CI reported the single, 30-minute seizure in November 2006 with no subsequent episodes. He still had left arm pain with overhead activities and the inability to perform pull-ups since the seizure, and had stopped taking anti-epileptic medication 6 months before. Neurologic findings showed normal left upper extremity strength and range of motion (ROM) was full.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the seizure condition 20%, coded 8910 (epilepsy, grand mal). The VA also rated the seizure condition 20% coded 8910, based on the STR and C&P examinations, citing at least one major seizure in the last 2years, or at least two minor seizures in the last 6 months. Panel members noted the CI had a single major seizure 9 months prior to separation which met the 20% criteria under code 8910 for one major seizure in the last 2 years. There were no minor seizures and no major seizure within 6 months of separation to support the next higher rating, and therefore no VASRD rating higher than the 20% adjudicated by the PEB. After due deliberation, considering all 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 condition.

Contended PEB Condition: Left Arm Pain and Weakness. The Navy PEB listed left arm pain and weakness as a related diagnosis (Category II) contributing to the disability in this case. There was pectoralis muscle area pain without any neurologic deficit, and by the time of the NARSUM, the CI’s mild weakness interfered with the ability to perform pull-ups. The left arm condition continued improving, and by the time of the C&P examination, there was full strength and ROM with residual pain reported to interfere with pull-ups. Panel members deliberated over whether the left arm pain and weakness was a permanent duty-limiting condition, a condition that was transient and improving, and/or if separately unfitting, whether it achieved a rating above 0%. The panel agreed that the subsumed Category II left arm condition was reasonably justified as separately unfitting given the dominant arm weakness and inability to perform pull-ups. There was muscle disability with no nerve or joint disability, and rating IAW VASRD 4.73 (schedule of ratings-muscle injuries) and §4.56 (evaluation of muscle disabilities) supported a slight (0%) but not a moderate (20%) muscle disability. After due deliberation, and considering all the evidence, the panel recommends a separately unfit determination with a disability rating of 0%, coded 5302 (muscle; Group II function) for the left arm condition.

Contended PEB Conditions: Bilateral Hearing Loss and Right Ear Peripheral Vestibulopathy. The panel’s main charge is to assess the fairness of the PEB determination that the contended conditions were not unfitting. None of the conditions were noted on limited duty forms, or implicated in the NMA, but both were listed on the NAVMED 6100/1. There was no performance- based evidence from the record that any of the conditions significantly interfered with satisfactory duty performance at separation. After due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB fitness determination for any of the contended conditions, so no additional disability ratings are recommended.

BOARD FINDINGS: In the matter of the seizure condition and IAW VASRD §4.124a, the panel recommends no change in the PEB adjudication. In the matter of the contended Category II left arm pain and weakness, the panel recommends it be additionally unfitting with a disability rating of 0%, coded 5302 IAW VASRD §4.73. In the matter of the contended bilateral hearing loss and right ear peripheral vestibulopathy, the panel recommends no change from the PEB determinations as not unfitting. There are no other conditions within the panel’s scope of review for consideration. As the proposed new combined disability ratings result in no change to the combined disability rating previously assigned, the panel recommends no modification or re- characterization of the CI’s disability and separation determination.

The panel recommends the CI’s prior determination be modified as follows, effective the date of medical separation:

CONDITION	VASRD CODE	PERMANENT RATING	
Generalized Clonic-Tonic Status	8910	20%	
Left Arm Pain and Weakness	5302	0%	
	COMBINED	20%	

The following documentary evidence was considered:

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 20May20

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

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW  (PDBR)

Ref:	(a) DoDI 6040.44
(b) PDBRltr

1.	Pursuant to reference (a), the PDBR reviewed your case and forwarded its recommendation (reference (b)) to the Department of the Navy on 5 Mar 2020 for appropriate action.

2.	On 20 March 2020, the Assistant Secretary of the Navy (Manpower & Reserve Affairs) accepted the recommendation of the PDBR of no change to your characterization of separation or disability rating assigned by the Department of the Navy's Physical Evaluation  Board.

3.	Secretary's decision on your PDBR application is final and is not subject to appeal or additional review by the Board for Correction of Naval Records.

Copy to: PDBR