RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX 	CASE:  PD-2017-03903
BRANCH OF SERVICE:  ARMY 	SEPARATION DATE:  20070914

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Military Police, medically separated from the Temporary Disability Retired List (TDRL) for “partial complex seizures” with a disability rating of 10%.  

CI CONTENTION:  The VA gave a higher rating for the all related 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 - 20070816	VARD - 20090324	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Partial Complex Seizures	8914	10%	Complex Partial Seizure Disorder	8914	10%	STR	
Migraine headaches	Not Unfitting 	Migraine headaches	8100	10%	20081210	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Partial Complex Seizures. According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s seizure condition began in August 2004 after onset of migraine headaches.  She had episodes of loss of consciousness where she stared into space and she missed time up to 2-3 minutes.  The August 2004 EEG showed left temporal frontal sharp waves as well as paroxysmal generalized burst of slowing associated with hyperventilation, resulting in a diagnosis of complex partial seizure disorder. Seizures were controlled with anti-convulsion medication.  She was placed on TDRL 14 February 2005 for complex partial seizures with 10% disability.  The 1 August 2006 TDRL re-evaluation noted there was no change in the complex partial seizures but there had been a change for the worse for her complex absence type partial seizures.  The examiner recommended remaining on TDRL for one more year to allow new medication to take effect and to evaluate change in her complex absence type seizures which she appeared to have daily.  The 3 July 2007 neurology consultation noted no seizures for three years and a normal EEG, resulting in a recommendation to taper and discontinue her anti-seizure medication.  

The 27 July 2007 MEB NARSUM TDRL removal examination, 2 months prior to separation, noted no new complaints.  The CI reported no recent seizure activity.  Her last complex partial seizure with convulsions was in August 2004 and at the end of August 2007, she would be seizure-free for 3 years.  She was no longer taking medication for seizures and was performing activities of daily living without restrictions.  Physical examination, which referenced the MEB DD 2808 on the same day, showed a normal neurological examination.  There was no VA examination proximate to separation in evidence.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB for TDRL removal rated the seizure condition 10%, coded 8914 (epilepsy, psychomotor), citing confirmed diagnosis of epilepsy with a history of seizures.  The original VARD, dated 17 November 2005, denied service connection for the seizure condition; but the 24 March 2009 VARD noted that decision was clearly and unmistakably erroneous; therefore, service connection was established with an evaluation of 10%, effective June 22, 2005, coded 8914 (epilepsy, psychomotor), based on the STR examination, citing a confirmed diagnosis of epilepsy with continuous medication necessary for control of the epilepsy.  

The neurology consultation prior to TDRL separation noted no seizures for 3 years and recommended discontinuation of medication.  The NARSUM noted the CI was seizure-free since the medication was discontinued.  Per VASRD General Rating formula for Major and Minor Epileptic Seizures, there was no evidence of one major seizure in the last 2 years; or at least two minor seizures in the last 6 months to meet the criteria for 20% disability.  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:  Migraine Headaches.  The panel’s main charge is to assess the fairness of the PEB determination that the contended condition was not unfitting.  At TDRL placement the PEB rated the migraine headache condition 30% due to prostrating headaches which required the CI to miss work and to visit the emergency room.  The TDRL removal NARSUM examination noted the migraine headaches had been well controlled over the past year with only 2-3 disabling migraine headaches reported.  The CI was no longer taking any medications for migraines on a regular basis.  There was no performance-based evidence from the record that the condition significantly interfered with satisfactory performance at TDRL removal.  After due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition, so no additional disability rating is 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 migraine condition, the panel recommends no change from the PEB determination as not unfitting at TDRL removal.  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.  

PD-2017-03903

AR20190011647, XXXXXXXXXXXXXXXXXXXXX 

Dear XXXXXXXXXXXXXXXX

	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.

PD-2017-03903