RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-04662
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  2005823

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Medical Supply Specialist, medically separated from the Temporary Disability Retired List (TDRL) for “seizure disorder” with a disability rating of 0%.   

CI CONTENTION:  No specific contention was made.  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 - 20051222	VARD - 20050617	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Seizure Disorder	8914	0%	Non-Epileptic Seizures Disorder	8999-8911	40%	20050531	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Seizure Disorder.  According to the service treatment record and MEB narrative summary (NARSUM), the CI began having seizures in July 1998 after being hit in the head with a piece of lumbar during a field training exercise.  She did not lose consciousness and an MRI was normal.  The subsequent episodes started as a pain in the back of her neck, followed by loss of awareness for several seconds, and shaking of the whole body.  She experienced frequent headaches after the injury, and over-the-counter anti-inflammatory medication provided some relief.  Multiple electroencephalograms (EEGs), including during seizure activity, were normal, and she was diagnosed with non-epileptic seizures.  She was treated with Depakote and her headaches improved, but the seizure-like episodes continued, although at a decreased rate of one every month.  The CI was separated and placed on the TDRL on 24 August 2000.  
During the TDRL period, the CI was evaluated by a VA neurologist on 6 March 2001, and a repeat EEG showed findings consistent with a seizure disorder.  The neurologist diagnosed “a true seizure disorder and not pseudo-seizures. In all probability partial with secondary generalization.”  An anti-convulsant medication (Depakote) was prescribed, and a follow-up on 28 January 2002 noted the CI was stable, tolerating the Depakote, and had no further seizures.  At a neurological evaluation on 27 September 2002, the CI reported the return of seizures in August 2002, with one generalized tonic-clonic seizure and 2-3 absence seizures per month.  She was noted to be on therapeutic levels of Depakote at the time, and after a history of seizures at work, she was subsequently fired.  She reported in the 6 months prior to August 2002, she had no seizures.  Repeat studies were ordered, but were not in evidence.  

At the 31 May 2005 VA Compensation and Pension (C&P) examination, 3 months before TDRL removal, the CI reported 2-3 three major and several minor seizures per year, with the last major seizure in March 2005, and that Depakote had reduced the number of seizures. 

In accordance with 10 USC 1210, which was in effect at the time of the CI’s placement on the TDRL, service members were limited to a 5-year TDRL period with a final Services determination required prior to the 5-year point.  In cases such as this one, where a member on TDRL had not completed a re-examination and had a final PEB determination made by the 5-year mark, it was standard practice for the Service to issue TDRL removal orders upon approval of the PEB findings and back date the effective date to the day after the CI had completed 5 years.  Hence, the TDRL removal examinations below are dated after the date of permanent separation.  

At the September 2005 TDRL removal examination, 1 month after separation, the CI reported having a seizure the previous weekend where she felt dissociated from her surroundings, fell and hit her head on a table, and lost consciousness.  She also had a seizure the last week in August while she was doing dishes, and fell backwards.  Her husband reported both seizures were associated with generalized tonic-clonic activity and incontinence, and after each seizure she slept for a day.  She was treated with Dilantin during her pregnancy from April 2003 to January 2004, and had one seizure during that time in August 2003.  Current medication for seizure control was Depakote and available pharmacy records showed one filled prescription in May and June, and two in August 2005.  However, Depakote levels on 24 August 2005 were not detectable.  Neurological findings were normal as was a brain MRI on 5 October 2005.  

The 26 September 2005 MEB psychiatric examination, 1 month prior to TDRL removal, concluded the CI had a history of depressive symptoms which had not caused significant occupational or interpersonal dysfunction.  She was on a low-dose antidepressant and “was without any signs or symptoms of a significant psychiatrically impairing illness.”  In a letter from the CI dated 5 December 2005, she stated she had been compliant with her medication, except during pregnancy per doctor’s orders and while prescriptions were being changed.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the seizure disorder 0%, analogously coded 8914 (epilepsy, psycho motor), citing the CI was not “fully compliant with her prescribed anti-epileptic” based on pharmacy records.  The VA initially rated the seizure disorder 40% in a 26 September 2000 Rating Decision, coded 8999-8911 (epilepsy, petit mal), based on the STR and a 9 February 2000 VA separation examination, and continued the 40% rating, based on the 31 May 2005 C&P examination, citing two to three major seizures and several minor seizures per year.  

At the time of TDRL removal, there was documentation of two major seizures in the year before separation (March and August 2005) to support a 40% rating. The panel considered a 60% rating, which requires an average of at least 1 major seizure in 4 months over the past year, but determined that this criteria was not met as there were multiple periods of 4 months or longer in the 12 months prior to TDRL removal (August 2004-February 2005 and April-July 2005) with no major seizure recorded.  While there was evidence that the CI was not compliant with her anticonvulsant medication in August 2005, in previous years she had therapeutic blood levels of Depakote and still experienced breakthrough seizures.  In any case, the VASRD general rating formula for major and minor epileptic seizures does not require compliance or provide for a ratings deduction for non-compliance with prescribed medications.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 40% for the seizure disorder, coded 8999-8914.  

BOARD FINDINGS:  In the matter of the seizure disorder, the panel recommends a disability rating of 40%, coded 8999-8914 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	
Seizure disorder 	8999-8914	40%	

The following documentary evidence was considered:

[AR NUMBER], 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.

					      
Enclosure