RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2017-04935
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20080814

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E1, Trainee, medically separated for “grand mal epilepsy” with a disability rating of 10%. 

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 - 20080722	VARD - 20090312	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Grand Mal Epilepsy	8910	10%	Grand Mal Epilepsy	8910	40%	20090217	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Grand Mal Epilepsy.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s seizure disorder began on 20 April 2008 after he awoke with staff standing over him concerned.  Ambulance transport noted witnesses described grand mal seizures and the CI was cooperative but confused.  He was taken to the emergency room (ER) where the physician and nurses witnessed a generalized jerking of his body and other symptoms, resulting in a diagnosis of grand mal seizures.  He denied a history of seizures, but reported having family members with epilepsy.  He was diagnosed with epilepsy/generalized seizure disorder, probably idiopathic (unknown etiology) and pneumonia.  He was treated with anti-convulsion medication and was seizure free in the hospital.  An EEG was read as normal while CT scan was essentially normal except for slight dilation of the left frontal horn, probably congenital in nature.  The 14 May 2008 MEB NARSUM examination, 3 months prior to separation, noted no complaints of new seizures since starting anti-seizure medication (Dilantin).  Physical examination noted a slight tremor during the digital finger to nose test, attributable to Dilantin compliance.  Although the June 2008 Health Care Provider’s Summary did not document seizures other than those in April 2008, the 8 January 2009 follow-up visit noted a seizure occurred 2 or 3 weeks after the original event by CI report of witness testimony.  The last seizure was 6 months prior and he had been seizure free since the second one following hospitalization. 

At the 17 February 2009 VA Compensation and Pension (C&P) examination, 6 months after separation, the CI reported being told he had a fourth seizure 1 or 2 weeks after the first three seizures, while taking 300 mg of Dilantin per day and still on active service.  The daily dose was raised to 400 mg per day in May 2008, but it caused sleepiness.  Post separation medical records showed the CI had a seizure in September 2008 after he ran out of Dilantin and was without it for a week.  He was working part-time as a construction worker since December 2008.  Physical examination, including neurological examination, was unremarkable. 

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the seizure disorder 10%, analogously coded 8910 (epilepsy), citing a well-established diagnosis of epilepsy.  The VA rated the seizure disorder 40%, analogously coded 8910, based on the STR or C&P examination, citing at least one major seizure in the last 6 months or two in the last year.  Panel members considered the rules of diagnosis and frequency as indicated in VASRD 4.121 (identification of epilepsy).  Members agreed the physician/emergency room staff witness of the original seizure, complied with diagnostic guidelines and established the occurrence of one seizure.  The panel noted that the CI indicated he was told he had experienced another similar seizure 2-3 weeks after hospitalization, but this was not documented at the time and the CI only referenced the 20 April 2008 seizure activity on Form 2701.  The CI separated in August 2008 and reported seizure activity in the end of September 2008, after he stopped taking medication for a week.  Whether the seizure activity was related to family disposition, the rigors of training and/or the presence of an infectious process was unclear.  The panel majority agreed the STR provided evidence of one major seizure in the 6 months prior to separation, to satisfy the requirements for a 40% rating under the General Rating Formula for Major and Minor Epileptic Seizures.  There was no evidence the CI experienced a major seizure every 4 months prior to separation to satisfy the requirements for the next higher 60% rating.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel majority recommends a disability rating of 40% for the seizure disorder, coded 8910.  

BOARD FINDINGS:  In the matter of the seizure disorder, the panel majority recommends a disability rating of 40%, coded 8910, IAW VASRD §4.124.  The single voter for dissent recommends no change and submitted the appended 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; 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	
Grand Mal Epilepsy	8910	40%	

Dear XXXXXXXXXXXXXX:

I accept the recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) to re-characterize your separation as a permanent 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 permanent 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.

Sincerely,		      

Enclosure

MINORITY OPINION:  As noted by the majority, the CI's index seizure which led to his diagnosis transpired within the 6-month window at separation that is specified under VASRD §124a for a 20% or 40% rating.  The minority, however, asserts that this would not logically attach in the circumstances of this case.  The CI was medically separated within an appropriate interval after the diagnosis and his condition was stable.  Given that he was well controlled on medication and there was no evidence of any ratable recurrent seizures (major or minor) within the overall ratable period, the 10% criteria applied by the PEB, i.e., "confirmed diagnosis of epilepsy with history of seizures," were applicable.  It would be unreasonable for the Service to unnecessarily delay a medical separation in order to accommodate VASRD rating criteria.  Given that the CI was well controlled on medication and seizure free at the time of separation, the minority concludes that the PEB adjudication was an accurate and fair rating of the disability in evidence.  

Consistent with the DoDI 6040.44 standard of recommendations that are fair and equitable to both the Service and the CI, the Secretary is respectfully requested to consider the minority recommendation that there be no modification or re-characterization of the CI’s service disability determination.