RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXXXXXX		CASE: PD-2019-00155 BRANCH OF SERVICE: MARINE CORPS	SEPARATION DATE: 20070515

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E3, Basic Ground Electronics Maintenance Marine, medically separated for “multiple episodes of loss of consciousness” with a disability rating of 40%, reduced to 20% for non-compliance.

CI CONTENTION: The complete submission, to include a legal brief, 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 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 - 20070316	VARD - 20080214	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Multiple Episodes of Loss of Consciousness	8411	40%-20%= 20%	Seizure Disorder	8911	40%	20071004	
COMBINED RATING: 20%	COMBINED RATING OF ALL VA CONDITIONS: 50%	

ANALYSIS SUMMARY:

Multiple Episodes of Loss of Consciousness. According to the service treatment record and MEB narrative summary (NARSUM), in July 2006 the CI, while undergoing physical training, experienced more than twenty episodes of loss of consciousness that began with no specific injury or illness. He was hospitalized in August 2006 after the third episode and underwent an extensive cardiology work-up; the condition was felt to be non-cardiogenic in nature. A subsequent neurology work-up was normal. It was noted that he never injured himself during a fainting episode with unconsciousness. Topamax (topiramate) was prescribed and the dose was titrated up, but was undetectable in blood testing. The loss of consciousness persisted and Dilantin was added without success, but its level was subtherapeutic. Initial syncopal episodes were not associated with shaking, but at an emergency room (ER) visit on 28 September 2006 tonic-clonic activity was reported, and at a 25 October 2006 ER visit, a witnessed generalized seizure was reported. Another seizure was observed in the ER on 16 November 2006. The Dilantin (phenytoin) level was low and Tegretol (carbamazepine) level was less than 0.1.

The 18 January 2007 MEB NARSUM examination, 4 months prior to separation, noted the complaints of episodes of losing consciousness without an aura or warning or associated chest pain, shortness of breath, headaches, dizziness, bladder incontinence, or tongue biting, Physical examination showed the CI to be awake and alert, oriented to time, place and person. Cranial nerves II-XII were intact. Motor tone, bulk, and strength were normal and sensation and cerebellar function was intact. His gait was stable with a normal tandem, heel, and toe walk. Romberg’s test (for balance determination) was negative. Reflexes were normal and symmetric.

At the March 2007 MEB Psychiatric Addendum examination, 2 months prior to separation, the CI reported a decrease in loss of consciousness from one to two per week to one per month. He also experienced headaches consistent with migraines once a week. Mental status examination (MSE), conducted on 2 March 2007, revealed the CI was well groomed. He was oriented to person, place, time, and the purpose of the interview. He was cooperative and made appropriate eye contact. His speech was normal in tone, rate, and volume. There was no evidence of psychomotor agitation or retardation. His mood was described as “good” and his affect was congruent and appropriate. There was no evidence of delusions or hallucinations. His thought processes were linear, logical, and goal directed, and there was no evidence of a thought disorder or flight of ideas. His insight, judgment, and impulse control were deemed to be good. Memory functions were intact and he denied any suicidal or homicidal ideation, intention, or plan. There was no Axis I diagnosis and his Global Assessment of Functioning score was 70 (some mild symptoms). The examiner noted the results of the MSE, personality test, and clinical interviews, suggested a young man, who was mildly distraught due to his uncertain medical condition. A conversion disorder could not be diagnosed until all possible medical conditions had been ruled out, and even when a conversion disorder was diagnosed 25-50% of the cases often resulted in a medical cause found at a later date. A note dated 3 April 2007 indicated the CI had a seizure 1 week earlier, but felt fine. .A Dilantin level was within normal limits.

At the 4 October 2007 VA Compensation and Pension (C&P) examination, 5 months after separation, the CI reported having one seizure on average per month. Physical examination showed blood pressures ranging from 137/80 to 116/73. He had normal gait, affect, mood, judgment, and comprehension of commands. Behavior was appropriate with no obsessiveness, hallucinations, or delusions. Neurologic examination showed normal coordination, orientation, memory, and speech, and Romberg’s sign was negative.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the loss of consciousness condition 40%, coded 8411 (neuralgia), but reduced the rating to 20% citing non-compliance (medication). The VA rated the loss of consciousness condition 40%, coded 8911 (epilepsy, petit mal), based on the C&P examination, citing evidence showing having had at least two major seizures in the past year.

The panel noted the PEB deducted 20% from the CI’s 40% rating based on presumptive noncompliance when topiramate blood levels were either low or undetectable. However, an article in the medical literature (M Contin, R Riva, F Albani, et. al. Topiramate therapeutic monitoring in patients with epilepsy: effect of concomitant antiepileptic drugs. Therapeutic Drug Monitoring. 2002 (3):332-7) noted “from a clinical point of view, patients receiving concurrent treatment with enzyme-inducing AEDs (anti-epileptic drugs) can show twofold lower plasma concentrations compared with patients receiving valproic acid or lamotrigine, and appropriate topiramate dosage adjustments may be required with concomitant AED inducers or either added or withdrawn.” Whether the aforementioned was taken into account during the CI’s treatment is unclear, but the concomitant use of AEDs can alter drug concentrations. Therefore, the PEB’s deduction on low topiramate or Dilantin levels was difficult to support. Furthermore, although the PEB made a rating deduction for treatment non-compliance, the panel considered its rating recommendation based solely on the impairment and the guidelines of the applicable VASRD diagnostic codes. Thus, although the PEB used code 8411 and the VA used code 8911, the correct

code is 8910 (epilepsy, grand mal) for rating purposes IAW VASRD §4.121 (identification of epilepsy) and §4.124a (schedule of ratings—neurological conditions and convulsive disorders). Thus, a 40% rating is warranted based on “at least one major seizure in the last 6 months or two in the last year.” 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 multiple episodes of loss of consciousness condition, coded 8910.

BOARD FINDINGS: In the matter of the multiple episodes of loss of consciousness condition, the panel recommends a disability rating of 40%, coded 8910 IAW VASRD §4.121 and §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	
Multiple Episodes of Loss of Consciousness	8910	40%	

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
12 Oct 20

From: To:

Subj:

Ref:

Director, Secretary of the Navy Council of Review Boards 
PHYSICAL DISABILITY BOARD OF REVIEW (PDBR)
(a) DoDI 6040.44
(b)	PDBR ltr of 19 Mar 20
(b)	

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

2.	On 7 October 2020, the Assistant Secretary of the Navy took action in your case by accepting the correct recommendation of the PDBR.	Accordingly, your records will be corrected to reflect an increase in the disability rating awarded by the Physical Evaluation Board from 20 to 40 percent with assignment to the Permanent Disability Retired List.

3.	The Assistant Secretary's determination, which represents final action in your case by the Department of the Navy, was sent to the Office of the Deputy Commandant (Manpower and Reserve Affairs), for correction of your records as stated above.	You will be notified once those changes are complete.