RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  xxx	CASE:  PD1201600
BRANCH OF SERVICE:  MARINE CORPS	BOARD DATE:  20130703
SEPARATION DATE:  20020915

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty Lance Corporal/E-3 (6073/Aircraft Maintenance Support Equipment Electrician/Refrigeration Mechanic) medically separated for conversion disorder, factitious disorder.  The CI had a history of seizure-like episodes starting in boot camp in 2000.  Extensive medical evaluations and a trial of an anti-seizure medication did not reveal a physical basis for his symptoms.  A psychological evaluation in 2001 concluded with a likely diagnosis of conversion disorder.  The conversion disorder was determined to be unfitting and could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  He was referred for a Medical Evaluation Board (MEB).  The MEB forwarded pseudoseizures; conversion disorder, factitious disorder; malingering; and histrionic and anti-social traits to the Physical Evaluation Board (PEB) for adjudication IAW SECNAVINST 1850.4E.  The PEB adjudicated conversion disorder, factitious disorder as unfitting, rated 10%.  The malingering and pseudoseizures were determined to be Category ll: conditions that contribute to the unfitting conditions.  The histrionic and anti-social traits were determined to be Category IV: conditions which do not constitute a physical disability.  The CI made no appeals, and was medically separated.

CI CONTENTION:  “Seizures continue to regulate the way I live.  I cannot take certain job positions, driving is not available.”

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e. (2).  It is limited to those conditions determined by the PEB to be unfitting for continued military service and those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Board for Correction of Naval Records.

The Board acknowledges the significant impairment with which the CI’s service-connected condition continues to burden him but must emphasize that the Disability Evaluation System has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation.  That role and authority is granted by Congress to the Department of Veterans Affairs (DVA), operating under a different set of laws.  The Board considers DVA evidence proximate to separation in arriving at its recommendations and, DoDI 6040.44 prescribes a 12-month interval for special consideration of post-separation evidence.  Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.

RATING COMPARISON:

Service IPEB – Dated 20020613	VA - (Exams ~ 3 & 5 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Conversion D/O, Factitious D/O**	9424	10%	No Corresponding VA Entry	
Pseudoseizures	Category II	Partial Onset Seizures	8999-8910	(100%*)	20021218 & 20030219	
Malingering	Category II	No Corresponding VA Entry	
Histrionic & Anti-Social Traits	Category IV		
No Additional MEB/PEB Entries	Adjustment D/O w/ Anxiety*	9440	10%	20021218 & 20030219	
	No Other VA Conditions	20021218 & 20030219	
Combined:  10%	Combined:  10%*	
Original VA Rating Decision (VARD) dated 20030226 (most proximate to date of separation [DOS]) awarded 10% for the Adjustment D/O and noted non-compliance with treatment.  No other conditions were addressed.     
* VARD dated 20040811 after Notice of Disagreement and based on De Novo Review awarded 100% for Partial Onset Seizures retroactive to DOS, and reducing it to 40% effective 20040811.  The 10% rating for the Adjustment D/O remained.  Consequently, a combined rating of 100% from 20020916 was given, reduced to combined 50% effective 20040811.
** Factitious D/O per DoDI 1332.38 is a condition or circumstance not constituting a physical disability. 

ANALYSIS SUMMARY:  In deliberating the PEB’s categorization of the CI’s unfitting condition, the Board and the Psychiatrist Physician Review Officer felt that an accurate diagnosis of conversion disorder precludes the presence of factitious disorder or malingering.  Stated another way, if conversion disorder is present, the other two disorders cannot be.  All of the service neurology examiners and the service psychiatrist agreed that the seizure-like episodes represented pseudoseizures (which by definition have a psychological basis).  A sound rating recommendation can be proposed when it is recognized that the CI suffered only from a true conversion disorder manifested by pseudoseizures.  The failure of this recognition by the PEB and the VA led to widely divergent but equally problematic rating outcomes.  Conversion disorder is a very serious and dangerous psychiatric condition; the symptomatic manifestations cannot be turned on and off at will.  Helpful definitions are as follows: 

Pseudoseizure: an attack resembling an epileptic seizure but having purely psychological causes, lacking the electroencephalographic changes of epilepsy.

Conversion disorder: a condition in which a person has blindness, paralysis, or other nervous system (neurologic) symptoms that cannot be explained by medical evaluation.

Conversion Disorder, Factitious Disorder Condition.  The Board first addressed if the tenants of §4.129 (mental disorders due to traumatic stress) were applicable.  The Board noted that there was no “highly stressful event” for which provisions of §4.129 would apply, and therefore concludes that its application is not appropriate to this case.  Consequently, the Board need not apply a 50% minimum Temporary Disability Retired List rating in this case.

The service treatment record reported an onset of episodes of unresponsiveness beginning in 2000 during boot camp.  Those episodes were reportedly witnessed by others, lasted about a minute, and were associated with apparent non-purposeful movements and vocalizations.  The CI was hospitalized for observation from 26-28 February 2001, after he fell during a unit run and was observed to be unresponsive in the emergency room (ER); he awoke “confused and combative” and was treated with sedative medications and restraints.  The physical exam was normal except for superficial facial injury.  Laboratory tests were essentially normal, and a drug toxicology screen was negative except for a sedative medication probably administered in the ER.  A computerized tomography scan and magnetic resonance imaging (MRI) of the brain were normal, and an electromyogram (EEG) revealed no evidence of seizure activity.  No seizures were observed during the hospitalization.  The CI told a neurologist that his fall occurred after someone stepped on his heels and he was “very concerned about having to spend another night in the hospital.”  The neurologist described the “spells” as “very complex movements not typical for epileptic seizure” and that the previous episodes were “not highly suspicious for an organic etiology.”  The neurologist assessed the CI as fit for unrestricted duty.  An outpatient note in April 2001 reported that the CI was involved in a motor vehicle accident (MVA) 2 days earlier when he apparently “blacked out” while driving, resulting in serious injuries to another driver.  Medical personnel who treated the CI after the accident “witnessed a [seizure]-like episode involving shaking of one or both [upper extremities], nonsensical verbal utterances, and unresponsiveness for 2-3 minutes, followed by 3-5 minutes of mild confusion/disorientation.”  There was no tongue or cheek biting, incontinence, or loss of consciousness.  An outpatient physical exam 2 days later was normal.  The examining physician noted that the CI’s symptoms were “most consistent with psychogenic/somatoform etiology, i.e. Conversion Disorder.  [Rule-out] partial complex seizure disorder and factitious disorder/malingering.”  The CI’s previous clearance for overseas duty was rescinded and he was referred to neurology and psychiatry with consideration for a Limited Duty or Medical Board.  At the mental health evaluation in May 2001, the CI reported no significant psychiatric symptoms or disabling stressors.  He expressed his interest in the Marine Corps, of finishing his enlistment, and of being stationed overseas.  Psychological testing was performed (MMPI-2) and was considered valid.  The testing did not show evidence of symptom minimization or exaggeration, and did not suggest an excessive somatic focus or conversion type symptoms.  The mental status exam (MSE) described a neutral mood and affect, and no evidence of psychosis or dangerousness.  No psychiatric diagnosis was assigned on Axis I or Axis II; the examiner opined that “there was no indication of…a Somatoform Disorder, Factitious Disorder, Malingering, or any other clinically significant psychiatric disorders.”  The CI was assessed to be psychologically fit for full duty.  On the day of the neurology evaluation, a physician witnessed a spell that was characterized as non-rhythmic arm movements and head shaking.  During the spell the CI was able to verbally respond.  An EEG performed that day revealed no evidence of seizure activity.  The diagnosis was pseudoseizures.  The CI was recommended for full duty, but with a recommendation to consider administrative separation if an inability to perform duties remained.  In August 2001, less than 2 weeks after arrival at his new duty assignment in Japan, an EEG was performed following another pseudoseizure and was normal.  A routine follow-up EEG (September 2001) also showed no abnormality, although the neurologist stated, “…complicated partial seizures is suspected,” and recommended a trial of an anti-seizure medication.  However, the CI did not take the medication because of concern for side effects.  After a third witnessed pseudoseizure in a month, with normal exams and lab values, a flight surgeon cited a neurologist consultation which found no physical basis for the seizure-like episodes.  The flight surgeon opined that there was no evidence of secondary gain or malingering and that the CI “has consistently shown enthusiasm during his previous and current command.”  He added, “I do believe he is a danger to himself and others given that his pseudo-seizures…are unpredictable and cannot be medically managed,” citing the MVA and serious injury to the other driver.  A month later however, the flight surgeon (who would also be the narrative summary examiner) expressed a suspicion of possible malingering after witnessing an episode in which the CI was able to verbally interact and obey commands during a pseudoseizure.  The CI was placed on Class C Lifestyle Restriction and referred for a command-directed mental health evaluation.  In an outpatient note, the CI expressed frustration about the Class C restriction and the lack of a medical explanation for his symptoms.  He declined medication therapy because of concern for side effects.  He expressed no insight into the potential danger of his pseudoseizures and occasional associated combative behavior.  He was evaluated by a clinical psychologist in November 2001.  He did not identify any problems or stressors and said he was enjoying his current duty station.  He denied symptoms of psychotic, eating, anxiety, mood, sleeping, somatoform, or adjustment disorders.  The MSE described an organized appearance, and mood was stated as “just fine.”  Speech, thought process, memory, and concentration were normal.  He described his coping style as one of avoiding problems and as, “[I] try not to think about problems….”  Psychological testing (MMPI-2) results suggested a personality “who utilizes denial and hysteria types of defenses that are psychologically unsophisticated.”  The overall results were not suggestive of excessive somatic focus or conversion type symptoms.  A depression screen indicated the presence of mild depressive symptoms and hopelessness.  The psychologist’s impression was: “the patient’s perplexing presentation can be best described as Conversion disorder at this time with a possibility of Factitious disorder should additional data support finding for feigning of illness for medical attention.”  A diagnosis of malingering was not assigned due to unavailability of corroborating information.  The psychologist listed histrionic and antisocial personality traits but a full diagnosis of a personality disorder was likewise not made because of intact interpersonal, social and work performances.  The CI was deemed unfit for duty and subsequently underwent a single interview by a psychiatrist in December 2001.  The CI expressed no adverse concerns about the Marine Corps or his assignment, and did not want to be re-located.  His only concern was whether he would have to continue the Class C restriction.  The psychiatrist found no clinical history to suggest psychosis, mania, depression, obsessive-compulsive disorder, generalized anxiety disorder, panic disorder, or personality disorder; or a disturbance of appetite, weight, interest, motivation, concentration, energy, sleep, or mood.  The CI denied thoughts of harm to himself or others.  The MSE described the CI as well-groomed, articulate, with “good” mood and normal affect.  There were no abnormalities of thought process, cognition, impulse control, and insight and judgment were “grossly intact.”  The CI was described as “unconcerned about recurrent ‘seizures’…his affect was indifferent.”  No Axis I or Axis II psychiatric diagnoses were assigned; the Global Assessment of Functioning (GAF) score was 70-75 (mild or transient symptoms).  The psychiatrist recommended medical separation based on pseudoseizures and that the Class C restriction be lifted; no psychiatric treatment was recommended.  The narrative summary (NARSUM) was completed by a non-psychiatrist flight surgeon on 17 December 2001 (9 months prior to separation).  A physical examination was normal.  The diagnoses were summarized as: pseudoseizures, conversion disorder, factitious disorder, malingering, and histrionic and [antisocial] traits.  In the non-medical assessment in January 2002, the commander stated that the CI’s “MOS credibility has diminished to include all of his qualifications…[He] must be monitored for his safety and the safety of his fellow Marines;” and, “Considering his situation, he keeps a high level of motivation….”  An outpatient note in February 2002 reported that the CI had a pseudoseizure for the first time in 3 months; he had tried an anti-seizure medication until the prescription was expended.  A neurology addendum on 18 June 2002 (3 months prior to separation) reported a normal neurologic exam.  The examiner stated that the failure of the anti-seizure medication “is telling evidence for a non-epileptic etiology.”  He also stated: “His episodes appear to be most consistent with a somatoform disorder, and it is not clear if there is a malingering component.”  

At the VA Compensation and Pension (C&P) exam in December 2002 (3 months after separation) the CI reported that “he had to take a cab to come for this evaluation, as he does not drive.”  The examiner noted that he was “upset that other people and doctors don’t understand him and…that doctors have told him that it is in his head.”  He endorsed sleep difficulty and denied mood or psychotic symptoms, panic attacks, obsessions, ritualistic behavior, and suicidal or homicidal thoughts.  He reported that he usually had headaches and went to sleep after an attack; and that his last seizure had occurred a month earlier.  He had a seasonal job at a retail store, but worried about his future and employment.  He didn’t drive or cook due to his medical condition.  He performed activities of daily living (ADL) and handled his finances; he lived with a brother.  The MSE described him as anxious and angry; speech was “hyperverbal” but coherent.  Thought process was tangential, but thought content was without paranoia, obsessions, hallucinations, or suicidal or homicidal thoughts.  Memory was intact, and insight and judgment were considered “fair.”  The diagnoses were: Axis I: adjustment disorder with anxiety; non-compliance with treatment; Axis II: deferred; Axis III: seizure disorder, pseudoseizures by history; Axis V: GAF 80 (“If symptoms are present they are transient and expectable reactions to psychosocial stressors”), current and highest in the last year.  The examiner stated, “Seizure disorder is a Neurologic diagnosis and thus he requires a neurological evaluation whether he has a seizure disorder or pseudoseizures or both.”  On 7 January 2003 (4 months after separation) while at a train station, the CI experienced a witnessed episode of loss of consciousness with seizure-like activity that resulted in a facial fracture and loss of teeth from falling on his face.  He required hospitalization.  A diagnosis of generalized seizure disorder was assumed although an EEG was normal.  The VA neurology consultation in February 2003 (5 months after separation) noted that “these spells…continue to the present day, despite therapy.  Many times he will wake up in the middle of the night, or so he is told, and will talk, get out of bed, walk around and then go back to sleep, without any memory of this.”  The CI reported two previous trials of anti-seizure medications which were ineffective in preventing the attacks.  He also reported re-starting an anti-seizure medication in January 2003 but continuing to have pseudoseizures.  The week prior to this exam, the CI sustained a 5 centimeter laceration above his right eye from falling during another attack.  The neurologic exam was normal.  The neurologist stated, “The instructions from the V.A. were for me to give either a diagnosis of somatoform disorder or cause for the epileptic versus non-epileptogenic spells.  This may be a conversion/somatoform disorder but I am not the physician to make that decision; that would need to be made by a psychiatrist.”  He added that, “It is troubling that the MRI and EEG studies have all been normal, but many times with temporal lobe epilepsy, which this very well may be, those studies will indeed be normal…I suspect we are looking at an underlying temporal lobe epilepsy; I cannot prove this for sure however….”  A VA neurologist on 22 March 2003 (6 months after separation) noted that a family member of the CI continued to witness attacks and that they were occurring 2-3 times per month.  They were characterized as a change in consciousness with mumbling, followed by falling and generalized stiffening and jerking.  On 2 October 2003 (12 months after separation) the CI was brought to the emergency department by the police because a seizure-like episode led to combativeness.  The police witnessed a second seizure-like event during transport.  Blood was noted on the CI’s shirt.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating for the conversion disorder, factitious disorder condition coded 9434; and listed pseudoseizures and malingering as related conditions.  The VA assigned a 100% rating for partial onset seizures under an analogous 8910 code (epilepsy, grand mal); and a 10% rating for adjustment disorder with anxiety citing treatment for an adjustment disorder in 2001.  The C&P examiner and VA neurology consultant both expressed uncertainty about the neurologic vs. psychiatric etiology of the symptoms; however, there is no evidence that either of these examiners reviewed service medical records relevant to the diagnosis of pseudoseizures and conversion disorder.  It is clear in the post-separation period that the diagnosis of a true seizure disorder was assumed based on an unequivocal history of seizure-like activity and the fact that the CI had taken anti-seizure medication.  Thus the VA rating for seizures under the 8910 code is not surprising.  Although alternative non-organic diagnoses were not seriously considered by VA providers until well after separation, the STR offers convincing evidence the attacks were psychologically mediated (i.e. the attacks were pseudoseizures).  The only possible diagnostic considerations are then factitious disorder, malingering or conversion disorder.  There was nothing in the STR that supported a diagnosis of factitious disorder or malingering, and despite psychological testing that purported to not show evidence of conversion symptoms, the evaluator still concluded that conversion disorder was the likely diagnosis.  The attack witnessed by the NARSUM examiner was in fact not inconsistent with conversion disorder.  The well documented injuries as a result of pseudoseizures sustained by the CI after separation were clearly inconsistent with factitious disorder or malingering, and strongly supported the diagnosis of conversion disorder made by service providers.  The Board next considered whether a rating higher than the 10% adjudicated by the PEB was justified.  All members agreed that the severity of the disability resulting from conversion disorder was not described by the 50% criteria, characterized as “Occupational and social impairment with reduced reliability and productivity.”  Therefore, debate focused on a 10% vs. a 30% rating.  The 10% rating specifies, “Occupational and social impairment due to mild or transient symptoms…only during periods of significant stress…;” and the 30% rating specifies, “Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal).”  Board members considered that a 30% rating was supported by episodic pseudoseizures and impairment in response to psychological factors, adequate performance of ADLs and general social interaction, and the ability to maintain some employment after separation.  The Board also deliberated the unpredictability of the pseudoseizures and its impact on reliability, the requirement for command monitoring to ensure his safety and the safety of others, the inability to perform some normal activities (such as driving), and the clear connection between the unfitting condition and bodily injury.  On balance, the Board concluded that the symptoms and impairments of the conversion disorder more nearly approximated the criteria for the 30% rating.  The DSM-IV diagnostic ‘criterion C’ for conversion disorder explicitly states: “The symptom or deficit [of a Conversion Disorder] is not intentionally produced or feigned (as in Factitious Disorder or Malingering).”  As previously elaborated, this means that in the presence of a diagnosis of conversion disorder, factitious disorder or malingering cannot be concurrently diagnosed; and, none of the examiners assigned a definitive diagnosis of factitious disorder or malingering.  The Board therefore concluded that the PEB properly subsumed the pseudoseizure condition as a related Category II condition.  However, the Board also concluded that the PEB improperly subsumed factitious disorder as a co-Category I condition and malingering as a related Category II condition.  The Board agreed that the histrionic and anti-social traits did not constitute a personality disorder and were improperly listed as a Category IV condition.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (Reasonable doubt), the Board recommends a disability rating of 30% for the conversion disorder condition.

BOARD FINDINGS:  IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication.  The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised.  In the matter of the conversion disorder condition, the Board unanimously recommends a disability rating of 30% coded 9424 IAW VASRD §4.130.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Conversion Disorder	9424	30%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120605, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

xx
President
Physical Disability Board of Review

MEMORANDUM FOR DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS
	 COMMANDER, NAVY PERSONNEL COMMAND
	     	          		           	                          
Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS          

Ref:   (a) DoDI 6040.44
          (b) PDBR ltr dtd 10 Sep 13 ICO  
          (c) PDBR ltr dtd 9 Oct 13 ICO  
          (d) PDBR ltr dtd 22 Oct 13 ICO  
                                               
1.  Pursuant to reference (a) I approve the recommendations of the Physical Disability Board of Review set forth in references (b) through (d).

2.  The official records of the following individuals are to be corrected to reflect the stated disposition:

	a.  former USMC:  Disability retirement with assignment to the Permanent Disability Retired List with a 30 percent disability rating (increased from 10 percent) effective 1 September 2002.

	b.  former USN:  Disability separation with a final disability rating of 20 percent (increased from 10 percent) effective 15 July 2003.

c.  former USMC:  Disability retirement with assignment to the Permanent Disability Retired List with a 40 percent disability rating (increased from 20 percent) effective 30 June 2006.
	
3.  Please ensure all necessary actions are taken, included the recoupment of disability severance pay if warranted, to implement these decisions and that subject members are notified once those actions are completed.

	xx
	Assistant General Counsel
	  (Manpower & Reserve Affairs)