RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2013-02427
BRANCH OF SERVICE:  Army	BOARD DATE:  20140807
SEPARATION DATE:  20050608

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active SPC/E-4 (63B/Light Wheeled Vehicle Mechanic) medically separated for nocturnal seizures.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  He was issued a permanent P3 profile and referred for a Medical Evaluation Board (MEB).  The MEB forwarded “nocturnal epilepsy” to the Physical Evaluation Board (PEB) as medically unacceptable IAW AR 40-501.  No other conditions were submitted by the MEB.  The PEB adjudicated “nocturnal seizures requiring anti-convulsant medication” as unfitting, rated 10% with likely application of the VA Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  The CI makes no contentions.

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.  The rating for the unfitting nocturnal seizure condition is addressed below; and no additional conditions are within the DoDI 6040.44 defined purview of the Board.  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 Military Records.  IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations.  The Board’s role is thus confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VASRD standards, based on ratable severity at the time of separation.

RATING COMPARISON:

Service IPEB – Dated 20050224	VA* - (1 Mo. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Nocturnal Seizures	8914	10%	Nocturnal Seizures	8910	20%*	20050505	
Other x 0 (Not in Scope)	Other x 4	20050505	
Combined:  10%	Combined:  60%	
*Derived from VA Rating Decision (VARD) dated 20050727 (most proximate to date of separation (DOS))

ANALYSIS SUMMARY:

Nocturnal Seizure Condition.  The CI’s first seizure, a witnessed generalized tonic-clonic event, occurred while sleeping during a field exercise in 2002.  A second episode occurred a week later and there were possibly three more episodes in October 2002 (all witnessed by his wife).  Tegretol (an anti-seizure medication) was started in October 2002 and was very effective in preventing seizures.  However, he experienced one seizure in March 2003 and one in April 2004 after stopping his medication.  The episode in March 2003 resulted in biting his tongue.  The seizure in April 2004 was noted by his wife while he was sleeping.  He reportedly fell out of bed, and “he bit his tongue and arms and legs were twitching.”  Review of the service treatment record (STR) showed no seizures during the year prior to separation.  The narrative summary examiner on 21 October 2004 noted control of the condition with medication, but opined that sleep deprivation, stress or deployments to harsh environments could cause seizure recurrence.  Driving restrictions were in place for 6 months after the last seizure event in April 2004.

The VA Compensation and Pension examiner (a month prior to separation) was silent regarding recent seizure frequency, but stated “seizures are controlled with Tegretol.”  At a VA neurology visit on 6 June 2006 (12 months after separation) the CI stated that his last seizure was in April 2004.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under the 8914 code (epilepsy, psychomotor) while the VA rated the condition at 20% using the 8910 code (epilepsy, grand mal).  The rating criteria for these two coding pathways are the same.  The Board must correlate the above clinical data with the VASRD §4.124 rating criteria which, for convenience, are excerpted below:

General Rating Formula for Major and Minor Epileptic Seizures:

Averaging at least 1 major seizure per month over the last year………..…100
Averaging at least 1 major seizure in 3 months over the last year; 
or more than 10 minor seizures weekly………………..…………………..80
Averaging at least 1 major seizure in 4 months over the last year; 
or 9-10 minor seizures per week……………………………………………….60
At least 1 major seizure in the last 6 months or 2 in the last year;
or averaging at least 5 to 8 minor seizures weekly…………………….40
At least 1 major seizure in the last 2 years; or at least 2 minor seizures
in the last 6 months……………………………………………………………………20
A confirmed diagnosis of epilepsy with a history of seizures …………………..10

	Note (1): When continuous medication is shown necessary for the control of epilepsy, the minimum evaluation will be 10 percent. This rating will not be combined with any other rating for epilepsy.

	Note (2): In the presence of major and minor seizures, rate the predominating type.

The Board notes that epileptic episodes were not all clearly described in the STR as major or minor seizures.  However, more than half of the seizures, including the final one in April 2004, were most consistent with a major seizure (i.e. generalized tonic-clonic convulsions with unconsciousness) and therefore the Board will premise its rating recommendation on the frequency of major seizures.  The PEB’s 10% rating appeared to be based on a conclusion that the condition was controlled with medication.  The record showed that there were no seizures during the year prior to separation; thus a 40% rating was not warranted.  However, Board members noted that the last documented seizure in April 2004 was well within the 2-year interval prior to separation and therefore the 20% rating criteria under §4.124a were met.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the nocturnal seizures 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 nocturnal seizures condition, the Board unanimously recommends a disability rating of 20%, coded 8914 IAW VASRD §4.124a.  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, effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Nocturnal Seizures	8914	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131112, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

XXXXXXXXXXXXXXXXX
President
Physical Disability Board of Review

SAMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 
for XXXXXXXXXXXXXXXXX, AR20150002639 (PD201302427)

1.  I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual.  Under the authority of Title 10, United States Code, section 1554a,   I accept the Board’s recommendation to modify the individual’s disability rating to 20% without recharacterization of the individual’s separation.  This decision is final.  

2.  I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum.   

3.  I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures.

 BY ORDER OF THE SECRETARY OF THE ARMY:

Encl						     XXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						         (Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA