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AF | PDBR | CY2012 | PD2012 01335
Original file (PD2012 01335.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:    CASE: PD1201335
BRANCH OF SERVICE: Army  BOARD DATE: 20130425
SEPARATION DATE: 20030711


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated Reserve Warrant Officer, WO1 (003A/ WARRANT OFFICER BASIC COURSE/HELICOPTER PILOT TRAINEE) medically separated for epilepsy. The CI experienced his first seizure in July 2002; however, the epilepsy could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS). He was issued a permanent P3 profile and referred for a Medical Evaluation Board (MEB). The epilepsy condition, characterized as partial onset epilepsy with secondary generalization was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501 as medically unacceptable. No other conditions were submitted by the MEB. The PEB adjudicated partial onset epilepsy with secondary generalization as unfitting and rated 20% with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The CI made no appeals, and was medically separated with a 20% disability rating.


CI CONTENTION: The CI typed: “CONTINUED SIEZURES”


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 epilepsy 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 respective Service Board for Correction of Military Records.


RATING COMPARISON:

Service IPEB – Dated 20030403
 VA - (1 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
PARTIAL ONSET EPILEPSY WITH SECONDARY GENERALIZATION
 8910 20% EPILEPSY 8914 20% 20030813
No Additional MEB/PEB Entries
 Other x 0 20030813
Combined: 20%
 Combined: 20%
Derived from VA Rating Decision (VA RD ) dated 200 31113 ( most proximate to date of separation [ DOS ] ).



ANALYSIS SUMMARY: The Board acknowledges the CI’s information regarding the significant impairment with which his 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, operating under a different set of laws.

Epilepsy. The history is combined from the narrative summary (NARSUM) (accomplished 9 months prior to separation and the MEB addendum (5 months prior to separation), as well as the VA Compensation and Pension (C&P) exam performed a month after separation. The record indicates the CI had a seizure on 23 July 2002 with amnesia for the event and witness’s reports indicated a "generalized tonic-clonic seizure.” He was evaluated by a neurologist and diagnosed with epilepsy. Magnetic resonance imaging (MRI) was reported as normal and electroencephalography (EEG) by patient report was with epileptiform abnormalities (formal report from 27 January 2003 was normal). The CI was prescribed seizure medication Topamax, but per the NARSUM “did not take the medication as he was awaiting a second opinion on his condition.” The VA history indicated he “took his medication for two weeks and then discontinued because he says he was in denial.”

On 18 August 2002 he experienced another generalized convulsion that was witnessed by his wife. This episode was reported as “convulsion only lasted seconds, but the patient was amnestic again for at least 20 minutes. He reported tongue biting with both the above described episodes” (per the NARSUM). The VA history for the second spell was “He was asleep and his wife noted generalized shaking of his arms and his legs lasting approximately 2 minutes, with post spell fatigue without incontinence or tongue-biting. He was taken to another hospital, where he did not have further brain imaging, did not receive IV medications, and was restarted on Topamax, which he has taken continuously since. Since restarting Topamax he has had no further losses of consciousness.” The VA record indicated the CI reported “approximately one time per month, he has a sensation of déjà vu, without other neurological symptoms. The frequency of these symptoms increases with stress or fatigue, and he noted that during one week he had six such episodes.” All physical exams were neurologically normal and there was no history of head trauma.

The Board directs attention to its rating recommendation based on the above evidence. The PEB rated the CI as 8910 (epilepsy, grand mal) at 20% and specified “second seizure occurred when he was not taking anti-convulsant.” The VA rated the CI at 20% under 8914 (epilepsy, psychomotor) specifying two seizures in July and August 2002. The rating for epilepsy is based on the characterization of seizures as major or minor IAW VASRD §4.124a—Schedule of ratings–neurological conditions and convulsive disorders. As 8914 includes both major and minor seizures, it was unclear how the VA characterized each seizure episode. The episodes of déjà vu noted in the VA records could be considered minor seizures, but would be closer to the 40% rating criteria of “averaging at least 5 to 8 minor seizures weekly.” The Board agreed that both seizures with unconsciousness were major (“characterized by the generalized tonic-clonic convulsion with unconsciousness”). The Board then deliberated on the number and timing of major seizures and if the CI’s second seizure was due to non-compliance or should be considered for rating seizure frequency as “2 major seizures in the last year” (40%).

The Board considered there was a preponderance of evidence indicating the CI’s second seizure was due to non-compliance and by accepted medical principles adjudged that it would not have occurred had the CI been taking medications which were effective in controlling his seizures. Appropriate rating was for “at least 1 major seizure in the last 2 years” at 20%. Although given the CI’s post-separation history of déjà vu episodes, coding under 8914 would be ideal; rating would remain at 20% and offer no benefit to the CI.

After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the epilepsy condition. The Board concluded therefore that this condition could not be recommended for additional disability rating.

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 partial onset epilepsy with secondary generalization condition and IAW VASRD §4.124a, the Board unanimously recommends no change in the PEB adjudication. There were no other conditions within the Board’s scope of review for consideration.


RECOMMENDATION: The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows:

UNFITTING CONDITION
 VASRD CODE RATING
Partial Onset Epilepsy with Secondary Generalization
 8910 20%
COMBINED
 20%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120717, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record




         Physical Disability Board of Review


 SFMR-RB                                                                         


MEMORANDUM FOR Commander, US Army Physical Disability Agency
(TAPD-ZB),

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for AR20130011087 (PD201201335)

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 and hereby deny the individual’s application.
This decision is final. The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

BY ORDER OF THE SECRETARY OF THE ARMY:




Encl                                                 
                                                      (Army Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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