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AF | PDBR | CY2013 | PD-2013-02214
Original file (PD-2013-02214.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXX  CASE: PD-2013-02214
BRANCH OF SERVICE: Army  BOARD DATE: 20141230
SEPARATION DATE: 20050728


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (42A/Human Resource Specialist) medically separated for epilepsy and left knee pain. These conditions could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty or physical fitness standards. He was issued a permanent P3-L3 profile and referred for a Medical Evaluation Board (MEB). The epilepsy and knee conditions, characterized as “epilepsy, generalizes tonic clonic” and “left patellar chondromalacia,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. No other conditions were submitted by the MEB. The PEB adjudicated “epilepsy…” and “chronic left knee pain…” as unfitting, rated 10% and 0%, with likely application of the VA Schedule for Rating Disabilities (VASRD). The CI made no appeals and was medically separated.


CI CONTENTION: “I had epilepsy since 1993 and had many seizures while on active duty. I was sent to Operation Iraqi Freedom where I was told I should not have been sent due to my condition. When I returned I was sent to the board for separation and was told that the review board was not medically retiring due to an enormous backlog. I have been with the VA since my release and have been rated 100% disabled due to my epilepsy.”


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 ratings for the unfitting epilepsy and left knee conditions are addressed below; no additional conditions are within the DoDI 6040.44 defined purview of the Board. Any condition 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.

The Board acknowledges the CI’s contention regarding the significant impairment his service-connected condition continues to impose, but must emphasize that the Disability Evaluation System has neither the role nor authority to compensate for later severity or complications of conditions that resulted 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 defines a 12-month interval for special consideration to post-separation evidence. Post-separation evidence is probative to the Board’s recommendations only to the extent it reasonably reflects the disability at the time of separation.


RATING COMPARISON :

Service IPEB – Dated 20050607
 VA* - (3 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Epilepsy… 8910 10% Seizure Disorder 8910 20% 20051026
Left Knee Pain...Full Motion…Rated for Motion… 5099-5003 0% Left Knee Instability 5257 20% 20051026
Residuals, Left Knee Injury 5260 10% 20051026
0 x Other (Not in Scope)
 0 x Other
Combined: 10%
 Combined: 60%
*Derived from VA Rating Decision (VARD) dated 20060413 (most proximate to the date of separation (DOS))


ANALYSIS SUMMARY:

Epilepsy . The MEB neurology addendum recorded the CI’s history of recurrent seizures began in 1993; however, on 11 February 2005 he was referred to neurology after having a witnessed generalized tonic clonic seizure. The CI lost consciousness and had clonic leg movements that lasted approximately 30 minutes. Bowel and bladder control was maintained. At the time of the seizure, the CI was under the care of a physician and was taking anti-epileptic medication. A blood test taken during the follow-up visit on 25 February 2005, demonstrated sub-therapeutic level. The CI reported he had approximately three seizures over the past 10-12 years, usually associated with flu-like illness. He noted that at the time of the last seizure, he experienced flu-like symptoms. The physician switched him to another medication. Available treatment records noted he had an abnormal electroencephalography (EEG) in June 2000, and brain magnetic resonance imaging (MRI) in August 2000 was reported as normal. The seizures were determined not to be associated with history of head injury or childhood brain infection. A comprehensive neurological evaluation conducted at the neurology MEB on 10 May 2005, demonstrated intact cortical functioning. There were no demonstrated issues with expressive or receptive language, memory, or problems with executive functioning. Visual spatial orientation was intact, visual fields were normal and all cranial nerves were intact. Motor function, strength and reflexes were all normal. The neurologist noted a repeat EEG in March 2005 demonstrated abnormalities and repeat brain MRI in 2005 was normal. The examiner noted there had not been any additional seizures since February 2005.

The VA Compensation & Pension (C&P) examination on 26 October 2005, approximately 3 months after separation, recorded the last seizure occurred in July 2005, and that the CI “has had a seizure once every one and a half years.” However, the CI noted he had not had another grand mal seizure since February 2005 but had experienced episodes of jerking of his right arm and some blackouts for a few minutes, but usually he had period of staring or loss of consciousness for about 30-60 seconds. No medical intervention was ever needed, and his last episode was a year ago. The neurological examination was normal. The examiner noted the episodes of jerking and staring were suggestive of complex partial seizures.

The Board directs attention to its rating recommendation based on the above evidence. The PEB and VA chose the same coding option, 8910 (grand mal seizures) for the condition; however, rated differently. The PEB assigned a 10% rating, noting the condition had been well established and had been under good control until the 2005 seizure that was accompanied by sub-therapeutic drug level. After a change in medication he remained seizure free. The VA assigned a 20% evaluation. A 10% evaluation requires a confirmed diagnosis of epilepsy with the requirement of medication for control. The Board agreed the 10% rating was met. The higher rating of 20% requires the presence of at least one major seizure in the last 2 years or at least two minor seizures in the last 6 months. The PEB acknowledged there was one recorded seizure within 6 months of separation, and the examining neurologist diagnosed grand mal type of seizure. All Board members agreed the 20% criteria 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 epilepsy condition.

Left Knee Pain. The narrative summary (NARSUM) noted the CI sustained a medial meniscus tear with bursitis in 1992. He underwent left knee anterior cruciate ligament debridement surgery in 1995. At surgery the CI was found to have Grade I-II chondromalcia. Aggressive rehabilitation was recommended by the surgeon. Treatment records were silent going forward until the MEB NARSUM. At the MEB examination dated 15 April 2005, the physician noted in 2003, the CI underwent open reduction and internal fixation of a fractured patella (left) that he sustained while in Kuwait. The CI had continued to have left knee pain with ambulation and flexion. Physical examination recorded left knee range-of-motion (ROM) of 135 degrees flexion, crepitus was noted and there was no evidence of inflammation. He had a 1-A, negative anterior and posterior drawer tests, and stable to varus and valgus. The examiner noted left knee radiographs demonstrated no evidence of fractures, dislocation, or arthritic or inflammatory changes and findings consistent with chondromalacia patella. The CI indicated he could perform the activities of daily living, and if he restricted running, marching, jumping, and rucksacking, he had minimal pain. However, his pain was worse with physical activity. The physician diagnosed left patellar chondromalacia and referred to the H&P for additional information. The DD Form 2808 recorded a normal physical examination, and a normal neuromuscular examination; however, recorded the diagnosis of dislocation of patella “left knee” without reference to symptoms or findings consistent with dislocation.

The C&P examination of the left knee, 3 months after separation, recorded the CI injured his knee while in jump school during a parachute jump in 1992, had surgery and participated in physical therapy. He continued to experience pain. Physical examination of the left knee noted tenderness and moderate lateral laxity of the left knee, and no evidence of neurological, motor, or vascular deficits. There was no evidence of abnormal weight bearing and ROM flexion recorded 120 degrees, pain began at 100 degrees with additional loss of motion on repetition.

The Board directs attention to its rating recommendation based on the above evidence. The PEB rated the condition at 0% coded analogously 5099-5003, for motion. The VA rated the condition at 20% for instability coded 5257. The Board reviewed the evidence and noted the NARSUM and C&P examinations were both proximal to separation. However, the NARSUM recorded no knee instability and provided clear clinical evidence of a stable knee. The C&P examination simply recorded moderate laxity of the left knee. Therefore, all Board members agreed, the NARSUM had greater probative value in regards to the determination of knee stability. The Board concluded although there was slight limitation of motion at the time of the NARSUM, there was ample evidence of pain with use §4.40 (functional loss) to warrant a 10% rating. The Board agreed that a route to a higher rating under 5257 (knee, other impairment of) was not supported by the evidence. There was likewise no history of dislocated semilunar cartilage to warrant a rating under the 5258 code. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% IAW VASRD § 4.40 for the left knee 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 surmised from the record or PEB ruling in this case that no prerogatives outside the VASRD were exercised. In the matter of the epilepsy condition, the Board unanimously recommends a disability rating of 20% coded 8910 IAW §4.124a. In the matter of the chronic left knee pain condition, the Board unanimously recommends a disability rating of 10%, coded 5099-5003 IAW VASRD §4.71a. There were no other conditions within the Board’s scope of review for consideration.
RECOMMENDATION:
The Board recommends modifying the case determination as follows and recharacterization of discharge to reflect permanent disability retirement, effective the date of medical separation:

UNFITTING CONDITION VASRD CODE RATING
Epilepsy 8910 20%
Chronic Left Knee Pain 5099-5003 10%
COMBINED 30%


The following documentary evidence was considered:

Exhibit A. DD Form 294, received 20131108, 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, AR20150002587 (PD201302214)
1. Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 30% effective the date of the individual’s original medical separation for disability with severance pay.

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:

         a. Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay.

         b. Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay.

         c. Adjusting pay and allowances accordingly. Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 30% effective the date of the original medical separation for disability with severance pay.

         d. Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.

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

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