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AF | PDBR | CY2013 | PD-2013-02627
Original file (PD-2013-02627.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX    CASE: PD-2013-02627
BRANCH OF SERVICE: NAVY  BOARD DATE: 20150107
SEPARATION DATE: 20050902


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PO3/E-4 (MM3/Machinist’s Mate) medically separated for a seizure disorder. The condition could not be adequately rehabilitated to meet the physical requirements of his Rating. He was placed on limited duty and referred for a Medical Evaluation Board (MEB). The seizure condition, characterized as “other convulsions,” and “other demyelinating diseases of central nervous system” were forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E. The Informal PEB adjudicated “seizure disorder” as unfitting, rated 10%, with possible application of SECNAVINST 1850.4E criterion E9.j.8.e (excluding nocturnal seizures from rating). The remaining condition was adjudicated as “abnormal brain MRI [magnetic resonance imaging],” and determined to be Category III (not separately unfitting and not contributing to the unfitting condition). The CI made no appeals and was medically separated.


CI CONTENTION: “The disability condition (Epilepsy) which caused me my medical discharge became so severe that I have multiple attacks (seizures) and these affected my ability to perform my normal day to day activity. I would like to have my rating of disability reevaluated for 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 rating for the unfitting seizure disorder condition is addressed below. The Category III condition, identified as not unfitting by the PEB, was not requested for review; but, is inextricably linked (clinical cause and effect, as below) to the unfitting condition and is also addressed below. 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.


 RATING COMPARISON :

Service IPEB – Dated 20050727
 VA (10 Wk. Pre-Separation)
Condition
 Code Rating Condition Code Rating Exam
Seizure Disorder 8999-8914 10% Generalized Seizure Disorder 8911 20% 20050621
Other x 1 (In Scope)
 Other x 0
Combined: 10%
 Combined: 20%
Derived from VA Rating Decision (VARD) dated 20060621 (most proximate to date of separation).


ANALYSIS SUMMARY: The Board acknowledges the CI’s sentiment 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. 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.

Seizure Disorder. The service treatment record (STR) corroborates the history and course of the seizure disorder as presented in the narrative summary (NARSUM). The CI’s first presumptive seizure occurred in early July 2004, associated with a suspicious unwitnessed amnestic event for which medical attention was not sought. He suffered a witnessed event while driving (no injury) on 31 July 2004, that was associated with loss of consciousness, involuntary seizure like movements (tonic-clonic) of brief duration (estimated 10-15 seconds), and a sustained confused (post-ictal) period. He was stabilized in a civilian facility and transferred to a naval hospital (San Diego). An electroencephalogram was positive for a left frontal lobe seizure focus which correlated with an MRI finding of a lesion in the same location. The latter was opined to be an area of demyelination (deterioration of nerve sheaths), which was not diagnostic of a systemic process (e.g., multiple sclerosis [negative lumbar puncture]) or associated with other symptoms or neurologic deficits, but was opined to be the cause for the seizures. The neurologist concluded that permanent treatment with an anti-convulsant was indicated and the MEB was initiated. After developing a side effect to the initial anti-convulsant (rash from Dilantin), another medication (Depakote) had been initiated at the time of the NARSUM (August 2004). The NARSUM confirmed the absence of recurrent seizures to date; described no active symptoms or residual neurologic deficits; and, detailed a comprehensive and normal neurologic exam. An addendum to the NARSUM on 25 March 2005 documented a breakthrough seizure (while sleeping, witnessed, brief, uncomplicated) in January 2005, with the CI reporting that he had forgotten to take his medication. The addendum identified no active complaints and documented normal neurological findings.

A VA Compensation and Pension (C&P) neurological examination was conducted on 21 June 2005; and corroborated exactly the seizure history elaborated above; i.e., two seizures at onset in July 2004 (~14 months prior to separation) and the most recent seizure (with inadvertent failure to take medication) in January 2005 (8 months prior to separation); and, documented a normal neurological exam. A VA general C&P the same day recorded that the CI was otherwise “generally healthy” with “no other significant problem.” The STR and VA file do not document any other seizure episodes or any other events suspicious for minor seizures.

The Board directed attention to its rating recommendation based on the above evidence. Both the PEB 10% and the VA 20% ratings were premised on the same ratable evidence. Both the PEB’s analogous code 8914 (epilepsy, psycho motor) and the VA’s code 8911 (epilepsy, petit mal) default to the VASRD §4.124a General Rating Formula for Major and Minor Epileptic Seizures. Neither the PEB nor the VA decisions provided an elaborated rationale for their rating determinations. The evidence establishes that all seizures in evidence meet the criteria for major seizures; and, in that sense, the VA’s choice of code (perhaps an error) does not accurately reflect the nature of the diagnosis. Under the §4.124a formula, a 10% rating is satisfied by a confirmed diagnosis of epilepsy or requirement for continuous medication. The 20% rating requires “at least I major seizure in the last 2 years”; and, the next higher 40% rating requires “at least 1 major seizure in the last 6 months or 2 in the last year.” Given that the early seizures were not within a year rating interval, and the last one was not within the 6 month rating interval, members agreed that 40% criteria were not met. Since there was a total of three seizures within the 14-month time frame between diagnosis and separation, however, the 20% criterion is satisfied in a literal sense. It was argued in deliberations that the PEB’s 10% rating was defensible, given that neither the pre-diagnosis seizures nor the breakthrough minor seizure resulting from a temporary lapse in treatment are convincing clinical indicators of seizure severity.
Members ultimately agreed, however, that reasonable doubt (VASRD §4.3) favors concession of these seizures (or even just one of them) as satisfying the 20% requirement. After due deliberation, considering all of the evidence and defaulting to VASRD §4.3, the Board recommends a 20% rating for the seizure disorder; proposing code 8910 (epilepsy, grand mal) for its clinical compatibility. The Category III demyelinating disorder was, more likely than not, the cause of the seizure disorder; but, in itself was manifested only by the seizures as rated above. It therefore cannot be justified as independently unfitting, nor is it associated with any ratable disability IAW VASRD §4.14 (avoidance of pyramiding).


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. As discussed above, possible PEB reliance on SECNAVINST 1850.4E for rating the seizure condition was operant in this case, and it was adjudicated independently of that guidance by the Board. In the matter of the seizure disorder, the Board unanimously recommends a disability rating of 20%, coded 8910, 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:

UNFITTING CONDITION VASRD CODE RATING
Generalized Seizure Disorder 8910 20%
COMBINED 20%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131209, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans Affairs Treatment Record





XXXXXXXXXXXXXXX
President
DoD Physical Disability Board of Review

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

Ref: (a) DoDI 6040.44
 (b) PDBR ltr dtd 26 May 15 XXXXXXXXXXXXXXX
         (c) PDBR ltr dtd 7 May 15 XXXXXXXXXXXXXXX
         (d) PDBR ltr dtd 7 May 15 XXXXXXXXXXXXXXX

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. XXXXXXXXXXXXXXX, former USMC: Entitlement to disability severance pay with a disability rating of 20 percent (increased from 10 percent) effective date of discharge.

b. XXXXXXXXXXXXXXX, former USN: Entitlement to disability severance pay with a disability rating of 20 percent (increased from 10 percent) effective date of discharge.

c. XXXXXXXXXXXXXXX, former USMC: Placement on the Permanent Disability Retired List with a 40 percent disability rating effective date of discharge.

3. Please ensure all necessary actions are taken to implement these decisions, including the recoupment of disability severance pay, if warranted, and notification to the subject members once those actions are completed.



                           XXXXXXXXXXXXXXX
                           Assistant General Counsel
                 (Manpower & Reserve Affairs)

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