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AF | PDBR | CY2014 | PD 2014 01686
Original file (PD 2014 01686.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX    CASE: PD-2014-01686
BRANCH OF SERVICE: Army  BOARD DATE: 20141014
SEPARATION DATE: 20040722


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (11B10/Infantryman) medically separated for probable post-traumatic epilepsy. The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards. He was issued a permanent P3 profile and referred for a Medical Evaluation Board (MEB). The epilepsy condition, characterized as “probable post-traumatic seizure disorder” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. No other conditions were submitted by the MEB. The Informal PEB adjudicated “probable post-traumatic epilepsy” as unfitting, rated 20%. The CI made no appeals and was medically separated.


CI CONTENTION: “Please consider all conditions.”


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 Board for Correction of Military Records.


RATING COMPARISON :

Service IPEB – Dated 20040407
 VA - (3 Wks. Pre-Separation)
Condition
 Code Rating Condition Code Rating Exam
Probable Post-Traumatic Epilepsy 8045-8999-8911 20% Post-Traumatic Seizure 8911 40% 20040701
Other x 0 (Not in Scope)
 Other x 2 20040701
Combined: 20%
 Combined: 40%
Derived from VA Rating Decision (VA RD ) dated 200 41026 ( most proximate to date of separation [ DOS ] ).


ANALYSIS SUMMARY: This case was adjudicated under the VASRD in effect in July 2004 which predates the VASRD guidance and changes in criteria for disability code 8045 (“Brain disease due to trauma” to “Residuals of traumatic brain injury [TBI]”).

Probable Post-Traumatic Epilepsy. The record documented onset of seizures in 2001, the week after a head injury with loss of consciousness for 2-3 seconds. The first seizure was described in the consult to the MEB (narrative summary [NARSUM]; 5 months prior to separation) as “loss of consciousness with associated tonic extension of the arms and legs for approximately one minute with bladder incontinence and grinding of teeth. Patient relates postictal confusion lasting 5 minutes.” Three additional seizures in 2001 were described as spells “manifested by vertigo lasting 30 to 45 seconds, paresthesia of the lower lip, bilateral cheeks, and chin, and twitching of the lower lip. In addition the patient had associated confusion.” Another generalized seizure occurred in December 2002, described as while driving with stiffing posture, drooling and lip biting. CT and magnetic resonance imaging were normal. The CI had an abnormal EEG (electroencephalogram - date indecipherable). After starting on anti-seizure medications in February 2003 the CI’s “spells decreased from a baseline of 2 times per week to 1-2 times every two weeks.” Addition of another medication (Depakote) in October 2003 did not decrease the frequency of spells. The examiner stated that the CI “had no more generalized seizures.” The MEB physical exam did not indicate any neurologic abnormalities. Treatment note dated 4 months prior to separation (30 March 2004; after the NARSUM) indicated an increased frequency of “spells” to 2-3 per week with a plan to increase medication.

At the VA Compensation and Pension exam performed 3 weeks prior to separation (July 2004), the examiner indicate that the CI “describes both generalized and minor seizure episodes” and was taking increased medication dosage of Depakote three times a day. “Current seizure spells are described as 2-4 a month with generalized seizure and daily minor seizure episode, which he describes as vertigo or dizzy spells lasting 10 to 20 to 30 seconds and unable to describe the exact duration. There is some associated confusion. He describes postictal confusion after generalized seizure.” Remote VA records indicated the CI had an increase in generalized seizures in March 2009 (with no generalized seizure from 2007 to 2009) with averaging at least one major seizure per month since July 2010. The VA increase the CI’s seizure disorder rating from 40% to 100% effective 19 July 2010 based on VA treatment record evidence summarized in the VARD dated 29 July 2011.

The Board directs attention to its rating recommendation based on the above evidence. The PEB disability description stated “Probable posttraumatic epilepsy, spells manifested as confusion, vertigo and paresthesias, without generalized seizures, occurring 1-2 times every two weeks.” And the PEB rated the condition at 10% with coding of 8045 8999 8911 which is 8045 (Brain disease due to trauma) analogous to 8911 (Epilepsy, petit mal) and uses the criteria of the VA General Rating Formula for Major and Minor Epileptic Seizures. The VA rated the CI’s seizures under code 8911, using the same rating criteria, at 40% based on different examinations.

The critical rating criteria in this case are the categorization (“major or minor”) of the seizures, as well as the frequency. The 40% criteria is “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”; while the 20% criteria is “at least 1 major seizure in the last 2 years; or at least 2 minor seizures in the last 6 months.” Both the service and VA examiners described a mixed type of seizures with both generalized seizures and “spells.” The spells were clearly within the definition of “minor” seizures IAW VASRD §4.124a. However, the service record documented a history of generalized seizures which may have been categorized as “minor” rather than “major” IAW VASRD §4.124a. There was scant evidence for obvious tonic-clonic activity during generalized seizures and the NARSUM examiner’s description as clonic-type was interpreted as “minor.”

The NARSUM indicated the last generalized seizure was in December 2002 (over a year, but less than 2 years, prior to separation), with ongoing spells averaging “1-2 every 2 weeks.” Treatment notes after the NARSUM indicated an increasing frequency of spells averaging 1-2 per week and the prior to separation VA exam indicated generalized seizures 2-4 times a month with minor episodes daily. The VA exam was closest to the date of separation and noted to be during a documented increasing of minor seizures. Daily minor seizures fall in the 40% rating criteria range for minor seizures averaging 5-8 per week. Later (remote) increased seizure activity and VA increased rating was considered after separation worsening and not indicative of the CI’s condition proximate to separation. The Board considered the entirety of the record, including the after separation evidence and adjudged that the CI’s disability at the time of separation more nearly approximated the disability envisioned by the 40% rating criteria. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt) and §4.7 (higher of two evaluations), the Board recommends a disability rating of 40% for the probable post-traumatic epilepsy 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 probable post-traumatic epilepsy condition, the Board unanimously recommends a disability rating of 40%, coded 8045-8911 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; 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
Probable Post-Traumatic Epilepsy 8045-8911 40%
COMBINED 40%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20140509, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record








                 
XXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXX, AR20140019301 (PD201401686)
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 40% 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 40% 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                                                  XXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary of the Army
                                                      (Review Boards)
                                                     
CF:
( ) DoD PDBR
( ) DVA

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