RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY CASE NUMBER: PD1200919 SEPARATION DATE: 20020516 BOARD DATE: 20130213 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 chronic right flank pain, status post (s/p) laceration of right kidney secondary to blunt trauma from a fall from a third story balcony. Despite treatment, the CI did not meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was issued a permanent P3 profile and referred for a Medical Evaluation Board (MEB). The MEB forwarded right flank pain s/p laceration of (the) right kidney secondary to blunt trauma to the Physical Evaluation Board (PEB) as medically unacceptable. The MEB forwarded no other conditions to the PEB. The PEB adjudicated the chronic right flank pain s/p laceration of (the) right kidney secondary to blunt trauma condition as unfitting and rated it 0% with application of the US Army Physical Disability Agency (USAPDA) pain policy. The CI made no appeals and was medically separated with a 0% disability rating. CI CONTENTION: “In 4-2000, while leaning over to talk to a fellow soldier, I fell off a 3rd story balcony in the barracks and hit the second story railing. I was in the ICU and hospital for approximately 10 days. My right kidney received severe blunt force trauma. My right lung was also badly damaged. I had sever [sic] internal bleeding that lasted for approximately 10 days. My right kidney now only works at about 20%, my right lung has since recovered. Due to this injury, I become dehydrated faster. I become sick readily easily and the symptoms are more severe than normal and last longer. I have lingering pain to my right flank area. I urinate approximately every two hours (even at night during sleep). I have to follow a strict diet and am unable to consume any medications that are digested through the kidneys (ie, ibuprofen). What really makes this injury more severe is the unknown as I grow older. With the proper function of only one kidney, I am more susceptible to illness and disease. As compared to other injuries that qualify for a 10% rating, I feel that this injury is more severe. The kidneys help remove wastes and extra fluid from your blood, control your body's chemical balance, help control your blood pressure, help keep your bones healthy, and help you make red blood cells. I feel that as I grow older these functions will decrease at a much faster rate than someone without this form of injury. I ask that you please reevaluate my rating and not only consider my current situation, but the long term affects of this type of injury. I loved the four years I was able to serve my country and it was one of the sadist days of my life to have to terminate my obligation. I was unable to re-up or to re-c1ass due to this injury. Thank you for your help.” 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 right flank condition is addressed below; and, no additional condition is 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 Army Board for Correction of Military Records. 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. RATING COMPARISON: Service IPEB – Dated 20020403 VA (4 Mos. Pre -Separation) – All Effective Date 20020517 Condition Code Rating Condition Code Rating Exam Chronic Rt Flank Pain, S/P Laceration Rt Kidney 5099-5003 0% Rt Kidney Post Fracture/Laceration 7599-7501 10% 20020129 No Additional MEB/PEB Entries Not Service-Connected x 1 20020129 Combined: 0% Combined: 10% ANALYSIS SUMMARY: Right Flank Condition. In April 2001, a year prior to separation, the CI fell approximately 10 to 12 feet off a balcony and landed on his right side without loss of consciousness. He was admitted for a week and then released to convalescent leave. A right pulmonary contusion was noted; it resolved without sequelae. He also had a right renal fracture with a retroperitoneal hematoma and gross hematuria. The latter two findings cleared over time, but a follow up ultrasound on 7 September 2001, 5 months post-injury, showed a wedge shaped area of atrophy and a slightly smaller right kidney (9.2 cm vice 10.6 cm left kidney) consistent with the history of renal fracture. Of note, a renal scan on 31 July 2001, 3 months post-trauma, showed relative renal function of 22% on the right and 78% on the left, consistent with some loss of function on the right side. At a nephrology consultation on 6 September 2001, he was noted to still have normal renal function including the urine microscopic examination. No dietary restrictions were in place, but he was advised to avoid high impact activities and not to continue a high protein diet (for bodybuilding). He was also told that his flank pain might take 1-2 years to resolve. A repeat renal ultrasound on 6 February 2002, 3 months prior to separation, showed a persistent right renal scar from the prior trauma. The narrative summary (NARSUM) was dictated on 27 December 2001 (5 months prior to separation). The CI reported right flank pain with prolonged sitting, occasionally upon awakening and with running or other exertional activities. He used Tylenol for the pain and occasionally used narcotics when the pain was severe. He denied any genitourinary symptoms or problems breathing. The examination was unremarkable with clear lungs, a benign abdomen and no edema. Laboratory findings including a urinalysis were normal. His current status was thought to be good, but prognosis poor secondary to the flank pain. At the MEB examination on 14 January 2002, 4 months prior to separation, the CI reported that he had a history of a lacerated kidney and “crushed” lung. The MEB examiner noted that the abdomen and back were normal. Urinalysis on 14 January 2002 (4 months prior to separation) was normal. At the VA Compensation and Pension (C&P) evaluation on 29 January 2002 (4 months prior to separation), the CI reported pain if he ran over two miles and with road marching and ruck-sacking. The abdominal examination was benign; there was mild right flank costovertebral tenderness to percussion. Urinalysis and blood markers for renal function were normal. The Board directs attention to its rating recommendation based on the above evidence. The PEB rated 0% via analogous code 5099-5003 (Arthritis) using the USAPDA pain policy. The VA rated 10% via analogous code 7599-7501 (Kidney abscess). The Board notes that this disability is not specifically rated in the VASRD. The CI had tenderness on the VA examination, but not the NARSUM or MEB examinations. He described pain with exertional activities, but did not report pain with the normal activities of daily living. Renal markers remained normal and the urinalysis was also normal indicating normal renal function, although there was an area of atrophy documented. He was on no treatment other than occasional analgesics and the nephrology recommendation to follow a normal diet and avoid high impact activities. The Board considered various analogous codes available for rating. Application of VASRD §4.59 (Painful motion) by analogizing the kidney flank pain with exertional movement to the painful motion of arthritic joints would rate zero percent (coded 5099-5003) since the CI only had pain after significant exertion or prolonged sitting. The Board then considered analogizing the kidney damage to the damage to muscles by under VASRD §4.56 (Muscle disabilities). The Board concluded that longstanding pain with physical activity, the CI would rate no more than "moderate" via §4.56. The closest muscle group to analogize to the kidney scarring would be muscle group XIX (Abdominal wall and lower thorax, code 5319). A "moderate" rating under this muscle group would rate 10% coded 5399-5319. The Board also considered code 7509 (Renal colic) as being analogous to CI's kidney pain. The Board noted that the CI described he gets flank pain only with exertion and the MEB and C&P examinations showed only mild flank pain on the latter examination. The Board concluded that since the CI's flank pain occurred only with exertion or prolonged sitting, he would not meet the threshold for a 10% rating, coded 7599-7509. The Board also noted that while there was differential in the function of the two kidneys, the CI's overall renal function was preserved (normal BUN, creatinine, urinalysis); the CI would thus rate zero percent under VASRD §4.115a (Renal dysfunction) of the VASRD. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (Reasonable doubt), the Board, by majority vote, concluded that there was insufficient cause to recommend a change in the PEB adjudication for the stress fracture of right sacrum 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. As discussed above, PEB reliance on the USAPDA pain policy for rating the right flank pain was operant in this case and the condition was adjudicated independently of that policy by the Board. In the matter of the chronic right flank pain condition, the Board, by a vote of 2:1, recommends no change in the PEB adjudication. The single voter for dissent (who recommended 10% coded 5399-5319) did not elect to submit a minority opinion. 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 Chronic Right Flank Pain, Status Post Laceration of Right Kidney 5099-5003 0% COMBINED 0% The following documentary evidence was considered: Exhibit A. DD Form 294, dated 20120625, w/atchs Exhibit B. Service Treatment Record Exhibit C. Department of Veterans’ Affairs Treatment Record XXXXXXXXXXXXXXXXX, DAF Acting Director Physical Disability Board of Review SFMR-RB MEMORANDUM FOR Commander, US Army Physical Disability Agency (TAPD-ZB / XXXXXXXXXX), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXXX, AR20130006086 (PD201200919) 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 XXXXXXXXXXXXXXX Deputy Assistant Secretary (Army Review Boards)