RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY CASE NUMBER: PD1201293 DATE OF PLACEMENT ON TDRL: 19990303 BOARD DATE: 20130220 DATE OF PERMANENT SEPARATION: 20030429 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, CPL/E-4, (75B/Personnel Admin Specialist), medically separated for ileocolonic Crohn’s Disease (CD) with degenerative joint disease (DJD). Records indicate the CI began complaining of abdominal pain in late 1992 and was eventually diagnosed with CD with ileocolonic fistulization. She also suffered from DJD, thought to be secondary to the Crohn’s ileocolitis. The CI did not improve adequately with treatment to meet the physical requirements of her Military Occupational Specialty (MOS) or satisfy physical fitness standards. She was issued a permanent P3 profile and referred for a Medical Evaluation Board (MEB). The MEB forwarded no other conditions for Informal Physical Evaluation Board (IPEB) adjudication. The IPEB adjudicated the CD, status post (s/p) ileocolonic resection with secondary DJD as unfitting, rated 30%, with application of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD). The CI was placed on the Temporary Disability Retired List (TDRL) with ratings as reflected in the chart below. The IPEB re-evaluated the CI in March 2000 and July 2001 and was retained on the TDRL. In February 2003, the IPEB rated the CD with DJD at 10%. The CI appealed to the Formal PEB (FPEB) which affirmed the IPEB decision. The CI did not concur with the FPEB findings and her non-concurrence was reviewed by the U.S. Army Physical Disability Agency (USAPDA), which affirmed the FPEB findings. Shortly before final separation, the CI filed a Congressional inquiry which was addressed by the USAPDA without a change to any findings. She was then medically separated with a 10% disability rating. CI CONTENTION: The application stated “See attached petition from previously retained counsel. (no longer represented by an attorney).” The Board reviewed all correspondence submitted to the Army Board for Correction of Military Records (ABCMR) on behalf of the CI and associated responses. (applications, denials, reconsiderations, etc covering 2006-2008). All documents were reviewed by the Board and considered in its recommendations. SCOPE OF REVIEW: The Board wishes to clarify that the scope of its review as defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2) is limited to those conditions which were determined by the PEB to be specifically unfitting for continued military service; or, when requested by the CI, those condition(s) “identified but not determined to be unfitting by the PEB.” The ratings for unfitting conditions will be reviewed in all cases. 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. TDRL RATING COMPARISON: Service FPEB – Dated 20030402 VA* – (2 Mo. Prior to Separation) – Effective 19990304 Condition Code Rating Condition Code Rating Exam 20030429 TDRL Sep. Ileocolonic Crohn’s Disease w/ DJD 7399-7323 30% 10% Crohn’s Disease s/p ileocolonic resection 7323 30% 19990106 Inflammatory Arthritis Secondary to Crohn’s 5009-5002 20%* 19990106 and 20050301 .No Additional MEB/PEB Entries. 20020531,20030305, and 20050810 Other x 5 Combined: 10% Combined: 70%** *The VA increased the rating for inflammatory arthritis to 20% effective 5 August 2002. ** Initial VA rating was 40% ANALYSIS SUMMARY: The Board acknowledges the sentiment expressed in the CI’s application regarding the gravity of her condition and the significant impairment with which her service- connected condition continues to burden her. It is a fact, however, that the Disability Evaluation System (DES) has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation. This role and authority is granted by Congress to the Department of Veterans Affairs (DVA). The DVA, operating under a different set of laws (Title 38, United States Code), is empowered to compensate service-connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time. The Board utilizes DVA evidence proximal to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence. The Board’s authority as defined in DoDI 6044.40, however, resides in evaluating the fairness of DES fitness determinations and rating decisions for disability at the time of separation. Post-separation evidence therefore is probative only to the extent that it reasonably reflects the disability and fitness implications at the time of separation. The Board further acknowledges the CI’s assertions that the PEB’s final decision was “nothing more than a money issue” and “was not based on the facts given but their own biases;” but, must note for the record that it has neither the jurisdiction nor authority to scrutinize or render opinions in reference to such allegations. The Board’s role is confined to the review of medical records and all evidence at hand to assess the fairness of service rating and fitness determinations at separation, as elaborated above. Ileocolonic Crohn’s Disease with Degenerative Joint Disease. The PEB combined ileocolonic CD and DJD as the single unfitting and solely rated condition, coded analogously to 7323. Although this approach complies with AR 635.40 (B.24 f.); the Board must apply separate codes and ratings in its recommendations, if compensable ratings for each condition are achieved IAW VASRD §4.114 and §4.71a. If the Board judges that two or more separate ratings are warranted in such cases, however, it must satisfy the requirement that each ‘unbundled’ condition was unfitting in and of itself. Not uncommonly this approach by the PEB reflects its judgment that the constellation of conditions was unfitting; and, that there was no need for separate fitness adjudications, not a judgment that each condition was independently unfitting. Thus the Board must exercise the prerogative of separate fitness recommendations in this circumstance, with the caveat that its recommendations may not produce a lower combined rating than that of the PEB. The CI was treated for CD symptoms since 1993. She underwent resection of the terminal ileum and repair of two internal fistulas in January 1996. A gastroenterology note a year prior to separation noted “lots of joint pains and back pain/hip pain” but without any history of swelling or redness. The assessment was that arthralgias were associated with the CD, but that actual arthritis was not evident. The MEB narrative summary (NARSUM) in October 1998, 4 months prior to entry of TDRL-entry, noted monthly flare-ups that lasted 1-2 weeks. Diarrhea alternating with constipation was not associated with abdominal pain. Nausea was frequent, and uncomfortable bloating occurred with every meal. There was no bleeding or weight loss. The report also noted “debilitating” DJD involving the back, hips, and knees, probably secondary to the CD. Joint discomfort limited physical fitness activity and was treated with acetaminophen. She was taking one medication specific for treatment of the inflammatory bowel disease (mesalamine), a medication for intestinal spasm (hyoscyamine). The physical exam noted a weight of 204 pounds. Right-sided abdominal tenderness was present. Vitamin B12 and folate levels were normal, and hemoglobin was 13.4 g/dL (female normal range 12-16 g/dL). The Erythrocyte Sedimentation Rate (ESR) test (a marker of inflammation) was 28 (normal to 15). The report cited a normal magnetic resonance imaging study (MRI) of the spine in January 1998 and lumbar X-rays which were normal except for scoliosis. Right hip and right knee X-rays (July 1997) were also normal. In a separate note on the same day, the NARSUM examiner indicated that the CI had been on a profile “since January” for “no PT” due to joint pain. A concurrent permanent profile dated 26 October 1998 listed “Crohn’s Disease / Inflammatory Arthritis” and stated “Walk at own pace and distance.” At the VA Compensation and Pension (C&P) exam in December 1998, 2 months prior to TDRL-entry, the CI reported abdominal distention, constipation, diarrhea, nausea, cramping, and constant tiredness. She also reported constant back and hip pain since the start of her Crohn’s condition; pain severity was described as 7-9 on a 0-10 point scale. The physical exam noted generalized abdominal tenderness with mild distention. Posture and gait were normal. The back was non-tender and range-of-motion (ROM) was normal with pain at extremes of ROM. Muscle strength and the neurologic exam were normal. At the first TDRL re-evaluation NARSUM exam in February 2000 (11 months after placement on TDRL), the CI reported continued CD symptoms that included intermittent bloody diarrhea. She also continued to have back discomfort. The examiner considered her to be the same or somewhat worse compared to the time of entry on TDRL. A second TDRL re-evaluation NARSUM examiner in April 2001 reported recent treatment with oral steroid medication for a flare-up. The CI reported stable back and hip pain. Her hemoglobin was 12.9 g/dL. At an outpatient VA gastroenterology follow-up visit on 19 June 2002 (10 months prior to permanent separation) the CI stated that she experienced two flares annually since 1999. Her current complaints were bloating, cramping and diarrhea after eating. She experienced occasional nausea and rare vomiting. She reported a good appetite and denied weight loss. She continued mesalamine. The abdominal exam was normal, except for mild lower quadrant tenderness. Weight was 201 pounds. A rheumatology evaluation performed on 28 August 2002 (8 months prior to permanent separation) stated that the CI had experienced chronic low back pain (LBP) since basic training in 1992, and that hip, leg, knee, foot and ankle pain were a problem “over the past year or so.” She indicated that until 2000 she was able to remain physically active and walked and worked out in an exercise facility. Beginning in 2001 she experienced more soreness and stiffness, but the lower extremity symptoms were described as unpredictable “flashes of sudden pain” that radiated from the anterior and lateral groin area down the anterior thighs to the knees. The right foot experienced numbness relieved somewhat by walking. She noted that her back was more painful when the CD was more active. Physical examination reported that hip flexion was resisted beyond 100 degrees bilaterally, but internal and external rotation was normal. Knees showed no swelling, were not tender and exhibited no crepitus. Ankles were normal. Back extension and lateral flexion was normal bilaterally, with pain on extension. Flexion was somewhat limited and (14 inches fingertip to floor), and paraspinous muscles were tight and tender. The impression was that the CI had chronic LBP and pains in her lower extremities, but that there was no indication these symptoms were on the basis of CD-associated inflammatory arthritis. The final TDRL NARSUM dictated in January 2003, 4 months prior to permanent separation, noted continued abdominal discomfort after eating, stable weight, and no joint pain, chills or night sweats. The CI reported variable bowel movement frequency and loose stools without bleeding. Symptoms of possible fistula formation were absent. Mesalamine was The Board directs attention to its rating recommendation based on the above evidence. As previously elaborated, the Board must first consider whether DJD remains separately unfitting, having de-coupled it from a combined PEB adjudication. In analyzing the intrinsic impairment for appropriately coding and rating the DJD condition, the Board is left with a questionable basis for arguing that it was indeed independently unfitting. In this regard, the Board considered conflicting evidence. The NARSUM examiner stated that “degenerative joint disease” was present, and linked this to the CD; and a permanent profile listed “inflammatory arthritis” as a reason for restricted activity. However, not only was there no radiographic evidence of arthritis, but a gastroenterologist stated there was no physical examination evidence of arthritis. The later rheumatology evaluation prior to permanent separation also confirmed that inflammatory arthritis associated with CD was not present. This examiner furthermore indicated that until 2000 (after placement on TDRL) she remained physically active and walked and worked out in an exercise facility; and finally that hip, leg, knee, foot and ankle pain were a problem only “over the past year or so” (i.e. since placement on TDRL). After due deliberation, the Board agreed that evidence does not support a conclusion that degenerative arthritis, as an isolated condition, would have rendered the CI incapable of continued service within her MOS; and, accordingly cannot recommend a separate service rating for it. Regarding the CD condition, at the time of entry on TDRL, the PEB and the VA assigned a 30% rating under the 7323 code (“ulcerative colitis”; analogous coding by the PEB). Board members agreed that “moderately severe, with frequent exacerbations” was an accurate description of the clinical condition at that time; and that the next higher 60% rating described by “numerous attacks a year and malnutrition, the health only fair during remissions” was not reflected in the evidence. Next the Board turned its attention to a permanent rating at the time of removal from TDRL. Board members readily concluded that objective data showed no evidence of anemia, general debility or malnutrition supportive of ratings higher than 30%. In deliberating between the 10% (“moderate; with infrequent exacerbations”) and the 30% rating criteria, Board members considered the VA gastroenterologist’s letter just prior to separation, which indicated frequent loose stools, missed work and an “uncontrolled condition” that could warrant the addition of immunosuppressive medication. However, later evidence showed such medication was not required; and the same gastroenterologist 10 months previously stated that symptoms were limited to bloating and diarrhea after eating, and flares occurred only twice per year. This evidence appeared consistent with the NARSUM report, which indicated no recent need for steroids or hospitalizations. The Board majority concluded that the evidence at the time of permanent separation describes the presence of gastrointestinal symptoms best depicted by “moderate, with infrequent exacerbations” under the 7323 code. The Board majority finally considered that the only other applicable coding pathway under VASRD §4.114 (7319; irritable colon syndrome) likewise did not support a rating higher than 10%. 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 ileocolonic CD with DJD 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 ileocolonic CD condition and IAW VASRD §4.114, the Board by a vote of 2:1 recommends no change in the PEB adjudication. The single voter for dissent (who supported a 30% rating under code 7399-7319) submitted the appended minority opinion. In the matter of the DJD condition, the Board agrees that it cannot recommend a finding of unfit for an additional rating at separation. 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 PERMANENT Ileocolonic Crohn’s Disease 7399-7323 10% Degenerative Joint Disease Not Unfitting RATING 10% The following documentary evidence was considered: Exhibit A. DD Form 294, dated 20120725, w/atchs Exhibit B. Service Treatment Record Exhibit C. Department of Veterans’ Affairs Treatment Record XXXXXXXXXXXXXXXXXX, DAF Acting Director Physical Disability Board of Review MINORITY OPINION: Based on 4.7 (higher of two evaluations), the minority recommends rating the CI’s condition based on 7399-7319 criteria, which should be rated at 30% based on the severity of the CI’s diarrhea and frequency of abdominal distress; and, not on the CI’s Crohn’s Disease rated at 10% by the majority. 7319 Irritable colon syndrome (spastic colitis, mucous colitis, irritable bowel, etc.): Severe; diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress……………………………………………………………………………30 Focusing on the CI’s diarrhea and abdomen distress conditions during her TDRL period, 4.30 (reasonable doubt) is applicable. The evidence clearly demonstrates that that the CI did experience severe (30%) diarrhea, with more or less constant abdominal distress as specified in the 7319 criteria. A gastroenterology (GI) evaluation, less than a month prior to separation, documented that the CI has missed 30 days of work over the last 12 months due to cramping and diarrhea. She also requires a restroom in close proximity due to her diarrhea. An ER visit, approximately a month prior to separation, indicated that the CI had bouts with diarrhea and chronic abdominal pain and was prescribed Melamine (anti-inflammatory medication). TDRL NARSUM reevaluation #3, approximately 3.7 months prior to separation, recorded a history of significant gas and abdominal bloating after meals as well as discomfort. The examiner further documented that the CI’s present condition consisted of abdominal discomfort and frequent bowel movements, “which is a typical scenario for individuals with long standing CD.” Her CD condition was stable, however, the examiner recommended that the CI continue CD medications and a “trial of Levsin or Bentyl to treat gas and cramping pain.” This evidence suggests that her symptoms of daily abdominal discomfort and frequent bowel movements would continue and require medication therapy to control the symptoms. The VA GI exam, approximately 9 months prior to separation, noted that the CI’s condition worsened with CD flares twice a year, no blood in stool, abdominal pain persistent and “worse with flare and made worse after eating with bloating and abdominal cramping… diarrhea after eating.” An Army community hospital visit, approximately 14 months prior to separation, indicated that the CI was evaluated with severe abdominal pain (8/10), vomiting, and diarrhea. An Army community hospital visit, approximately 17 months prior to separation, documented severe abdominal pain (10/ 10). TDRL NARSUM reevaluation #2, approximately 24 months prior to separation, recorded a history of “6-8 bowel movements per day after meals, with stools that are rather mushy and abdominal pain due to bloating”. The CI’s prognosis for her CD indicated that her CD was not stable “with possible flares anywhere from 30% to 80% over the next couple of years.” This evidence clearly suggests that her daily abdominal discomfort and frequent bowel movements will continue. TDRL NARSUM reevaluation #1, approximately 38 months prior to separation, recorded a history stating, “Over the last year since her board, she has continued to have intermittent bloody diarrhea followed by constipation, along with abdominal pain.” “Currently at this time, she is a constipation phase of about a week. She does still notes bloating with every meal.” Additionally, her present condition states, “Currently she is noting exacerbations of her disease, constipation followed by bloody diarrhea every few weeks. When the diarrhea starts, she does have four to five bowel movements a day.” “She has had recurrences and symptomatically is the same if not somewhat worse than when her board started.” The fact that over 3 years after being placed on TDRL, there is evidence that the CI still had severe symptoms of diarrhea and frequent if not daily abdominal distress, clearly proves a 30% rating should be rendered under 7399-7319. I respectfully submit that the Secretary consider the following Minority recommendation in this case: The Minority Opinion member 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 her prior medical separation. UNFITTING CONDITION VASRD CODE RATING PERMANENT Ileocolonic Crohn’s Disease 7399-7319 30% Degenerative Joint Disease Not Unfitting COMBINED 30% 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 XXXXXXXXXXXXXXXXXXXX, AR20130006065 (PD201201293) 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 XXXXXXXXXXXXX Deputy Assistant Secretary (Army Review Boards)