Author: JOHN J. D'ORAZIO
Last saved by: ADA, ROBERT P CIV USAF SAF/MRBD
Company: Pre-installed Company

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXX	CASE:  PD1201047
BRANCH OF SERVICE:  AIR FORCE	BOARD DATE:  20130508
SEPARATION DATE:  20061226

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSgt/E-5 (9D000/Dormitory Manager) medically separated for abdominal pain due to adhesions.  The CI first complained of abdominal pain in 1997 after the first of four Caesarean section deliveries.  Her pain became chronic and was determined to be likely secondary to abdominal adhesive disease.  The condition could not be adequately rehabilitated to meet the physical requirements of her Air Force Specialty or satisfy physical fitness standards.  She was issued a permanent P4 profile and referred for a Medical Evaluation Board (MEB).  The abdominal pain condition was forwarded to the Informal Physical Evaluation Board (IPEB) IAW AFI 48-123.  A migraine condition was identified by the MEB and also forwarded.  The IPEB adjudicated the abdominal condition as unfitting, rated 10%, referencing the Department of Defense Instruction (DoDI) 1332.39 and the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining condition was determined to be Category II, conditions that can be unfitting, but are not currently compensable or ratable.  The CI appealed to the Formal PEB (FPEB), which affirmed the IPEB findings and rating, and the CI was medically separated with a 10% disability rating.

CI CONTENTION:  “Initial rating from VA yielded 50% disability.  Has ongoing medical issues since separation with days of missed work.  Constantly in pain due to headaches, back, and adhesions in abdomen.”

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 abdominal pain condition is addressed below, as is the requested migraine condition, which was determined to be not unfitting by the PEB.  The requested back condition was not identified by the PEB, and thus is not within the DoDI 6040.44 defined purview of the Board.  The Board acknowledges the CI’s information regarding the significant impairment with which her service-connected condition continues to burden her; but, must emphasize 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.  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 that it reasonably reflects the disability at the time of separation.  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 FPEB – Dated 20061024 | VA - (2 Mos. Post-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
Abdominal Pain due to Adhesions | 7301 | 10% | Recurrent Abdominal Pain | 7699-7301 | 10% | 20070215
| | | S/P Umbilical Hernia Repair | 7338 | 0% | 20070215
| | | S/P Right Salpingo-Oophorectomy | 7619 | 0% | 20070215
Migraine Headaches | CAT II | Migraines | 8100 | 30% | 20070215
No Additional MEB/PEB Entries | Other x 1 | 20070215
Combined:  10% | Combined:  50%
Derived from VA Rating Decision (VARD) dated 20070420 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:  The Board acknowledges the CI’s contention that suggests ratings should have been conferred for other conditions documented at the time of separation.  The Board wishes to clarify that it is subject to the same laws for Service disability entitlements as those under which the DES operates.  While the DES considers all of the member's medical conditions, compensation can only be offered for those medical conditions that cut short a member’s career, and then only to the degree of severity present at the time of final disposition.  However the DVA, operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service-connected conditions and to periodically reevaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time.

Abdominal Pain Due to Adhesions.  The CI underwent the first of four Caesarean sections (C-section) in August 1995, and initial complaints of abdominal pain began in June 1997.  The operation report for the second C-section (March 1998) noted “…peritoneal type adhesions from the uterus to the anterior abdominal wall.”  Left upper quadrant abdominal pain due to disease of the spleen (cavernous hemangiomas) led to laparoscopic splenectomy in January 2000.  The record of inpatient treatment following the third C-section (June 2001) also diagnosed pelvic peritoneal adhesions; while the fourth C-section operative report (October 2003) noted “…dense adhesions between the uterus and the anterior abdominal wall and pelvic sidewalls.”  She also underwent a left ovarian cystectomy and a right salpingo-oophorectomy (removal of Fallopian tube and ovary) in 2004.  The operative report noted adhesions overlying the peritoneum; the uterus was adherent to the anterior abdominal wall; and the right fallopian tube was distorted by adhesive disease.  The left tube and ovary were normal.  The surgeon further stated: “…due to dense adhesions of the uterus to the anterior abdominal wall, if this patient were to need a hysterectomy, I would recommend that it be done by GYN/ONCOLOGY due to the difficulty that would be involved with the procedure.”  There was transient improvement in pain after repair of an umbilical hernia in September 2004.  Medical treatment for a left ovarian cyst in 2005 was not helpful for her abdominal pain.  An outpatient exam (November 2005) noted that “her pain was likely secondary to adhesive disease…localized to RLQ lateral to umbilicus (chronic)….”  Her pain was described as 4-6 out of 10, sharp and constant, with occasional flares.  No changes in bowel habits were reported.  An outpatient note in April 2006 (8 months prior to separation) reported constant pain described as 2-3 out of 10 in the right lower quadrant with sharp exacerbations of 9 out of 10 severity lasting 10-15 minutes.  Constipation characterized as infrequent bowel movements and hard stools was also reported.  Nausea and vomiting were not present.  The MEB narrative summary (NARSUM) indicated that multiple therapeutic modalities, including various medications, surgery and acupuncture failed to adequately control her pain.  A physical exam dated 16 July 2006 (4 months prior to separation) noted tenderness over the bilateral lower abdomen.  The examiner stated that the CI was able to lift up to 30 pounds and was “usually limited in her ability to drive, exercise, or interact with others given her debilitating pain and narcotic regiment.”  The NARSUM addendum (October 2006) listed the same three narcotic medications.  At the VA Compensation and Pension (C&P) exam in February 2007 (2 months after separation) the CI stated, “I still have abdominal pain,” reportedly in the right lower abdomen.  The exam of the abdomen found decreased bowel sounds but no tenderness.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB and VA both assigned 10% ratings under code 7301 (peritoneum, adhesions of), judging the condition was “moderate” (“pulling pain on attempting work or aggravated by movements of the body, or occasional episodes of colic pain, nausea, constipation (perhaps alternating with diarrhea) or abdominal distension.”  The next higher 30% rating (“moderately severe”) requires “partial obstruction manifested by delayed motility of barium meal and less frequent and less prolonged episodes of pain.”  The Board debated if periods of constipation in the absence of a barium study sufficiently reflected the “delayed motility” stipulation of the 30% rating, but also noted that other symptoms commonly associated with obstruction (nausea and vomiting) were absent.  The FPEB also noted that constipation was “occasional” and “responds well to medication.”  Board members agreed that the evidence just described was most accurately depicted by the 10% rating criteria under the 7301 code.  However, the Board also considered other avenues to a higher rating.  It was noted in operative reports that the uterus was “adherent to the anterior abdominal wall and sidewalls.”  Under the 7613 code (uterus, disease, injury, or adhesions of), a 30% rating is justified for “symptoms not controlled by continuous treatment.”  The Board members agreed this rating criterion was an accurate reflection of one effect of extensive intra-abdominal adhesive disease in this case.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 30% for the abdominal pain due to adhesions condition, coded 7613.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the migraine headaches were not unfitting.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The service treatment record indicated a history of migraine headaches since age 18, and first treatment in the military in February 2001.  The NARSUM addendum reported the condition worsened during peri-menstrual phases and pregnancy, and indicated hospitalization in May and June 2004 for migraines.  The last documented visit for acute migraine care was in June 2005.  The commander’s statement in August 2006 indicated that the CI was “a superior performer” and “has flawlessly managed over 190 dorm residences.”  The VA examiner reported headaches once or twice a month that lasted anywhere from 2 to 12 hours a day.  The migraine headaches were profiled for a month in 2004 and were not implicated in the commander’s statement or judged to fail retention standards.  It was reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that the migraine headaches significantly interfered with satisfactory duty performance.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for contended condition and so no additional disability rating is recommended.

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 DoDI 1332.39 for rating abdominal pain due to adhesions was operant in this case and the condition was adjudicated independently of that instruction by the Board.  In the matter of the abdominal pain due to adhesions condition, the Board unanimously recommends a disability rating of 30%, coded 7613 IAW VASRD §4.116.  In the matter of the contended migraine headaches condition, the Board unanimously agrees that it cannot recommend it for additional disability rating.  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
Abdominal Pain due to Adhesions | 7613 | 30%
COMBINED | 30%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120626, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

	XXXXXXXXXXXXXXXXXXXX, DAF
	Director of Operations
	Physical Disability Board of Review

SAF/MRB
1500 West Perimeter Road, Suite 3700
Joint Base Andrews MD 20762

Dear XXXXXXXXXXXXXXXXXXXX:

	Reference your application submitted under the provisions of DoDI 6040.44 (Title 10 U.S.C. § 1554a), PDBR Case Number PD-2012-01047.

	After careful consideration of your application and treatment records, the Physical Disability Board of Review determined that the rating assigned at the time of final disposition of your disability evaluation system processing was not appropriate under the guidelines of the Veterans Administration Schedule for Rating Disabilities.  Accordingly, the Board recommended your separation be re-characterized to reflect disability retirement, rather than separation with severance pay.

	I have carefully reviewed the evidence of record and the recommendation of the Board.  I concur with that finding, accept their recommendation and determined that your records should be corrected accordingly.  The office responsible for making the correction will inform you when your records have been changed.

	As a result of the aforementioned correction, you are entitled by law to elect coverage under the Survivor Benefit Plan (SBP).  Upon receipt of this letter, you must contact the Air Force Personnel Center at (210) 565-2273 to make arrangements to obtain an SBP briefing prior to rendering an election.  If a valid election is not received within 30 days from the date of this letter, you will not be enrolled in the SBP program unless at the time of your separation, you were married or had an eligible dependent child, in such a case, failure to render an election will result in automatic enrollment.  

							Sincerely,

XXXXXXXXXXXXXXXXXXXX
Director
Air Force Review Boards Agency

Attachment:
Record of Proceedings

cc:
SAF/MRBR
DFAS-IN

PD1201047