Author: JOHN J. D'ORAZIO
Last saved by: julie.raveau
Company: Pre-installed Company

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XX	CASE:  PD1201958
BRANCH OF SERVICE:  MARINE CORPS	BOARD DATE:  20130515
SEPARATION DATE:  20020731

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty Lance Corporal (LCpl)/E-3 (06/Communications]) medically separated for chronic active hepatitis B condition.  Initially the CI was referred to internal medicine, in 1998, for evaluation due to positive hepatitis B laboratory findings.  She later developed fatigue, weight loss, and low white blood cell laboratory findings (leukopenia) which prompted a bone marrow and liver biopsies.  She subsequently was diagnosed with mild chronic active hepatitis B.  She did not require medications, rather close monitoring; however her symptoms could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty (MOS) or satisfy physical fitness standards.  She was placed on limited duty (LIMDU) and referred for a Medical Evaluation Board (MEB).  The chronic active hepatitis b condition, characterized as chronic active hepatitis B infectivity with mild chronic hepatitis on pathology was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  Two other conditions, in the rating chart below, were also identified and forwarded by the MEB.  The PEB adjudicated the chronic active hepatitis B condition as unfitting, rated 10%, less 0% for existing prior to service with likely application of Veterans Affairs Schedule for Rating Disabilities (VASRD).  Fatigue multifactorial was determined to be a Category 2 (CAT II) condition and the occupational problems and personality disorder (borderline and histrionic traits) were determined to be Category 4 (CAT IV) conditions.  Navy defines CAT II as contributing to unfit and a CAT IV as conditions, which do not constitute a physical disability.  The CI made no appeals, and was medically separated with a 10% combined disability rating.

CI CONTENTION:  “Medication list/Letter from VOC Rehab showing entitlement to vocational Rehabilitation/a few progress notes from doctors and emergency Medical withdrawal form on continuous medication because of worsening condition daily fatigue/ nauseouness and vomiting lasting 2-3 weeks every 4-6 months joint pain/enrolled in vocational Rehabilitation due to employment handicap weight loss dehydration due to vomiting Diet Restrictions/.”

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 chronic active hepatitis B condition is addressed below; and, fatigue is also addressed below as it 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 Board for Correction of Naval Records.

RATING COMPARISON:

Service  IPEB – Dated 20020528 | VA - (~1 Mo. Post-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
Chronic Active Hepatitis B, with Minimal Chronic Hepatitis on Liver Biopsy | 7345 | 10% | Hepatitis B | 7345 | 10% | 20020712
Fatigue Multifactorial | CAT II | No VA Entry
Occupational Problems | CAT IV | No VA Entry
Personality Disorder (Borderline and Histrionic Traits) | CAT IV | Personality Disorder | 9499-9400 | NSC
No Additional MEB/PEB Entries | 0% x 3/Other x 2 | 20020712
Combined:  10% | Combined:  10%

ANALYSIS SUMMARY:  The Board acknowledges the sentiment expressed in the CI’s application regarding the significant impact that her service-incurred condition has had on her current earning ability, quality of life and that there should be additional disability assigned for conditions which will predictably worsen over time.  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 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 6040.44, 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.

Chronic Active Hepatitis B Condition.  The CI had positive laboratory findings for hepatitis B in 1998.  She was asymptomatic until September 2001 when she developed fatigue, arthralgias and had a minor weight loss from April 2001 to October 2001.  Further evaluation revealed a leukopenia and the clinicians recommended both a bone marrow and liver biopsy.  The liver biopsy revealed minimal chronic active hepatitis and the bone marrow revealed the low white cells were secondary to this hepatitis.  Computer Tomography (CT) scan of the liver spleen, pancreas, and kidneys were normal.  Further specific laboratory testing for hepatitis B for DNA PCR corroborated the liver biopsy results for active disease.  The LIMDU identified the medical condition and documented the following limitations, no physical readiness testing, deployment, gas chamber or rifle range exercises, and no operation of heavy machinery or night duty.  She was able to exercise at her own pace.  The non-medical assessment documented the CI was not working in her MOS, that she was lackadaisical and melancholic and had not been in a full duty status for several months before June 2001.

At the narrative summary (NARSUM) exam performed 6 months prior to separation, the CI reported fatigue, insomnia, and decreasing appetite.  She denied fever chills, night sweats, jaundice, or arthralgias.  The NARSUM physical exam demonstrated a thin, non-cachectic female, weight of 100 pounds, no jaundice or hepatomegaly, and no swelling or pain on palpation of her joints.  At the VA Compensation and Pension (C&P) exam performed a month after separation, the CI reported constant symptoms of depression, gastrointestional  disturbance and was easily fatigued.  The C&P additionally demonstrated weight of 99 pounds and appearing well- nourished.  The laboratory findings were significant for a reactive hepatitis B surface antigen and otherwise normal liver function testing, and chronic leukopenia.

The Board directs attention to its rating recommendation based on the above evidence.  The CI had a firm diagnosis of chronic active hepatitis B with diagnostic testing that mandates rating under the criteria of VASRD 7345.  Both the PEB and the VA coded the CI’s condition as 7345 and rated it 10%.  The rating criteria under the 7345 code are objective and specific and the 10% and 20% are elaborated below.

Daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly),
requiring dietary restriction or continuous medication, or;
incapacitating episodes (with symptoms such as fatigue, malaise,
nausea, vomiting, anorexia, arthralgia, and right upper quadrant
pain) having a total duration of at least two weeks, but less than four
weeks, during the past 12-month period .............................................................20

Intermittent fatigue, malaise, and anorexia, or; incapacitating episodes
(with symptoms such as fatigue, malaise, nausea, vomiting, anorexia,
arthralgia, and right upper quadrant pain) having a total duration of at
least one week, but less than two weeks, during the past 12-month
period .................................................................................................................10

The Board notes the VASRD specifically defines incapacitating episodes under this code as “a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician.”  The Board agreed the evidence does not support dietary restriction, continuous medication or incapacitating episodes to support the 20% higher rating.‖  The Board agreed the fatigue is likely a sequelae of the hepatitis B; however, IAW §4.14 (avoidance of pyramiding)  could not code this symptom under another diagnostic code and therefore agreed with the PEB’s CAT II adjudication.  The Board further notes futures VARD do not increase to the 20% higher rating for this condition in spite of continuous medication use which began in 2009.  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 chronic active hepatitis B 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 chronic active hepatitis B condition and IAW VASRD §4.114, the Board unanimously recommends no change in the PEB adjudication.  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 Active Hepatitis B | 7345 | 10%
COMBINED | 10%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20121125, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

	XX
	Director of Operations
	Physical Disability Board of Review

MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW
                                         BOARDS 

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS
 
Ref:   (a) DoDI 6040.44
          (b) CORB ltr dtd 19 Jun 13

      In accordance with reference (a), I have reviewed the cases forwarded by reference (b), and, for the reasons provided in their respective forwarding memorandum, approve the recommendations of the PDBR that the following individual’s records not be corrected to reflect a change in either characterization of separation or in the disability rating previously assigned by the Department of the Navy’s Physical Evaluation Board:

- x former USMC
- x former USMC
- x former USMC
- x former USN
- x former USMC
- x former USMC
- x former USN
- x former USMC

						  xxx
	     					  Assistant General Counsel
						     (Manpower & Reserve Affairs)

PD1201958