RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX	CASE:  PD-2013-02365
BRANCH OF SERVICE: Army	BOARD DATE:  20140815
SEPARATION DATE:  20060118

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (11B/Infantryman) medically separated for upper right quadrant and right thoracic area pain.  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/L3 profile and referred for a Medical Evaluation Board (MEB).  The upper right quadrant and right thoracic area condition, characterized as “upper right upper quadrant abdominal pain and right thoracic pain,” was the only condition forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The Informal PEB adjudicated “chronic pain, right upper quadrant and right thoracic area” as unfitting, rated 10%, citing the US Army Physical Disability Agency (USAPDA) pain policy.  The CI made no appeals and was medically separated.

CI CONTENTION: The CI states: “My back condition/thoracic spine was rated at 40% by the VA. Additionally, as a result of the chronic pain and incapacitating episodes this condition cause me adjustment disorder with depression and anxious mood rated at 70%, R. knee strain 10%, exercised induced asthma 0%, irritable bowel syndrome (IBS) 30% & chronic cluster headaches 30%.  I feel strongly that each of these conditions should be rated by PDBR and that I should be medically retired.”

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 upper quadrant and right thoracic area condition is addressed below.  The contended adjustment disorder with depression and anxious mood, right knee strain, exercise induced asthma, IBS and chronic cluster headaches are not 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.

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 (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.

RATING COMPARISON:

Service IPEB – Dated 20051117 | VA - (3 Mos. Post-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
Chronic Pain, Right Upper Quadrant and Right Thoracic Area | 5099-5003 | 10% | IBS w/Diarrhea (claimed as Right Upper Quadrant Pain..) | 7319 | 30% | 20060428
| | | Thoracic Spine Strain | 5237 | 10% | 20060428
Other x 0 (Not in Scope) | Other x 3 | 20060428
Combined:  10% | Combined:  40%
Derived from VA Rating Decision (VARD) dated 20060626 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:  The Board noted the PEB to bundle the symptoms of right thoracic and right abdominal pain without specific diagnosis.  The Board was unable to determine from the conflicting records in evidence whether the thoracic pain, which was described as radiating to the upper abdomen or the abdominal pain, described as radiating to the posterior chest were part and parcel of one etiologic condition.  The Board, thus, elected to unbundle the conditions and consider them separately for fitting and rating determinations.

Chronic Pain, Right Upper Quadrant.  The narrative summary (NARSUM) notes the CI developed right upper abdominal pain, in January 2005.  The pain radiated to the right posterior back and was described as “atypical” for gall bladder disease...a common cause of right upper abdominal pain.  Extensive workup, to include abdominal CT, ultrasound, UGI endoscopy, colonoscopy and special small bowel studies were negative.  A special gallbladder study (HIDDA with CCK) suggested gall bladder “dysfunction” as the cause of the condition.  After discussion with the surgeon that gall bladder removal might not relieve symptoms, the CI underwent elective laparoscopic removal (cholecystectomy) of a “normal” appearing gallbladder without evidence of inflammation or gall stones performed on 11 February 2005.  Post-operatively the “pain was reduced 75%.”  By April 2005, abdominal pain had returned to pre-op baseline of intensively and radiation pattern.  Service treatment records (STR) in evidence from time of surgery to the time of the separation contain no references to any diarrhea.  At the MEB/NARSUM exam performed on 19 September 2005, 4 months prior to separation, the CI reported onset of watery diarrhea five to six times a week.  The MEB physical exam noted well-healed small surgical scars, and moderate tenderness to palpation in the right upper and left lower abdomen.  A clarification report to the NARSUM dated 4 November 2005, from the NARSUM composer, reported the CI to have gradual onset of diarrhea shortly after the gallbladder surgery which was “limiting and inconvenient but not disabling” at the time of the NARSUM.  At the VA Compensation and Pension (C&P) exam performed 3 months after separation, the CI reported continued right upper abdominal pain with occasional nausea and 3 to 10 episodes of diarrhea per day.  The CI reported he had no diarrhea when taking his medication.  The CI reported no weight loss.  On physical exam the CI was well nourished and in no apparent distress.  “Pain to light touch” was present over the abdomen.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB, as noted above, rated this condition in concert with the thoracic pain condition, at 10% code 5003, for pain, slight.  The VA rated the condition 30% code 7319, irritable bowel syndrome, for combined symptoms of diarrhea, abdominal pain and constipation.  No higher rating is achievable under this coding.  The Board first undertook to determine the fitting status of the abdominal condition.  The Board unanimously agreed the record in evidence to reasonably supports the abdominal condition as unfitting.  The Board then undertook rating consideration.  The Board opined that well established medical principles document the occurrence of abdominal pain and diarrhea after cholecystectomy...the so called “post cholecystectomy syndrome.”  The preponderance of evidence in records supports this as the cause of the post-operative condition.  The Board opined that the post-operative abdominal condition, pain and diarrhea, was mild to moderate.  The Board considered a rating analogous to code 7319, (IBS) and agreed the record supported a rating of 10% under this code.  A higher rating of 30% required the symptoms to be “severe” not supported by the evidence in record.  No higher rating was achievable under 7318 (Gallbladder, removal).  The Board found no other appropriate codes for consideration.  After due deliberation, considering all of the evidence and mindful of the VA Schedule for Rating Disabilities (VASRD) §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the abdominal pain condition.

Chronic Pain Right Thoracic Area:  The CI reported an injury to his back of unrecalled occurrence during his service.  The pain was described as beginning in the upper mid back and radiating to the right flank and upper right abdominal area.  Extensive cardiac, pulmonary and renal workups revealed no etiology for the condition.  Routine chest X-rays and magnetic resonance imaging (MRI) of the thoracic spine were normal.  At the MEB/NARSUM exam dated 19 September 2005, 4 months prior to separation, the CI reported right posterior chest pain.  Examination of the thoracic spine revealed no direct tenderness over the spine but mild discomfort of the right lower thoracic area radiating to the right upper abdominal area.  Range-of-motion (ROM) of the thoracolumbar spine was “full” without mention of painful motion.  Neurologic and motor examinations were normal.  At the VA C&P exam performed 3 months after separation, the CI reported pain in the middle of his back radiating to the front and right upper abdominal area, occurring almost daily.  He noted some relief of pain from the monthly cortisone back injections provided by his private physician.  The CI reported “flare-ups” of chest pain occurring every 2 weeks related to movement.  The CI was unemployed at this time, having stopped “working as a security guard for the back pain condition.”  On physical examination, the CI was in no apparent distress.  Gait was normal without evidence of spinal curvature abnormality.  Paraspinal tenderness was present along the mid spinal area without “muscle tightness.”  ROM of the spine was normal with severe pain with flexion, extension and rotational movements.  Muscle strength was normal.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB, as noted above, rated this condition in concert with the abdominal pain condition, at 10% coded 5003 (pain, slight).  The VA rated the condition 10% coded 5237 (limbo-sacral strain) for painful motion.  The Board first undertook to determine the fitting status of the thoracic condition.  The Board unanimously agreed the record in evidence reasonably supports the thoracic condition as unfitting.  The Board next undertook rating consideration.  The Board unanimously agreed that the preponderance of evidence in records did not support a rating for reduced ROM IAW §4.71a.  The Board agreed that the back condition did not rise to the level of 10% for painful motion IAW §4.40 and §4.59.  The Board considered a rating under code 5243 (Incapacitating Episodes/Intervertebral Disc Syndrome).  An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed and treated by a physician.  The Board agreed that no rating could be recommended under this code.  The Board considered a rating IAW §4.123 (Neuritis, peripheral nerve).  The Board agreed there was no evidence for ratable peripheral nerve impairment in this case, since no motor weakness was present, sensory symptoms had no functional implication and radiation of pain was subsumed under the back rating IAW §4.71a.  The Board found no other appropriate codes for consideration.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority recommends a disability rating 0% IAW §4.31 for the right thoracic pain 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 was operant in this case and the conditions were adjudicated independently of that policy by the Board.  In the matter of the abdominal pain condition, the Board unanimously recommends a disability rating of 10%, coded 7318-7319, IAW VASRD §4.114  In the matter of the thoracic pain condition, the Board recommends, by a majority vote, a disability rating of 0%, coded 5003, IAW VASRD §4.71a.  The single voter for dissent submitted the appended minority opinion.  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, effective as of the date of his prior medical separation:

UNFITTING CONDITION | VASRD CODE | RATING
Abdominal pain | 7318-7319 | 10%
Thoracic pain | 5003 | 0%
COMBINED | 10%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, undated, received in Texas on 20131118, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

				
XXXXXXXXXXXXXXXXXX
President
Physical Disability Board of Review

MINORITY OPINION:  The Minority voter agrees with the Board’s recommendation for the abdominal condition.  The issue in this case is the rating decision for the thoracic back condition.  The Minority agrees with the Majority that this condition could only be rated for painful motion.  The Majority rated the thoracic back condition at 0% citing that pain was minor and could not be of significance as a spine MRI X-ray should no pathology.  The Minority supports a 10% rating for the condition and presents the following for consideration: 

On examination in May 2005, 6 months prior to separation, tenderness of the lower thoracic spine was recorded.  This was significant enough that the physician examiner opined that thoracic X-rays and MRI were required to define the condition.  On pain clinic visits in November 2005, the month of the MEB, physicians recommended spinal epidural injections and spinal nerve root blocks for the back condition.  At the NARSUM examination, 4 months prior to separation, tenderness and discomfort in the posterior spine with radiation to the flank and abdominal areas was documented.

At the C&P evaluation, 3 months after separation, the CI reported “throbbing” pain in the middle of his back rated 5/10.  He noted having to "quit (his) job as a security guard at a mall because of his back pain.”  On exam all ROMs of the back… flexion, extension, rotation… were described by the examiner as producing “severe pain” and “muscle tightness.”  At this time the CI was receiving “cortisone shots” for his back.

The minority member notes that the back condition was of such severity it was permanently profiled and considered “unfitting” for continuation of military service by the PEB.

The minority notes the single MRI obtained in the STR prior to separation to be read as “normal” and thus, considered by the Majority, as not supporting a source of a pain for the back condition.  An old adage in our practice of medicine is: “if the test results are confusing, look at the patient.”  With application of this simple adage, it is cogently clear to this minority voter that the CI had significant back pain, for which spinal injections, epidural injections were considered and which resulted in permanent profile and disability with loss of civilian occupation.  The minority acknowledges that application of §4.59 for pain is subjective and may be interpreted differently by different invigilators.  However, the minority respectfully suggests that the record of evidence in this case clearly and cogently demonstrates a back pain condition with painful symptoms which are of true significance and which render a rating of 0% as understated.

This minority voter believes a disability rating of 10% most accurately reflects the back condition at the time of separation and is a fair and equitable adjudication.  The following is respectfully recommended:

UNFITTING CONDITION | VASRD CODE | RATING
Abdominal pain | 7318-7319 | 10%
Thoracic pain | 5003 | 10%
COMBINED | 20%

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 XXXXXXXXXXXXXXXXXX, AR20150005404 (PD201302365)

1.  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 to modify the individual’s disability rating 20% without recharacterization of the individual’s separation.  This decision is final.  

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.   

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						     XXXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						         (Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA

PD-2013-02365