RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-02686 
BRANCH OF SERVICE:  Army	BOARD DATE:  20150716
DATE OF PLACEMENT ONTO TDRL:  20050516 
DATE OF REMOVAL FROM TDRL:  20070919	

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Automated Supply Specialist) medically separated for hepatitis B (Hep B).  The condition could not be adequately rehabilitated to 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 condition was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. No other conditions were forwarded by the MEB.  The Informal PEB (IPEB) adjudicated “biopsy proven cirrhosis of the liver from chronic hepatitis B” as unfitting, rated 10%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI appealed to the Formal PEB (FPEB).  The FPEB rated the hepatitis condition 30%, and placed the CI on the Temporary Disability Retired List (TDRL).  Approximately 2 years and 2 months later, the IPEB adjudicated the hepatitis condition as unfitting, rated 0% with likely application of the VASRD.

CI CONTENTION:  The CI elaborated no specific contention in his application.  

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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the VASRD standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation. 

RATING COMPARISON:  

FPEB – 20070720 | VA Rating Decision^1 - 20051213

TDRL Placement – 20050516

Code

Rating

Condition

Code

Rating
Proximate

Condition

TDRL
Placement

TDRL Removal

TDRL^2
Placement

TDRL^2 Removal

Hepatitis B | 7312/7345 | 30% | 0% | Cirrhosis of the Liver with Hepatitis B | 7312 | 100% | 100%
Other x 0 (Not in Scope) | Other x 0
RATING:  30% → 0% | RATING:  10%
1. Most proximate to TDRL Placement
2. Rating derived from C&P exam dated 20050725, ~2 mos. post-TDRL placement

ANALYSIS SUMMARY:  

Hepatitis B.  The narrative summary noted the CI was found to have a positive tuberculin skin test (TST) and was being treated with medication for latent tuberculosis.  During routine monitoring the CI’s liver enzymes were noted to be elevated and did not improve when the medication (Isoniazid) was stopped, which is usually the case.  Notes in the service treatment record indicated that at a gastroenterology (GI) evaluation 14 April 2004 the CI reported fatigue without weight loss or other symptoms.  The CI had a complete GI evaluation and ultrasound  and computed tomography (CT) scan of the abdomen showed enlargement of the liver and spleen.  The CI was diagnosed with chronic active Hep B with infection with a mutant Hep B virus type that is virulent and causes greater fibrosis (scarring) of the liver.  Liver biopsy showed inflammation and liver cirrhosis with extensive, advanced stage fibrosis.  The CI was also found to have decreased platelet cells (responsible for blood clotting) secondary to the liver disease.  The CI was started on anti-viral therapy, with “subsequent normalization of labs.”  

At the MEB examination 17 November 2004, 6 months before placement on TDRL, the CI did not report any symptoms.  The MEB physical exam was noted to be “unremarkable.”  The MEB examiner indicated the CI was responding to treatment, but had only been on medication for 6 months and might need a liver transplant in the future.  The MEB examiner noted that the CI was able to perform his duties; however, due to the need for ongoing therapy for Hep B, he was not deployable.  The FPEB placed the CI on TDRL because a permanent evaluation was judged not yet possible.  At a MEB addendum evaluation dated 12 January 2005, 4 months prior to TDRL placement the CI reported abdominal pain, fatigue, malaise, forgetfulness, and nausea.  The addendum indicated an ultrasound study 21 May 2004 noted no ascites (fluid in the abdomen), but did show significant enlarged spleen and liver. 

At the VA Compensation and Pension (C&P) examination performed on 25 July 2005, 2 months after TDRL placement, the CI reported a 10-pound weight loss, abdominal pain, nausea, vomiting, fatigue, loss of appetite and jaundice.  The examiner noted the CI was not receiving any current treatment for Hep B.  The CI reported his symptoms occurred daily, were tolerable, and did not cause incapacitation.  The exam noted the CI appeared well developed and well nourished.  There were no signs of liver disease on the skin and no jaundice was present.  The abdomen was non-tender, the liver was not enlarged, there was no swelling of the lower extremities, or muscle weakness or wasting.  Neurological exam was normal.  Blood work showed a normal complete blood count and normal liver enzymes.  The VA examiner noted the CI was able to perform normal activities of daily living including climb stairs, walk, shop, garden, and mow the lawn.  He was employed at the time of the exam.  

The TDRL re-evaluation was begun by the GI specialist on 19 March 2007, continued on 16 May 2007, and liver biopsy was repeated on 5 June 2007.  At the GI evaluation performed on 19 March 2007, the CI reported fatigue, but denied other symptoms of hepatitis, including decreased appetite, abdominal swelling (due to ascites), jaundice, pruritis (itching), musculoskeletal symptoms, or depression.  The examiner noted that viral load testing after 12 months of therapy showed Hep B virus negativity.  The CI had restarted the medication for the positive TST and completed a 9-month treatment course.  The CI stopped the Hep B anti-viral medication in August 2005, after 15 months of therapy.  The examiner noted there had been no recurrent jaundice and the CI reported sporadic fatigue felt to be related to lack of sleep when studying for exams.  The physical exam was normal with no abdominal abnormalities, jaundice, or enlargement of the liver or spleen noted.  Blood studies were normal except for mild elevation of one liver enzyme.  Liver CT was ordered to monitor for the development of hepatocellular carcinoma, a cancer associated with Hep B infection.  At the follow-up GI visit on 16 May 2007 the examiner noted that the liver enzymes remained mildly elevated, but testing continued to show no evidence of the virus.  The liver CT was normal as well as a protein to monitor liver disease (AFP-alpha fetoprotein)  The CI remained asymptomatic and the physical exam was normal as above.  The examiner noted there was no evidence of cirrhosis on the lab work or CT.  Repeat liver biopsy 5 June 2007 showed mild inflammation and fibrosis localized around the portals, but no evidence of cirrhosis.

At the VA C&P examination performed on 13 February 2008, 5 months after TDRL removal, the CI reported fatigue and occasional abdominal pain, but denied weight loss, nausea, vomiting, loss of appetite, or jaundice.  There had been no episodes of ascites, or hepatic encephalopathy (changes in mental status ranging from mild such as decreased concentration and memory to coma) or GI bleeding due to portal hypertension (increased pressure on the veins in the liver due to fibrosis), or other effects of the liver disease.  The examiner noted the CI was not receiving any current treatment and reported no incapacitation from the condition.  The exam was normal, without signs of liver disease, abdominal tenderness, liver or spleen enlargement, or ascites.  Liver enzyme levels were normal, but some liver function studies were abnormal, including an increased blood clotting time (Prothrombin Time- PT).  

The Board directed its attention to its rating recommendation at TDRL placement based on the above evidence.  The PEB rated the Hep B condition 30%, coded 7312 (liver cirrhosis) at TDRL placement.  The VA rated the Hep B condition 100%, also coded 7312, and cited the cirrhosis of the liver with weight loss, abdominal pain, and fatigability.  Members reviewed the rating criteria of 7312.  A 10% rating is provided for “symptoms such as weakness, anorexia, abdominal pain and malaise”; in addition to the 10% symptoms noted, the 30% rating requires evidence of splenomegaly and portal hypertension, with at least minor weight loss.  The higher ratings of 50% and 70% require the presence of ascites, hepatic encephalopathy and or GI bleeding related to the liver disease.  The 100% rating requires ascites, splenomegaly, or GI bleeding refractory to treatment, or “generalized weakness, substantial weight loss and jaundice.”  The Board determined that there was no evidence in the STR, or at either the MEB or C&P examinations of ascites, encephalopathy, or GI bleeding.  The CI reported a ten pound weight loss and jaundice at the C&P exam, but there was no documentation of jaundice in the record, before or after separation.  Prior to separation the CI was noted to be able to perform his duties, and at the C&P exam the CI was employed and noted to be able to perform routine daily activities, which the Board found inconsistent with characterization of the CI’s fatigue as “generalized weakness”.  Therefore, the Board unanimously agreed that the evidence did not support a 50% or higher rating at TDRL placement.  The Board noted that some but not all of the 30% rating criteria were in evidence - splenomegaly was noted on the CT scan, but there was no mention of portal hypertension in the STR.  However, it is recognized that, in practice, PEBs may liberalize the TDRL rating (to the extent allowable to meet the requisite 30% threshold permitting a period of TDRL.  This is in the member’s best interest at the time of temporary retirement.  IAW DoDI 6040.44, the Board may not recommend a lower rating (TDRL or permanent) than that conferred by PEB.  Members thus agreed that the evidence provides reasonable support for the 30% rating at TDRL placement coded as 7312 and found no other applicable code IAW VASRD §4.114 to provide a higher evaluation.  After due deliberation in consideration of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the Hep B condition.  

The Board next directed its attention to its rating recommendation at TDRL removal based on the above evidence.  At TDRL removal the PEB rated the Hep B condition 0%, coded 7345 (chronic liver disease without cirrhosis) and the VA rating remained 100%.  The VARD 6 June 2008 proposed decreasing the rating of the Hep B condition to 10%.  The CI did not respond to the proposal and the VARD 13 November 2008 decreased the rating to 10%.  The Board noted the PEB changed the code from 7312 for liver disease with cirrhosis to 7345 for liver disease without cirrhosis.   This seemed to the Board to be unnecessary.  VASRD notes indicate that cirrhosis and abnormal liver function tests must be present to code as 7312.  The CI had elevated liver enzymes and been diagnosed by biopsy with liver cirrhosis.  The CI responded well to medication with improvement in his biopsy.  Although the fibrosis had improved with treatment, the Hep B infection was associated with cirrhosis and liver function tests continued to show variable abnormal results consistent with a still present, low grade infection process.  Board consensus was that coding as 7312 was still appropriate at TDRL removal and that the persistent abnormal liver function studies and reported symptoms of fatigue and abdominal pain, without weight loss, splenomegaly or portal hypertension were consistent with a 10% rating coded as 7312, but did not meet the 30% rating as described above.  The Board reviewed to see if a higher rating was achieved coded as 7345.  The 7345 rating criteria are all related to symptoms or incapacitating episodes, defined by the VASRD as a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician.  There was no evidence of incapacitating episodes at the time of TDRL removal.  The CI continued to report fatigue and at the C&P exam he reported occasional abdominal pain.  The Board determined this was consistent with the 7345 10% rating, as the 0% rating is applicable if the condition is asymptomatic.  The 20% rating specifies daily symptoms which require dietary restriction or medication.  At the time of the TDRL re-evaluation and C&P exams the CI was on no medication for the Hep B condition and the TDRL evaluation did not recommend resuming anti-viral therapy.  Therefore, the Board concluded that at TDRL removal the Hep B condition met a 10% rating with either code and no higher.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10%, coded 7312 at TDRL removal.  

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 Hep B condition, the Board unanimously recommends no change in the PEB adjudication at TDRL placement and a permanent disability rating of 10%, coded 7312, both IAW VASRD §4.114.  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:  

Condition | VASRD CODE | RATING
| | TDRL | PERMANENT
Hepatitis B with Cirrhosis Condition | 7312 | 30% | 10%
COMBINED | 30% | 10%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated  20131217, with attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXX
President
DoD Physical Disability Board of Review

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 XXXXXXXXXXXXXXX, AR20150013727 (PD201302686)

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 to 10% 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						     XXXXXXXXXXXXXXX						     				     Deputy Assistant Secretary of the Army
						         (Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA

PD-2013-02686