RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD1300552
BRANCH OF SERVICE:  Army	BOARD DATE:  20140430
DATE OF PLACEMENT ON TDRL:  20060727
Date of Permanent SEPARATION:  20080118

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard SGT/E-5 (21J/General Construction Equipment Operator) medically separated for Type I Diabetes Mellitus (DM) and chronic neck pain.  The CI was diagnosed with DM several years prior to her mobilization in June 2005.  Her condition worsened and she was placed on Insulin while activated.  Complaints of neck pain began after lifting a foot locker in July 2005 and she was treated conservatively.  The CI was referred to behavioral health due to chronic pain and insomnia in February 2006 and was diagnosed with depression, not otherwise specified (NOS), which met retention standards.  The DM and neck condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty (MOS) or satisfy physical fitness standards.  She was issued a permanent P3/U3/S2 profile and referred for a Medical Evaluation Board (MEB).  Insulin dependent DM and neck pain [with] headaches were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501 as conditions not meeting retention standards.  The MEB also identified and forwarded depression NOS as meeting retention standards for PEB adjudication.  The Informal PEB (IPEB) adjudicated the DM and chronic neck pain associated with headaches and arm pain as unfitting, rated 20% and 0% respectively.  The depression was determined to be not unfitting and therefore not rated.  Upon reconsideration, the PEB increased the ratings to 20% and 10%, citing criteria of the VA Schedule for Rating Disabilities (VASRD).  There was no change in the fitness determination of the MH condition and, the CI was placed on the Temporary Disability Retired List (TDRL).  After 13 months on TDRL, the DM and neck pain were considered to be stable but still unfitting.  The IPEB assigned a 20% and 0% rating, respectively, with likely application of AR 635-40 for rating the neck pain.  The CI appealed to the Formal PEB who affirmed the IPEB findings and recommendations.  The CI was removed from the TDRL in January 2008 and transferred to the Retired Reserve List awaiting pay at age 60 pursuant to her request.

CI CONTENTION:  “My neck is worse and diabetes I feel has worsened.”

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 applicant.  The ratings for conditions meeting the above criteria are addressed below.  In addition, the Secretary of Defense directed a comprehensive review of Service members with certain mental health conditions referred to a disability evaluation process between 11 September 2001 and 30 April 2012 that were changed or eliminated during that process.  The applicant was notified that she may meet the inclusion criteria of the Mental Health Review Terms of Reference.  The mental health condition was reviewed regarding diagnosis change, fitness determination and rating in accordance with VASRD §4.129 and §4.130.  Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, may be eligible for future consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Final Service FPEB - 20071101	VA (1.5 Mo. Prior to TDRL entry*) - Effective 20060727	
On TDRL - 20060726	Code	Rating	Condition	Code	Rating	Exam	
Condition		TDRL	Sep.					
Diabetes Mellitus, Type I	7913	20%	20%	Diabetes Mellitus, Type I	7913	Not Service Connected	20060602	
Neck Pain	5237	10%	0%	Degenerative Disc Disease Cervical Spine	5242	10%	20060602	
Depression, NOS	Not Unfitting	No VA Entry*	
Other x  (Not in Scope)	Other x 9 (Not in Scope)	20060602	
Combined:  30% → 20%	Combined: 10%	
*Reflects VA rating exam proximate to TDRL entry; VA rating decision (VARD) dated 20081119 denied service connection for Depression

ANALYSIS SUMMARY:  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 Military 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.
Diabetes Mellitus, Type I Condition.  The CI was diagnosed with Type I DM in 2002 and was maintained on oral medications by her civilian physician.  The CI was mobilized in June 2005 and a month later presented to the emergency room with a 1 to 2-month history of 15 to 20 pound weight loss and a 2-week history of cold symptoms, which progressed to nausea, vomiting and upper abdominal pain.  Laboratory values were consistent with diabetic ketoacidosis (out of control diabetes requiring insulin) and she was hospitalized for 3 days.  The examiner opined that the CI was advised not to return to her current rigorous work environment and she would require close follow-up with her Endocrinologist for close diabetes management.  The CI’s glycosylated hemoglobin (an indication of long term blood sugar control) tests showed poor control of her diabetes.  The CI was initially followed on a 2-week basis, then monthly for diabetes monitoring with continued adjustments to her insulin regime.  The CI was also diagnosed with a benign thyroid nodule and started on thyroid medication.  The commander’s statement documented that the CI was physically incapable of performing her duties within her MOS and her limitations adversely impact her organization’s readiness.  The Internal Medicine provider noted elevated blood sugars and that she occasionally missed meals and a nutrition consult was ordered.  The Endocrinologist noted that the CI’s blood sugar continued to be poorly controlled requiring more adjustment to the insulin.  The CI was placed into Medical Hold in December 2005.  The Endocrinologist noted that the CI had episodes of low blood sugar reactions twice weekly due to steroid injections for her neck pain.  There was no evidence of hospitalizations after her initial presentation with ketoacidosis.  The initial MEB narrative summary (NARSUM) exam accomplished approximately 4 months prior to TDRL entry documented that the CI’s diabetes was still poorly controlled which would affect her prognosis and that her insulin required refrigeration.  The examiner further documented that the CI’s profile mandated code “E” (No continuous consumption of combat rations), code “F” (No assignment or deployment to OCONUS areas where definitive medical care for the Soldier’s medical condition is not available) and code “G” (no assignment requiring prolonged handling of heavy material).  The CI was given a permanent P3/U3/S2 Profile for Type I DM, depression, headaches and neck pain with specific restrictions for DM of no unlimited running, walking, biking, and swimming, which she was only allowed to complete at her own pace and she was to perform alternate fitness testing.  The VA Compensation and Pension (C&P) exam completed approximately a month prior to TDRL entry noted episodes of low blood sugar three to four times per week, that diabetes had significant effects on her occupational activities due to lack of stamina, weakness and fatigue, and the diabetes moderately affected her daily chores, shopping, exercise, sports and recreation.  There was no mention of additional hospitalizations.  The CI was placed on TDRL on 27 July 2006.

The Board directs attention to its rating recommendation for TDRL entry based on the above evidence.  The PEB coded the Type I DM condition as 7913, DM and rated it 20%, consistent with VASRD rating guidelines (requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet).  The VA used the same coding and did not grant service-connection based on the fact that the CI’s DM existed prior to service.  The CI had one hospitalization due to her DM and required insulin to regulate her diabetes after that episode.  The CI’s profile restricted her from unlimited activities but allowed all activities at her own pace and performance of alternate fitness testing presumably due to the difficulty controlling her DM.  The C&P examiner documented that the diabetes caused lack of stamina, weakness and fatigue which affected her occupational and daily activities.  The Board considered the 40% criteria - requiring insulin, restricted diet and regulation of activities (avoidance of strenuous occupational and recreational activities).  The CI also required one hospitalization for her DM in the 12 months prior to her separation which meets the 60% rating criteria.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 60% for entry into TDRL for the DM Type I condition.

The CI was seen by Endocrinology for peripheral neuropathy symptoms and poorly controlled diabetes which required more adjustment of insulin therapy.  Continued testing initially revealed evidence of poor blood sugar control.  The CI continued to be followed by Endocrinology, Diabetology for nutrition and Primary Care throughout 2006 and 2007 for poor insulin control which required many insulin adjustments.  The TDRL exit evaluation performed 5 months prior to TDRL exit documented better overall control of the blood sugars, contained no evidence for interval hospitalizations, and did not indicate any restrictions in activity.  The examiner noted that the CI did not meet retention standards as the diabetes could not be controlled by diet alone.  The clinical nutritionist noted that the CI had less low blood sugar episodes to interfere with her work.

The Board directs attention to its rating recommendation for permanent rating based on the above evidence.  The PEB rated the Type I DM condition at 20% (requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet) at TDRL removal.  The evidence present for review did not indicate that the CI was hospitalized while on TDRL, there was no evidence of activity restriction, and the CI was seen by her endocrinologist every 2 months.  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 permanent disability rating for the Type I DM condition at TDRL removal.

Neck Pain Condition.  The CI injured her neck while picking up a foot locker in August 2005.  Later that day, she experienced lower neck pain that radiated in between the shoulder blades with numbness and tingling in the posterior upper right arm, forearm, thumb, index and middle finger.  The cervical spine X-ray showed straightening of the cervical lordosis consistent with muscle spasm, old compression fracture C5, and mild to moderate degenerative changes.  Nine days later, a cervical spine magnetic resonance imaging showed mild degenerative changes and sided disc bulges at C5-7 with left sided narrowing of the spinal canal.  The CI was seen by orthopedics who documented right sided neck pain that radiated into the right posterior arm and forearm with numbness into the thumb, middle and index fingers.  Physical exam findings were tenderness to palpation over the right lower cervical spine, decreased neck flexion and extension, with slight decrease in strength of the right triceps, otherwise normal strength throughout.  The CI underwent three epidural steroid injections (ESI) for neck pain.  A neurosurgery Physician Assistant (PA) noted that the neck pain radiated to the right upper extremity.  The physical exam findings were simply decreased range-of-motion (ROM) of the neck, no spasm was noted and strength and sensation were normal.  The MEB NARSUM exam accomplished approximately 4 months prior to TDRL entry noted no evidence of active radiculopathy and weakness.  The NARSUM documented physical exam findings of normal ROM and a positive Waddell’s sign stating that the neurosurgery PA completed the physical examination.  The VA C&P exam accomplished approximately a month prior to separation noted throbbing and burning pain that radiated from the neck down between the spine and scapula, under the right arm and posterior upper arm with numbness in the index, middle and thumb.  The pain was constant in the scapula and spine, but pain in arm and neck would come and go, upper back and arm pain as dull and sometimes stabbing.  The examiner further noted that during flares on and off daily, the CI was able to continue all of her normal activities.  There was fatigability and stiffness of the neck, however no weakness noted.  The physical exam findings revealed a forward flexion of 50 degrees (normal is 45 degrees) with painful motion and a combined cervical ROM of 275 degrees (normal is 340 degrees).  There was weakness of the right 4th and 5th fingers, decreased sensation of the right index finger and upper arm and normal deep tendon reflexes.

The Board directs attention to its rating recommendation at TDRL entry based on the above evidence.  The PEB coded the neck pain condition as 5237, lumbosacral or cervical strain and rated it 10% citing “rated for local tenderness.”  The VA coded the degenerative disc disease cervical spine as 5242, degenerative arthritis of the spine, and rated at 10% citing ROM measurements consistent with the general rating formula for diseased and injuries of the spine.  The MEB NARSUM contained information that conflicted with the source document it referenced.  Additionally, it was accomplished 2 months prior to the C&P exam and therefore, Board members agree that the C&P exam for its rating recommendation.  As stated above, the ROM measurements documented in the C&P exam are consistent with a 10% rating under the general rating formula for diseased and injuries of the spine.  The Board considered if the CI’s right arm pain was separately unfitting for rating purposes.  Board precedent is that a functional impairment tied to fitness is required to support a recommendation for addition of a peripheral nerve rating at separation.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a.  The sensory component in this case has no functional implications.  The motor impairment was limited and relatively minor and cannot be linked to significant physical impairment.  Since no evidence of functional impairment exists in this case, the Board cannot support a recommendation for additional rating based on peripheral nerve impairment at TDRL entry.  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 neck pain condition at TDRL entry.

The CI continued to be followed by the primary care provider for chronic neck pain that radiated down her right arm from August 2006 through to March 2008.  The primary care provider noted that the CI had radicular symptoms to the right upper extremity and notable tenderness on the right trapezius, somewhat diminished reflexes on the right and decreased grip strength on the right (CI was left hand dominant).  The MEB orthopedic NARSUM exam accomplished approximately 6 months prior to TDRL removal documented continued chronic neck pain with right arm symptoms and that the ESI were ineffective.  The pain progressed throughout the day until bedtime and she would awaken two to three times nightly with pain.  The physical findings were a forward flexion of 40 degrees and a combined ROM of 270 degrees with active ROM testing.  There was painful motion without spasm or Waddell’s signs.  The orthopedic NARSUM also documented passive ROM testing of 45 degrees of forward flexion and a combined passive ROM of 280 degrees.
The Board directs attention to its permanent rating recommendation based on the above evidence.  At TDRL removal, the PEB rated the neck pain condition at 0%, citing “…no tenderness to palpation or spasms and a range of motion recorded as flexion of 45 degrees and extension of 45 degrees, measurements limited by pain.”  The PEB’s use of the 45 degree flexion measurement represents a passive ROM measurement as required under the rescinded AR 635-40.  The use of the active ROM measurement of 40 degrees for rating would justify a 10% rating under the VASRD general rating formula.  Additionally, the orthopedic NARSUM documented pain limited motion which would also demand a 10% rating under VASRD rating guidelines.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the neck pain condition at TDRL removal.

Contended PEB Conditions.  The contended condition adjudicated as not unfitting by the PEB was depression NOS.  The Board’s first charge with respect to this condition is an assessment of the appropriateness of the PEB’s fitness adjudications.  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 based on the preponderance of evidence standard.  The Board reviewed the records for evidence of inappropriate changes in diagnosis of the MH condition during processing through the military DES.  The evidence of the available records shows a diagnosis of depression NOS was rendered and no change in diagnosis was made at any time; therefore, this case did not meet the inclusion criteria in the Terms of Reference of the MH Review Project.  The CI was referred to Behavioral Health for chronic pain and insomnia in February 2006.  She had symptoms of frustration due to her constant pain, irritability, episodic tearfulness, insomnia with intermittent awakening due to pain/discomfort and anxiety regarding her future of coping with pain and her physical limitations.  The MEB psychiatric NARSUM exam approximately 3 months prior to TDRL entry indicated that the CI had no episodes of suicidal or homicidal intent, nor were there any hospitalizations for a psychiatric condition.  The examiner diagnosed depression NOS with a Global Assessment of Functioning of 65 (some difficulty in social, occupational, or school functioning, but generally functioning pretty well, has some meaningful interpersonal relationships).  The examiner further documented no degree of military/psychiatric impairment and only a mild impairment for social and industrial adaptability.  The examiner opined that a majority of the CI’s symptoms appeared to be a reactive depression due to her medical problems/pain and not a biological depression.  The CI was given a permanent P3/U3/S2 Profile.  The VA psychiatric C&P exam approximately a month prior to TDRL entry noted that the CI had been seen in outpatient psychiatry however there were no hospital admissions for a MH condition and the CI had no suicidal or homicidal intent.  The CI reported that she did not miss any work due to her depression symptoms.  The examiner opined that the CI did not have a psychiatric disorder that at the time of this exam and that the depression symptoms were considered mild in severity and were not causing any significant impairment for psychosocial functioning.  The commander’s statement focused only on the CI’s medical conditions and did not implicate a MH condition as duty limiting.  The depression condition was given an S2 profile but was not implicated in the commander’s statement and was not judged to fail retention standards.  All were reviewed by the action officer and considered by the Board.  There was no indication from the record that this condition 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 the depression NOS condition and, therefore, no additional disability rating can be 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, the Board surmised that PEB reliance on service specific instruction for rating the neck pain condition was operant in this case and the condition was adjudicated independently of that instruction by the Board.  In the matter of the Type I DM condition, the Board unanimously recommends a change in the TDRL entry rating to 60%; however, the Board recommends no change in the 20% permanent rating at TDRL removal, coded 7913 IAW VASRD §4.120.  In the matter of the neck pain condition, the Board unanimously recommends no change in the TDRL entry rating; however the Board unanimously recommends a change in the permanent rating to 10% coded 5237 IAW §4.71a.  In the matter of the contended depression NOS condition, the Board unanimously recommends no change from the PEB determination as not unfitting.  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 to reflect a disability rating for the prescribed period of temporary retirement, and then a permanent combined disability retirement effective as of the date of her prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
Diabetes Mellitus, Type I	7913	60%	20%	
Neck Pain	5237	10%	10%	
COMBINED	70%	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130505, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

			
XXXXXXXXXXXXXXXXXX
President
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 XXXXXXXXXXXXXXXXXX, AR20140017926 (PD201300552)

1.  Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to  constructively place the individual on the Temporary Disability Retired List (TDRL) at 
70% disability rather than 30% effective the date of the individual’s original medical separation for disability with Reserve retirement and then following this period recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 30%.

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:

	a.  Providing a correction to the individual’s separation document showing that the individual was separated by reason of temporary disability effective the date of the original medical separation for disability with Reserve retirement.

	b.  Providing orders showing that the individual was retired with permanent disability effective the day following the TDRL period.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will provide 70% retired pay for the constructive temporary disability retired period effective the date of the individual’s original medical separation and then payment of permanent disability retired pay at 30% effective the day following the constructive TDRL period.  

	d.  Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.

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