RECORD OF PROCEEDINGS

PHYSICAL DISABILITY BOARD OF REVIEW

NAME: BRANCH OF SERVICE: Army

CASE NUMBER: PD1100788 SEPARATION DATE: 20020930

BOARD DATE: 20120221

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (67T10 / Helicopter Mechanic), medically separated for chronic right groin and scrotal pain. In April 2001 while stationed in Honduras, he fell from a Humvee and incurred a straddle injury on the door jam resulting in chronic right testis pain. He had an acute exacerbation after falling on ice in January 2002. He was unresponsive to medical and surgical treatment, including removal of the right testis, and was unable to perform within his Military Occupational Specialty (MOS) or meet physical fitness standards. He was issued a permanent P3/L3 profile and underwent a Medical Evaluation Board (MEB). Chronic right groin and scrotal pain was forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW AR 40-501. Two other conditions, as identified in the rating chart below, were forwarded on the MEB submission as medically acceptable conditions. The PEB adjudicated the chronic right groin and scrotal pain condition as unfitting, rated 10% with likely application of the US Army Physical Disability Agency (USAPDA) pain policy. The CI made no appeals, and was medically separated with a 10% combined disability rating.

CI CONTENTION: The CI states: “Anxity [sic] disorder/PTSD, Chronic groin pain.” He additionally lists all of his VA conditions and ratings as per the rating chart below. A contention for their inclusion in the separation rating is therefore implied.

RATING COMPARISON:

* Original VARD had 9412 at 30%, then changed to 50% and added code 9424 for conversion disorder and pseudo-seizures (VARD dtd 20041230) and 100% (VARD DRO dtd 20060328; exam 20040811) all effective 20021001; Added GERD 7399-7305 at 10% eff 20030618 on VARD dtd 20050114

ANALYSIS SUMMARY: The Board acknowledges the CI's contention suggesting that service ratings should have been conferred for other conditions documented at the time of separation, some of which were evaluated and determined not to be individually unfitting for continued service. The Board wishes to clarify that it is subject to the same laws for service disability entitlements as those under which the Disability Evaluation System (DES) operates. The DES is responsible for maintaining a fit and vital fighting force. While the DES considers all of the service member's medical conditions, compensation can only be offered for those medical conditions that cut short a service member’s career, and then only to the degree of severity present at the time of final disposition. However the Department of Veterans’ Affairs, operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service-connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time. The Board is empowered to evaluate the fairness of service fitness determinations, and to make recommendations for service rating of conditions which it concludes would have independently prevented the performance of required duties (at the time of separation). The Board’s threshold for countering DES fitness determinations is higher than the Veterans Administration Schedule for Rating Disabilities (VASRD) §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.

Chronic Right Groin and Scrotal Pain Condition. The CI had intractable right groin and scrotal pain attributed to trauma. Ultrasound showed right testicular calcifications. Treatment included injection therapy with nerve blocks (which offered only temporary relief), medications, and a right orchiectomy in January 2002 without adequate control of the CI’s duty-limiting pain. At the time of the narrative summary, one month prior to separation, the CI had chronic pain in the right scrotum which was aggravated by running, jumping, physical contact and strenuous physical activity. He had not worked in his MOS since June 2002, and was unable to climb onto and off of aircraft or lift heavy toolboxes. Urology exam documented marked tenderness in the right groin and hemiscrotum with a surgically absent right testis. The left testis was normal. The urologist stated “the pain even on Neurontin has remained about 5/10.” Prognosis was estimated as stable. The VA Compensation and Pension (C&P) exam, two months post separation, indicated the CI had right testicular phantom pain and left testicular pain and pain with intercourse. The right testicle was surgically absent with normal post surgical changes on exam. The left testicle was normal with normal sensation reflexes. The record did not document any infections or hospitalization following orchiectomy. The PEB rated this condition at 10% using the USAPDA pain policy, with coding of 5099-5003 aligning with that policy. However, 5003 (arthritis, degenerative [hypertrophic or osteoarthritis]) coding is related to joint conditions and not IAW VASRD-only criteria. The VA rated the condition at 10% with coding of 7524-7425 (testis, removal [one], and epididymo-orchitis, chronic only) which is rated using the criteria under urinary tract infection. The Board also considered alternative rating analogous to peripheral nerve impairment, 8630, (Ilio-inguinal nerve [neuritis]); however the maximum rating under that coding, absent organic changes, is 0% and is therefore not predominate to the preferred VA coding of 7524-7425. After due deliberation in consideration of the totality of the evidence, the Board concluded that there is no VASRD basis for recommending a higher rating than the 10% conferred by the PEB in this case. The Board does recommend a code change to 7524-7425 to maintain compliance with the DoDI 6040.44 requirement for strict adherence to the VASRD.

Other PEB Conditions. The other conditions forwarded by the MEB and adjudicated as not unfitting by the PEB were panic disorder with agoraphobia and low back pain (LBP). Neither of these conditions were profiled, implicated in the commander’s statement or noted as failing retention standards. The commander noted physical limitations and pain related to the right testicle as duty limiting and the profile may have provided shelter for the LBP condition. The record however, including post-separation VA notes did not indicate a lower back condition that would have risen to the level of being unfitting. The commander’s comments did not note any performance issues potentially related to any mental health condition and the profile was S1. The CI had panic symptoms for three years and had been hospitalized for panic disorder two years prior to separation. He was treated for increased symptoms during his DES processing. Prior assessments indicated the CI was not qualified for flight status due to panic disorder w/o agoraphobia. Multiple psychiatric assessments from different providers proximate to separation adjudged that the CI’s mental health disorder met retention standards and the PEB adjudged panic disorder with agoraphobia as not unfitting. VA records documented significant post-separation worsening of the CI’s mental health condition. Both conditions were reviewed by the action officer and considered by the Board. All evidence considered, there is not a preponderance of evidence in the CI’s favor supporting recharacterization of the PEB fitness adjudication for any of the stated conditions.

Other Contended Conditions. Gastroesophageal reflux disease (GERD--VA 10%) was not documented in the DES file. The Board does not have the authority under DoDI 6040.44 to render fitness or rating recommendations for any conditions not considered by the DES. The Board therefore has no reasonable basis for recommending any additional contended unfitting conditions for separation rating.

Remaining Conditions. Other conditions identified in the DES file were left ankle problem, hand contusion and conjunctivitis. Several additional non-acute conditions or medical complaints were also documented. None of these conditions was significantly clinically or occupationally active during the MEB period, none carried attached profiles, and none was implicated in the commander’s statement. These conditions were reviewed by the action officer and considered by the Board. It was determined that none could be argued as unfitting and subject to separation rating. Additionally, several other non-acute conditions were noted in the VA proximal to separation, but were not documented in the DES file. The Board does not have the authority under DoDI 6040.44 to render fitness or rating recommendations for any conditions not considered by the DES. The Board therefore has no reasonable basis for recommending any additional unfitting conditions for separation rating.

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 the chronic right groin and scrotal pain was operant in this case and the condition was adjudicated independently of that policy by the Board. In the matter of the chronic right groin and scrotal pain and IAW VASRD §4.115b, the Board unanimously recommends no change in the PEB rating of 10% but a change in VASRD code to 7524-7525. In the matter of the panic disorder with agoraphobia and LBP conditions, the Board unanimously recommends no change from the PEB adjudications as not unfitting. In the matter of the left ankle, hand contusion and conjunctivitis conditions, or any other medical conditions eligible for Board consideration, the Board unanimously agrees that it cannot recommend any findings of unfit for additional rating at separation.

RECOMMENDATION: The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20110826, w/atchs

Exhibit B. Service Treatment Record

Exhibit C. Department of Veterans Affairs Treatment Record

President

Physical Disability Board of Review

SFMR-RB

MEMORANDUM FOR Commander, US Army Physical Disability Agency

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation

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 description without modification of the combined rating or 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

Deputy Assistant Secretary

(Army Review Boards)