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AF | PDBR | CY2012 | PD-2012-01765
Original file (PD-2012-01765.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXX       CASE: PD-2012-01765
BRANCH OF SERVICE: NAVY  BOARD DATE: 20140801
SEPARATION DATE: 20020920


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty AT2/E-5 (Aviation Electronics Technician) medically separated for diabetes. The condition could not be adequately controlled to meet the requirements of his rating or continued Naval service. He was placed on limited duty and referred for a Medical Evaluation Board (MEB). The diabetic condition, characterized as “Type II Diabetes Mellitus, Insulin Requiring ... No Evidence of Retinopathy, Nephropathy, or Neuropathy,” was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E. The Informal PEB adjudicated the condition as unfitting, rated 20% (reduced from 40% due to non-compliance) with application of Department of Defense Instruction (DoDI) 1332.39 and the VA Schedule for Rating Disabilities (VASRD). The CI made no appeals and was medically separated.


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 those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI. The rating for the unfitting diabetes condition is addressed below; and, no additional conditions are 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 20020821
 VA - (2 Mos. Pre-Separation)
Condition
 Code Rating Condition Code Rating Exam
Type 2 Diabetes Mellitus, Insulin Requiring 7913 20% Diabetes Mellitus 7913 20% 20020723
Other x 0
 Other x 2 / Not Service Connected x 4 20020723
Combined: 20%
 Combined: 30%
Derived from VA Rating Decision (VA RD ) dated 200 21101 ( most proximate to date of separation [ DOS ] ).


ANALYSIS SUMMARY:

Diabetes Mellitus. The CI was initially diagnosed in October 2001, at sea. He was managed acutely on board ship and stabilized with insulin supplementation of an oral diabetic agent (glyburide). He commenced specialty treatment a few weeks later at Naval Hospital San Diego. The treating endocrinologist also prepared the narrative summary (NARSUM) which characterizes the clinical course as per the following excerpt (dated 3 May 2002, 4 months prior to separation):


Insulin doses were gradually increased in an attempt to achieve improvement in his blood sugars. Unfortunately the service member admits to frequent noncompliance in taking his insulin as prescribed and in monitoring blood glucoses with a home glucometer, making it difficult to adjust his doses of insulin safely and in a manner so as to achieve improved control. ... He has continued to follow up in the Endocrinology Clinic, but has remained noncompliant frequently, skipping insulin doses despite an attempt to switch him to a new regimen with insulin glargine [a long acting insulin requiring less frequent dosing and adjustment] and regular insulin in an attempt to improve his compliance.
The non-compliance issue was also documented in the provider’s outpatient notes (via CI’s self-report). No hospitalization or episodes of ketoacidosis or hypoglycemia are in evidence; and, there is no documentation that activity was regulated because of the diabetes. The NARSUM (corroborated by the clinical record) documents the absence of diabetic complications at the time of separation (retinopathy, nephropathy [kidney], neuropathy, vascular, etc.). The commander’s non-medical assessment noted that “his medical status requires numerous medical appointments” and estimated 3.5 hours weekly of lost time from work. The VA Compensation and Pension (C&P) evaluation (2 months prior to separation) documented “frequent variations in his blood sugar ... though ... no major reactions for hypoglycemic or ketoacidosis type;” specifying dietary limitations, but stating “not restricted in his activities as a result of the diabetes;” and, noted that “He sees the diabetic care provider every six weeks to two months.”

The Board directs attention to its rating recommendation based on the above evidence. The VASRD §4.119 language under code 7913 (diabetes mellitus) for the ratings under consideration is excerpted below for reader convenience.
                  Requiring insulin, restricted diet, and regulation of activities with
                           episodes of ketoacidosis or hypoglycemic reactions requiring one
                           or two hospitalizations per year or twice a month visits to a diabetic
                           care provider, plus complications that would not be compensable
                           if separately evaluated ................................................................ . .......60%
                  Requiring insulin, restricted diet, and regulation of activities ..................40%
                  Requiring insulin and restricted diet, or; oral hypoglycemic agent
                           and restricted diet ....................................................................... . .......20%
The PEB findings specified a 40% rating annotated “Non-Compliance – Reduced to 20%”; as sanctioned by SECNAV Instruction 1850.4e; and, as specified in DoDI 1332.39 (E2.A1.3.2.23.7913), “If unfitness derives, in part, from documented non-compliance with prescribed treatment, including diet and weight control, the assigned rating should not be higher than the disease would warrant if under prescribed treatment.” The VA rating of 20% was, of course, not influenced by regulations and, was aligned with the evidence as specifically detailed and tailored to the rating criteria by the C&P examiner. It is a point of deliberation as to whether the DoDI 1332.39 guidance is superseded in this situation by the VASRD IAW DoDI 6040.44, since the VASRD is silent regarding non-compliance. DoDI 6040.44 (E3.4.d) specifies that the Board is bound by directives in effect that do not conflict with the VASRD. In general, DoDI 1332.39 language directed at military Disability Evaluation System principles concerning fitness for duty, are not in the purview of the VASRD. Regardless of this point of deliberation, Members agreed, however, that §4.119 criteria for a rating higher than 20% were not supported by the evidence independent of the resolution of the non-compliance issue. The C&P documentation provided compelling evidence that the regulation of activities stipulation for a 40% rating was not satisfied in this case and there is no evidence in the record which would refute the VA examiner’s conclusion. With regards to the 60% criteria, there was no hospitalization or diabetic crisis, and the C&P examiner provided directed evidence that the specified frequency of provider visits was not required. 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 final 20% adjudication for the diabetes mellitus 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 SECNAV Instruction 1850.4e and DoDI 1332.39 (E2.A1.3.2.23.7913) for rating diabetes mellitus was operant in this case; and the condition was adjudicated independently of that guidance by the Board (without prejudice regarding the applicability of said guidance to the circumstances of this case). In the matter of the diabetes mellitus condition and IAW VASRD §4.119, 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 re-characterization of the CI’s disability and separation determination.


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120813, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record








XXXXXXXXXXXXXXX
President
DoD Physical Disability Board of Review






MEMORANDUM FOR DIRECTOR, SECR E T ARY OF THE NAVY COUNCIL OF R E V I EW BOARDS
Subj:    PHYSI C AL D I SABILI T Y B O ARD OF REVIEW ( PDBR) RE C OMMEN D A T I ONS
Ref:    
( a) D o DI 6 0 4 0 . 4 4
(b) C ORB ltr dtd 20 Jan 15

I n acco r da n ce with reference ( a ) , I have revi e wed t h e ca s es f o rward e d by reference
( b), a n d, for the r easons p r o vided in their f o rwardi n g memora n dums, appr o ve the recommendatio n s o f the PDBR t h at the f o ll o wing i n dividual' s r e c o rds n o t be c orrected to refl e ct a cha n ge in eit h er characterizati o n o f s eparati o n or in the disability rati n g p r evio u s ly assigned b y the Dep a rtment of t h e Navy' s Physical Evaluation Board:

-        XXXXXXXXXXXXXXX , XXX XX XXXX, former U S N
-        XXXXXXXXXXXXXXX, XXX XX XXXX, former USMC
-        XXXXXXXXXXXXXXX, XXX XX XXXX, f o rmer USN
-        XXXXXXXXXXXXXXX , XXX XX XXXX , former U SMC
-        XXXXXXXXXXXXXXX, XXX XX XXXX , f o rmer U SN
-        XXXXXXXXXXXXXXX, XXX XX XXXX, former USN



                                                              



XXXXXXXXXXXXXXX
Assistant Gen e ral Counsel
( Manp o wer & R e serve Affai r s )





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