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AF | PDBR | CY2013 | PD-2013-02233
Original file (PD-2013-02233.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX    CASE: PD-2013-02233
BRANCH OF SERVICE: Army          BOARD DATE: 20150717
SEPARATION DATE: 20050307


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Counterintelligence Agent) medically separated for abdominal pain. The 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 profile and referred for a Medical Evaluation Board (MEB). “Abdominal pain of unknown etiology” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. No other conditions were submitted by the MEB. The Informal PEB adjudicated “abdominal pain, status post laparoscopic cholecystectomy” as unfitting, rated 10%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The CI made no appeals and was medically separated.


CI CONTENTION: She was not evaluated for her carpal tunnel syndrome (CTS), gastroesophageal reflux disease (GERD), “hip issue,” or tender scar conditions. Her complete submission is at Exhibit A.


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 :

Service I PEB – Dated 200 50211
VA * - ( ~ 5 Mos. Post-Separation)
Condition
Code Rating Condition Code Rating Exam
Abdominal Pain, Status Post Laparoscopic Cholecystectomy 7318 10% Gastroesophageal Reflux Disease with Cholecystectomy 7318-7346 10% 20050802
Scars, Residual of Cholecystectomy 7804 10% 20050802
Other MEB/PEB Conditions x 0 (Not In Scope)
Other x 7 ( Not in Scope)
RATING : 10%
RATING : 30 %
* Derived from VA Rating Decision (VA RD ) dated 200 60118 invalid font number 31502 ( most proximate to date of separation [ DOS ] ).

ANALYSIS SUMMARY: The Compensation & Pension (C&P) examination conducted by the VA on 2 August 2005 was not available in evidence before the Board and could not be located after appropriate inquiries. However, the significant rating criteria from the examination were synopsized in the VARD, dated 18 January 2006, and Board members judged that the additional delay in a probable futile attempt to retrieve this evidence was unwarranted.

Abdominal Pain. The narrative summary (NARSUM) and service treatment record detail that the CI had onset of nontraumatic abdominal pain in November 2003, 16 months prior to separation. She was initially diagnosed with GERD with chronic dyspepsia, but did not respond to treatment. After an upper endoscopy she was given presumptive diagnoses of biliary dyskinesia and GERD, and underwent laparoscopic cholecystectomy (removal of gall bladder) in March 2004 (12 months prior to separation). After surgery her postprandial (post-meal) pains decreased, but she never achieved complete pain relief, and she developed worsening pain (rated 6-10/10) in the right upper quadrant of the abdomen. She was again diagnosed with GERD, which was confirmed with an upper gastrointestinal series ( barium swallow, to show the anatomy of the upper gastro intestinal tract). Further workup was negative, including an endoscopic ultrasound to rule out sphincter of Oddi dysfunction ( controls the flow of digestive juices into the intestines). The CI was referred to pain management and was given a steroid injection, but this did not help and she was directed into the MEB process.

A DA Form 3349, Physical Profile , was initiated on 29 December 2004 (3 months prior to separation ), and delineated multiple duty restrictions but allowed walking at own pace, lifting 20 pounds, and duty up to 8 hours. In a statement to the PEB a month later, the CI’s commander stated that the CI’s performance in basic soldiering skills had suffered as a result of the profile, that she was unab l e to stand for extended periods of time, and that she was unable to wear weight-bearing equipment. However, she had been assigned to special duty as a chaplain’s assistant, assisted with administrative aspects of the chapel , and had been “a valuable asset to the chapel.”

At the NARSUM evaluation on 26 January 2005 (2 months prior to separation), the CI described constant and moderate pain that was relieved by sleep and aggravated by physical activity, lifting, stress, lack of sleep, extended periods of standing, vibrations and ingestion of coffee. She used a narcotic analgesic (Percocet) on an as-needed basis. On examination, there was normal gait, point tenderness of 2/10 in the right upper quadrant, and no other positive findings. A DD Form 2808, Report of Medical Examination, was completed on the same day and revealed 2/10 right upper quadrant tenderness on focal palpation, and three healed abdominal laparoscopic scars.

The VA Compensation and Pension (C&P) exam was performed on 2 August 2005 (5 months after separation), and was synopsized in the VARD. The VARD stated, “At the time of VA examination you complained of pain, heartburn and reflux due to your GERD. There was no affect on your body weight and you were currently on Nexium [reduces the amount of acid produced in the stomach, to treat symptoms of GERD and other conditions involving excessive stomach acid] for relief. You complained of upper right quadrant pain as a residual of your gallbladder removal, however your medical evidence does not support this contention, as your right upper quadrant pain is of unknown etiology and pre-existed your gallbladder surgery. Physical examination revealed a normal abdominal examination with the liver and spleen not palpable. Upper GI series showed mild gastroesophageal reflux disease. Diagnosis was gastroesophageal reflux disease based on subjective reports of reflux and burning pain and objective evidence of findings on upper GI series. You were also diagnosed with cholecystectomy.” The VARD also established service connection for residual scars of the cholecystectomy, and stated, “Physical examination showed four scars on the abdomen from gallbladder surgery. There was a [one] 2-cm and a 4 [four] 1-cm linear scars. Two of the scars were tender. The scars were leveled with no evidence of disfigurement, ulceration, adherence, instability, tissue loss, keloid formation, hypo or hyperpigmentation, or abnormal texture.”

The Board directed attention to its rating recommendation based on the above evidence. The PEB rated the condition at 10%, coded 7318 (removal of gall bladder), citing moderate pain. The VA rated “GERD with cholecystectomy (also claimed as reflux condition and gallbladder removal)” at 10%, analogously coded 7318-7346 (removal of gallbladder – hiatal hernia), citing mild GERD with reflux and subjective complaints of pyrosis. The VA also rated residual scars of the cholecystectomy at 10%, coded 7804 (unstable or painful scar), citing objective evidence of a tender scar. The Board noted that code 7318 could be rated as nonsymptomatic (0%), with mild symptoms (10%, accorded by the PEB), or with severe symptoms (30%). Members agreed that a higher rating of 30% under code 7318 for “severe symptoms” was not justified by the limited signs on physical examination and the modest limitation in activity documented at separation and at the VA exam performed 5 months after separation.

The Board reviewed the VA disability rating for residual scars of cholecystectomy. The mere presence of a scar does not, of itself, justify a finding of unfitness because of physical disability. Only conditions determined to be unfitting can be compensated by the military. The fact that the CI suffered residual scarring (with some tenderness) does not automatically result in disability compensation. All of the medical and performance data support a conclusion that these scars did not impose any additional functional limitations on the CI’s ability to perform her assigned duties. The fact that the Department of Veterans Affairs provides compensation for scars, without any relationship to industrial capacity, is not relevant to the Disability Evaluation System which requires such a nexus before compensation is authorized.

The Board noted the CI’s contention that the PEB rating was based solely on “abdominal pain of unknown etiology,” but that the VA rating included GERD and tender scars. The VARD assigned a rating for GERD and stated, “The evaluation for cholecystectomy is combined with the evaluation for GERD as these two disabilities are rated using similar criteria.” The primary symptoms of GERD are heartburn, regurgitation, and an acid taste in the mouth. Heartburn is usually described as a burning pain in the middle of the chest and it may start high in the abdomen, extend up the neck or back, be sharp or pressure-like rather than burning, or mimic heart pain (angina). After extensive work-up, the CI’s abdominal pain was not attributed to GERD (although no other specific etiology was found). While the record did not support a contention that the GERD was unfitting at the time of separation, the Board considered whether rating the CI’s condition under code 7346 (considering the similar criteria, as described by the VA) would result in a higher rating. However, a rating higher than 10% could not be supported as the CI did not exhibit considerable or severe impairment of health. 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 abdominal 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. 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 abdominal pain condition and IAW VASRD §4.114, 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 20131104, w/atchs
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, AR20150012706 (PD201302233)


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 and hereby deny the individual’s application.
This decision is final. The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

BY ORDER OF THE SECRETARY OF THE ARMY:




Encl              XXXXXXXXXXXXXXX
                           Deputy Assistant Secretary of the Army
                           (Review Boards)
                                                     
CF:
( ) DoD PDBR
( ) DVA
                 

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