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AF | PDBR | CY2013 | PD-2013-02326
Original file (PD-2013-02326.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXX             CASE: PD-2013-02326
BRANCH OF SERVICE: NAVY           BOARD DATE: 20140624
DATE OF PLACEMENT ON TDRL: 20060326
Date of Permanent SEPARATION: 20091209


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve component LT/O-3 (1395/Student Pilot) on Active Duty who was medically separated for diabetes mellitus (DM), Type I. The condition could not be adequately rehabilitated to meet the physical requirements of his rating. He was placed on limited duty and referred for a Medical Evaluation Board (MEB). The MEB also identified and forwarded two other conditions (disease of pericardium and adjustment reaction) for PEB adjudication. The Informal PEB (IPEB) adjudicated the DM, Type I condition as unfitting and placed the CI on the Temporary Disability Retirement List (TDRL) with a 40% disability rating. The PEB rated his recurrent pericarditis condition as Category III (conditions that are not separately unfitting and do not contribute to the unfitting condition); and the adjustment disorder with depressed mood as a Category IV condition (conditions which do not constitute a physical disability). The CI was reevaluated and on 23 June 2009 a second IPEB reduced the DM, Type I rating to 20%. On 15 July 2009, an Informal Reconsideration PEB affirmed the 20% rating. The CI requested a Formal PEB (FPEB) that met on 4 November 2009, which again affirmed the 20% rating for the diabetes condition. Additionally the FPEB determined the recurrent pericarditis and the adjustment disorder with depressed mood to be Category III conditions. The CI made no further appeals and was medically separated.


CI CONTENTION: “In the Fall of 2009, the formal PEB inexplicably lowered my initial rating of 40% to 20%. I thank you for your consideration and hope that you will find my situation unjust. Thank you for your time and efforts.”


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 DM, Type I condition is addressed below; no additional conditions are within the Board’s defined DoDI 6040.44 purview. 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 :

Final Service PEB - 20091104
 VA (27 Mo. Prior to Adjudication Date*) - Effective 20070409
TDRL Entry- 20060326
 Code Rating Condition Code Rating Exam
Condition
 TDRL Sep.
Diabetes Mellitus Type I 7913 40% 20% Diabetes Mellitus Type I 7913 40%* 20070613
No Additional MEB/PEB Entries in Scope
 Other x 3 20070613
Combined: 40% → 20%
 Combined: 40%
* Reflects VA rating exam most proximate to TDRL exit . The VA initially rated DM Type I 20% effective 20060327 ( the day after TDRL entry ) , then increased the rating to 40% effective 20070409.


ANALYSIS SUMMARY: The CI’s inferred contention that his final disability rating should not have been lowered was considered in the Board’s deliberations. The Board notes that improvement or worsening during the period of TDRL does not influence its coding and rating recommendation at the time of TDRL removal. The Board’s recommendations pertain to assessment of the permanent rating determination and the TDRL entry rating is not considered a benchmark. It is recognized that PEBs across the Services sometimes apply a generous initial rating in order to meet the DoD requirement of a 30% rating for disability in order place someone on the TDRL. This is in the member’s best interest at the time and does not mean that a final lower rating is unfair, even if perceived as incongruent with subjective severity from one rating to the next. Thus the sole basis for the Board’s recommendation is the optimal VA Schedule for Rating Disabilities (VASRD) rating for disability at the time the CI is permanently separated.

Diabetes Mellitus Type I Condition. Once the diagnosis of diabetes was established in 2004, the CI was immediately treated with insulin. In early 2005 he received an insulin pump. The record shows no history of diabetes-related hospitalization and no episodes of ketoacidosis after his initial treatment began. A clinic visit on 6 June 2005 (9.5 months prior to placement on the TDRL) indicated the CI was following a low glycemic diet and exercising 1 hour daily (cardiovascular and resistance training). A “strict diet” was advised. The narrative summary (NARSUM) dated 4 August 2005 noted that his blood sugars were well-managed with the insulin pump. No diabetic complications were reported, and a physical examination was unremarkable.

At the VA Compensation and Pension (C&P) exam on 31 March 2006 (5 days after TDRL placement), the CI reported hypoglycemic episodes about once per week. He did not restrict any activities; “…and he does actually eat before he does exercise to avoid hypoglycemia (low blood sugar).” He saw his diabetic care provider once every 6 months. He denied hospitalization for diabetes or diabetic complications and had a full-time job. At a C&P exam on 13 June 2007 (14 months after TDRL placement) the CI reported that if “he runs or does any type of activities he will have hypoglycemia.” He therefore restricted his activities. The examiner did not clarify if the CI’s treating endocrinologist (who saw him every 6 months) advised restriction of exertional activities, or if the CI was educated on other methods of avoiding hypoglycemia.

An interim NARSUM evaluation in July 2007 noted that the diabetes was well-controlled and that his blood sugar levels ranged from 100-120 (an acceptable range). At the TDRL re-evaluation NARSUM on 29 May 2009 (6 months prior to removal from TDRL) the CI reported that his diabetes was well-controlled with his insulin pump, and that he had “no new complaints.” He was employed as a marine surveyor and went to sea several times a month. A physical exam was normal. Laboratory studies showed good control of diabetes.

A letter written by his treating physician on 1 September 2009 stated: “Hypoglycemic reactions (low blood sugars) are always a possibility…Therefore, it is essential that he avoid strenuous occupational and recreational activities which would result in hypoglycemic events.” During his testimony to the FPEB on 17 September 2009, the CI stated that “since his diagnosis…he is no longer able to run, swim or walk.” He also provided a signed statement from a co-worker attesting to a witnessed episode of hypoglycemia while on the job.

The Board directs attention to its rating recommendation based on the above evidence. Both at the time of placement on the TDRL and at the time of permanent disability disposition and removal from the TDRL, the CI’s diabetes was treated with insulin and restricted diet, which meets the VASRD criteria for a 20% rating. In order for a 40% disability rating to be awarded, the unfitting diabetes mellitus must also require regulation of activities in addition to diet and medication. In this case, the CI reported a considerable amount of exercise prior to separation (1 hour per day) while using an insulin pump, with no reports of hypoglycemia. He did not require frequent visits to a diabetic care provider, nor were there episodes of ketoacidosis or hypoglycemic reactions requiring hospitalization, or diabetic complications that could support higher ratings. Therefore, prior to placement on the TDRL there was no support for a rating higher than the PEB’s 40%. At the time of removal from TDRL, the FPEB (in considering the letter from the CI’s physician regarding restricted exertional activities) stated that “evidence mitigates against significant avoidance of…activities.” Board members deliberated if the “regulation of activities” stipulation of the 40% rating was met in this case. The CI’s physician stated “hypoglycemic reactions are always a possibility,” which the Board acknowledged is true of any diabetic taking medication. The Board debated, however, if the subsequent statement “…it is essential that he avoid strenuous…activities which would result in hypoglycemic events (emphasis added)” was in fact a proscription against participation in strenuous activities. That statement also applies to any diabetic on medication and in the context that diabetics are routinely encouraged to participate in regular exercise. The CI’s physician did not indicate if commonly used and easily employed measures to prevent exercise-induced hypoglycemia were prescribed or attempted. Board members concluded that the “regulation of activities” stipulation was not met in this case and therefore a rating higher than 20% at the time of removal from TDRL was not justified. 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 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. In the matter of the diabetes 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.


RECOMMENDATION: The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination.
The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131108, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record





                                   
XXXXXXXXXXXXXX
President
Physical Disability Board of Review

MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW
BOARDS

Subj: PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS

Ref: (a) DoDI 6040.44
(b) CORB ltr dtd 12 Feb 15

In accordance with reference (a), I have reviewed the cases forwarded by reference (b), and, for the reasons provided in their forwarding memorandums, approve the recommendations of the PDBR that the following individual’s records not be corrected to reflect a change in either characterization of separation or in the disability rating previously assigned by the Department of the Navy’s Physical Evaluation Board:
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC


                                                      XXXXXXXXXXXXXXX
                                            Assistant General Counsel
                                                      (Manpower & Reserve Affairs)

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