RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXX                  		                          BRANCH OF SERVICE:  Army
CASE NUMBER:  PD1100233 		                             SEPARATION DATE:  20061229
BOARD DATE:  20120329

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (11B20/Infantryman), medically separated for chronic left sided scrotal pain.  The CI developed left scrotal pain, without history of trauma, in September 2004.  He was treated with pain medications, nerve blocks and surgery, without improvement in his pain.  The CI did not respond adequately to treatment and was unable to perform within his Military Occupational Specialty (MOS) or meet physical fitness standards.  He was issued a permanent P3/H2 profile and underwent a Medical Evaluation Board (MEB).  Chronic Left Orchialgia, was forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW AR 40-501.  Three other conditions, as identified in the rating chart below, were forwarded on the MEB submission as meeting retention standards.  The PEB adjudicated the chronic left sided scrotal pain condition as unfitting, rated 0%, with application of the Veterans Administration Schedule for Rating Disabilities (VASRD).  Additionally, moderate obstructive sleep apnea (OSA), retropatellar pain syndrome and left sensorineural hearing loss were adjudicated as not unfitting.  The CI made no appeals, and was medically separated with a 0% combined disability rating.  

CI CONTENTION:  “Because I ended up having to have my left testical removed do to extreme pain.  I am now can not have any kids now due to problems that I have had.  And my second condition is obstructive sleep apnea with use of a CPAP machine.  My VA rating is under the appeal process right now for the removal of my testie.”  

RATING COMPARISON:  

Service PEB – Dated 20061002	VA (1 Day After Separation) – All Effective Date 20061230	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Left Scrotal Pain	8799-8730	0%	S/P Orchiopexy 	7599-7523	0%	20061128	
Moderate OSA	Not Unfitting	Sleep Apnea 	6847	50%	20061128	
RPPS	Not Unfitting	R Knee Chronic … Injury	5260-5024	10%*	20061128	
L Sensorineural Hearing Loss	Not Unfitting	L Ear Hearing Loss	6100	0%	20061116	
↓No Additional MEB/PEB Entries↓	R Shoulder S/P Dislocation…	5201-5024	10%	20061128	
	Bilateral Tinnitus	6260	10%	20061116	
	Hiatal Hernia w/ GERD	7346	10%	20061128	
	R Bell’s Palsy	8207	10%	20061128	
	PTSD	9411	10%	20061130	
	Right Ankle	5271-5010	10%*	20070424*	
	0% x 4/Not Service Connected x 4*	20061128	
Combined:  0%	Combined:  80%*	
*Added Right Ankle s/p reconstructive surgery, 5271-5010, at 10% effective 20061230 (20070424 surgery), temporary 100% 20070424-to-20070801; combined 90% effective 20081125

ANALYSIS SUMMARY:  The Board acknowledges the sentiment expressed in the CI’s application regarding the significant impairment with which his service-incurred condition continues to burden him.  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 has neither the role nor the authority to compensate service 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 (Title 38, United States Code).  The Board evaluates DVA evidence proximal to separation in arriving at its recommendations, but its authority resides in evaluating the fairness of DES fitness decisions and rating determinations for disability at the time of separation.  The Board also acknowledges the CI's contention suggesting that service ratings should have been conferred for other conditions documented at the time of separation and for conditions not diagnosed while in the service (but later determined to be service-connected by the DVA).  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.  The DVA, however, is empowered to compensate 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.  

Chronic Left Sided Scrotal Pain Condition.  The CI had gradual onset of left sided scrotal pain on September 26, 2004.  Evaluation, to include urinarlysis, scrotal ultrasound and cystoscopy, was unremarkable.  The CI was diagnosed and treated for epididymitis and recovered sufficiently to deploy to Iraq with his unit.  In December 2005, his left scrotal pain symptoms worsened and were not relieved with pain medication or ilioinguinal nerve blocks.  The CI was evacuated from theater for further evaluation in January 2005.  Urologic work-up did not determine an etiology of his pain; however, the CI’s civilian urologist suspected intermittent torsion and performed a high ligation of the spermatic vein and bilateral orchiopexy in February 2005.  The CI recovered well post-operatively and was returned to Iraq in February 2005.  In March 2005 he developed worsening of his pain following blunt trauma to the left scrotum.  The pain did not improve with conservative treatment, rest and non-steroidal anti-inflammatory medication, and the CI was once again evacuated from theater for futher evaluation and treatment.  Upon return to CONUS, the CI was evaluated by urology and the pain clinic.  Urology initiated an MEB for the left scrotal pain condition.  Pain clinic evaluation was not consistent with neuropathic testicular pain and the examiner opined that the CI’s surgery and traumatic injuries were too recent to recommend permanent separation.  The MEB was terminated and the CI was placed on a temporary profile.  The CI had transient improvement with decreased/resolved pain symptoms in August 2005, and the CI was returned to full duty.  Symptoms recurred and the CI was referred for MEB.  

At the time of the narrative summary (NARSUM) exam, 7 months prior to separation, the CI was continuing to experience left scrotal pain that was worsened by activity and physical exertion.  It was noted that the CI had been counseled on options for further treatment (cord block, cord stripping, epididymectomy and/or orchiectomy), but had declined further surgery (considered reasonable).  The exam revealed normal external genitalia and a well healed left inguinal incision.  The left testicle and epididymis were mildly tender to palpation.  Both testes were descended and there was no evidence of varicocele or mass.  The MEB examiner concluded “Given the patient suffers from severe left-sided scrotal pain with heavy exertion, this would severely impact his ability to serve as an infantryman.”  

The VA Compensation and Pension (C&P) exam, (28 November 2006) 1 month prior to separation, documented complaints of continous pain since surgery, worsened with walking, jumping, or other motion.  The CI additionally complained of impotence due to pain with intercourse.  He denied difficulty initiating urination and denied symptoms of urinary incontinence.  He stated that he had undergone a vasectomy in October 2006, without relief of pain symptoms.  The VA physical exam was remarkable for tenderness of both testes and both epididymides, without nodules or masses.  A March 2005 testicular ultrasound found no testicular hematoma or mass.  

The PEB and the VA used different coding for the condition but arrived at the same rating determination.  The PEB coded as analogous to ilioinguinal neuralgia, moderate (8799-8730), and rated at 0%.  The VA coded as analogous to removal of one testis (7599-7523) and also rated 0%.  The Board noted that both ratings represented the maximum that could be assigned under either code for the condition.  Per the VASRD §4.124, the maximum rating allowed for neuralgia is equal to moderate incomplete paralysis (0% for the ilioinguinal nerve).  The record of evidence did not support a diagnosis of neuritis IAW VASRD §4.123, and there were no organic changes.  There was no documentation of voiding dysfunction, urinary frequency or recurrent urinary tract infection to justify alternate coding.  There is no route to a rating higher than 0% under any applicable code and no coexistent pathology which would merit additional rating for the chronic left scrotal pain condition under a separate code.  All evidence considered, there is not reasonable doubt in the CI’s favor supporting a change from the PEB’s coding or rating decision for the chronic left sided scrotal pain condition.  

Other PEB Conditions.  The other conditions forwarded by the MEB and adjudicated as not unfitting by the PEB were moderate OSA, retropatellar pain syndrome (knee) and left sensorineural hearing loss.  The CI was diagnosed with moderate OSA in August 2006 and treatment was initiated with continuous positive airway pressure (CPAP) therapy.  This condition was documented on the permanent profile with the notation, “must have electrical outlet for CPAP machine.”  There was no documentation of any unfitting symptoms which were not corrected by CPAP.  In October 2006 (after the PEB), the CI underwent a uvulopalatopharyngoplasty (UPPP) and tonsillectomy due to a desire to discontinue CPAP therapy.  The available STRs did not document the CI’s post surgical course; however, the VA C&P exam noted that the CI had had little improvement in his OSA following the surgery.  As a result, he had resumed treatment with CPAP and denied any symptoms as long as his CPAP mask remained in place during sleep.  Routinely OSA is not considered unfitting solely on the basis of field and operational impediments to the use of CPAP.  There is no evidence in this case that OSA was associated with any unfitting impairments not corrected by CPAP.  The PEB’s fitness adjudication was therefore expected and reasonable.  All evidence considered, there is not reasonable doubt in the CI’s favor supporting recharacterization of the PEB fitness adjudication for the OSA condition.  

The CI underwent orthopedic evaluation for chronic right knee pain that worsened during a February 2006 road march.  The orthopedic MEB examiner noted that the CI had not had any treatment with medications or physical therapy for the knee pain condition.  The examiner stated that the CI’s “prognosis overall is good,” noting that the condition was likely to improve with proper treatment.  The condition of right knee retropatellar pain syndrome did not result in any specific profile limitations, was not implicated in the commander’s statment and was found to meet Army retention standards.  Although it is possible that the profile for the unfitting left sided scrotal pain condition could have provided shelter for the limitations caused by the right knee condition, that possibility is unduly speculative as the basis for a Board fitness recommendation.  

The CI was placed on a permanent H2 profile for left sensorineural hearing loss.  The profile limitations specified, “no duty assignment to noise levels in excess of 85 dBA or weapon firing (not to include firing for preparation of replacements for overseas movement (POR) qualification or annual weapons qualification with proper ear protection.”  This condition was not implicated in the commander’s statement and was found to meet Army retention standards.  

All three conditions were reviewed by the action officer and considered by the Board.  There was no indication from the record that any of these conditions significantly interfered with satisfactory duty performance.  All evidence considered, there is not reasonable doubt in the CI’s favor supporting recharacterization of the PEB fitness adjudications for the OSA, right knee and hearing loss conditions.  

Remaining Conditions.  Other conditions identified in the DES file and the VA rating decision within 12 months of separation were anxiety, Bell’s Palsy, bilateral tinnitus, right shoulder pain, and hiatal hernia with gastroesophageal reflux disease.  The STRs documented treatment for post-deployment anger management problems, anxiety attacks, impulse control problems and marital relationship problems.  The CI was diagnosed with adjustment disorder with mixed emotional features, as well as impulse control disorder and a personality disorder.  IAW DoDI 1332.38 adjustment disorder and personality disorder are conditions that do not constitute a physical disability.  There was no diagnosis of posttraumatic stress disorder (PTSD).  The MEB examiner documented that the “post-OIF” anxiety problems were “almost resolved.”  There was no indication from the record that the CI’s mental health conditions were significantly clinically or occupationally active during the MEB period, and no mental health conditions were profiled or implicated in the commander’s statement.  

Several additional non-acute conditions or medical complaints were also documented in the MEB history and physical.  None of these conditions were significantly clinically or occupationally active during the MEB period, none carried attached profiles, and none were 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 the conditions of PTSD and ankle sprain 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. 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 chronic left sided scrotal pain condition and IAW VASRD §4.124a, the Board unanimously recommends no change in the PEB adjudication at separation.  In the matter of the moderate OSA, right knee retropatellar pain syndrome and left sensorineural hearing loss conditions, the Board unanimously recommends no change from the PEB adjudications as not unfitting.  In the matter of the anxiety, Bell’s Palsy, bilateral tinnitus, right shoulder pain, and hiatal hernia with gastroesophageal reflux disease 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, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows:  

UNFITTING CONDITION	VASRD CODE	RATING	
Chronic Left Sided Scrotal Pain	8799-8730	0%	
COMBINED	0%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20110325, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

 

SFMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 

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