RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2013-01132
BRANCH OF SERVICE:  Army	BOARD DATE:  20150305
SEPARATION DATE:  20020714

SUMMARY OF CASE:  The available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (92A20/Material Handling and Storage) medically separated for diabetes mellitus (DM).  The condition could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was issued a permanent P3 profile and underwent a Medical Evaluation Board (MEB).  The diabetes condition, characterized as “Type 1 insulin dependent diabetes mellitus,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The PEB found the diabetes mellitus condition unfitting, rated 20%.  The CI made no appeals and was medically separated.

CI CONTENTION:  “7913 Diabetes Mellitus.  Due to my need for 6 insulin injections per day, restrictions to diet, and activities with episode of ketoacidosis resulting in unconsciousness and hospitalizations for several weeks...while on active duty, I feel that the rating of 20% was incorrect and unjust.  PTSD – Following my second tour – to the gulf I began experiencing symptoms of PTSD – I sought mental health treatment – however the primary focus was on my family (marital) issues and was never screened for PTSD.  I am currently rated @ 70% by the VA for PTSD.”   

A second application received on 23 February 2015 contended, “The rating should be changed because the PEB failed to properly analyze and rate XXXXXXXXX medical condition in accordance with the VASRD.  The PEB should have determined  XXXXXXXXXX diabetes mellitus made it medically necessary for him to regulate his activities, and assigned him a permanent disability rating of at least 40%.”

Counsel submitted an additional 47 pages attached to the second application (total 50 pages) which was reviewed by the Board.  His complete submission, with attachments, 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 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.  No other conditions are within the DoDI 6040.44 defined purview of the Board.  Any conditions outside the Board’s scope of review may be eligible for consideration by the Board for Correction of Military Records.

The Board acknowledged the CI’s contention that posttraumatic stress disorder (PTSD) should have been included in the disability evaluation system (DES) process.  The Board’s role is confined to the review of medical records and all evidence at hand to assess the fairness of PEB fitness and rating determinations, for DES conditions.  While other symptoms and conditions may have been present, compensation can only be offered for those conditions that cut short a member’s career, and then only to the degree of severity present at the time of separation.  The Department of Veterans’ Affairs (DVA), however, is empowered to compensate for all service-connected conditions and to periodically re-evaluate conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment change over time.

RATING COMPARISON:

IPEB – Dated 20020412	VA – (1.5 mos. Pre-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Type 1 Diabetes Mellitus	7913	20%	Type 1 Diabetes Mellitus	7913	60%	20020529	
Other x 0 (Not in Scope)	Other x 0	
Rating:  20%	Rating:  60%	
         Derived from VA Rating Decision (VARD) dated 20020604

ANALYSIS SUMMARY:  

Diabetes Mellitus (DM).  In 2001, the CI collapsed during a military training event.  He was admitted to a German hospital for 9 days and was diagnosed with DM.  He was transferred to a US Army Hospital for continuation of treatment and education.  After discharge from the hospital, it was noted that his blood sugar was difficult to control.  Despite increased doses of insulin, his blood sugar remained poorly controlled.  The MEB narrative summary (NARSUM) was dictated on 4 March 2002.  The CI reported that since the diagnosis of DM, he required emergency room (ER) treatment twice for exacerbation of his diabetes.  At the NARSUM exam, he complained of “increasing fatigue and post prandial (after eating) vomiting and weakness.  The examiner indicated the CI had “a documented 5lb weight loss over the last 30 days, from a review of his medical records.”  

The March 2002 MEB physical examination was “unremarkable and within normal limits.”  However, Hemoglobin A1C (HgbA1C) was 11.3 (high), and urinalysis showed “3 plus glucose, 100 millimeters per deciliters of protein and hemoglobin.”  The examiner stated “eventually he (the CI) will require the addition of an ACE inhibitor (kidney protective medication) for his proteinuria.”  The CI was placed on a permanent P3 profile (signed by three physicians) which imposed limitations of “no forced exertion” and further prohibited performing a physical fitness test, deploying and field duty.  The commander’s statement noted the CI had limited duty hours, was unable to deploy or participate in field exercises.  

On 29 May 2002, 6 weeks prior to separation, the CI had a VA Compensation and Pension (C&P) exam.  He reported he felt weak and fatigued most of the time and complained of “nocturia at least three times a night.  In general the ‘CI’ cannot sustain heavy physical activities without immediate fatigue or hypoglycemic reactions.” Physical examination at that time was unremarkable.  A recent laboratory evaluation had shown that HgbA1C was 11.7 (high) and urinalysis indicated proteinuria and glucose in the urine.  The examiner wrote, “he appears fatigued” and “The veteran will have to gauge his physical activities in correlation with the amount of insulin and food that he consumes.”  Of note, the VARD dated 7 January 2003, 6 months after separation, granted individual un-employability effective 15 July 2002.  Remote VA treatment records and exams summarized in the VARD dated 14 July 2005, led to multiple additional rating related to diabetes (including kidney, mental health and peripheral nerve conditions) effective as early as September 2004 (26 months after separation).

The Board carefully reviewed all evidentiary information available, to include the additional documents submitted by Counsel, and directs attention to its rating recommendation.  As noted above, the Army PEB and the VA chose different rating options for the DM condition.  The VA Schedule for Rating Disabilities (VASRD) §4.119 language for code 7913 (Diabetes mellitus) is excerpted below:

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
Manageable by restricted diet only……………………………………............................10

The Board deliberated at length with regard to the appropriate disposition of this case.  To control his DM, the CI required insulin and restricted diet.  The record also showed evidence of regulation of activities.  Both the Profile (DA Form 3349) and the commander’s evaluation statement indicated that the CI’s activities were regulated (no forced exertion or physical fitness testing and regulated job hours).  Furthermore, the Board determined that the CI had been hospitalized for ketoacidosis.  The hospitalization (prolonged) was in 2001, less than 12 months prior to the date of separation.  Likely complications that would not be compensable if separately evaluated proximate to separation were kidney (proteinuria with blood), nocturia (urinary frequency), gastrointestinal symptoms (vomiting after meals suggestive of gastro paresis) and fatigue and weakness.  

After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends by a majority vote, a disability rating of 60% for the DM condition.  It is appropriately coded 7913, and IAW VASRD §4.119, meets criteria for the 60% rating level due to requiring insulin, restricted diet, and regulation of activities; with an episode of ketoacidosis, which required hospitalization, plus complications that would not be compensable if separately evaluated.  He does not meet criteria for the higher rating of 100%.

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 diabetes condition and IAW VASRD §4.119, the Board recommends by a majority vote a disability rating of 60%.  The single voter for dissent submitted the appended minority opinion.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Diabetes Mellitus, Type I	7913	60%	
RATING	60%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130813, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		

MINORITY OPINION:  After a thorough review of the evidence, I disagree with the other Board members regarding regulation of activities (ROA).  In my opinion, ROA is when a licensed healthcare provider prescribes or recommends that a diabetic patient avoid strenuous occupational or recreational activities.  In the CI’s treatment record, there was not sufficient evidence that this was the case.  The 29 May 2002 C&P exam was just 6 weeks before separation from service, and therefore had significant probative value.  At that exam, the examiner wrote, “The veteran will have to gauge his physical activities in correlation with the amount of insulin and food that he consumes.”  This statement is general in nature, and applies to all patients with Type 1 DM.  Essentially, all insulin dependent diabetics need to balance their physical activity with their insulin dose and oral calorie intake.   

In my opinion, the PDBR should not use the Profile (DA Form 3349) or statements by non-medical personnel, as evidence for ROA.  As noted above, the May 2002 C&P examiner did not restrict or prohibit strenuous physical activity.  In fact, there was no mention in the record of any medically prescribed regulation of activities.  Yes, a physician did sign the Profile (DA Form 3349).  But, in my opinion, this does not constitute medically prescribed regulation of activities.

I also disagree with the other Board members regarding the 2001 hospitalization.  It is true that the CI was hospitalized for diabetic ketoacidosis (DKA).  He was first admitted to a local German hospital, and was then transferred to the US Army hospital at Heidelberg.  This was at the beginning of his illness.  It was during that initial hospitalization that his DM was first diagnosed.  After being started on insulin, there were no subsequent hospital admissions.  In my opinion, the VASRD §4.119 language for the 60% rating level (diagnostic code 7913) refers to a diabetic patient who is so brittle, that their blood sugar (BS) is extremely difficult to control.  This patient may require hospitalization for ketoacidosis (very high BS) or hypoglycemia (very low BS).  As noted above, once the CI was started on insulin, no further hospitalizations were required.  This case therefore does not meet the implied intent of the VASRD §4.119 language for the 60% rating level.

Furthermore, the VASRD §4.119 language for the 60% rating level says, “…plus complications that would not be compensable if separately evaluated.”  Common diabetic complications include things like retinopathy (eye damage), nephropathy (kidney damage), neuropathy (nerve damage), or vascular disease (damage to blood vessels).  In the CI’s treatment record, there was not sufficient evidence that he had any of these diabetic complications.  His physical examination in May 2002 was essentially unremarkable.

In the matter of the diabetes condition and IAW VASRD §4.119, the dissenting member of the Board recommends no change in the PEB adjudication.  	 

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 XXXXXXXXXXXXXXXXX, AR20150005413 (PD201301132)

1.  Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 60% effective the date of the individual’s original medical separation for disability with severance pay.  

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:

	a.  Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay.

	b.  Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 60% effective the date of the original medical separation for disability with severance pay.

	d.  Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.

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						     
						
CF: 
(  ) DoD PDBR
(  ) DVA