RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00186
BRANCH OF SERVICE:  Army	BOARD DATE:  20150630
DATE OF PLACEMENT ONTO TDRL:  20040820
DATE OF REMOVAL FROM TDRL:  20060525

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated Reserve E-6 (Motor Transport Operator) medically separated for a kidney condition.  This condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards, but he was authorized to perform an alternate physical fitness test (per PROFILE).  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The “focal segmental glomerulosclerosis” (FSGS) was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded two other conditions (essential hypertension [HTN] and chronic low back discomfort) for PEB adjudication.  The Informal PEB (IPEB) adjudicated his kidney condition as unfitting, existed prior to mobilization and not aggravated by military service, but rated it at 30% (IAW 10 USC Section 1207(a) because he had over 8 years of active duty service), citing application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be not unfitting.  The CI made no appeals and was placed on the Temporary Disability Retired List (TDRL).  Approximately 2 years later, the IPEB adjudicated the kidney condition as not unfitting, the CI appealed to the Formal PEB (FPEB), which adjudicated his condition to be unfitting, rated 0%, citing application of the VASRD. The CI concurred with the FPEB findings and rating and was medically separated.

CI CONTENTION:  “Glomerulosclerosis with Nephrotic Syndrome, Hypercholesterolemia and Hypertension”

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:

Final PEB – 20060503	VA Rating Decision1 - 20050124	
TDRL Placement – 20040820	Code	Rating	Condition	Code	

VA Rating
	
Condition		TDRL
Placement	TDRL Removal			       		
Focal Segmental Glomerulosclerosis	7502	30%	0%	Glomerulosclerosis with Nephrotic Syndrome, Hypercholesterolemia and HTN	7599-7507	60%*		
HTN	Not Unfitting					
Hypercholesterolemia	Not in Scope					
Other x 1 (Not in Scope)	Other x 1	
RATING:  30% → 0%	RATING:  0%	
VA rating decision (VARD) 20050124 initially rated at 30% from19951230 to 20030126, then decreased the rating to 0% effective 20040820.  VARD Decision Review Officer 20060124 acknowledged a clear and unmistakable error in rating and increased the rating to 60% effective 20040820.

ANALYSIS SUMMARY:

Focal Segmental Glomerulosclerosis Condition.  The CI underwent a renal biopsy on 2 February 1996 which demonstrated FSGS (a pathologic kidney finding associated with high protein in the urine, low blood albumin, hyperlipidemia, increased risk of infection, and peripheral edema).  He was placed on immunosuppressive therapy.  The Nephrologist opined that the duration of the immunosuppressive therapy was indeterminate at that time, but would be at least another year.  At a nephrology evaluation dated 10 August 1998 the examiner noted that the CI was being followed for nephrotic syndrome, hypertension, and immunosuppression as a result of FSGS.  The CI resumed active duty status on 27 January 2003.  At an acute medical care visit on 12 February 2003 the CI’s blood pressure was documented as 138/103, 144/110, and 162/111.  Another antihypertensive medication (Adalat) was added.  At a fitness test physical evaluation dated 9 December 2003 the examiner noted a history of kidney disorder that was in remission and hypertension.  The blood pressure at this examination was 125/92.  The initial MEB narrative summary (NARSUM) examination approximately 5 months prior to TDRL placement documented that January 2003 abnormal kidney function lab results (creatinine of 1.7 [normal is 0.0-1.3]), a 24 hour urine sample in the non-nephrotic range, and a blood pressure of 122/72.  On 7 April 2004 repeat kidney function labs remained abnormal (blood urea nitrogen [BUN] 25 [normal 6 to 20] and creatinine was 1.8 [normal is 0.0-1.3]) demonstrative of stable, but definite decrease in kidney function.  The CI reported bilateral ankle swelling and frequent urination of one time per hour.  The initial VA Compensation and Pension examination approximately 2 months after TDRL placement noted a creatinine of 1.6.  VA labs performed on 2 November 2004 demonstrated a creatinine of 1.9 and a 24 hour urine creatinine of 2555.0 (range 500-2000).  The Urologist noted that the creatinine was stable at 1.8 to 1.9, but still indicative of decreased kidney function.  A renal ultrasound demonstrated irregularity and thickening of the urinary bladder.  Creatinine monitoring performed on 24 October2005 was 1.5, in December 2005 was 1.8, and the second MEB NARSUM examination approximately 3 months prior to TDRL removal documented a creatinine at 1.6 indicative of stable decreased kidney function without further decrement in kidney function.

The Board directed attention to its TDRL placement rating recommendation based on the above evidence.  The PEB adjudicated the FSGS condition as unfitting and rated at 30%; albumin constant or recurring with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension; coded 7502 (Nephritis, chronic).  The VA coded the Glomerulosclerosis with Nephrotic Syndrome, Hypercholesterolemia, and HTN as 7599-7507 (analogous to Nephrosclerosis, arteriolar).  A VARD noted an initial disability rating of 30% from 30 December 1995 which was subsequently decreased to 0% effective on 20 August 2004.  A VARD Decision Review Officer dated 4 December 2006 acknowledged a clear and unmistakable error in rating and increased the rating to 60% effective on 20 August 2004.  The Board considered whether the evidence supported a higher than 30% rating at the time of TDRL placement.  There was well documented evidence of kidney disease and a definite decrease in kidney function (creatinine of 1.7 in January 2003 and a worsening with a creatinine of at the MEB exam of 1.8 and a BUN of 25).  The CI remained under the care of a nephrologist and was given a permanent P3L2E2 profile for focal glomerulonephritis with diffuse joint pain.  The commander’s statement documented that the CI had been diagnosed with a kidney disorder and both his medication and condition prohibited him from performing his MOS.  The Board agreed that the CI’s abnormal creatinine values of 1.7 and 1.8 respectively which demonstrated kidney dysfunction,  more closely aligned with the 60% rating of definite decrease in kidney function.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a change in the PEB adjudication for placement into TDRL at 60% for the FSGS condition coded 7502 IAW§4.115a.

The Board directed attention to its recommendation for permanent rating based on the above evidence.  The FPEB coded the FSGS as 7502 and rated at 0%.  There was clear evidence that although the CI’s creatinine was stable at 1.5 to 1.6, this was abnormal as the normal creatinine ranges from 0.6 to 1.3.  This stable creatinine of 1.5-1.6 should in no way be considered normal, but rather succinctly implies a chronic decreased kidney function.  The CI continued to be followed by a Nephrologist who closely monitored the creatinine and his other kidney function tests with spot urinalyses for protein and creatinine.  The Board agreed that the CI’s creatinine was still abnormal and clear and distinct evidence of chronic decreased kidney function.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a permanent disability rating of 60% for the FSGS condition coded 7502 IAW§4.115a.

Hypertension Condition: The hypertension condition was discussed above, as part of the FSGS.

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 FSGS condition, the Board unanimously recommends an increase in the TDRL placement rating of 60% coded 7502; and  the Board unanimously recommends a permanent rating at removal from TDRL of 60% coded 7502 IAW §4.115a.  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 to reflect a disability rating of 60% for the prescribed period of temporary retirement (IAW §4.129), and then a permanent combined 60% disability retirement effective as of the date of her prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
Focal Segmental Glomerulosclerosis	7502	60%	60%	
COMBINED	60%	60%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131230, 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 XXXXXXXXXXXXXXXXXXXX, AR20150015582 (PD201400186)

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  constructively place the individual on the Temporary Disability Retired List (TDRL) at 
60% rather than 30% disability rating for the period 20 August 2004 to 25 May 2006 and then following this period recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 60%.

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 temporary disability 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 day following the TDRL period.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will account for recoupment of severance pay, provide 60% retired pay for the constructive temporary disability retired period effective the date of the individual’s original medical separation and then payment of permanent disability retired pay at 60% effective the day following the constructive six month TDRL period.  

	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						    XXXXXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						         (Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA