RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-00434
BRANCH OF SERVICE:  Army	BOARD DATE:  20141210
SEPARATION DATE:  20071016

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active E-3 (Medical Laboratory Specialist) medically separated for diabetes and a right tibial stress fracture.  The diabetes and stress fracture could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent P3 and L3 profile and referred for a Medical Evaluation Board (MEB).  The diabetes and stress fracture conditions, characterized as “diabetes mellitus type I” and “right tibial stress fracture,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition (left lateral malleolar stress changes) for PEB adjudication.  The Informal PEB adjudicated “type I diabetes mellitus” and “right tibial stress fracture” as unfitting, rated 20% and 0%, with likely application of the VA Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “I am writing you today to present evidence of why I deserve a re-evaluation of my assigned disability rating.  I feel I was incorrectly rated due to many factors, the main one being the physical limitations imposed upon myself by this affliction.  In a statement prepared by my primary care provider, he clearly states that physical work is no longer an option for me due to frequent bouts of hypoglycemia.  I was extensively trained in the landscaping field before my entry to the Army, and upon my discharge was no longer able to use the skills I was already in possession of, meaning I was not able to return to the work I was previously very good at.  In my last claim to the V.A., despite the strong evidence presented by my doctor, previous employers, and family that I was unable to do physical work, the decision came in with no change to my current disability rating.  The reason for the denial being that an increase in disability required limitations to my physical activity.  This seemed to be quite contradictive of what the original claim was for.  I feel I deserve a re-evaluation of my rating due to not only these factors, but also another service connected disability which I was not rated for upon my discharge from the military.  I was given a disability rating of 10% for panic disorder which stemmed from my time in the service, but not rated by the DOD.  Enclosed are several documents in support of this and my diabetes claim. I appreciate the opportunity given to me for a re-evaluation and thank you for your time concerning this matter.”

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 Veterans Affairs Schedule for Rating Disabilities (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 IPEB – Dated 20070928	VA - (1.9 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Type I diabetes Mellitus	7913	20%	Diabetes Mellitus Type I	7913	20%	20071213	
Right Tibial Stress Fracture	5022	0%	Right Tibial Stress Fracture	5099-5022	NSC	20071213	
Other x 1  (Not in Scope)	Other x 2	20071213	
Combined:  20%	Combined:  30%	
Derived from VA Rating Decision (VARD) dated 20080408 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Type I Diabetes Mellitus (DM).  The service treatment record (STR) indicated the CI’s diabetes mellitus (DM) condition was diagnosed in June 2007 and required immediate and continued insulin treatment and dietary counsel.  The STR did not reveal any history of significant complications of DM nor of any hospitalizations for the same.  At the MEB NARSUM exam dated 6 July 2007 (3 months prior to separation) the CI reported improved residual DM symptoms with current insulin regime.  His physical examination (PE) was essentially normal with non-significant blood parameters.  He was issued a permanent profile that restricted his deployment assignments and specific activities of running, jumping, marching or high impact acts.  Notably, the profile also listed, “must monitor blood glucose and administer insulin several times daily.”  The commander’s statement reiterated the CI’s restrictions preventing him from satisfactory duty performance.  At the VA Compensation and Pension (C&P) exam performed on 13 December 2007 (2 months after separation) the CI reported no current DM complaints or symptoms and was receiving medication via an insulin pump.  Specifically, the examiner noted, “No activity restrictions secondary to diabetes.”  His PE remained normal with excellent blood chemistry.

The Board directed its attention to its rating recommendations based on the evidence just described.  The use of insulin and restricted diet supported a 20% rating IAW VASRD §4.120 as determined by the PEB, and there was no evidence supporting a rating above 40%.  There was no laboratory evidence that ketoacidosis or hypoglycemia were manifested at any time since the original diagnosis as to support above 40% impairment.  Thus the Board focused deliberations between a 20% and 40% rating.  The Board deliberated if the CI met the 40% criteria for “regulation of activities.”  The VA guidance is that “regulation of activities” refers to physician prescribed avoidance of strenuous occupational and recreational activities.  The Board focused on the question of determining if the profile statement above met the criteria of “regulation of activities” and thus a 40% disability rating coded 7913.  Board members considered and agreed that the individual STRs indicating “released without limitations” under the heading of “Disposition” was a true reflection of the CI’s overall abilities and that the profile verbiage was more specifically directed towards military fitness testing.  Additionally, the VA’s statement of “no activity restrictions” supported similar findings as well.  After extensive deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that the profile did not constitute a VASRD defined “regulation of activity” and therefore, there is not reasonable doubt in supporting a change from the PEB’s coding or rating decision for the DM, insulin dependent condition.

Right Tibial Stress Fracture.  Absent a history of direct trauma, the CI gradually developed medial upper right lower leg pain (just below the knee) after a 3-mile run in March 2007.  Initial X-rays were normal and a bone scan was positive in identifying a stress fracture at the site of the CI’s pain.  Within a short period of time, his symptoms fully resolved with rest and medication.  On 11 April 2007, the CI denied any further pain and stated that he was back running.  He desired to return to duty.  The NARSUM simply summarized his previous radiology findings and noted the same as a diagnosis.  At the VA C&P exam, the CI endorsed intermittent right lower leg pain especially in cold weather and after walking greater than a mile, standing more than 30 minutes, or any type of running.  He further endorsed painful flare-ups once a week for a 2-hour duration.  Tylenol provided him good symptom relief.  The examiner specifically stated, “No effects of the condition on [his] usual occupation or daily activities.”  “Subjectively reports pain, however, imaging and clinical exam did not identify any limitations.  The reported stress fracture is not even visible on current X-rays.”

The PEB chose a rating of 0% with the 5022 code (periostitis) which defaults to the 5003 code (arthritis, degenerative) based on residual pain with no limitation of motion.  The VA’s rating decision also chose 5022 analogously and adjudicated not service-connected, citing no clinical evidence of an underlying disorder.  Board members agreed that near the time of separation, neither the MEB nor the VA demonstrated objective evidence that suggested functional loss that would support a rating any higher than 0%.  The CI’s own admission of no further symptoms, gaining the ability to run and the request to return to full duty additionally supported no impairment above 0%.  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 right leg stress fracture 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 DM condition and IAW VASRD §4.120, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the stress fracture right leg condition, 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 20131228, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		

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, AR20150008506 (PD201400434)

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			     
						         
CF: 
(  ) DoD PDBR
(  ) DVA