RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	 CASE:  PD-2014-00858
BRANCH OF SERVICE:  AIR FORCE 	 SEPARATION DATE:  20050111

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated Air National Guard E-5 (Vehicle Operations Journeyman) medically separated for symptomatic hiatal hernia and diverticulitis status post partial colectomy.  The conditions could not be adequately rehabilitated to meet the physical requirements of his Air Force Specialty (AFS).  He was issued a temporary P4 profile and referred for a Medical Evaluation Board (MEB).  No other conditions were submitted by the MEB.  Although not forwarded by the MEB, the Informal PEB (IPEB) adjudicated “symptomatic hiatal hernia” and “diverticulitis post partial colectomy” as unfitting, rated 10% and 10% respectively, citing application of the Department of Defense Instruction (DoDI) 1332.39 and the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining sleep apnea condition was determined to be Category II (can be unfitting but is not currently compensable or ratable).  Although not forwarded, the PEB also adjudicated obesity and hyperlipidemia as category III conditions (not separately unfitting and not compensable or ratable).  The CI appealed to the Formal PEB (FPEB) which affirmed the IPEB findings and ratings.  The CI appealed the FPEB results to the Secretary of the Air Force Personnel Council (SAFPC) which upheld the findings of the FPEB.  The CI made no further appeals, and was medically separated.  

CI CONTENTION:  He was given a higher rating for his condition by the VA.  His complete submission 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 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:  

FPEB – Dated 20041008	VA* - (~5 Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Symptomatic Hiatal Hernia	7346	10%	GERD	7346	10%**	20040813	
Diverticulitis Status Post Partial Colectomy	7327	10%	Diverticular Disease Status Post Surgery	7327-7319	10%**	20040813	
Obstructive Sleep Apnea	Not Unfitting	Sleep Apnea with Symptoms	6847	50%	20040813	
Other x 2 (Not In Scope)	Other x 2	
RATING:  20%	RATING:  60%	
*Derived from VA Rating Decision (VARD) dated 20041108 (most proximate to date of separation [DOS]).  **Decision Review Officer in VASRD dated 20060929 adjudged a “clear and unmistakable error” with ratings of 7346 and 7327-7319 and changed them to a 30% coded 7346-7319 effective 20050112.  

ANALYSIS SUMMARY:  All of the CI’s digestive system disability conditions will be considered together by the Board IAW VASRD §4.114 (schedule of ratings—digestive system) which states:  “Ratings under diagnostic codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive will not be combined with each other.  A single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation.”  

Symptomatic Hiatal Hernia and Diverticulitis Status Post Partial Colectomy.  According to service treatment records and the MEB narrative summary (NARSUM), the CI’s digestive system complaints began in late 2001 when the CI had severe diverticulosis with diverticulitis (small, bulging pouches in the digestive tract that become inflamed or infected) requiring hospitalization and return to CONUS.  The CI underwent a sigmoid hemicolectomy (surgery to remove part of the lower intestine with diverticulosis) in May 2002 with a good recovery and return to duty.  In October 2002 an upper endoscopy documented chronic gastritis and a hiatal hernia.  In September 2003, while deployed, the CI had a relapse of severe diverticulitis and was returned to CONUS.  That month he was also found to have evidence of prior helicobacter pylori infection (bacteria highly associated with gastric ulcer disease) and was treated with antibiotics.  Repeat colonoscopies documented continued (or recurrent) diverticulosis.  

At the MEB exam, dated 11 July 2004 (six months prior to separation) the CI reported he had intermittent episodes of severe pain, bleeding and chronic nausea, but no episodes severe enough to warrant further surgical intervention.  The MEB physical exam noted abdominal tenderness with an otherwise normal gastrointestinal exam.  Repeat colonoscopies documented more diverticula (after hemicolectomy).  Radiographic studies (CT scan) in December 2004 documented diverticular disease in the descending colon.  The CI had complained of increased upper abdominal distress with heavy lifting or with attempted sit-ups.  

Two weeks after the FPEB, the CI was evaluated for complaints of left lower quadrant (LLQ) pain and no bowel movements for several days.  Radiographs were abnormal and consistent with early ileus or early obstruction and the CI was treated with medications for diverticulitis.  The CI had continued LLQ pain and nausea with a CT scan showing diverticulosis without evidence of diverticulitis.  The gastroenterologist’s plan dated 23 December 2004 (less than three weeks prior to separation) was to “considerer resection of the rest of the left colon if felt that residuals diverticulosis remains problematic.”  

At the VA Compensation and Pension (C&P) exam performed 5 months prior to separation, the CI reported a similar history and complaints for diverticulitis, diverticulosis with hemicolectomy, prior infection with helicobacter pylori, gastritis, symptomatic hiatal hernia, gastroesophageal reflux disease (GERD) and diverticular disease.  The CI had complaints of gastric reflux on chronic medication, diverticulosis but no fever or chills, and cramping pain and nausea approximately twice a week with sometimes noticing blood.  An upper endoscopy performed in August 2004 documented mild gastroesophageal reflux disease (without gastritis).  At a VA personal hearing on 6 October 2005 (ten months after separation), the CI noted symptoms of acid reflux, soreness, heartburn and acid indigestion while on two medicines, as well as occasional stomach cramping and constipation, abdominal pain, diarrhea and dyspepsia.  

The Board directed attention to its rating recommendation based on the above evidence.  The FPEB and SAFPC rationale assigned a 10% rating under 7346 code (hernia hiatal), citing (cramping and nausea) and 10% under 7327 code (diverticulitis) citing increased abdominal pain with lifting or sit-ups (“pulling pain on attempting work or aggravated by movements” is a 10%, 7301 code  [peritoneal adhesions] criterion).  

The VA corrected their initial 10% plus 10% rating (see above) to a single 30% using 7346-7319 code (hernia hiatal with irritable colon syndrome) based on the pre-separation VA exam, Service record and VA personal appearance ten months after separation.  The VA cited the §4.114 requirement that “the diverticular condition and GERD are to be evaluated together - assigned a single evaluation” and used the irritable colon syndrome as predominate coding with an elevation of the 10% criteria to a final 30% §4.114 rating.  

The Board considered the CI’s GERD and diverticular disease symptoms in the entirety of the record and discussed the §4.114 rating guidance as well as criterion from disability codes 7346 (hiatal hernia) as well as criterion from disability codes 7327 (diverticulitis), 7301 (peritoneal adhesions), and 7319 (irritable colon syndrome).  Given the CI’s ongoing symptoms of GERD and frequent episodes of bowel disturbance with abdominal distress the Board adjudged that the CI’s disability condition met the §4.114 30% criteria for elevation to a 30% rating for meeting the two 10% criteria for 7346 and 7327 and was best coded as 7346-7319.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 30% for the diverticulitis status post partial colectomy with symptomatic hiatal hernia condition.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the Service’s determination that Obstructive Sleep Apnea (OSA) was not unfitting.  The Board’s threshold for countering fitness determinations is preponderance of the evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The OSA condition was mentioned on the profile as being evaluated, and was implicated in the commander’s statement as interfering with deployability.  OSA was the sole condition listed on the MEB dated 28 July 2004 as referred to the PEB.  The NARSUM indicated that the CI continued to have OSA despite surgery (uvulopalatopharyngoplasty), but that the CI’s OSA was controlled on CPAP (a breathing assistance device…continuous airway pressure machine).  There was no performance based evidence from the record that the CI had duty-limiting excessive daytime sleepiness or that OSA with CPAP significantly interfered with satisfactory duty performance.  Routinely obstructive sleep apnea is not considered unfitting solely on the basis of field and operational impediments to the use of CPAP.  There was insufficient evidence in this case that OSA was associated with any functional impairment that was not corrected by CPAP.  Accordingly, members concurred that the fitness determination was reasonable; and, after due deliberation, the Board finds insufficient cause to recommend a change in the PEB adjudication of the OSA 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 symptomatic hiatal hernia and diverticulitis status post partial colectomy conditions, the Board unanimously recommends a disability rating of 30%, coded 7346-7319 IAW VASRD §4.114.  In the matter of the contended OSA condition, the Board unanimously agrees that it cannot recommend it for additional disability rating.  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 re-characterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:  

UNFITTING CONDITION	VASRD CODE	RATING	
Diverticulitis Status Post Partial Colectomy with Symptomatic Hiatal Hernia	7346-7319	30%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140217, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

	

SAF/MRB
1500 West Perimeter Road, Suite 3700
Joint Base Andrews, MD  20762

Dear XXXXXXXXXX:

Reference your application submitted under the provisions of DoDI 6040.44 (Section 1554, 10 USC), PDBR Case Number PD-2014-00858.
 
After careful consideration of your application and treatment records, the Physical Disability Board of Review determined that the rating assigned at the time of final disposition of your disability evaluation system processing was not appropriate under the guidelines of the Veterans Affairs Schedule for Rating Disabilities.  Accordingly, the Board recommended your separation be re-characterized to reflect disability retirement, rather than separation with severance pay.

I have carefully reviewed the evidence of record and the recommendation of the Board.    I concur with that finding, accept their recommendation and determined that your records should be corrected accordingly.  The office responsible for making the correction will inform you when your records have been changed.

As a result of the aforementioned correction, you are entitled by law to elect coverage under the Survivor Benefit Plan (SBP).  Upon receipt of this letter, you must contact the Air Force Personnel Center at (210) 565-2273 to make arrangements to obtain an SBP briefing prior to rendering an election.  If a valid election is not received within 30 days from the date of this letter, you will not be enrolled in the SBP program unless at the time of your separation, you were married or had an eligible dependent child, in such a case, failure to render an election will result in automatic enrollment.

Sincerely,

Attachment:
Record of Proceedings 

cc:
SAF/MRBR  
DFAS-IN