RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01387
BRANCH OF SERVICE:  AIR FORCE 	SEPARATION DATE:  20071211

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4, Diagnostic Imaging Journeyman, medically separated for “nonalcoholic steatophepatitis (NASH),” rated at 0%.  

CI CONTENTION:  The applicant believes he should have been medically retired.  The applicant’s complete submission is at Exhibit A. 

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  It is limited to those conditions determined by the Physical Evaluation Board (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 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 PEB -  20070719	VARD - 20080328   	
Condition	Code	Rating	Condition	Code	Rating	Exam	
NASH	7345	0%	NASH with Fatty Liver, Hiatal Hernia, and GERD	7345	0%	20080207	
Obstructive Sleep Apnea (OSA), Requiring Use of CPAP	Category II	OSA	6847	50%		
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  90%	

ANALYSIS SUMMARY:  

NASH.  The record shows that the CI was found to have elevated lipids (cholesterol, etc.) in the summer of 2005.  Subsequently, he was found to have elevated liver enzymes in testing presumably done prior to the initiation of treatment for the elevated lipids.  These were persistent and associated with pain in the right upper quadrant (RUQ, the location of the liver).  He was evaluated in gastroenterology (GI) and a liver biopsy performed on 15 May 2006 which resulted in the diagnosis of NASH.  He was noted to be also obese, associated with NASH, and weight loss recommended.  He was then started on a medication for the obesity as well as an oral steroid for the NASH without change in the enzyme levels or loss of weight.  In addition, he was unable to maintain satisfactory physical fitness due to the obesity.  This was thought to be incompatible with deployment to a high demand area other than in an emergency.  His job performance in-garrison was unaffected and, in fact, his performance report noted that he was a “first-rate technologist.”  The risk of eventual progression to end stage liver failure was thought to be high.  The narrative summary (NARSUM) was in a clinic note in GI dated 8 March 2007, 9 months prior to separation.  The 67-inch CI was noted to be obese (230 pounds with a BMI of 36), but well-nourished and in no distress.  At the VA Compensation and Pension (C&P) examination performed on 7 February 2008, 2 months after separation, the CI reported the above.  On examination, he was 66 inches and 231 pounds.  His liver function tests were elevated.  There was no evidence of malnutrition and he was not anemic.  The abdominal examination was unremarkable.  The Board directed its attention to its rating recommendation based on the above evidence.  The PEB and VA both rated the NASH condition at 0%, coded 7345 (asymptomatic chronic liver disease without cirrhosis).  The Board noted that the CI had a history of right upper quadrant pain, but it was not incapacitating and he had none of the symptoms for a 10% which include fatigue, malaise, anorexia (loss of appetite).  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the NASH condition.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that obstructive sleep apnea (OSA) requiring the use of CPAP [continuous positive airway pressure] was not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The CI was found fit for duty for “OSA on CPAP” in December 2005.  He continued to well on CPAP for the next 2 years until separated and, in fact, had an excellent performance report.  The OSA NARSUM noted that he had no functional impairment while on CPAP.  The OSA condition was reviewed and considered by the Board.  There was no performance based evidence from the record that it significantly interfered with satisfactory duty performance.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness the OSA on CPAP condition and so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the NASH condition and IAW VASRD §4.114, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended OSA conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.  There were no other conditions within the Board’s scope of review for consideration.  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 20140312, 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-2014-01387.

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 appropriate.  Accordingly, the Board recommended no re-characterization or modification of your separation.

I have carefully reviewed the evidence of record and the recommendation of the Board.  I concur with that finding and their conclusion that re-characterization of your separation is not warranted.  Accordingly, I accept their recommendation that your application be denied.

Sincerely,

Attachment:
Record of Proceedings