RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01633
BRANCH OF SERVICE:  Army 	BOARD DATE:  20150319
SEPARATION DATE:  20041129

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty O-3 (Adjutant General) medically separated for a complicated gastrointestinal history.  The gastrointestinal condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty (MOS).  She was issued a permanent P3 profile and referred for a Medical Evaluation Board (MEB).  The gastrointestinal conditions, characterized as “irritable bowel syndrome s/p distal hemicolectomy w/continued symptoms”; peritoneal adhesions from prior surgeries manifested by pain and slow gastrointestinal transit”; and “multiple abdominal surgeries including 2 laparoscopic Nissen fundoplasties & partial colectemy,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The Informal PEB combined the three conditions and adjudicated “complicated gastrointestinal history” as unfitting, rated 10%, with likely application of Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  The CI writes: “My rating from the VA for the same condition was rated higher.  These conditions have had life-long medical consequences require extensive follow-on care.”  Her 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 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:

IPEB – Dated 20040901	VA* - (~2 Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
COMPLICATED GASTROINTESTINAL HISTORY 	7319 7239 7301	10%	IBS, GERD W/HEMICOLECTOMY AND GASTROINTERTINAL ADHESIONS	7301	30%	20040921	
Other x 0 (Not In Scope)	Other x 3	
RATING:  10%	RATING:  30%	
*Derived from VA Rating Decision (VARD) dated 20050127 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

Complicated Gastrointestinal (GI) History Condition.  The narrative summary (NARSUM) noted the CI began to have gastrointestinal (GI) problems in June 2002.  She developed nausea and vomiting with a nearly 20-pound weight loss in a short period of time and was referred to a gastroenterologist and non-invasive studies were normal.  The CI was treated with medication (H2-blocker) and did well, but symptoms recurred when the medication was stopped.  Upper GI endoscopy was normal and medications for nausea (Phenergan) and gastroesophageal reflux (GERD) were continued, but the symptoms were not controlled on therapeutic doses.  In December 2002, the CI had surgery for GERD.  The CI did not do well after the surgery, with inability to tolerate solids, and ultimately was admitted to the hospital for pain and difficulty breathing after eating due to severe distension of the stomach.  She had a repeat laparascopic surgery 12 March 2003 and the prior surgical site was revised.  During the procedure the surgeon noted minimal, loose adhesions around the prior surgical site but noted distension of the last segment of the colon.  The CI was placed on medication to increase GI transit time (Reglan, Zelnorm).  Despite these interventions, the CI continued to have abdominal pain and a barium enema (imaging study of the colon) 30 May 2003 noted a functional obstruction, thought to be related to adhesions from the prior surgeries.  The CI’s symptoms continued with some benefit from medications, but in January 2004 the CI was admitted to the hospital for nausea and vomiting and after discharge problems with both GERD and constipation worsened.  Injury to the vagus nerve was suspected with resulting impaired stomach function (gastroparesis).  Studies showed relatively slower gastric emptying time compared with a study prior to the surgeries, but still within normal, and slow transit through the descending colon.  A decision was made to remove the affected section of colon (hemicolectomy), and surgery was performed 3 May 2004.  The operative note indicated no adhesions or physical strictures of the colon.  According to the NARSUM after this surgery the CI’s upper GI symptoms improved with nausea every 2 to 3 days; bowel function was improved to within normal frequency; and, the CI was gaining back weight.

At the MEB examination on 22 July 2004, 4 months before separation, the CI reported continued, but less severe symptoms of nausea and constipation, which required frequent small meals, and inability to perform activities that strained her abdomen due to pain.  The MEB physical exam noted “a scar…down the abdomen, which was mildly tender”.  The examiner noted the CI had “very tenuous nutritional status and requires multiple meals each day” and was also subject to easy dehydration and required free access to water.

At the VA Compensation and Pension (C&P) examination, 2 months before separation, the CI reported occasional use of over the counter medication for GERD symptoms for dietary indiscretions and bowel function every 2 to 3 days, managed with fiber and dietary adjustments.  She reported that she was back to a “sort of normal” life.   The CI also reported pain around her surgical scars with physical activity.  The examiner noted that the CI would likely continue with problems in the future, but that it was too close to her most recent surgery to assess.  The VA exam noted tender scars, generalized abdominal tenderness, and distention.  
The Board directed its attention to its rating recommendation based on the above evidence.  The PEB rated the GI condition 10%, coded 7319 7329 7301 (peritoneal adhesions with colon resection and irritable colon syndrome), and the VA rated it 30%, coded 7301 (peritoneal adhesions).  The Board agreed that the evidence in record meets the 10% rating coded as 7301, specified as “pain on attempting work, or aggravated by movements of the body, or occasional episodes of colic pain, nausea, constipation…or abdominal distension.”  The Board considered whether the 30% rating of 7301 was achieved for “moderately severe” symptoms of partial obstruction described as less frequent and shorter episodes than that for “severe”, described as “severe colic distension, nausea, or vomiting.”  The Board first determined that although there were repeated references to peritoneal adhesions in the STR, no significant adhesions were identified at the second laparoscopic procedure or during the colon surgery.  However, Board members agreed that this did not preclude rating the CI’s disability analogously to peritoneal adhesions, because the rating criteria of 7301 is a very good fit for the CI’s disability based on anatomic location, affected functions, and symptoms.  A note in the VASRD following the 7301 rating criteria states “ratings for adhesions will be considered when there is history of operative…process, and at least two of the following: disturbance of motility, actual partial obstruction, reflex disturbances, presence of pain.”  It was advocated that the objective evidence of slowed gastric emptying and delayed colonic transit time on functional GI studies did provide support for the 30% rating based on the criteria of “partial obstruction manifested by delayed motility,” even if the symptoms were under reasonable control following the colon surgery.  The Board did consider coding with 7329 for colon resection.  The 7329 rating criteria are subjective with 10% for “slight symptoms,” 20% for “moderate symptoms,” and 40% for “severe symptoms, objectively supported by examination findings.”  Member consensus was that the condition could be rated at 20% based upon the multiple GI sites involved, but there was no objective support for rating as severe at the time of separation for the next higher evaluation.  Furthermore, another VASRD note following 7329 rating criteria indicates for situations in which adhesions are the predominate disability, rating should be with 7301, which in the opinion of all Board members further strengthened the case for analogous coding as 7301 rather than 7329.  Additionally, the Board considered that according to the VASRD (Digestive system) “ratings under diagnostic codes 7301-7329 …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.”  

The Board deliberated whether elevation to the next higher 7301 rating was justified on this basis alone for overall GI disability due to the multiple diagnoses and surgeries, which encompassed the upper and lower GI tracts.  After lengthy discussion, Board consensus was that the combination of the presence of some rating elements for the 30% rating, with consideration of VASRD §4.7 (higher of two evaluations), in conjunction with residual symptoms referable to both the upper and lower GI tract, provided strong support for the 30% rating.  The Board deliberated whether a higher evaluation was achieved with any alternative §4.114 coding approach and found that, as with 7329, no higher evaluation than 20% could be recommended.  Finally the Board discussed if the evidence supported alternatively rating IAW §4.124a (neurological conditions) for incomplete paralysis of the vagus nerve (8210).  There was evidence in record of concern that vagus nerve injury was contributing to the post-operative symptoms following the initial surgeries.  The Board noted that code 8210 rating criteria are also subjective with 10% for “moderate” and 30% for “severe” and are based upon the extent of sensory and motor loss to organs of voice, respiration, pharynx, stomach, and heart.  Members concluded the objective findings did not provide sufficient support to directly or analogously characterize the CI’s disability as severe, incomplete paralysis of the vagus nerve and so this coding approach did not achieve a rating higher than 10%.  Therefore, the Board concluded the evidence at separation provided support for the 30% rating, coded analogously to 7301, and no higher rating was achieved with any applicable coding approach.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority recommends a disability rating of 30% for the GI condition, coded 7399-7301.

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 GI condition, the Board majority recommends a disability rating of 30%, coded 7301 IAW VASRD §4.114.  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 her prior medical separation:  

CONDITION	VASRD CODE	RATING	
Complicated GI History Condition	7399-7301	30%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140325, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

	
	XXXXXXXXXXXXXXXXXX
	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 XXXXXXXXXXXXXXXXXX, AR20150014335 (PD201401633)

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 30% 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 30% 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						     XXXXXXXXXXXXXXXXXX
						     Assistant Secretary of the Army
						          (Manpower and Reserve Affairs)
						
CF: 
(  ) DoD PDBR
(  ) DVA