RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02360
BRANCH OF SERVICE:  NAVY	BOARD DATE:  20150210
SEPARATION DATE:  20041028

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty OS3/E-4 (OS/Operation Specialist) medically separated for a renal condition.  The condition could not be adequately rehabilitated to meet the physical requirements of his Rating or satisfy physical fitness standards.  He was placed on limited duty and referred for a Medical Evaluation Board (MEB).  The conditions “gross hematuria” and “right flank pain” were forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  The MEB also identified and forwarded one other condition (“major depressive disorder currently in remission”) for PEB adjudication.  The Informal PEB adjudicated “right flank pain” as unfitting, rated 20%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  Three conditions were determined to be Category II (contributing to the unfitting condition): “gross hematuria,” “painful hematuria,” and “renal pain”; and, one condition determined to be Category III (not separately unfitting and not contributing to the unfitting condition): “major depressive disorder [MDD], currently in remission.”  The CI made no appeals and was medically separated.

CI CONTENTION:  “PTSD [post-traumatic stress disorder], Right and Left Kidney.  Please Review Medical Record.”

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* (6 Days Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Flank Pain	7511-7509	20%	Renal Colic Associated with Hematuria with Secondary Insomnia	7511-7509	20%	20041104	
Gross Hematuria	Cat II					
Painful Hematuria	Cat II					
Renal Pain	Cat II					
MDD in Remission	Cat III	MDD	9434	30%	20041104	
Other x 0 (Not In Scope)	Other x 3 	
RATING:  20%	RATING:  60%	
*Derived from VA Rating Decision (VARD) dated 20050208 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Right Flank Pain with Associated Category II Conditions.  The service treatment record (STR) corroborates the somewhat complex clinical course of this condition as accurately reflected in the narrative summary (NARSUM) and VA Compensation and Pension (C&P) evaluation at separation.  In summary, the CI first developed acute right flank pain (consistent with renal colic) associated with hematuria (blood in urine) in February 2003 (20 months prior to separation).  An initial impression and management as kidney stones was not supported by definitive diagnostic testing; episodes of severe right renal colic and gross hematuria recurred on a frequent basis; and, exhaustive diagnostic evaluations ensued.  The latter, in a serial fashion, included kidney ultrasound (multiple, normal), intravenous and retrograde pyelograms (dye studies), computed tomography (CT), magnetic resonance imaging, magnetic resonance angiography, conventional angiography (dye vascular study), cystoscopy (multiple) and ureteropyeloscopy (bladder and ureter endoscopic visualization), renal and bladder biopsies, urine cytology (search for cancer cells), and multiple urine cultures (no episodes of kidney infection).  No pathologic abnormality was identified other than an incidental finding of mild urethral strictures.  One of these episodes was associated with transient renal failure (creatinine 3.7) and resulted in hospital admission in November 2003 (kidney biopsy normal); but, urine function returned to normal.  On the assumption that clot formation was causing obstruction and pain, the CI underwent balloon dilatation of the right ureter, followed by two trials of ureteral stents (all in December 2003, 10 months prior to separation).  The pain followed a waxing and waning course; and, the care plan included behavioral health and pain management; but, the CI continued to require narcotic analgesics to treat his pain flares.  The STR documents a total of eight episodes of severe renal colic for which the CI sought care on average every 7 weeks; although, there was an 8-month interval to separation from the last one documented (an emergency room visit in March 2003).  Conversely, numerous STR entries document little or no pain, and the last STR entry (3 days prior to separation) documents “mild” pain (dysuria, not renal colic) and a normal exam.

The NARSUM was initially conducted on 19 December 2003, but an addendum was prepared on 24 May 2004 (5 months prior to separation).  Both provided great detail with regard to the above clinical course and elaborated the lack of a specific diagnosis, but did not provide evidence for concurrent acuity of symptoms (frequency of attacks, severity of pain, etc.).  The CI was still prescribed a narcotic pain medicine, although the examiner noted “he recently ran out of it and has not had any recently.”  The physical exam was normal, without acute distress.

The VA C&P examination was conducted 6 days after separation; and, as with the NARSUM, provided clinical detail without elaborating concurrent acuity or specifying current medications; but adding, “The veteran is not a good historian.”  The VA physical exam was normal, annotating “in no acute distress.”

The Board directed attention to its rating recommendation based on the above evidence.  First it is clarified that none of the listed Category II conditions (gross hematuria, painful hematuria, renal pain) are diagnoses clinically separate from the unfitting renal disease which could be separately coded and rated without violation of VASRD §4.14 (avoidance of pyramiding).  They are thus subsumed in the Board’s recommendation for the primary condition.  The PEB and VA both rated under the same hyphenated code 7511 (ureter, stricture of), rated as 7509 (hydronephrosis [obstructed kidney]); both arriving at a 20% rating.  Code 7509 provides for ratings of 10% for “only an occasional attack of colic, not infected and not requiring catheter drainage,” 20% for “frequent attacks of colic, requiring catheter drainage,” and 30% for “frequent attacks of colic with infection (pyonephrosis), kidney function impaired.”  Code 7511 specifies, “Rate as hydronephrosis, except [emphasis per VASRD] for recurrent stone formation requiring one or more of the following: 1. diet therapy, 2. drug therapy, 3. invasive or non-invasive procedures more than two times/year -- 30%.”  Members agreed that there is no other code available under §4.115b which is applicable to this case, other than analogous 7510 (ureterolithiasis [kidney stones]); the latter providing rating language identical to that just cited for 7511.  Since the NARSUM and C&P evidence was not specifically directed to the rating criteria as noted above, members incorporated an analysis of the STR evidence for a more fair assessment in arriving at a recommendation.

It should first be noted that none of the VASRD rated diagnoses (hydronephrosis [ruled out by multiple ultrasounds], ureteral stricture [strictures were of the urethra, not contributory to unilateral renal colic and never causing significant bladder obstruction], and kidney stones [thoroughly excluded]) were present in this case; thus, any chosen code for rating would be in fact an analogous code.  The choice of 7509 as the rated code on the part of the PEB and VA was not an unreasonable choice, since the primary symptom of hydronephrosis (barring the complication of kidney damage and failure) is renal colic.  The 20% criteria were conceded, and the 30% criteria are not supported in the absence of impaired kidney function (no sustained impairment in this case) and kidney infections (none confirmed in this case).  Members carefully considered whether the 30% criteria of 7511 or 7510 (either analogously satisfactory) were supported to achieve a higher rating in substitution for the rated code.  There was, however, clearly no diet therapy; there was no drug therapy other than intermittent pain medications (not maintenance therapy); and, although a trial of urinary stents (invasive procedure) and multiple diagnostic procedures were performed earlier in the course of the condition, none were a component of the treatment in effect at separation.  It is also noted that the VA rater did not find support for a rating higher than 20%.  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 of the urologic condition.

Contended Mental Health Condition.  It is first noted that the contended PTSD condition was not diagnosed in service or by the VA psychiatric evaluation at separation; nor, was it raised as a possible competing diagnosis.  Service-connection for PTSD was denied by the VA in a decision dated 7 October 2014 (10 years after separation).  A mental health (MH) report to the MEB was conducted 22 June 2004 (4 months prior to separation).  It documents an earlier service MH evaluation on 29 December 2003, 11 months prior to separation with a referral request, “Uncertain if pain contributing to depression or depression contributing to pain. ... Please evaluate for degree of depression and possible treatment.”  At that time the CI was diagnosed with non-specific depression and “pain disorder ‘with’ a general medical condition and psychological factors”; and, the Global Assessment of Functioning (GAF) was assessed at 61 - 70 (mild range of impairment).  An anti-depressant (Zoloft) was prescribed at that time, which had been switched to Elavil at the time of the MH report to the MEB.  The report documented some additional chronic depressive symptoms (preceding the painful condition), but a favorable course since MH referral; stating, “The patient no longer was complaining of depressive symptoms, although he stated that sleep continues to be poor.”  The mental status exam was normal except for mood “initially was more low and flat, but has improved somewhat”; cognition was intact.  The GAF assignment was 60 (cusp of moderate/mild).  The MH examiner opined, “As of June 2004 major depressive disorder appears to be in remission currently.”  The joint MEB concurred and opined that the CI “does not suffer from a mental disorder, which prevents him from performing further military duties....”  The commander’s non-medical assessment commented that the CI’s “work performance has been outstanding ... performs the day-to-day operations ... reliable and dedicated” within the confines of his limited duty restrictions.

A VA C&P psychiatric evaluation was conducted 10 November 2004 (2 weeks after separation); and, counter to the account in the MEB MH report, relates, “The veteran also opines that his depression has been getting gradually worse over time and significantly worse since the diagnosis of chronic kidney disease.”  The CI rated the severity of his depression at about 3/10.  The VA examiner noted reports of psychiatric admissions during service (and prior) which are not in evidence (or referred to) in the STR.  The VA psychiatrist made an Axis I diagnosis of MDD and assigned a GAF of 52 (moderate impairment).  The psychiatrist did not provide a directed opinion regarding occupational impairment.  As charted above, the VA provided a VASRD §4.130 rating of 30% based on this examination.

The Board directed attention to its recommendation regarding its assessment of the fairness of the PEB’s determination that the MDD was not unfitting.  The Board’s threshold for countering service fitness determinations is higher than the reasonable doubt standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  Although it may be conceded that the CI manifested some symptoms of depression at separation, there is no performance based evidence that counters the MEB opinion that that there was no psychiatric impairment that would have precluded further service.  Members agreed that the probative value of the CI’s report of psychiatric admissions to the VA psychiatrist was significantly overcome by a preponderance of service evidence to the contrary.  The Board members noted the absence of significant MH symptoms or impairment, evidenced by the commander’s description of good performance within physical limitations, the lack of any performance based evidence from the VA psychiatrist at separation that there was significant occupational impairment; all the above are compelling arguments in support of a conclusion that there was no unfitting psychiatric impairment in this case.  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 MDD.

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 right flank pain condition and IAW VASRD §4.115b, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended MDD, the Board unanimously recommends no change from the PEB determination as not unfitting.  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 20140521, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

				XXXXXXXXXXXXXXXXXXXX
President 
DoD Physical Disability Board of Review

MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW BOARDS
Subj:	PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATION 
Ref:	(a) DoDI 6040.44
(b) CORB ltr dtd 25 Jun 15

In accordance with reference (a), I have reviewed the cases forwarded by reference (b), and, for the reasons provided in their forwarding memorandums, approve the recommendations of the PDBR that the following individual's records not be corrected to reflect a change in either characterization of separation or in the disability rating previously assigned by the Department of the Navy' s Physical Evaluation Board:

-	XXXXXXXXXXXXXXXXXXXX, former USN
-	XXXXXXXXXXXXXXXXXXXX, former USN
-	XXXXXXXXXXXXXXXXXXXX , former USN
-	XXXXXXXXXXXXXXXXXXXX, former USN
-	XXXXXXXXXXXXXXXXXXXX, former USMC
-	XXXXXXXXXXXXXXXXXXXX, former USN
-	XXXXXXXXXXXXXXXXXXXX, former USN
-	XXXXXXXXXXXXXXXXXXXX, former USN
-	XXXXXXXXXXXXXXXXXXXX, former USMC
-	XXXXXXXXXXXXXXXXXXXX, former USN
-	XXXXXXXXXXXXXXXXXXXX, former USMC
-	XXXXXXXXXXXXXXXXXXXX, former USMC
-	XXXXXXXXXXXXXXXXXXXX, former USN

XXXXXXXXXXXXXXXXXXXX
Assistant General Counsel (Manpower & Reserve Affairs)