RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD -2014-02476
BRANCH OF SERVICE:  Army	Separation Date:  20041109

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-3 (Initial Entry Trainee) medically separated for abdominal pain due to ulcerative colitis (UC).  This condition could not be adequately rehabilitated to meet the requirements of her Military Occupational Specialty or physical fitness standards.  She was issued a permanent P3 profile and referred for a Medical Evaluation Board (MEB).  “Inflammatory bowel disease, ulcerative colitis” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded two medically acceptable conditions (seasonal allergies and left peritoneal (peroneal) tendonitis).  The Informal PEB adjudicated “intermittent abdominal pains with a biopsy confirmed diagnosis of UC” as unfitting, rated 10%, with application of the Veterans Affairs 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:  The CI requests the Board consider all conditions.  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:  

PEB – Dated 20041012	VA* - (~8 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Intermittent Abdominal Pains…UC	7323	10%	Ulcerative Colitis	7323	30%	20050720	
Seasonal Allergies	Not Unfitting	No VA Placement	
Left Peritoneal (Peroneal) Tendinitis			
Other MEB/PEB Conditions x 0 (Not in Scope)	Other x 0	
RATING:  10%	RATING:  30%	
*Derived from VA Rating Decision (VARD) dated 20051020 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

Intermittent Abdominal Pains…UC Condition.  The CI developed lower abdominal pain in July 2004 with a bowel movement with mucus and streaks of blood, and a 5-day history of nausea and vomiting.  There were physical exam findings of tenderness to palpation (TTP) throughout the entire lower abdomen.  The examiner prescribed increased fluids, increased fiber and ordered medication for nausea.  An abdominal CT scan done on 28 July 2004 was negative.  The CI continued to have episodes of vomiting and diffuse abdominal pain and was treated with intravenous (IV) fluids and given Quarters for 24 to 48 hours.  The CI had one ER visit for continued intense abdominal pain and bloody mucoid diarrhea in July 2004 and two ER visits in August 2004.  The General Surgeon in August 2004 documented a 2-month history of abdominal bloating, crampy pain and bloody diarrhea.  The CI had been started on a systemic steroid (Prednisone) without much relief.  The examiner diagnosed irritable bowel disease.  Stool specimens were negative for signs of infection (clostridium difficile, ova and parasites and white blood cells).  A colonoscopy with rectal biopsy was done on 17 August 2004 and the pathology report confirmed the diagnosis of UC.  There was no improvement with treatments with an antibiotic (Sulfasalazine), an anti-inflammatory drug (Mesalamine) and a steroid (Prednisone).  On 9 September 2004, an esophagogastroduodenoscopy (EGD) was performed which showed a hiatal hernia and esophagitis.  The commander’s statement documented that the CI had been placed on quarters at least once a week since her initial complaint of rectal bleeding, nausea and vomiting and that the CI had been evaluated several times and was continuously plagued with these (abdominal) symptoms.  Despite appropriate medical treatment, the CI continued to have symptoms and was reevaluated for chronic nausea, vomiting, abdominal pain and bloody mucoid diarrhea on 21 September 2004 (approximately 2 months prior to separation).  

The MEB Narrative Summary (NARSUM) exam approximately a month prior to separation documented that despite being compliant with a medical treatment regimen for ulcerative colitis, the CI continued to have bloody mucoid diarrheal stools which led to frequent episodes of dehydration along with daily, constant sharp left lower quadrant 8/10 abdominal pain which would awaken her at night.  Pain increased to 10/10 with eating and especially with certain foods (meat, bread, soda, caffeine and chocolate).  The CI placed herself on diet restriction of the previously mentioned items; however, she continued to eat fruit, vegetables and pasta.  She reported that her ability to function was worse because she was more tired and any increased activity caused a marked increase in abdominal pain.  She was presently taking only a medication for persistent heartburn (Prevacid), as all other medications had been discontinued.  Her weight was maintained between 130 and 132 pounds.  There were abdominal physical exam findings of mid epigastric to left lower quadrant TTP with guarding.  The examiner opined that the prognosis was that the CI would continue with cyclic remissions and recurrences of abdominal symptoms even with appropriate therapy.  

A gastroenterology (GI) treatment note dated 18 July 2005, 8 months after separation noted that the CI was pregnant and presented to the ER with 6 days of bloody diarrhea with concerns of a miscarriage.  History indicated that “this would be her third flare” with prior flares in May and August 2004 requiring systemic and rectal steroids.  The GI treatment was increased oral medication with addition of enemas.  

The VA Compensation and Pension (C&P) exam dated 20 July 2005, approximately 8 months after separation, documented that the CI continued to have diarrhea stools four to five times a day with bloody mucus stools and lower abdominal crampy pain.  The CI reported that she had no functional problems at work or home except when she had severe diarrhea.  Due to the cyclic nature of the disease, at the time of that exam, the CI was able to control her diarrhea so that it did not interfere with her schooling.  She was prescribed Mesalamine orally and in an enema preparation.  There were physical exam findings of a weight of 146 pounds (CI was pregnant), and abdominal crampy pains in the lower abdomen bilaterally.  There was no evidence of anemia or malnutrition.  A later VARD (March 2007) referenced a VA exam from June 2006 (approximately 19 months post-separation) that indicated continuing symptoms occurring more than 2/3 of the year, 4-6 times daily nausea/vomiting and chronic constipation and alternating diarrhea, and difficulty with prolonged sitting or standing.  Iron was added as a medication (for anemia).  The CI was well nourished with no significant anemia.  The VA increased the CI’s UC rating to 60% (higher of two evaluations) based on ongoing episodes that required numerous visits to the physician and changes to therapy.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB coded the condition as 7323 (Colitis, ulcerative), rated 10%, stating “Rated for moderate symptoms with infrequent exacerbations.”  The VA coded the ulcerative colitis condition as 7323, rated 30% for “moderately severe frequent exacerbations.”  The Board unanimously agreed that the CI did not approach the 60% or higher rating levels (her health appeared above “fair” during remissions, and there was no evidence of malnutrition, anemia or serious complication such as liver abscess) proximate to separation.  The Board adjudged the CI’s symptoms noted in her 2006 VA exam (VA rated at 60%) were post-separation worsening and not indicative of her disability picture at the time of separation.  The Board therefore deliberated between the 30% (moderately severe; with frequent exacerbations) and 10% (moderate; with infrequent exacerbations) rating levels.  The commander’s comments (evaluated several times and was continuously plagued with abdominal symptoms) supported by the MEB exam documentation of continued bloody mucoid diarrheal stools with frequent episodes of dehydration and abdominal pain, were adjudged by the majority of the Board as indicating moderately severe symptoms.  The Board also deliberated on the potential differences of “exacerbations” IAW VASRD 7323 and “flares.”  The post-separation GI treatment note indicated three “flares” in approximately 14 months with each requiring either a course of systemic steroids or a change in medication therapy; while the VA exam performed within 2 days of the GI treatment noted functional problems “when she has severe diarrhea.”  Although the CI was noted to be poorly compliant with medication, episodes of functionally limiting diarrhea was considered as likely exacerbations that did not require medication and would not be considered “flares.”  

The Board majority placed increased probative value on the pre-separation exams for rating at separation.  The Board majority agreed that the CI’s near continuous symptoms of bloody mucoid diarrheal stools with frequent episodes of dehydration and abdominal pain were moderately severe and that the CI’s disability picture at separation more nearly approximated the 30% rating criteria.  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 ulcerative colitis condition.  

Contended PEB Conditions.  The contended conditions adjudicated as not unfitting by the PEB were left peritoneal (peroneal) tendonitis (ankle area tendon) and seasonal allergies.  The Board’s first charge with respect to these conditions is an assessment of the appropriateness of the PEB’s fitness adjudications.  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.  Neither condition was profiled, implicated in the commander’s statement or judged to fail retention standards.  Both were reviewed and considered by the Board.  There was no indication from the record that either of these conditions 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 determination for either the left peroneal tendonitis or seasonal allergies contended conditions; and, therefore, no additional disability ratings can be recommended.  

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 ulcerative colitis condition, the Board, by a majority vote, recommends a disability rating of 30%, coded 7323 IAW VASRD §4.71a.  The single voter for dissent submitted the appended minority opinion.  In the matter of the contended left peritoneal (peroneal) tendonitis and seasonal allergies 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.  

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:  

UNFITTING CONDITION	VASRD CODE	RATING	
Intermittent Abdominal Pains … Ulcerative Colitis	7323	30%	
RATING	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140523, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MINORITY OPINION:

The minority voter concludes that the evidence of the record supports a determination that the ulcerative colitis was appropriately rated 10% “moderate; with infrequent exacerbations” IAW VASRD code 7323.

7323 	Colitis, ulcerative: 
		Pronounced; resulting in marked malnutrition, anemia, and general 
			debility, or with serious complication as liver abscess	100
		Severe; with numerous attacks a year and malnutrition, the health 
			only fair during remissions.	60
		Moderately severe; with frequent exacerbations	30
		Moderate; with infrequent exacerbations	10

The Gastroenterology note dated 18 July 2005 clearly specifies three flares as reported by the CI.  The first flare was in May 2004 when the CI was diagnosed.  The second flare was in August 2004.  The CI was separated from the Army in November 2004.  The third flare was in July 2005, 8 months after separation. The 18 July 2005 note states “her diarrhea started last Tuesday, 6 days ago…since then she has been having 3-4 bloody mucous bowel movements a day….and yesterday had some cramping.” 

Ulcerative colitis is characterized by alternating periods of flare-ups and remission.  The minority voter considers the July 2005 Gastroenterology evaluation to accurately reflect flares/exacerbations.  The minority voter further interprets the above information to reflect a period of remission from August 2004 until July 2005.

Furthermore, the CI underwent a C&P examination 2 days after the GI consult on 20 July 2005.  This exam made specific reference to her current symptoms of diarrhea four to five times a day with bloody mucus stools and lower abdominal crampy pain “similar to those that she had in June 2004.”  The minority voter deems this as further corroborating evidence of a lengthy period of remission and a third flare/exacerbation.  The C&P exam stated she was attending school and had no functional problems at work or home except when she has severe diarrhea and was able to control her diarrhea enough so that it didn’t interfere with her schooling.  

The minority voter also believes the nausea and vomiting noted in the treatment record was due to the diagnosed esophagitis hiatal hernia and not related to the ulcerative colitis, a disease of the large intestine/colon. 

The minority voter believes the above evidence more closely approximates a 10% for “moderate; with infrequent exacerbations.”  Therefore the minority voter recommends there be no re-characterization of the CI’s disability and separation determination.

SAMR-RB

28 JUL 2016

MEMORANDUM FOR Commander

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for XXXXXXXXXXXXXXXXXX, AR20160004556 (PD201402476)

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:

Enclosure

CF:
( ) DoD PDBR
( ) DVA