RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD1301313
BRANCH OF SERVICE:  Army	BOARD DATE:  20140211
DATE OF PLACEMENT ON TDRL:  20030501
Date of Permanent SEPARATION:  20040311

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (62F/Crane Operator) medically separated for asthma.  The CI was referred to the pulmonary disease clinic in February 2001 due to cough, shortness of breath and wheezing.  The CI reported a long history of respiratory complaints since he was 10 years old.  Pulmonary function testing (PFT) was performed and the CI was diagnosed with moderate persistent asthma and started on asthma medications.  The asthma condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent P3 profile and referred for a Medical Evaluation Board (MEB).  Moderate persistent asthma was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated the asthma as unfitting, existing prior to service but compensable IAW 10 USC 1207a and rated 30% with placement on the Temporary Disability Retired List (TDRL).  After 9 months on TDRL, the asthma condition was considered to be stable but still unfitting.  He was removed from TDRL in 2004 and permanently separated, without appeal, with a 10% disability rating.

CI CONTENTION:  The CI elaborated no specific contention in his application.

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 those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The rating for the unfitting asthma condition is addressed below; and, no additional conditions are within the DoDI 6040.44 defined purview of the Board.  Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Final Service PEB - 20040210	VA (over 5 YEARS after separation) - Effective 20090427	
On TDRL - 20030501	Code	Rating	Condition	Code	Rating	Exam	
Condition		TDRL	Sep.					
Asthma	6602	30%	10%	Asthma	6602	30%	20090923	
No Additional MEB/PEB Entries.	No Additional VA Entries	
Rating:  30% → 10%	Rating: 30%	

ANALYSIS SUMMARY:  The Board must emphasize that the Disability Evaluation System has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.

Asthma Condition.  Due to intermittent respiratory symptoms and sick call visits in the year 2000, the CI was sent for a pulmonary specialty evaluation in February 2001.  A markedly positive methacholine provocation test established the diagnosis of moderate persistent asthma.  He was prescribed a combination inhaled bronchodilator and steroid (Advair) to be used daily and an inhaled rescue bronchodilator (Albuterol) to be used on an as-needed basis.  During the next year and a half he experienced some exacerbations usually in the context of medication non-compliance.  Review of the service treatment record shows that during the year prior to placement on TDRL he experienced one documented exacerbation requiring a course of oral steroid medication.  At the narrative summary (NARSUM) exam on 1 October 2002 (7 months prior to placement on TDRL) the CI reported that it had been over a year since his respiratory function “felt very good.”  Although he had passed his physical fitness testing in February 2002, he still fell out of formation runs due to asthma symptoms and also experienced symptoms almost every night.

At the TDRL re-evaluation NARSUM exam on 3 December 2003 (3 months prior to removal from TDRL) the CI denied any emergency room visits or hospitalizations for treatment of asthma.  He complained of wheezing episodes approximately twice per week.  Although the CI had been out of his Advair medication since the summer, he was presently on Azmacort (inhaled steroid).  Chest X-ray showed moderate lung hyperinflation.

Pulmonary Exam	MEB ~ 8 Mo. Pre-TDRL Entry	MEB ~ 3 Mo. Pre-TDRL Exit	
FEV1 (% Predicted)	85	106	
FEV1/FVC	70%	69%	
Meds	Advair and Albuterol with lapses in compliance	Azmacort	
§4.97 Rating	30%*	30%*	
		*Based on PFT result.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB assigned a 30% rating at the time of placement on TDRL.  A 30% rating is warranted for daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication; or an FEV1/FVC of 56-70%.  The Board agreed that the PFT result supported the PEB’s 30% rating.  There was no documentation of monthly physician visits for care of exacerbations or a sufficient number of prescribed courses of systemic corticosteroids to support the next higher 60% rating.

Next the Board turned its attention to a permanent rating at the time of removal from TDRL.  The PEB cited “medication profile submitted does not reflect daily inhalational therapy” as the rationale for a 10% rating.  However, VASRD §4.97 does not stipulate that inhaled steroids (which the CI was using) be used every day in order to justify a 30% rating; nor does it specify a frequency of use required to justify that rating.  However, the PFT results at this exam render debate about medication usage moot, because the FEV1/FVC ratio of 69% also met the requirements for a 30% rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends no change in the TDRL-entry rating of 30%, and a rating of 30% for the asthma condition at the time of permanent separation.

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 asthma condition, the Board unanimously recommends no change in the PEB adjudication at the time of placement on TDRL, and a permanent rating after removal from TDRL of 30%, coded 6602 IAW VASRD §4.97.  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 recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
Asthma	6602	30%	30%	
RATING	30%	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130912, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

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, AR20140013956 (PD201301313)

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 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