RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD1301583
BRANCH OF SERVICE:  Army	BOARD DATE:  20140402
DATE OF PLACEMENT ON TDRL:  20060116
Date of Permanent SEPARATION:  20070919 

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (52D/Power Generator Equipment Repairer) medically separated for asthma.  He suffered previously intermittent and mild respiratory symptoms which were exacerbated during a deployment to Iraq (August 2004-January 2005), and was diagnosed with asthma soon after redeployment.  He presented to Behavioral Health in July 2005; was ultimately diagnosed with “Major Depressive Disorder (MDD) single episode;” and responded favorably to treatment.  In spite of maximal medical therapy, 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/S1 profile and referred for a Medical Evaluation Board (MEB).  Asthma was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MDD condition was also forwarded, with the MEB’s DD Form 3947 noting it as failing retention standards; but, this is assumed to be in error since the psychiatric addendum to the narrative summary (NARSUM) stated that it did meet retention standards referencing the same AR 40-501 sections as those quoted on the DA Form 3947 and the condition was not separately addressed by the NARSUM.  The MEB also identified and forwarded two additional conditions (allergic rhinitis and gastroesophageal reflux disease [GERD]) as meeting retention standards.  The PEB adjudicated the asthma condition as unfitting, rated 30% with application of the VA Schedule for Rating Disabilities (VASRD).  The MDD and two additional conditions were determined to be not unfitting.  The CI was placed on the Temporary Disability Retired List (TDRL) in January 2006 for the asthma condition.  After 20 months on TDRL, the asthma condition was considered to be stable but still unfitting, and rated 10% (citing criteria of the VASRD).  The CI was removed from TDRL in September 2007 and permanently separated.

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.  In addition, the CI was notified by the Service that his case qualifies for review of his mental health (MH) condition in accordance with the Secretary of Defense directive for a comprehensive review of Service members who were referred to a disability evaluation process between 11 September 2001 and 30 April 2012 and whose MH diagnoses were unfavorably changed or eliminated during that process.  In response to said notification, it is presumed that the CI has elected review by this Board for the MH condition.  Accordingly, the case file was reviewed regarding unfavorable diagnosis change, fitness determination, applicability of VASRD §4.129, and rating (via §4.129 or §4.130 as appropriate) of the MH condition service adjudicated as not unfitting.  The rating for the unfitting asthma condition and the above considerations for the MH condition are addressed below.  The allergic rhinitis and GERD conditions, identified as not unfitting by the PEB, were not requested for review and thus is are not within the defined scope.  Those or any other conditions or contention not requested in this application remain eligible for future consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Final Service PEB - 20070724	VA (>5 years post separation) - Effective 20100528	
On TDRL - 20060116	Code	Rating	Condition	Code	Rating	Exam	
Condition		TDRL	Sep.					
Asthma 	6602	30%	10%	Asthma	6602	30%	20130315	
Major Depressive Disorder	Not Unfitting	Bi-Polar Disorder, Type II	9432	50%	20130315 	
No Additional MEB/PEB Entries.	Other x 2	20130315	
Rating:  30% → 10%	Combined: 70%	

ANALYSIS SUMMARY:  The Board notes the earliest VA evaluation was over 5 years after the date of permanent separation.  DoDI 6040.44 provides for consideration of post-separation VA findings, particularly within 12 months of separation, although the Board’s recommendation is premised on the degree of disability at separation.  Therefore the Service evidence was assigned the determinant probative value with respect to the Board’s recommendations.

Asthma.  The CI had no pre-Service history of symptoms or diagnosis of asthma.  There are sporadic complaints of exertional shortness of breath in the service treatment record (STR) dating to 2002.  The symptoms were greatly exacerbated during his 2004 deployment to Iraq, where he was dependent on daily use of a rescue inhaler.  Although symptoms improved significantly after redeployment, he suffered persistent symptoms with exertional limitations imposed by bronchospasm (wheezing).  He was prescribed Advair (inhaled steroid, anti-inflammatory), Singulair (oral bronchodilator) and an Albuterol rescue inhaler.  He remained on these medications (daily) until the time of TDRL placement.  He did not require any systemic corticosteroids or hospital admissions.  The pre-TDRL NARSUM documented that the CI was stable, but that the asthma condition failed retention standards.  The examiner documented compliance with the above listed medications and cited the pulmonary function test (PFT) results charted below.

There is no STR, VA, or civilian treatment evidence from the period of TDRL and, as noted, there is no significantly probative VA evidence relevant to the separation date.  The clinical narrative from the TDRL re-evaluation was brief, and the relevant content is excerpted below: 
Patient here for TDRL after MEB 2005 for moderate persistent asthma.  Current therapy is Asmanex (mometasone 220 mcg bid [one puff twice a day]) with albuterol rescue.  Since on current therapy reports decent control unless URI [upper respiratory infection] symptoms.  In last two weeks uses albuterol 1x every 3 days.  Nocturnal symptoms 2x/week.  No change since stopping Advair.
The final PEB at separation requested documentation of medication dispensing and the CI submitted a pharmacy log from the local VA facility as his sole source.  The medication profile from that facility documented dispensing of mometasone (inhaled steroid, anti-inflammatory) in 90 day quantities (3 inhalers with 60 doses each).  The last dispensing was 18 June 2007 (~1 month prior to the PEB) and the only other dispensing listed was for 3 May 2006 (11 months prior and 4 months after commencing TDRL).  The record also lists dispensing of 90-day quantities of Advair on the same dates.  There were a total of 5 dispenses of single Albuterol inhalers (each lasting 25 days if used daily).  The initial VA examination for asthma, 5 years remote from separation, noted that the CI was “doing well on current MDI [metered dose inhaler] meds”; and, documented daily use without specifying the medications.  The VA PFT evaluation was significantly improved over service results (charted below).
There were numerous PFT evaluations in evidence, and the ratable parameters (post-bronchodilator values when available) are summarized in the chart below.

Date	Context	FEV1 %	FEV1/FVC %	§4.97 Rating Via PFT Only	
20050207	11 Mo. Pre-TDRL	99	83	10%	
20050316	↓	83	78	10%	
20050419	↓	93	81	10%	
20050712	↓	87	79	10%	
20050726	6 Mo. Pre-TDRL	87	93	10%	
20070523	End-TDRL	90	76	10%	
20130315	VA 5 Yr. Post-Sep	111	104	Does not meet minimum.	

The Board directs attention to its rating recommendation based on the above evidence.  The unequivocal VASRD code for rating asthma is 6602.  VASRD §4.97 defines both PFT-derived criteria and clinical treatment criteria for rating under 6602.  Ratings higher than 30% require significant reduction in PFT parameters, systemic corticosteroids or hospitalizations.  The §4.97 criteria under 6602 for the ratings which can be considered in this case are excerpted below:
		FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56 to 70 
			percent, or; daily inhalational or oral bronchodilator therapy, 
			or; inhalational anti-inflammatory medication………………….……..30  
		FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71 to 80 
			percent, or; intermittent inhalational or oral bronchodilator therapy…10

The PEB’s DA Form 199 at the time of TDRL placement referenced the daily medications in support of the 30% asthma rating.  The DA Form 199 at separation documented the PFT results consistent with a 10% rating; and further stated, “Review of Soldier's pharmacy records document that he takes his prescribed bronchodilator medications intermittently.”  The pharmacy evidence (confirmed by the CI as his only source) corroborates the PEB’s conclusion.  Although the refill shortly preceding the final PEB would support an assumption that the CI was using daily medications at that point in time, there was significantly inadequate dispensing to meet a daily requirement for medication (for both inhaled bronchodilators and anti-inflammatories) over the preceding 11 months.  After due deliberation, with consideration to VASRD §4.3 (reasonable doubt), the Board agreed that there was insufficient cause to recommend a change in the PEB permanent rating adjudication for the asthma condition.

Contended MH Condition.  There is an STR entry dated 8 July 2003 (a year pre-deployment) which lists “intermittent explosive disorder,” “unspecified affective psychosis” and “neurotic depression” on the problem list and listed an anti-depressant with medications.  There are no associated explanatory entries, however.  There is no available evidence of MH treatment during the Iraq deployment, nor are there Behavioral Health notes in evidence following deployment; although, the psychiatric addendum documents treatment commencing on 15 July 2005 (6 months post-deployment).  Members agreed that the missing records were not sufficiently probative (would not affect recommendation) to warrant the processing delay for attempts at retrieval.  The post-deployment health assessment was performed on 28 December 2004, just prior to redeployment.  This denied exposure to Criterion A stressors or symptoms of PTSD or depression, but did express an intent to seek MH care.  There are passing comments in unrelated STR entries which denied MH symptoms or gross mental status findings; although, there is an entry from the pulmonary clinic on 16 June 2005 documenting that the CI was requesting fast processing and was “very anxious about being in the military with the possibility of a 2nd deployment at the end of this year.”  There was no diagnosis of PTSD, provisional or otherwise, by any provider.  There is no STR evidence of suicidal ideation or attempts, serious disciplinary or legal issues, alcohol/substance abuse or psychiatric crisis/hospitalization.
The psychiatric addendum reported an initial MH visit for “anhedonia, feeling socially isolated and unsupported by his command and he was experiencing some symptoms of combat stress.”  The examiner noted that she had started Wellbutrin (anti-depressant) and that, “Since then, his conditions have steadily improved.  His symptoms, including poor sleep, decreased motivation and decreased energy, are in remission.”  The mental status examination was normal and the Global Assessment of Functioning (GAF) assignment was 65 (mild range of impairment).  In addition to making the statement that the CI met retention standards as elaborated in the summary, the examiner opined that he was “world wide deployable … [and] … does not require a psychiatric profile.”  The MH condition was not profiled in service until MDD with an S3 designation (not prohibiting weapon access) was added to the permanent profile issued 6 months prior to TDRL; and, confusingly, there is an identical profile with the same date and signatories which does not list a MH condition and is designated S1.  The commander’s performance statement was dated 6 weeks after the S3 profile and noted only the pulmonary limitations.  More importantly the psychiatric addendum with the above profile opinion was dated 2 months after the S3 profile, and it is likely that there was an administrative omission of revising the permanent profile.

The MDD condition was not clinically active throughout TDRL; as evidenced by the (remote) 2013 VA psychiatric evaluation (referenced above) which stated, “He had no treatment whatsoever between 2005 and 2010.”  That evaluation cited a claim for PTSD, but the examiner opined that criteria were not met for the diagnosis.

The Board directs attention to its recommendation based on the above evidence; and, it’s first assessment with regard to the MH condition, under guidelines of the MH Review Project, is to judge (based on a preponderance of evidence) whether a diagnosis was changed to the disadvantage of the applicant or whether a diagnosis of PTSD was changed or unfairly eliminated.  Under the Terms of Reference of the MH Review Project, the Board considers the criteria for diagnosis of PTSD as specified in the Diagnostic and Statistical Manual for Mental Disorders IV - Text Revision (DSM IV-TR): the evidence for the stressor (criterion A), re-experiencing of the event (criterion B), persistent avoidance of stimuli associated with the trauma (criterion C), hyperarousal (criterion D), duration and onset (criterion E) and presence of significant distress or impairment in social, occupational or other important area of functioning (criterion F).  There was no diagnosis of PTSD in evidence before the PEB and there was no unfavorable consequence associated with the PEB adjudicated diagnosis.  This case does not meet the inclusion criteria in the Terms of Reference of the MH Review Project.

The Board then turned to its assessment of the fairness of the PEB’s determination that the diagnosed MH condition (MDD) was not unfitting.  The Board’s threshold for countering 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.  Based on the circumstances elaborated above, the Board agreed that the de facto MEB determination was that the MH condition met retention standards and that the profile at separation was effectively an S1.  These factors, coupled with the lack of implication of any MH-based performance limitations by the commander or any evidence from the STR suggesting same, are strong arguments opposing a conclusion that the MH conditions are reasonably recommended as unfitting.  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 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 asthma condition and IAW VASRD §4.97, the Board unanimously recommends no change in the PEB adjudications for the period of temporary retirement or permanently.  In the matter of the contended MH condition, 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 recharacterization of the CI’s temporary and permanent Service determinations.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130919, 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, AR20140013576 (PD201301583)

I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual.  Under the authority of Title 10, United States Code, section 1554a,   I accept the Board’s recommendation and hereby deny the individual’s application.  
This decision is final.  The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

 BY ORDER OF THE SECRETARY OF THE ARMY:

Encl						     
CF: 
(  ) DoD PDBR
(  ) DVA