RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2013-01948	
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20050131

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Motor Transport Operator) medically separated for asthma.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  The profile allows for an alternate aerobic event to satisfy physical fitness standards.  He was issued a permanent P3 profile and referred for a Medical Evaluation Board (MEB).  The “severe persistent asthma” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB adjudicated the asthma as unfitting, rated 10%, citing criteria of the Veterans Affairs Schedule for Rating Disabilities (VASRD), but qualifying its determination by citing non-compliance with prescribed medication.  The CI made no appeals and was medically separated.  

CI CONTENTION:  The applicant requests the board review his asthma rating.  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:  

IPEB – Dated 20041123	VA* - (~3 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Asthma	6602	10%	Sleep Apnea with Asthma and Allergies	6602-6847	50%**	20050510	
Other x 0 (Not In Scope)	Other x 2(equals SC, NSC & deferred)	
RATING:  10%	RATING: 50%	
*Derived from VA Rating Decision (VARD) dated 20050819 (most proximate to date of separation (DOS)).  
**VARD 20130610 awarded separate disability for Allergic Rhinitis at 10% (DC 6522) which had previously been recognized as part of the Sleep Apnea/Asthma/Allergy disability as noted.  

ANALYSIS SUMMARY:  

Asthma Condition.  The CI developed intermittent shortness of breath while in Kuwait and was hospitalized several times and required multiple courses of prednisone (systemic corticosteroid).  While in Kuwait, he was started on daily Flovent (fluticasone-steroid anti-inflammatory bronchodilator), Albuterol (inhaled bronchodilator) and Flonase (a steroid nasal spray).  The CI was evaluated with shortness of breath related to exercise in May 2004 with pulmonary function testing (PFT) demonstrating mild obstructive disease with good response to bronchodilators.  The treatment regime was changed to daily use of Advair (fluticasone/salmeterol-combined inhalational steroid/bronchodilator), Flovent and Zyrtec (oral antihistamine).  On 9 June 2004, the CI again reported shortness of breath and wheezing.  Physical exam documented mild scattered wheezes in the lungs and the internist started the CI on oral prednisone (burst of systemic corticosteroid) and Singulair (montelukast-oral indirect-acting bronchodilator).  The CI had an asthma exacerbation on 15 June 2004 and was hospitalized and treated with intra venous (IV) Solumedrol (systemic corticosteroid) and an albuterol nebulizer treatment.  The CI required prednisone bursts in July 2004 and again in September 2004 for episodes of cough and shortness of breath.  Subsequent PFT testing done in June through November 2004 continued to show mild to moderately severe obstructive pulmonary disease despite reported use of Advair, Flovent and Singulair.  

The MEB Narrative Summary (NARSUM) exam approximately 3 months prior to separation documented that the CI’s intermittent shortness of breath was worsening over time.  The CI experienced chest tightness with running and shortness of breath with grass and pollen exposure.  He had nightly nasal stuffiness and used his albuterol inhaler every 2-3 hours repeatedly and during the daytime, he used it every 5 hours.  The motor pool fumes increased his shortness of breath.  His breathing was also affected by PT and extremes of temperature.  The examiner noted a persistent dry cough with intermittent wheezing.  The CI’s current medications were Advair, Albuterol, Flovent, Zyrtec, Singulair and Flonase.  Physical exam noted swollen pale nasal turbinates and harsh breath sounds with occasional intermittent scattered wheezes.  The examiner indicated that the CI had functional limitations of an inability to wear a protective mask, use a respirator in the motor pool and an inability to perform a 2-mile run, all of which caused a significant exacerbation of the shortness of breath.  The examiner opined that the CI’s clinical status was unstable.  

The CI required ER treatment for an acute asthma exacerbation in January 2005.  He received an albuterol/atrovent nebulizer treatment and was started on an oral prednisone burst (systemic corticosteroid).  The examiner noted that the CI was taking Advair, Zyrtec, Flovent, Flonase, Singulair and Albuterol as prescribed.  

A VA treatment note in March 2005 indicated that the CI continued on his asthma medication treatment regime which included Advair twice daily and required albuterol twice daily instead of every 3 hours as needed.  Lungs were clear.  

The VA Compensation and Pension (C&P) exam approximately 3 months after separation documented that the CI continued to suffer from severe asthma.  He had shortness of breath when he did any physical activity.  He reported asthmatic attacks as often as three times per year.  The examiner noted that the CI’s medications were a daily inhalation anti-inflammatory medication (Advair); a steroid; an inhalation bronchodilator (Albuterol); and an oral bronchodilator (Singulair).  There were physical exam findings of extensive wheezing in the lungs.  The PFT findings are summarized in the chart below.  

Pulmonary Exam	PFT ~3 Mo. Pre-Sep	MEB ~3 Mo. Pre-Sep	VA C&P ~3 Mo. Post-Sep	
FEV1 (% Predicted)	77%	-	79%	
FEV1/FVC	95%	-	69%	
Meds:  (see text)	Prednisone, Advair, Flovent, albuterol	Advair, albuterol; add Flovent and prednisone	Inhalation anti-inflammatory medication; oral steroid daily; inhalation bronchodilator daily; oral bronchodilator daily	
§4.97 Rating	30%-60%	30%-60% (PEB10%)	30%-60%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the asthma condition at 10%, coded 6602 (asthma, bronchial) and stating, “Asthma for which Soldier is supposed to be using three medications to control the symptoms.  However review of the pharmacy record indicates Soldier is not using Advair as prescribed.  Rated as, Soldier is not fully compliant with medical management.”  Although DoDI 1332.39 (rescinded) and AR 635-40 (at the time) both discussed provisions for decreased ratings with non-compliance, rating IAW the VASRD does not.  

The VA coded and rated the asthma condition along with obstructive sleep apnea (OSA) at 50%, coded 6602-6847 (IAW VASRD §4.96 for a single rating for coexisting respiratory conditions-the VARD stated that asthma and allergies would otherwise be rated at 30%).  OSA was not an unfitting condition, is not physiologically linked to asthma, and was excluded from rating for DoD purposes.  

No recorded PFT results would warrant higher than a 10% rating, and the CI did not have respiratory failure; therefore the Board concentrated attention to rating criteria based on medication use.  The 30% rating for asthma for “inhalational anti-inflammatory medication” does not require daily use.  The medication profile documented that the CI was issued sufficient Advair and/or Flovent for at least episodic use, and given the likelihood of medications prescribed from the ER and inpatient pharmacies which often do not appear on the medication profile, the Board adjudged that the CI met at least the 30% rating criteria.  The Board next considered if the CI met the 60% rating criteria for “intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids.”  

The record documented at least three courses of systemic (oral or parenteral) corticosteroids for control of asthma in the year prior to separation (9 June 2004 [oral] and 15 June 2004 [IV]; 12 July 2004; 13 September 2004 and 23 September 2004; and 4 January 2005).  The Board agreed that the multiple courses of systemic steroids during the year prior to separation met the 60% rating criteria.  There was insufficient evidence that the CI required daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications to support any rating higher than 60%.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 60% for the asthma condition IAW §4.97.  

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.  As discussed above, PEB reliance on DoDI 1332.39 and AR 635-40 for rating asthma were likely operant in this case and the condition was adjudicated independently of that instruction and regulation by this Board.  In the matter of the asthma condition, the Board unanimously recommends a disability rating of 60%, 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	
Asthma	6602	60%	
COMBINED	60%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131029, 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 XXXXXXXXXXXXXXXX, AR20150018693 (PD201301948)

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 60% 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 60% 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