RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00002
BRANCH OF SERVICE:  Army	BOARD DATE:  20150324
DATE OF PLACEMENT ONTO TDRL:  20041001
DATE OF REMOVAL FROM TDRL:  20060623

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-3 (Radio Telephone Operator) medically separated for asthma.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was issued a permanent P3 profile and referred for a Medical Evaluation Board (MEB).  Asthma was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified vocal cord dysfunction and gastroesophageal (GERD) for PEB adjudication.  The Informal PEB adjudicated asthma as unfitting, rated 30% with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be not unfitting.  The CI did not appeal and was placed on the Temporary Disability Retired List (TDRL).  After his final TDRL examination the Informal PEB adjudicated asthma as unfitting, rated 0%.  The CI made no appeals and was medically separated.

CI CONTENTION:  His asthma and GERD conditions continue to worsen.  He was not evaluated for aback condition.  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 condition 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 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:

Final PEB – 20060530	VA Rating Decision1 - 20071218	
TDRL Placement – 20040721	Code	Rating	Condition	Code	Rating
Proximate	
Condition		TDRL
Placement	TDRL Removal			TDRL2
Placement	TDRL3 Removal	
Asthma	6602	30%	0%	Asthma	6602	10%	10%	
Gastroesophageal                    [Vocal Cord Dysfunction]	Not Unfitting	Gastroesophageal Reflux Disease	7346	0%	0%	
Other MEB/PEB Conditions x 0 (Not In Scope)		
RATING:  30% → 0%	RATING:  30%	
*Derived from VA Rating Decision (VARD) dated 20071218 (most proximate to date of separation [DOS])
1.  Most proximate to TDRL Placement
2.  Rating derived from service treatment record (STR) and C&P exam 20041207
3.  Rating derived from C&P exam dated 20041207

ANALYSIS SUMMARY:  

Asthma.  The MEB narrative summary (NARSUM) detailed that the CI first noted dyspnea (shortness of breath) on exertion, with chest tightness and wheezing in December 2002 after arriving in Korea.  He was treated with inhalers without significant relief.  He had no hospitalizations but had 2-3 visits to the Troop Medical Clinic.  A methacholine challenge test on 4 November 2003 demonstrated “Severe airway hyperreactivity,” supporting a diagnosis of asthma.  Pulmonary function tests (PFTs) on 13 April 2004 showed FEV-1 (forced exhalation over 1 second) after bronchodilator treatment at 74% of predicted value, and FEV-1/FVC (FEV-1 compared to FVC, a full exhaled breath) at 79%.  At the MEB NARSUM exam on 20 April 2004 (6 months prior to placement on TDRL), his lungs were clear.  The examiner stated, “I believe the patient to be compliant with medication use.”  At the DD Form 2808, Report of Medical Examination, on 19 May 2005 (5 months prior to TDRL placement), the CI had a normal lung and chest examination.  PFTs taken on 10 June 2004 (4 months prior to TDRL placement) showed FEV-1 80% of predicted and FEV-1/FVC at 79%.

At the VA Compensation and Pension (C&P) exam on 17 December 2004, 2 months after TDRL placement, the CI reported that he usually coughed every morning and produced some sputum that was yellow, clear, and junky.  His treatment included Advair (steroid) inhaler twice a day and albuterol as needed.  Post-bronchodilator PFTs showed FEV-1 at 3.53 liters (estimated to be 84% of predicted), FVC at 4.45 liters (96% of predicted), and FEV-1/FVC ratio at 79%.

The Board directed its attention to its rating recommendation at the time of TDRL placement based on the above evidence.  The PEB rated the condition with code 6602 (asthma) at 30% based on daily inhalational steroids, and placed the CI on the TDRL.  The VA also rated the condition with code 6602, missing the daily inhalational steroids [Advair] criterion, and rated the condition 10%.  The Board noted that the MEB NARSUM reported that the CI was on daily Advair, an inhaled steroid, which warranted a 30% rating for inhalational anti-inflammatory medication.  A higher rating was not supported by the PFT results (FEV-1 and FEV-1/FVC), frequency of visits to a physician, use of systemic corticosteroids, or episodes of respiratory failure.

The Board next considered its rating recommendation at the time of removal from the TDRL.  The CI was reevaluated on 15 March 2005.  The CI reported he had continued on Advair and Albuterol until recently when his Advair was switched to a long acting bronchodilator (Formoterol) and a different inhaled steroid (Flunisolide).  Since then, he “had no real problems,” his asthma control was at his baseline, he had no hospitalizations, he required no steroid bursts and he used Albuterol about 2 to 3 times a week (although precise usage of the inhaled steroid was not documented).  He got short of breath with one flight of stairs and he had “frequent exacerbations around a variety of allergens, industrial chemicals, and things like that.”  His lungs were clear on examination.  PFTs done on 15 March 2006 showed post-bronchodilator FEV-1 at 83% of predicted and FEV-1/FVC at 74%; and were interpreted as a mild obstructive ventilator defect without a significant response to bronchodilation.  There was no follow-up VA examination.

At the time of the PEB, the PEB requested pharmacy prescription records.  Review of these records from the VA where the CI was receiving care showed the last time the CI obtained prescription refills for his asthma medications was in October 2005, 5 months before the TDRL examination.  The PEB rated the condition with code 6602 at 0%, stating, “The Soldier denied night time awakenings, hospitalizations but reported shortness of breath with exertion.  The pulmonary function tests showed an FEV-1 of 80% and a FVC of 93% with no bronchodilator medications, a review of pharmacy records documents that the Soldier has not taken medications as prescribed.”  The CI concurred with the PEB determination.  As noted above, PFTs showed an FEV-1/FVC ratio of 74% and the examiner stated that the CI used Albuterol about 2-3 times a week (constituting intermittent inhalational therapy), both of which support a rating of 10% under code 6602.  A rating of 60% or higher was not supported as there was no evidence of at least monthly visits to a physician for required care of exacerbations, use of systemic corticosteroids, or episodes of respiratory failure.  The Board discussed the evidence of the pharmacy records used by the PEB indicating the CI was not taking inhaled anti-inflammatory medication.  The computerized VA pharmacy report in the record and was dated 14 March 2006 and reflected all medications prescribed and filled since January 2005.  The Board majority found no reason to conclude the report was incomplete and there was no evidence in the record that the CI was obtaining care and medications from other sources.  Finally the CI concurred with the PEB’s determination based on this information.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (Reasonable doubt), the Board majority recommends a disability rating of 10% for the asthma condition at TDRL removal.

Contended PEB Conditions.  The Board’s main charge was to assess the fairness of the PEB’s determination that gastroesophageal reflux (GERD) and vocal cord dysfunction were not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The MEB NARSUM noted that the CI got frequent heartburn for which he took antacids multiple times per week.  He was not on any prescribed medication for this.  The examiner stated that the CI’s asthma symptoms might improve with treatment for vocal cord dysfunction and GERD, but did not state that the vocal cord dysfunction or the GERD affected the CI’s duty status.  The physical profile did not annotate GERD as a medical diagnosis of interest.  The Board did not find any office visits specific for GERD in the available service treatment record.  There was no performance based evidence from the record that the GERD condition significantly interfered with satisfactory duty performance.

Vocal cord dysfunction (VCD) occurs when the vocal cords (voice box) do not open correctly.  VCD is sometimes confused with asthma because some of the symptoms are similar and some people with asthma may also have VCD.  The symptoms of VCD that are similar to asthma would be included in the rating of asthma, to avoid the evaluation of the same disability under two different diagnoses IAW §4.14 (Avoidance of pyramiding).  The Board did not see any evidence that symptoms unique to VCD (i.e., throat tightness, hoarse voice, and voice changes) were separately unfitting for duty and should be rated under a different code such as 6516 (Laryngitis, chronic).  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 contended gastroesophageal reflux and vocal cord dysfunction conditions and so no additional disability ratings are 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 asthma condition and IAW VASRD §4.97, the Board unanimously recommends no change in the PEB adjudication at TDRL placement.  In the matter of the asthma condition at TDRL removal, the Board, by majority vote, recommends a disability rating of 10%, coded 6602 IAW VASRD §4.97.  The single voter for dissent submitted the appended minority opinion.  In the matter of the contended gastroesophageal reflux and vocal cord dysfunction 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, effective as of the date of his prior medical separation:  

CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
Asthma	6602	30%	10%	
RATING	30%	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131219, 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 XXXXXXXXXXXXXXXXXXX, AR20150018729 (PD201400002)

1.  I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) majority recommendation, minority opinion and record of proceedings pertaining to the subject individual.  Under the authority of Title 10, United States Code, section 1554a, I reject the Board’s recommendation to modify the individual’s disability rating to 10% without recharacterization of the individual’s separation and accept the Board’s minority opinion 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

MINORITY OPINION: 

Based on VASRD §4.3 (reasonable doubt), the minority finds the CI’s asthma condition at the time of TDRL removal supports a 30% rating versus the majority vote 10% recommendation.

At the time of TDRL removal, the Service examiner (15 March 2006) documented the CI reported requiring continued asthma medication:  Formoterol (bronchodilator) and Flunisolide (inhaled anti-inflammatory steroid) in place of Advair (inhaled anti-inflammatory steroid).  The requirement for Flunisolide constitutes the use of an inhaled steroid, which warranted a 30% rating for inhalational anti-inflammatory medication.  The examiner did not provide another medication listing and stated “not change in medications” in the evidence below.

The Service examiner concluded on the “Assessment” portion of the exam, “So, the assessment is that the patient has mild persistent asthma, along with vocal cord dysfunction, that is currently controlled with current therapy.”. . .“So, [I] would recommend continued temporary disability retirement list status in that the patient is not eligible to come back on active duty.  No change in medications.”

The PEB Form 199 dated 30 May 2006 stated, “The pulmonary function tests showed an FEV1 of 80% and a FVC of 93% with no bronchodilator medications, a review of pharmacy records documents that the Soldier has not taken medications as prescribed.”

The minority concedes that the medication profile is unclear.  However, based on reasonable doubt and the aforementioned Service examiner findings and PEB 199 statement, the minority finds the CI had mild asthma and was receiving therapy (asthma medications).  The only asthma medication documented, by the Service examiner, at the time of TDRL removal consisted of inhaled steroid, which warranted a 30% rating for inhalational anti-inflammatory medication.  There is no post-TDRL removal VA evidence.

RECOMMENDATION:  The Board minority, therefore, 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:

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