RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00587
BRANCH OF SERVICE:  Army  	
DATE OF PLACEMENT ONTO TDRL:  20050826
DATE OF REMOVAL FROM TDRL:  20070405 

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-6, Multichannel Transmission System Operator/Maintainer 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).  The “mild 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 his asthma as unfitting, rated 30%, citing application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was placed on Temporary Disability Retired List (TDRL).  Approximately 19 months later, the IPEB adjudicated the asthma as unfitting, rated 10%, citing application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI rebutted the findings and rating, but did not request a formal hearing and was subsequently medically separated.  

CI CONTENTION:  “My initial rating was 30% with retirement.  After an exam in 2007 I was found fit for duty and was told I could go back in the military.  In 2007 I was not [in] any condition to go back into the military and I have employment obligations to fulfil.  In 2008, I began to try to reenlist in the Army and the National Guard.  I was told at that time that I was not going to be allowed back in.  I feel that I was cheated out of my retirement and out of a career.  I was enlisted for close to nine years with an outstanding record.  I was a role model soldier and for this to happen is an injustice.”  

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 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 time of separation.  

RATING COMPARISON: 

Final PEB – 20070314	VA Rating Decision1 - 20060330	
TDRL Placement – 20050826	Code	Rating	Condition	Code	Rating
Proximate	
Condition		TDRL
Placement	TDRL Removal			TDRL2
Placement	TDRL3 Removal	
Asthma	6602	30%	10%	Asthma	6602	0%	0%	
Other x 0 	Other x 5	
RATING:  30% → 10%	RATING:  0%	
1. Most proximate to TDRL Placement
2. Rating derived from C&P exam dated 20051122, ~2 mos. post-TDRL placement
3. Rating derived from C&P exam dated 20090320, ~23 mos. post-TDRL removal 

ANALYSIS SUMMARY:  

Asthma.  The service treatment record (STR) and narrative summary (NARSUM) documented that the CI had a history of childhood asthma that was asymptomatic during adolescence.  In 1999, after 3 years in service, he experienced a “short period of shortness of breath, possibly related to pollen.”  In October 2001, there was documentation of a diagnosis of bronchitis with prescription of a bronchodilator and allergy medications.  The CI reportedly “had a few attacks” while on deployment to Iraq in 2003 (no documentation in evidence).  In November 2004, he again experienced shortness of breath and was given albuterol, which was used “about once a week.”  Shortly after arrival to Kuwait in January 2005 (7 months prior to TDRL placement), he had experienced an asthma attack within the first week, that resulted in transfer back stateside.  An initial pulmonary function test (PFT) (on 24 January 2005) documented a “mild restrictive ventilatory defect” based on an FEV1 (forced expiratory volume in 1 second) of 69% prior to bronchodilator treatment and 89% after bronchodilator treatment.  Oral and inhaled anti-inflammatory medications (prednisone and Advair) were prescribed.  Three days later, the PFTs were repeated and found to be normal, documenting an FEV1 of 93%.  Chest radiographs in January 2005 showed “no acute or active disease.”  On the MEB DD Form 2697, Report of Medical Assessment (9 February 2005; 6 months pre-separation), the CI reported taking bronchodilators, oral and inhalational anti-inflammatory medications, and that the asthma prevented him from performing his duties.  On the MEB DD Form 2807-1, Report of Medical History, the CI reported having “trouble sleeping” because the asthma symptoms were “worse at night.”  On the MEB DD Form 2808, Report of Medical Examination, the examiner documented wheezing in all lung fields and a diagnosis of mild persistent asthma.  

The MEB Narrative Summary (NARSUM) exam was performed on 4 March 2005 (5 months prior to TDRL placement).  The examiner documented that coughing occurred during deep inspiration and faint wheezing was heard in all lung fields.  The examiner referenced the PFTs performed on 24 and 27 January 2005, and documented that anti-inflammatory medications were prescribed and included in his medication list.  The NARSUM examiner diagnosed “mild persistent asthma” and stated that by February 2005, the sleep disturbance attributed to the asthma had "improved a great deal.”  Pulmonary function testing was repeated in June 2005 (2 months prior to TDRL placement) and documented “marked improvement” after bronchodilator treatment, with an FEV1 of 97%.  The ratio of the FEV1 to the forced vital capacity (FEV1/FVC) was 78%.  The study was interpreted by the pulmonologist as demonstrating a “mild obstructive ventilatory defect” which was to be repeated in one month.  In review of the medication profiles in evidence, one bronchodilator was prescribed in October 2001 and refills were ordered but not obtained.  Another single inhaler was given in October 2004; refills ordered but not filled.  An oral corticosteroid (prednisone) was prescribed in January 2004 without refills being issued.  Three inhalers of anti-inflammatory medications (Advair diskus) were given in January 2005 with 3 of 3 refills left unfilled.  The CI provided evidence that the January 2005 Advair Diskus prescription was obtained, and no other documentation for refills was in evidence.  

At the VA compensation and pension (C&P) examination dated 22 November 2005 during TDRL status, the CI reported use of anti-inflammatory medication on a daily basis and use of inhaled bronchodilators 3 times a day as needed, usually at night.  The examiner documented clear lungs bilaterally without wheezing.  Pulmonary function testing (dated 2 November 2005) documented an FEV1 of 97%.  The FEV1/FVC ratio was 103%.  The examiner stated that the CI had “normal” PFTs.  

At a (TDRL reexamination) visit with a pulmonologist, dated 30 January 2007 (3 months prior to TDRL exit), the CI reported taking inhaled anti-inflammatory medication 2-3 times per day, and a bronchodilator as needed.  He reported continued problems with wheezing, coughing, shortness of breath, chest tightness almost every night; and use of a bronchodilator at least once per day.  The examiner documented a normal lung exam with no wheezing heard and no other signs of asthma.  Pulmonary function testing documented an FEV1 of 94%.  The FEV1/FVC was 78%.  A chest x-ray was normal.  The examiner stated that the PFTs were “not clearly improved” and diagnosed “poorly controlled asthma” with “daily symptoms.”  The examiner prescribed an increased dosage (concentration) of anti-inflammatory medication, started treatment for reflux [as this can contribute to asthma], refilled his allergy medications, and recommended that the CI not be returned to duty.  In review of the medication profiles in evidence during the TDRL period, a 6 month supply of a higher dosing of inhaled anti-inflammatory medication (Advair Diskus) was prescribed in January 2007 and 3 refills were ordered.  Another single bronchodilator was given on the same date with 3 refills ordered.  There was no documentation of refills being obtained.  

DOS: 20050825
TDRL Removal: 20070405
Pulmonary Exam	MEB ~2 Mo. Pre-Sep
(20050614) p.55	VA C&P ~2 Mo. on-TDRL
(20051102) p.98	MEB ~17 Mo. Post-Sep
(20070130) p.29	
FEV1 (% Predicted)	Post BD=97	Post BD=97	Post BD=94	
FEV1/FVC	Post BD=78	Post BD=103	Post BD=78	
Meds	Advair, Albuterol, Singulair	Advair, Albuterol	Albuterol, Advair, Singulair	
§4.97 Rating	30%	30%	30%	

The Board directed attention to the rating recommendation based on the above evidence.  At TDRL placement, the PEB adjudicated the asthma as unfitting, and rated 30% coded 6602 (asthma).  At TDRL removal, the PEB rated the asthma at 10%, citing an FEV1 of 94% after inhaled bronchodilator on intermittent inhalational bronchodilator therapy.  The VA rated 0% for the asthma.  The VASRD 60% rating for asthma specifies a minimum of 3 courses of oral steroids in one year or exacerbations treated by a physician occurring at least monthly.  There was STR documentation of one course of systemic oral corticosteroids given 8 months prior to TDRL placement.  There was one routine clinic visit for pulmonary function testing (PFTs) and no documentation of any visits to a physician for required care of exacerbations during the TDRL period.  Therefore, a 60% rating was not supported.  

VASRD ratings are based on PFT results after bronchodilator therapy.  The 30% VASRD rating for asthma specifies the following: FEV1 of 56 to 70% predicted, or; FEV-1/FVC of 56 to 70 %.  There was one reference to an initial PFT (not in evidence) that showed an FEV1 of 69% prior to bronchodilator treatment.  That exam was performed during an exacerbation upon stateside return for further evaluation and improved significantly (FEV1 of 89%) after bronchodilator treatment.  A subsequent PFT documented an FEV1 of 74% and was interpreted as having a “mild obstructive ventilatory defect” that needed follow up.  All subsequent PFTs continued to document FEV1 measurements greater than 70% predicted.  The FEV1/FVC was also documented as greater than 73% prior to TDRL placement.  All PFT results in evidence supported a rating of 10%.  

The 30% rating for asthma also specifies “daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication.”  There was STR documentation of intermittent inhalational anti-inflammatory medication therapy to support a rating of 30%.  At the initial asthma exacerbation in January 2005, the CI was prescribed a single brief course of an oral anti-inflammatory medications and a longer term dosing of inhaled anti-inflammatory medications.  Considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), members agreed that a disability rating of 30% for the asthma condition at TDRL placement was supported in this case.  

At the VA C&P exam in November 2005 and during TDRL reevaluation in January 2007, the CI reported having daily symptoms and taking anti-inflammatory medications.  The PFTs documented an FEV1 greater than 80% and an FEV1/FVC of 78%, in support of a 10% rating.  There was no evidence of PFTs documenting an FEV1 or FEV1/FVC of 56-70% predicted in support of a 30% rating.  However, the CI was diagnosed with poorly controlled asthma, and inhaled anti-inflammatory medication was continued and prescribed at a higher dosage, in support of a 30% rating.  There was no documentation of monthly visits to a physician for care of exacerbations, no courses of systemic corticosteroids, and no FEV1 or FEV1/FVC measurements less than or equal to 50% predicted in support of a higher rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating at TDRL removal of 30% for the asthma.  

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 and IAW VASRD §4.97, the Board unanimously recommends no change in the PEB adjudication at TDRL placement and a rating of 30% at the time of TDRL removal with a permanent disability disposition, coded 6200.  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 his prior medical separation:  

CONDITION	VASRD CODE	RATING	
Asthma 	6200	30%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140120, 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, AR20160003089 (PD201400587)

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 re-characterize 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