RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00629
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20080107

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E6, Motor Transport Operator, medically separated for “asthma” and “lumbosacral strain,” rated 10% and 10%, respectively, with a combined disability rating of 20%.

CI CONTENTION:   The CI requests the Board consider all conditions.  The CI’s complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  It is limited to those conditions determined by the Physical Evaluation Board (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 Veterans Affairs Schedule for Rating Disabilities (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:  

SERVICE PEB - 20070912	VARD - 20080310	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Asthma	6602	10%	Asthma	6602	30%	20071113	
Lumbosacral Strain	5239	10%	Lumbar Strain	5237	20%	20071113	
Headaches	Not Unfitting	Migraine Headaches	8100	0%	20071113	
Bilateral Wrist Pain	Not Unfitting	Left Wrist Strain (Minor)	5215-5024	10%	20071113	
		Right Wrist Strain (Major	5215-5024	10%		
Bilateral Patellofemoral Syndrome	Not Unfitting	Right Knee PPS	5620-5024	10%	20071113	
		Left Knee PPS	5620-5024	10%		
Bilateral Foot Pain	Not Unfitting	Bilateral Foot Plantar Fasciitis	5299-5276	0%	20071113	
Keratosis Pilaris	Not Unfitting	Keratosis Pilaris	7899-7806	0%	20071113	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  70%	

ANALYSIS SUMMARY:  

Asthma.  The CI was definitively diagnosed with asthma via a methacholine challenge test in June 2007.  The service treatment record (STR) indicated the use of an inhaled bronchodilator of Albuterol both previously to her diagnosis as well as after her date of separation.  She was permanently profiled in July 2007 and referred to a Medical Evaluation Board (MEB).  At the MEB narrative summary (NARSUM) examination performed on 27 June 2007 (6 months prior to separation), the CI’s chief complaint was “asthma.”  She reported having asthma attacks that averaged twice per year over the past 2 years requiring nebulizer treatments.  Her physical examination (PE) was normal.  She was not taking any medication for a respiratory condition.  Her diagnosis remained mild asthma.  At the VA Compensation and Pension (C&P) examination performed on 13 November 2007 (2 months prior to separation), the CI reported shortness of breath with walking two city blocks.  She endorsed monthly asthma attacks and the need to seek physician care for her asthma condition two times per month.  Specifically, the VA history noted, “She requires bronchodilator by inhalation daily and Albuterol MDI” (metered dose inhaler).  Her VA respiratory focused PE was normal.  Her diagnosis remained unchanged.  Spirometry test performed at this evaluation was completely normal.      

The Board directed attention to its rating recommendations based on the above evidence.  The unequivocal VASRD code for rating asthma is 6602.  VASRD §4.97 defines both spirometry derived criteria and clinical treatment criteria for rating under 6602.  Based solely on the most probative examination (VA exam at 2 months after separation), the spirometry criteria parameters were non-compensable and therefore, members considered the clinical treatment criteria in determining a rating impairment.  The non-spirometry derived VASRD criteria are as follows: “intermittent inhalational or oral bronchodilator therapy” for 10%; and “daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication” for 30%.  This case involved a significant change in the CI’s condition from 6 months and 2 months before separation whereby her asthma attacks reportedly went from an average of two per year to monthly and from taking no medication to reporting daily use of a bronchodilator.  A military treatment facility medication profile obtained in July 2007 noted a single non-refillable prescription for Albuterol which was filled on 11 April 2006.  There was no further evidence of additional prescription bronchodilator medicine being repeatedly dispensed by the military.  The Board’s main charge in this case was to determine the use of medication (if any) by the CI at or near the time of separation in January 2008.  Board members extensively deliberated the issue of medication use in this case and concluded that the dramatic change in respiratory symptoms described by the CI at the C&P examination.  The reported clinic visits every other week was not sufficiently supported by the evidence in record.  Considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), Board members agreed that a disability rating of 10% for the asthma condition was appropriately recommended in this case. 

Low Back.  The CI injured her low back after a fall from a truck in 2002 and re-injured the same while playing basketball in 2003.  Radiographs revealed minimal degenerative changes about the lumbosacral spine.  Despite physical therapy, medications, rest, and local injections, her back pain persisted.  She was permanently profiled and referred to an MEB.  Her MEB examination revealed a normal gait, full thoracolumbar range-of-motion (ROM) and tenderness about the lumbosacral spine.  Her diagnosis remained low back pain (LBP).  At the VA C&P examination, the CI endorsed a constant crushing, aching, and sharp LBP which extended into both legs and was exacerbated by physical activity and stress.  Her PE revealed a normal posture and gait.  Thoracolumbar ROM was decreased and painful.  “The examination reveals no evidence of radiating pain on movement.”  Her diagnosis was listed as lumbar strain

The Board directed its attention to its rating recommendation based on the above evidence.  Using similar VASRD codes, the PEB rated the low back condition at 10% citing tenderness, whereas the VA rated 20% citing limited motion.  Board members first agreed that sufficient evidence of tenderness and or painful motion was consistently present to justify the PEB rating of 10% IAW VASRD §4.71a or §4.59.  Board members then considered examination probative value and agreed that the VA exam be apportioned greater probative value due to its reference date near separation.  Limitation of flexion at 60 degrees equates as 20% IAW §4.71a.  The Board additionally considered if the occasional symptomatic lower extremity radiculopathy symptoms warranted additional disability rating; but, members agreed that the requisite link of the neuropathy symptoms with functional impairment was not in evidence in this case.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a.  The Board concluded therefore that any radiculopathy type symptom or condition could not be recommended for an additional disability rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority recommends a disability rating of 20% for the low back condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the headaches, bilateral wrist pain, bilateral patellofemoral syndrome, bilateral foot pain, and keratosis pilaris were not unfitting.  None of these conditions were permanently profiled or judged to fail retention standards and only the bilateral knees and foot pain were implicated in the commander’s statement.  Despite not being documented on a permanent profile, the DD Form 2808 clearly noted an L-3 profile with the listed diagnosis of bilateral foot and knee pain.  All were reviewed and considered by the Board.  

The case file contained clinical evaluations that clearly indicated various intermittent episodes of both feet and knee pain, but the vast majority of the exams did not result in any limitation of activities.  Specifically, all but one evaluation’s disposition was ‘released without limitations.’  After due deliberation in consideration of the preponderance of the evidence, the Board members consensus was that there was no performance based evidence from the record that any of these conditions significantly interfered with satisfactory duty performance.  The Board concluded that there was insufficient cause to recommend a change in the PEB’s fitness determination for the any of the above contended conditions and so no additional disability ratings are recommended. 

BOARD FINDINGS:  In the matter of the asthma condition and IAW VASRD §4.97, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the low back condition, by a majority vote, the Board recommended a disability rating of 20%, coded 5237 IAW VASRD §4.71a.  The single voter for dissent recommended no change to the previously assigned ratings and elected not to submit a minority opinion.  In the matter of the five contended 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. 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 the prior medical separation:  

CONDITION	VASRD CODE	RATING	
Asthma	6602	10%	
Lumbosacral Strain	5237	20%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140222, 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, AR20160005814 (PD201400629)

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