RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01396
BRANCH OF SERVICE:  Army 	 
DATE PLACED ON TDRL:  20030627	
DATE REMOVED FROM TDRL:  20070814 

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E2, Multichannel Transmission Systems Operator/Maintainer, medically separated from the Temporary Disability Retired List (TDRL) for “asthma” and “chronic pain, right foot” rated 10% and 0% respectively, with a combined disability rating of 10%.  

CI CONTENTION:  The CI makes no contention.  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 – 20030428/20070726	VARD - 20030714	
Condition	Code	Rating	Condition	Code	Rating
Proximate	
		TDRL
Placement	TDRL Removal			TDRL
Placement	TDRL
Removal	
Asthma	6602	30%	10%	Asthma	6602	30%	30%	
Right Foot Pain	5099-5003	0%	0%	Residuals of Right Foot Sesamoid Fracture	5299-5283	10%	10%	
COMBINED RATING:  30% → 10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Asthma.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s was evaluated in December 2001 for repeatedly failing the physical fitness test run portion due to shortness of breath.  A diagnosis of asthma was made based on pulmonary function testing (PFT) and clinical presentation.  Inhaled bronchodilators (albuterol as needed and prior to exercise; Serevent, daily for asthma control) and an oral bronchodilator (Singulair, daily for asthma control) were prescribed and inhaled steroids (Flovent) were started in September 2002.  Despite treatment, the asthma condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and the CI was referred for an MEB.  The MEB forwarded “asthma, moderate, persistent” for PEB adjudication.

During the MEB examination (recorded on DD Forms 2697, 2807 and 2808) dated 22 November 2002, 7 months prior to placement on the TDRL, the CI reported taking Singulair, Serevent, and Flovent.  The MEB NARSUM examination on 16 January 2003, 6 months prior to TDRL placement, noted that the CI was taking Advair and Serevent.  He was complaining of cough and asthma.  On 28 April 2003, the PEB determined the CI’s asthma was not stable.  At the 2 June 2003 VA Compensation and Pension (C&P) evaluation, 3 weeks prior to TDRL placement, the examiner noted that the CI was taking Advair twice a day and albuterol as needed.

Review of the STR found no clinical encounters in evidence documenting the use of an oral or parenteral steroid for asthma during the year prior to TDRL placement.  The CI was placed on the TDRL as of 26 June 2006 per the PEB’s determination above.  A TDRL periodic reevaluation occurred on 22 April 2004 however the results of this examination were not in the evidence of record.  Presumably this examination determined the CI’s asthma was still not stable and he was continued on the TDRL.

At the second and final TDRL reevaluation on 12 July 2006, 11 months prior to TDRL removal, the CI stated he didn’t get any regular aerobic exercise and experienced shortness of breath after jogging less than 1/2 mile.  He used his Albuterol 2-3 times per day, had no nocturnal symptoms and had no complaints of sinus disease of postnasal drip.  He had been recently diagnosed with obstructive sleep apnea (OSA) by his primary care manager but had not undergone rehabilitative assessment and treatment as yet.  The examiner documented the CI was taking Advair and Singular on a daily basis and Albuterol as needed.  The examiner concluded that the CI remained non-worldwide qualified, with well controlled asthma on his current (medication) regimen.  His condition was likely to remain stable over the next 12 to 18 months.

A statement dated 24 July 2007 from the CI’s family practice physician, 11 months prior to TDRL removal, stated the CI’s current medication regimen included Albuterol, Advair, and Singulair and that the CI was very compliant and took his medication regularly. Review of the STR found no clinical encounters in evidence documenting the use of an oral or parenteral steroid for asthma during the year prior to TDRL removal and permanent separation.  There was no evidence in the STR, either prior to TDRL placement or while on the TDRL, that asthma exacerbations were frequent enough to require monthly visits to a physician.  

The Board directed attention to its rating recommendation for TDRL placement based on the above evidence.  The PEB rated the asthma condition 30% (coded 6602) citing normal spirometry and daily inhalational therapy.  As stated above, the PEB determined the asthma condition was unstable and placed the CI on the TDRL.  The VA also rated the CI’s asthma condition 30% (coded 6602) citing daily inhalational or oral bronchodilator therapy; or inhalational anti-inflammatory medication.  Board members agreed that the PEB’s 30% determination was justified by daily bronchodilator and inhalational anti-inflammatory use, but considered routes to a higher rating.  However, the next higher 60% rating requires “FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; at least monthly visits to a physician for required care of exacerbations, or; intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids”.  Since this requirement was not in evidence, a rating higher than 30% was not supported.  
The Board then directed attention to its rating recommendation for TDRL removal based on the above evidence.  The PEB rated the asthma condition 10% (coded 6602) citing intermittent inhalational bronchodilator therapy.  A 30% rating stipulates “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.”  Board members considered that the TDRL reevaluation examination in evidence as well as the statement from the CI’s family practice physician reported current prescription and use of daily inhaled anti-inflammatories, which are not specified as a daily requirement under the 30% requirement.  Board members agreed that the VASRD §4.97 threshold for a 30% rating was reasonably satisfied in this case on the basis of inhalational anti-inflammatory medication use.  A 60% rating was not justified in the absence of at least monthly visits to a physician for required care of exacerbations, or intermittent (at least three per year) courses of systemic corticosteroids.  In addition, there was no PFT evidence to support the next higher 60% rating.  The TDRL reevaluation supported that the CI was prescribed Advair for daily use.  Advair, in addition to being an inhalational bronchodilator (salmeterol), also contains an inhalational anti-inflammatory medication (fluticasone), and would therefore warrant a 30% rating even if it was not used on a daily basis.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 30% at TDRL removal for the asthma condition, coded 6602.

Right Foot Pain.  According to service treatment records (STR) and the MEB, NARSUM, the CI’s right foot pain condition began in December 2001 while running for physical training.  In the NARSUM addendum, the CI reported right foot pain that began in December 2001.  X-rays showed a fractured right fibular sesamoid bone with slight displacement.  Examination showed pain due to palpation at the right fibular sesamoid and pain with dorsiflexion of the first ray (as written).  Muscle strength was 5/5 with no redness or swelling.  AMA (American Medical Association) rating was minimal in intensity and frequent with weight bearing activities, including running and jumping.  There was significant pain when performing pushups with maximum dorsiflexion of the first ray.  

At the VA Compensation and Pension (C&P) General Medical examination in June 2003, performed 24 days before separation, the CI reported daily pain in his right foot, waxing and waning through the day, depending on physical activities.  He could not fully enjoy recreational activities.  The CI reported pain was most prominent while navigating stairs, standing for extended periods, running and walking. He wore inserts in his shoes and boots that were specially modified for his condition.  Examination showed no overt deformities, and tenderness on the bottom aspect of the right foot overlying the second metatarsal area.     

The February 2007 TDRL evaluation noted no abnormalities of the foot.  He did have a pes cavus foot structure without swelling, redness, abnormal warmth, or induration of the feet. Foot motion was normal.  With some tenderness on the plantar aspect of the first toe and discomfort with extension of the hallux.  He had a history of gout.  Symptoms were concurrent with chronic sesamoiditis possibly due to a fractured sesamoid bone.  The examiner noted an off floating insert should remain and that his condition was chronic.    

The Board directed attention to its rating recommendation for TDRL placement based on the above evidence. The PEB assigned a 0% rating under the analogous 5099-5003 code (VASRD condition name), citing pain rated minimal and frequent.  The VA assigned a 10% rating using the 5283code (tarsal or metatarsal bones, mal union of) based on mal union or nonunion of the tarsal or metatarsal bones with moderate symptoms.  The Board determined the application of functional loss and painful motion (VASRD §4.59) was appropriate.  Routes to a higher rating than 0% were considered, but the alternate knee codes 5260 (leg, limitation of flexion of), 5261 (leg, limitation of extension of), 5258 (cartilage, dislocated) and 5259 (cartilage, removal of) provided no such avenue.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the right foot pain condition, coded 5099-5003.  

The Board then directed attention to its rating recommendation for TDRL removal based on the above evidence.  The TDRL evaluation noted tenderness of the plantar aspect of the 1st metatarsal and discomfort with extension remained, likely concurrent with chronic sesamoiditis possibly due to fractured sesamoid.  This was a chronic problem.  The foot was otherwise normal.  After due deliberation, and considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the right foot pain condition at the time of TDRL removal.  

BOARD FINDINGS:  In the matter of the asthma condition, the Board recommends a disability rating of 30%, coded 6602 IAW VASRD §4.97, at the time of TDRL placement and recommends a disability rating of 30%, coded 6602 IAW VASRD §4.97, at the time of TDRL removal.  In the matter of the chronic right foot pain condition, the Board recommends a disability rating of 10%, coded 5099-5003 IAW VASRD §4.71a.at the time of TDRL placement and recommends no change in the PEB adjudication at the time of TDRL removal.  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	
		TDRL	PERMANENT	
Asthma	6602	30%	30%	
Chronic Pain Right Foot	5099-5003	10%	0%	
RATING	40%	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140321, 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 XXXXXXXXXXXXXXXXXXXXX, AR20160010067 (PD201401396)

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
constructively place the individual on the Temporary Disability Retired List (TDRL) at
40% disability rather than 30% disability for the period June 27, 2003 to August 13,
2007 and then following this period recharacterize the individual's separation as a
permanent disability retirement with the combined disability rating of 30%.

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 temporary disability 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 day following the six month TDRL period.

c. Adjusting pay and allowances accordingly. Pay and allowance adjustment will
account for 40% retired pay for the temporary disability retired period effective the date
of the individual's original medical separation and then payment of permanent disability
retired pay at 30% effective the day following the TDRL period.

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:

CF:
( ) DoD PDBR
( ) DVA