RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01620
BRANCH OF SERVICE:  Army 	  
DATE PLACED ON TDRL:  20080505	DATE REMOVED FROM TDRL:  20090612

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E4, Fire Support Specialist, medically separated from the Temporary Disability Retired List (TDRL) for “asthma,” rated 10%, with a disability rating of 10%.

CI CONTENTION:  The CI elaborated no specific contention in his application.  The applicant’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 – 20080505/20090520	VARD - 20080718	
Condition	Code	Rating	Condition	Code	Rating
Proximate	
		TDRL
Placement	TDRL Removal			TDRL
Placement	TDRL
Removal	
Asthma	6602	30%	10%	Asthma	6602	30%	30%	
COMBINED RATING:  30% → 10%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Asthma Condition.  The service treatment records (STR) and the Medical Evaluation Board narrative summary (NARSUM) documented an onset of exertional wheezing in 2006 (basic training) which was subsequently diagnosed as asthma (methacholine challenge).  The CI, in addition to intermittent use of an albuterol rescue inhaler, was also prescribed Advair™ (inhalational steroid [anti-inflammatory] and bronchodilator), with which he was reasonably compliant with daily use.  Multiple pulmonary function tests (PFT) from the Service pre-TDRL period are in evidence.  Measurements of FEV1 ranged from 87% predicted to 105% predicted, and FEV1/FVC ratios ranged from 84% to 92%.  There was no STR evidence for respiratory failure, hospital admissions, continuous requirement for systemic corticosteroids, or monthly exacerbations requiring physician visits.  The NARSUM (dated 13 August 2007) preceding TDRL placement duplicated pulmonary entries from the STR reflecting the above evidence, included albuterol and Advair (daily) on the medication list, and detailed general soldiering requirements prohibited by the asthma. 

 A VA Compensation and Pension (C&P) examination performed on 19 March 2008, was conducted shortly prior to TDRL placement.  The examiner cited normal PFT results and listed identical medications to those from the NARSUM.

There was no outpatient clinic evidence from the period of TDRL (VA or otherwise) until the first and final TDRL re-evaluation dated 24 April 2009 (a month prior to permanent separation). The associated outpatient STR entry listed albuterol as the only active medication and documented new prescriptions for Advair and Claritin (anti-histamine, not ratable).  There were Service and TRICARE-based pharmacy profiles in evidence which documented that the last dispensing of albuterol and Advair before that was several months prior to placement on TDRL.  Repeat PFT measurements (post-bronchodilator) were FEV1 of 94% and FEV1/FVC of 78% (normal).  The TDRL examination documented, “The patient reports about 2 flares weekly, although he only takes Albuterol, which seems to relieve his symptoms.  No other medications that he takes for his asthma, although he is supposed to take Advair and Claritin, but has not been able to get in the Veterans Administration System to get those medications refilled.”  The examiner noted “fair control,” using albuterol “prophylactically a couple of times a week before exercising,” and recommended that the CI resume maintenance use of Advair and Claritin (providing the new prescriptions as above).  There was no repeat examination or other evidence from the VA temporally probative to permanent separation.

The Board directed attention to its rating recommendations based on the above evidence.  The VASRD provides rating guidance for asthma based on the number and severity of clinical exacerbations, the type and the frequency of medications used to treat the condition, and objective PFT findings.  None of the VASRD §4.97 criteria using code 6602 (asthma) for a rating higher than 30% were supported (as above).  The criteria for a 10% rating are “FEV-1 of [71-80%] predicted, or; FEV-1/FVC of [71-80%], or; intermittent inhalational or oral bronchodilator therapy;” and, those for 30% are “FEV-1 of [56-70%] predicted, or; FEV-1/FVC of [56-70%], or; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication.”  The PFT evidence precludes even the minimum 10% rating based on those criteria, either at TDRL placement or at permanent separation.  The PEB’s (and the VA’s) 30% TDRL placement rating cited the daily use of Advair and satisfied the 30% medication criteria.  The PEB’s DA Form 199 rationale for its permanent rating of 10% cited “2 flares weekly which are relieved by inhaled bronchodilator alone ... has been prescribed Advair but has not filled script ... rated for asthma requiring intermittent inhalational therapy.”  These facts are well supported by the evidence.  Members deliberated whether the 30% medication criteria should be fairly conceded premised on the TDRL examiner’s opinion that daily Advair use was indicated, notwithstanding that it was not in use.
Members noted, however, that the normal PFT results and clinical acuity described by the TDRL examiner (bi-weekly flares aborted with a rescue inhaler) indicated good asthma control without resort to a treatment regimen subject to higher rating; and, the rating language implies use of, not need for, the criteria medications.   After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board consensus was that there was insufficient cause to recommend a change in the PEB adjudication of the asthma condition for the period of TDRL and at permanent separation.

BOARD FINDINGS:  In the matter of the asthma condition and IAW VASRD §4.71a, the Board majority recommends no change in the PEB adjudications for the period of temporary retirement or permanently.  The single voter for dissent recommended re-characterization and submitted the appended minority opinion.  There were no other conditions within the Board’s scope of review for consideration.  The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination for the period of temporary retirement or at permanent separation. 

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140226, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MINORITY OPINION: 

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

The 30% asthma criterion is:
		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	30

The service treatment record (STR) noted the PEB, dated 20 May 2009, rated the asthma condition at 10% citing “2 flares weekly which are relieved by inhaled bronchodilator alone” while the “Soldier has been prescribed Advair but has not filled script.”

The STR clearly contained a medication profile that showed the CI filled a prescription of Advair on 17 April 2009; a prescription issued by the CI’s internal medicine physician.

During the TDRL Evaluation, dated 24 April 2009, the examiner opined the service member required Advair, Claritin and Albuterol to control his asthmatic condition and issued a prescription for these medications.

Hence, it is the minority opinion member’s determination:  that the CI had a physiological requirement for Advair, as evaluated and prescribed by two separate physician examiners; and the CI would have “reasonably” utilized the Advair medication in his possession on an “as needed basis”; thereby, fulfilling the 30% asthma criteria for inhalational anti-inflammatory medication.

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:  asthma 6602 at 30%.

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

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 AR20160006812 (PD201401620)

I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual.  Under the authority of Title 10, United States Code, section 1554a, I accept the Board’s recommendation and hereby deny the individual’s application.  
This decision is final.  The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

 BY ORDER OF THE SECRETARY OF THE ARMY:

Enclosure

CF: 
(  ) DoD PDBR
(  ) DVA