RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXX	CASE:  PD-2014-01958
BRANCH OF SERVICE:  AIR FORCE	SEPARATION DATE:  20060609  

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Aircraft Maintenance Craftsman) medically separated for chronic obstructive pulmonary disease (COPD).  The condition could not be adequately rehabilitated to satisfy the physical requirements of his Air Force Specialty (AFS).  He was issued a P4 profile and referred for a Medical Evaluation Board (MEB).  The diagnosis “COPD with an asthmatic component” was forwarded as the sole submission to the Physical Evaluation Board (PEB) IAW AFI 14-183.  The Informal PEB adjudicated “mild [COPD] with asthma component” as unfitting, rated 10%, citing application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The PEB also adjudicated “gastroesophageal reflux disease [GERD],” “back pain” and “mitral regurgitation” as Category II (conditions that can be unfitting but are not currently compensable or ratable).  The PEB also adjudicated “tobacco habituation” as Category III (conditions that are not separately unfitting and not compensable or ratable); but, this does not constitute a ratable condition under Department of Defense or VA guidelines, and will not be addressed further.  The CI made no appeals and was medically separated.  

CI CONTENTION:  The applicant requests consideration of all conditions in his application.  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 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 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:  

IPEB - Dated 20060425	VA* – Based on Service Treatment Record (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Mild COPD ...	6699-6602	10%	COPD	6604	0%**	STR	
GERD	Category II	GERD	7346	0%**	STR	
Back Pain		Low Back Pain	5237	NSC**	STR	
Mitral Regurgitation		Heart Murmur	7099-7000	NSC**	STR	
Other Conditions x 0 (Not In Scope)	Other x 18 (17 Not Service Connected [NSC])	
RATING:  10%	RATING:  0%	
*   Derived from VA Rating Decision (VARD) dated 20070705 (most proximate to date of separation [DOS]).  
** The 0% ratings cited failure to show for scheduled examination and the NSC determinations were premised on STR evidence.  Based on VARD dated 20080225 and examination dated 20070814 (14 months post-separation) the NSC conditions were service connected; and, assigned ratings (retroeffective to DOS) were COPD 30%, GERD 0%, lumbar 10% and heart murmur 0%.  

ANALYSIS SUMMARY:  The Board notes (as footnoted above) that the earliest VA evaluation was 14 months after separation.  As elaborated above, the Board’s assessment must be derived from evidence that can be reasonably interpreted to reflect disability at the time of separation.   Therefore the evidence from the Service record was assigned the more determinant probative value with respect to the Board’s recommendation.  

COPD/Asthma Condition.  The service treatment record (STR) corroborated the history in the narrative summary (NARSUM) of an onset of dyspnea (shortness of breath) in 2005 that was extensively evaluated.  There was some indication of coronary artery disease, although the final cardiology opinion was that the dyspnea was more likely a result of pulmonary disease complicated by smoking.  Pulmonary evaluation yielded a mixed picture of predominantly COPD with possible asthma; and, after a methacholine challenge test the pulmonologist opined, “This patient has bronchial hyper-reactivity and reversibility consistent with underlying diagnosis of asthma.  However, the patient probably has underlying ‘fixed disease.’  Most likely, a better descriptor would be mild COPD with an asthmatic component.”  A subsequent cardiology entry opined that the diagnosis of asthma was “questionable” and stressed the smoking history.  There are two pulmonary function test (PFT) reports in the evidence (8 and 7 months pre-separation).  The lowest (post-bronchodilator) FEV-1 was 84% predicted, the lowest FEV1/FVC ratio was 82%, and the only measured DLCO (diffusion capacity) was 81% predicted.  The STR outpatient entries with respect to treatment medications indicate initial use of albuterol (inhaled bronchodilator) on an as needed basis, and some reflect adjustment of the hourly dosing interval (suggesting daily dosing).  Later entries record that Advair (inhaled anti-inflammatory plus bronchodilator) was also prescribed, although there was conflicting evidence.  There was no pharmacy profile in evidence, but an automated medication list from an entry in February 2006 (4 months pre-separation) listed Advair prescribed twice daily and last filled that month (3 refills remaining).  There were no similar listings in later entries for confirming whether the refills were dispensed.  There was no STR evidence for respiratory failure, hospital admissions, continuous requirement for systemic corticosteroids, or monthly exacerbations requiring physician visits (criteria for VASRD ratings higher than 30%).  

The NARSUM was conducted on 10 March 2006 (3 months pre-separation) and did not document the severity of symptoms or specific functional limitations, although contemporary outpatient evidence reflected a favorable course with limitations confined to exertion.  The history documented continued tobacco abuse with no indication that smoking cessation had been or was being attempted, and the physical examination recorded clear lungs.  The NARSUM diagnosis was “COPD with an asthmatic component” as taken from the pulmonologist’s impression and listed on the MEB’s AF Form 356.  The only pulmonary medication listed in the NARSUM was albuterol (frequency not specified), but the DD Form 2697 Report of Medical Assessment (12 May 2006, 1 month pre-separation) listed Advair (dosing frequency not specified) and albuterol “as required.”  There were multiple outpatient VA clinical notes within two months of separation with medication lists including Advair and albuterol.  

The significantly delayed VA Compensation and Pension (C&P) examination (per rating chart footnote) documented that symptoms were “well controlled,” listed only Advair (frequency not specified), and noted that the CI had failed to report for VA pulmonary testing.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s 10% rating was under code 6699-6602 (analogous to asthma) without an articulated rationale.  The VA’s initial 0% and subsequent 30% ratings were under code 6604 (COPD).  The VA rating decision for 30% cited “need of daily inhaler steroid medication,” which is in conflict with the choice of code as below.  The choice of code is an important decision in this case.  The PFT evidence (FEV-1, FEV-1/FVC, and DLCO [for 6604]) does not satisfy the 10% criteria for either code.  The asthma code incorporates medication criteria that are not a component of the COPD code, thus the VA’s cited rationale was not applicable to its rated code.  The medication criteria under 6602 are “intermittent inhalational or oral bronchodilator therapy” for 10%, and “daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication” for 30%.  The criteria for any rating higher than 30% are not satisfied by the evidence for either code.  Thus, if rating under 6604, there is no support for a rating higher than 10%; but, if rating under 6602, the evidence must be weighed to judge whether the 30% medication criteria are reasonably satisfied (medication criteria for 10% are clearly established).  The choice of code is largely dependent on the interpretation of the clinical evidence.  

At the conclusion of this deliberation, member consensus was that the preponderance of the clinical evidence indicates that the dominant pathology in this case was COPD (tissue destruction with “fixed” impairment of air exchange), almost certainly a consequence of smoking.  As typical for COPD, there was associated hyper-reactivity of the air passages causing bronchospasm (constriction of the passages, reversible by medication); the latter being the sole feature of asthma.  Since this associated bronchospasm is typical of COPD, it logically follows that there would be no need for a separate code if the responsiveness of the bronchospasm to treatment was a significant feature for rating; since, virtually all cases of COPD could be analogously rated as asthma.  Member consensus, duly considering VASRD §4.7 (higher of two evaluations), was that code 6604 was best aligned with the clinical features and disability in this case; and, that it was thus a fair choice for rating.  Additionally it was considered that, even if rating under 6602 were conceded despite its weaker clinical underpinning, the evidence in support of the 30% medication criteria was not conclusive (albeit subject to support via reasonable doubt).  Furthermore, the contribution from tobacco abuse and the CI’s failure to engage smoking cessation was an issue relevant to Service disability rating.  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’s rating in this case; but, recommends a change of code to 6604.  

Contended Conditions (GERD, Lumbar, Mitral Regurgitation).  There was a 2003 entry citing a history of acid reflux related to evaluation of a chest pain complaint, but there were no STR treatment notes for GERD for an extended period preceding the MEB.  The NARSUM listed GERD under past medical history without elaboration, and listed Aciphex (acid blocker) with medications.  There were STR entries documenting intermittent complaints of low back pain dating to 1997 (8 years pre-separation).  Magnetic resonance imaging was normal.  There was no STR evidence of significant incapacitation or persistent functional impairment.  The NARSUM listed “chronic back pain” without elaboration, noted full range-of-motion and neurological findings on exam, and listed no pain medications.  A “trace” of mitral regurgitation (leaky heart valve) was identified by ultrasound (ECHO) as part of the heart evaluation, but it was basically an incidental finding without associated heart failure or any complications.  Mitral regurgitation was listed, but unelaborated, in the NARSUM and there was no murmur on exam.
	
None of the above conditions manifested any significant clinical acuity during the last 12 months of service.  The permanent profile did not list diagnoses, but specified restrictions clearly directed at aerobic (cardiopulmonary), not orthopedic or other, limitations.  The commander’s performance statement specified limitations from “a shoulder injury” and “frequently out of breath,” without referencing any MOS impediments attributable to the above conditions.  

The Board directed attention to its recommendations based on the above evidence; and, its main charge with respect to these conditions is an assessment of the fairness of the PEB’s determinations that they were not unfitting (e.g., fairly met the Category II criteria).  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  All members agreed that there was no performance based evidence suggesting that any of the above conditions significantly interfered with duty performance.  Furthermore, all of the contended conditions were subject to DoDI 1332.38 (E3.P3.3.3 - Adequate Performance Until Referral); which stipulates, “If the evidence establishes that the Service member adequately performed his or her duties until the time the Service member was referred for physical evaluation, the member may be considered fit for duty even though medical evidence indicates questionable physical ability to continue to perform duty.”  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 any of these conditions; thus none of them can be recommended for additional disability rating. 

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 chronic obstructive pulmonary disease and IAW VASRD §4.97, the Board by a majority vote recommends no change in the PEB rating, but that premised on a change in the rated code to 6604.  The dissenting member submitted the appended minority opinion.  In the matter of the contended GERD, lumbar and mitral regurgitation conditions, the Board unanimously recommends no change from the PEB determinations as Category II (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	
Chronic Obstructive Pulmonary Disease with Intermittent Bronchospasm	6604	10%	
RATING	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140424, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

		

MINORITY OPINION:

The minority member disagrees with the majority rationale that the 6604 COPD code, less favorable for rating in this case, was nevertheless indicated based on clinical opinion and speculation as to the rationale for the VASRD §4.97 coding scheme.  The minority impression of the clinical evidence was that an overriding diagnosis of COPD versus asthma was not definitively established, despite thorough testing to that end; and, that a mixed diagnosis should be conceded.  Furthermore, even if it is accepted that the dominant pathology was COPD, it was mild (as opined by the pulmonologist and as reflected by the PFT parameters); and, the functional evidence suggests that the dominant disability was bronchospasm (the asthmatic component).  Since the disability rather than the diagnosis is the foundation for rating, the PEB’s analogous code was a fair choice in this case; and, complying with VASRD §4.20 (analogous ratings), the minority member maintains that rating under 6602 criteria is most appropriate for this case.  

From the position that rating under the medication criteria of 6602 is indicated, the minority member is well satisfied that the 30% criteria (per the body of these proceedings) were supported by the evidence.  There was no question that albuterol was in use throughout the clinical course, although daily dosing is required to satisfy the 30% criterion for bronchodilators. Some of the earlier STR entries suggested daily use, and there was no evidence specifying or even suggesting less frequent use.  Accordingly, it is well justified to concede (via reasonable doubt) that the daily inhalational bronchodilator criterion was satisfied.  Furthermore the evidence reflects that regular, if not daily, use of Advair was in effect at separation; and, it can be arguably interpreted that the inhalational anti-inflammatory criterion in the 30% language does not require daily use (the “daily” qualifier is not specified in that clause).  Finally it is noted for the record that the majority members, although not supporting the requisite code, agreed in deliberations that the 30% medication criteria were supported via reasonable doubt.  

In conclusion the minority member is of the firm opinion that the most reasonable coding option for this case is 6604-6602, with determinant rating for the reversible asthmatic component.  This is not only well aligned with the clinical evidence and functional impairment in this case; but, in the minority opinion strongly supported (if not mandated) by VASRD §4.7 (higher of two evaluations).  The 30% criteria for this code are amply supported as above.

The Secretary is respectfully urged to consider the minority recommendation 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	
Chronic Obstructive Pulmonary Disease with Associated Asthma	6604-6602	30%	
RATING 	30%	

SAF/MRB
1500 West Perimeter Road, Suite 3700
Joint Base Andrews, MD  20762

Dear XXXXXXXXXXXX:

Reference your application submitted under the provisions of DoDI 6040.44 (Section 1554, 10 USC), PDBR Case Number PD-2014-01958.

After careful consideration of your application and treatment records, the Physical Disability Board of Review determined that the rating assigned at the time of final disposition of your disability evaluation system processing was not appropriate under the guidelines of the Veterans Affairs Schedule for Rating Disabilities.  Accordingly, the Board recommended modification of your assigned disability description without modification of the combined rating or re-characterization of the separation. 

Sincerely,

Attachment:
1.  Directive  
2.  Record of Proceedings 

cc:
SAF/MRBR