RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02160
BRANCH OF SERVICE:  Army 	
DATE OF PLACEMENT ONTO TDRL:  20021014
DATE OF REMOVAL FROM TDRL:  20040428 

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-3 (Food Service Specialist) medically separated for asthma.  This condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty (MOS).  The profile allowed for an alternate aerobic event to satisfy physical fitness standards.  She was issued a permanent P3 profile and referred for a Medical Evaluation Board (MEB).  “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 “asthma” as unfitting, rated 30%, with 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 18 months later, the IPEB adjudicated asthma as unfitting, rated 0% citing “non-compliance, rated appropriately” with possible application of AR 635-40 B.3.  The CI made no appeals and was medically separated.  

CI CONTENTION:  The CI requests the Board consider all conditions.  Her 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/Naval 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 the time of separation. 

RATING COMPARISON:  

Final PEB – 20040416	VA Rating Decision1 - 20030115	
TDRL Placement – 20021014	Code	Rating	Condition	Code	Rating
Proximate	
Condition		TDRL
Placement	TDRL Removal			TDRL2
Placement	TDRL3 Removal	
Asthma	6602	30%	0%	Asthma	6602	30%	30%	
Other MEB/PEB Conditions x 0 (Not in Scope)	Other x 0	
RATING:  30% → 10%	RATING:  30%	
1. Most proximate to TDRL Placement
2. Rating derived from C&P exam dated 20021002, ~1 mos. pre-TDRL placement 
3. Rating derived from C&P exam dated 20040202, ~3 mos. pre-TDRL removal 

ANALYSIS SUMMARY:  

Asthma.  The record shows that the CI presented with exertional shortness of breath (SOB) on 9 April 2001 and was started on a bronchodilator.  She was noted to be a smoker and advised to quit, but did not.  She was eventually diagnosed with asthma and started on a daily inhaled steroid (Advair) and an inhalational bronchodilator (Albuterol) as needed.  Despite this and the use of medications, she had difficulty passing her physical fitness test and was referred for an MEB.  The narrative summary (NARSUM) noted she had stopped smoking, but still had SOB with running despite the use of medications.  Her lungs were clear and her pulmonary function tests (PFTs) are charted below.  She continued the use of daily medications as recorded above.  At the VA Compensation and Pension (C&P) examination performed on 2 October 2002, 2 weeks before TDRL placement, the CI reported continued symptoms despite the use of the above medications.  Her lungs were clear and the PFTs showed a mild restrictive pattern.  

Pulmonary Exam	NARSUM ~5 Mo. Pre-TDRL	NARSUM ~7 Mo. Pre-TDRL	VA C&P ~1 Mo. Pre-TDRL	
FEV1 (% Predicted)	89%	86%	72%	
FEV1/FVC	88%	87%	87%	
Meds	Advair and Albuterol	Advair and Albuterol	Advair and Albuterol	
§4.97 Rating	30%	30%	30%	

The TDRL NARSUM was dated 5 December 2003, 5 months prior to TDRL removal.  The examiner recorded that the CI was on the same medication regimen (daily) and that her lungs were clear.  She was pregnant at the time of the examination.  Her PFTs were recorded as normal.  At the VA C&P examination performed on 26 January 2004, 3 months before TDRL removal, the CI reported she had stopped her medications in October when she found out that she was pregnant.  However, she was subsequently cleared to use these by her OB-GYN doctor and restarted them.  She continued to have symptoms despite the use of the medications (unchanged).  Her lungs were clear and the PFTs were normal.  

Pulmonary Exam	6 Mo. Pre-TDRL Removal 	VA C&P ~3 Mo. Pre-TDRL Removal	
FEV1 (% Predicted)	99%	92%	
FEV1/FVC	87 %	85%	
Meds	3 Months pregnant.  On no medications	On medications	
§4.97 Rating	0%	30%	

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB rated the CI at 30% for TDRL placement and 0% for TDRL removal, coded 6602 (asthma).  The VA made the same adjudication other than a 30% rating at TDRL removal.  The PEB noted that the CI had stopped medications at the time of removal.  However, the VA C&P proximate to TDRL removal clearly noted that the CI was on medications.  The Board observed that this information was unlikely to have been available to the PEB.  It does support a rating of 30% at TDRL removal.  The Board considered the requirements for a higher rating, but these were not met at either TDRL placement or removal.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends no change to the 30% rating assigned upon TDRL placement and recommends a disability rating of 30% for the asthma condition, coded 6602, at TDRL removal.  

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 although it noted possible application of AR 635-40 B.3.  In the matter of the asthma condition, the Board unanimously recommends a disability rating of 30%, coded 6602 IAW VASRD §4.100.  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 her prior medical separation:  

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

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140501, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

	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 XXXXXXXXXXXXXXXXXXXX, AR20160004376 (PD201402160)

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