RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02309
BRANCH OF SERVICE:  MARINE CORPS 	SEPARATION DATE:  20050915

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-2, Basic Marine, medically separated for restrictive airway disease.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was placed on limited duty (LIMDU) and referred for a Medical Evaluation Board (MEB).   The “pneumonia, organism unspecified” and “unspecified asthma, without mention of status asthmaticus,” was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  The Informal PEB adjudicated “restrictive airway disease” as unfitting, rated 10%.  The remaining condition was determined to be not Category II, (bilateral pneumonia).  The CI made no appeals and was medically separated.   

CI CONTENTION:  “Please consider all conditions” 

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 Veterans Affairs Schedule for Rating Disabilities 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 20050727	VA* - Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Restrictive Airway Disease	5299-6602	10%	Bilateral Pneumonia	6699-6600	**0%	STR	
Bilateral Pneumonia	Cat II					
Other x 0 (Not In Scope)	Other x 0 	
RATING:  10%	RATING:  0%	
*Derived from VA Rating Decision (VARD) dated 20060330 (most proximate to date of separation (DOS)). **Per VARD dated 20060823 condition changed to 6699-6844 rated at 100% from 20060420 then 60% 20060601. 

 
ANALYSIS SUMMARY:  

Restrictive Airway Disease Condition.  The service treatment record (STR) substantiates and supplements the MEB narrative summary dated 16 June 2005.  The CI was in good health until 29 December 2004 when he began his tour of duty.  Within 3 days he developed a productive cough and malaise followed by low grade fevers and mild myalgias (muscle pains).  The CI was admitted to the base hospital on 10 January 2005 for treatment of bilateral pneumonia marked by a temperature of 103 degrees F. and a chest X-ray that demonstrated bilateral patchy infiltrates.  He required 35-40% FIO2 (fraction of inspired oxygen) to maintain his oxygen saturation above 93%.  The CI then developed wheezing.  (He had a known history of childhood asthma for which he received a waiver to enter the service.)  He was placed on Solu-Medrol (a steroid) in addition to the antibiotics Rocephin (ceftriazone), Zitromax (azithromycin) and Tequin (gatifloxacin) and was transferred to an intensive care unit.  A repeat X-ray revealed left sided consolidation (accumulation of liquid and inflammatory material in the lung) compatible with pneumonia and minimal changes on the right.  An echocardiogram was normal other than resting tachycardia (rapid heartbeat).  Because the CI did not improve, he was placed on an additional antibiotic, vancomycin, intravenously.  A sputum culture revealed strep species.  Parainfluenza, influenza and Legionella tests were negative.  While in the ICU he was placed on a Bi-pap (bilevel positive airway pressure) machine with 100% oxygen and was subsequently discharged on 25 January 2005 on a prednisone, an oral steroid, taper and albuterol, a bronchodilator.  However, the CI continued to have shortness of breath.  A chest X-ray in April 2005 demonstrated resolving left upper lobe pneumonia.  In April 2005 the FVC (forced vital capacity) was 66% predicted and FEV1 (forced expiratory volume at 1 second) was 62% predicted and examination of the lungs revealed fine rales (clicking, rattling, or crackling sounds) of the left upper lobe, which by May 2005 resolved.  A CT scan showed residual infiltrate and consolidation of the left upper lobe and with an air bronchogram (air filled bronchi made visible by opacification of the surrounding tissue) and a linear infiltrate of the right middle lobe.  Gatiflox (gatifloxacin) and Mucinex (loosens mucus in the lungs) were prescribed.  Proteinase 3 antibody and myeloperoxidase antibody (p-ANCA antibodies to test for Wegener’s granulomatosis and vasculitis (vascular inflammation) respectively), ESR (sedimentation rate), and ACE (angiotensin converting enzyme to test for sarcoidosis) tests were normal.  A pulmonologist noted pulmonary function studies in May 2005 demonstrated a mild restrictive ventilatory defect with a FVC of 64%, FEV-1 of 69% and a reported ratio of 87%.  There was no obstruction and the DLCO (diffusion of carbon monoxide) was 72%.  The pulmonologist opined that the CI’s dyspnea (shortness of breath) was on the basis of his previous pneumonia with deconditioning, atelectasis (collapse of a portion of the lung and RVD (right ventricular dysfunction), but it seemed out of proportion with the pulmonary function tests.  The CI was seen for nasal congestion in early June and for allergic rhinitis in early July 2005, but a note from July 2005 indicated the CI started on oral prednisone a week earlier and presented with a cough, congestion, fever and sore throat and was felt to have an upper respiratory tract infection, which was treated with Entex (pseudoephedrine, a decongestant) and Cepacol (benzocaine/menthol, for a sore throat) lozenges.

The non-medical assessment dated 9 May 2005 indicated the CI was “diagnosed with a persistent bilateral pneumonia” and it “prohibited him from performing any of his assigned duties.”  At the MEB examination, the CI reported on a DD Form 2807-1 dated 12 May 2005 he was “short of breath due to pneumonia.”  The MEB physical examiner noted on a DD Form 2808 of the same date decreased breath sounds at the right lung base and the CI had chronic multi-lobar pneumonia with shortness of breath.

At the VA Compensation and Pension (C&P) examination dated 21 July 2006, performed 11 months after separation, the CI reported he had pneumonia in boot camp and continued to have breathing problems.  He was hospitalized in the ICU for a week and remained hospitalized for approximately 2 additional weeks. In the year prior to the C&P examination the CI had ongoing symptoms of shortness of breath with exertion, wheezing after physical exertion, and an intermittent productive cough in the morning.  Spirometry in March 2006 and lung volumes showed mild restrictive impairment and the DLCO diffusing capacity was mildly decreased at 67.6.  A chest CT on 10 April 2006 revealed significant ground glass attenuation in a mosaic pattern within the lungs, the exact etiology of which was uncertain.  He also had very mild interstitial lung disease and atelectasis versus scarring in the lingual and right middle lobe (RML) associated with bronchiectasis (permanent damage and enlargement of the bronchial tubes) of the RML.  The CI underwent a VATS (video-assisted thoracoscopic surgery) and an open biopsy of the lung on 20 April 2006, the results of which were not in the case file.  There was no improvement with bronchodilators.  On 2 August 2006 (after left VATS/thoracotomy) the post bronchodilator predicted FVC was 64.4%, FEV1 was 64.9% and DLCO diffusing capacity was moderately decreased at 56.2%.

The Board directed its attention to its rating recommendation based on the above evidence.  The Navy PEB assigned a 10% rating using code 5299-6602 (bronchial asthma) for Category I restrictive airway disease.  The VA initially assigned a 0% rating using code 6699-6600 (Bronchitis, chronic) for bilateral pneumonia, but increased the rating following convalescence from the VATS to 60%.  The Board noted that the CI underwent VATS and an open biopsy of the lung 7 months post-separation, the results of which are not available for this review; however, it is clear that although his FEV1 remained about the same over time, his DLCO (diffusing capacity) decreased.  It is more appropriate to use a restrictive airway code, which is in concert with the PEB diagnosis, such as 6899-6844 (Post-surgical residual) rather than an obstructive airway code especially since the CI did undergo a VATS procedure within 12 months of separation.  Post VATS the DLCO was decreased; therefore, a 30% rating is appropriate.  Even prior to separation, the FEV1 would have warranted a 30% rating whether an obstructive or restrictive airway code was used.  There was no additional route for a higher rating in the absence of lower FEV1 readings, lower FEV1/FVC ratios, lower DLCOs, a maximum oxygen consumption of 15 to 20 ml/kg/min, or any incapacitating episodes.  The Board determined the Category II condition bilateral pneumonia contributed to the Category I restrictive airway disease condition and was not separately unfitting and was not ratable or compensable.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 30% for the reactive airway condition.  

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 reactive airway condition, the Board unanimously recommends a disability rating of 30% coded 6899-6844 IAW VASRD §4.97.  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 his prior medical separation:  

CONDITION	VASRD CODE	RATING	
Reactive Airway Disease 	6899-6844	30%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140508, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MEMORANDUM FOR COMMANDER, NAVY PERSONNEL COMMAND DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS	
	                          
Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS          

Ref:  (a) DoDI 6040.44
(b) PDBR ltr dtd 31 Dec 15 ICO XXXXXXXXXXXXXXXXXXXX
(c) PDBR ltr dtd 15 Jan 16 ICO XXXXXXXXXXXXXXXXXXXX
(d) PDBR ltr dtd 11 Jan 16 ICO XXXXXXXXXXXXXXXXXXXX  
(e) PDBR ltr dtd 31 Dec 15 ICO XXXXXXXXXXXXXXXXXXXX 
(f) PDBR ltr dtd 21 Dec 15 ICO XXXXXXXXXXXXXXXXXXXX 
(g) PDBR ltr dtd 11 Jan 16 ICO XXXXXXXXXXXXXXXXXXXX
(h) PDBR ltr dtd 22 Jan 16 ICO XXXXXXXXXXXXXXXXXXXX
(i) PDBR ltr dtd 29 Dec 15 ICO XXXXXXXXXXXXXXXXXXXX

1.  Pursuant to reference (a), the recommendations of the Physical Disability Board of Review set forth in references (b) through (i) are approved.

2.  The official records of the following individuals are to be corrected to reflect the stated disposition:

     a. XXXXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability retirement pay with a 30 percent disability rating (increased from 10 percent) and placement on the Permanent Disability Retired List effective date of discharge.

     b.  XXXXXXXXXXXXXXXXXXXX, former USN: Assignment to the Temporary Disability Retired List on date of discharge for a period of six months with a 50 percent disability rating followed by transfer to the Permanent Disability Retired List with a final rating of 50 percent  

     c.  XXXXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability retirement pay with a 30 percent disability rating (increased from 10 percent) and placement on the Permanent Disability Retired List effective date of discharge.

     d.  XXXXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability retirement pay with a 30 percent disability rating (increased from 10 percent) and placement on the Permanent Disability Retired List effective date of discharge.

     e. XXXXXXXXXXXXXXXXXXXX, former USMC: Assignment to the Temporary Disability Retired List on date of discharge for a period of six months with a 50 percent disability rating followed by transfer to the Permanent Disability Retired List with a rating of 30 percent. 

     f.  XXXXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.

     g.  XXXXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability retirement pay with a 30 percent disability rating (increased from 0 percent) and placement on the Permanent Disability Retired List effective date of discharge.

     h.  XXXXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability retirement pay with a 30 percent disability rating (increased from 10 percent) and placement on the Permanent Disability Retired List effective date of discharge.
     
3.  Please ensure all necessary actions are taken to implement these decisions, including the recoupment of disability severance pay, if warranted, and notification to the subject members once those actions are complete.

                                       	XXXXXXXXXXXXXXXXXXXX
	Assistant General Counsel
                                      	(Manpower & Reserve Affairs)