RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02400
BRANCH OF SERVICE:  Army	BOARD DATE:  20150529
DATE OF PLACEMENT ON TDRL:  20060124
Date of REMOVAL OF TDRL:  20071115

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-3 (Patriot Fire Control Operator) medically separated for asthma.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  He was issued a permanent P3 profile and referred for a Medical Evaluation Board (MEB).  The asthma condition, characterized as “asthma, moderate persistent” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The final Informal PEB adjudicated the asthma condition as unfitting, rated 10%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  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 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 - 20080409	VA* based on Service Treatment Record) - Effective 20060124	
On TDRL – 20060124	Code	Rating	Condition	Code	Rating	Exam	
Condition		TDRL	Sep.					
Asthma…	6602	30%	10%	Asthma	6602	30%	STR	
	Other x 0		
RATING:  30% → 10%	RATING: 30%	
*Reflects VA rating exam proximate to TDRL placement; no VA rating evidence proximate to permanent separation.

ANALYSIS SUMMARY:

Asthma Condition.  Review of the service treatment record found the first reference to asthma in a note dated 5 January 2005 (12 months prior to placement on TDRL).  The CI’s chief complaint was “asthma getting worse.”  The examiner indicated: “Pt with HX of asthma, has not been under treatment lately…Hx of childhood asthma that is presently unmedicated.  Not able to complete PT in AM’s due to SOB (shortness of breath).”  At that time the CI was placed on inhaled steroids (Advair) to be used twice daily and an inhaled bronchodilator (Albuterol) as needed.  He was also given a 7-day course of oral steroids.  Follow-up evaluation 2 weeks later found “great improvement;” he no longer required Albuterol and was able to run with his peers.  During medical clearance for deployment processing in September 2005 a recent diagnostic test was noted to be positive for asthma (Methacholine Challenge Test, not in evidence) and deployment clearance was therefore suspended.

Pulmonary function testing (PFT) on 19 October 2005 (3 months prior to placement on TDRL) showed an FEV1 of 110% of predicted and an FEV1/FVC of 86%.  At a pulmonary medicine evaluation on 24 October 2005 the CI indicated that his shortness of breath began during basic training.  Medications were initially helpful, but symptoms worsened recently due to not refilling the inhaled steroid prescription.  He reportedly required two emergency room visits during the prior 6 months for asthma.  The examiner opined that the CI was not fit for deployment “given the fact that he cannot stay up with his medications and perform full duty in a garrison environment.”  All of his asthma medications were refilled that day.  The narrative summary (NARSUM) on 27 October 2005 indicated that the CI was still unable to run or perform significant exertion without symptom exacerbation.  He was reportedly using Albuterol 6-7 times per day during recent weeks.  Advair was listed as a current medication.

At the TDRL re-evaluation exam on 15 October 2007 (4 months prior to removal from TDRL), the provider indicated that there were no active medications.  The CI reported that he was unable “to get his medications filled” but also stated that he “continues to require daily asthma medications.  He continues to have daily asthma symptoms and to require the use of a rescue inhaler (bronchodilator).”  The CI smoked a half pack of cigarettes daily for the past 8 years.  PFT results showed an FEV1 of 72% of predicted and an FEV1/FVC of 80%.  The examiner indicated that the condition was clinically worse “since he has been off all his medications,” and re-prescribed the albuterol and Advair inhalers.  The NARSUM examiner on 26 October 2007 reported that the CI’s condition had deteriorated “primarily because he has not been taking medications other than his rescue inhaler.”

At the VA Compensation and Pension (C&P) evaluation on 28 January 2009 (a year after removal from TDRL) the CI reported a “chronic cough on a daily basis” and shortness of breath after walking about 200 yards.  He experienced three to four asthma attacks per month lasting 30-60 minutes.  Exacerbations were more common when exposed to cats and to spring pollen.  The CI reported that he was hospitalized for 3 days in January 2007 for asthma, and that he lost about ten jobs in 2 years due to his asthma.  The examiner listed current medications from a pharmacy printout that included bronchodilators to be used every day.  There is no evidence from the printout that these medications were ever refilled since the initial prescription 10 months previously (2 months after removal from TDRL).  Inhaled steroids were not listed as a medication, and the examiner did not inquire about medication compliance.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 30% rating at the time of placement on TDRL.  The Board agreed there was no documentation of monthly physician visits for care of exacerbations or a sufficient number of prescribed courses of systemic corticosteroids to support the next higher 60% rating.

Next the Board turned its attention to a permanent rating at the time of removal from TDRL.  The PEB cited PFT results and intermittent use of rescue inhalers as the rationale for a 10% rating.  A 30% rating is warranted for daily inhalational or oral bronchodilator therapy, or inhalational anti-inflammatory medication; or an FEV-1 of 56- to 70-percent predicted or FEV1/FVC of 56-70%.  It was agreed that the PFT results supported a 10% rating, but Board members devoted ample attention to the issue of whether the requirement for daily bronchodilator and/or routine anti-inflammatory therapy was met in this case, as that is the pivotal criteria between a 10% or 30% rating IAW VASRD §4.97.  Contemporary asthma treatment regimens routinely employ daily maintenance with a variety of inhaled anti-inflammatory (steroid) and/or bronchodilator agents which were not available for consideration at the time the current 6602 rating standards were developed.  The VA most commonly concedes the 30% rating if there is a prescription for daily use of bronchodilators or any routine use of inhalational anti-inflammatories.  Member consensus was, however, that it is reasonable to take the position that the evidence in such cases should satisfy an assumption that the treatment regimen supporting the higher rating criteria was being employed in light of the fact that the pulmonary function criteria were consistent with a 10% rating.  That question is raised in cases where there is clear evidence that prescribed medications were not in use as specified by the 30% criteria.  In this case, the NARSUM clearly indicated that the CI was “off all his medications.”  The C&P examiner (one year after removal from TDRL) reported no prescriptions for inhaled steroids, and a pharmacy record that was not consistent with daily bronchodilator use.  It was thus concluded that while the record supports a prescription for routine use of an inhaled steroid at the time of removal from TDRL, the evidence does not support the use of the medication on a routine basis.  Member consensus was that there was not adequate reasonable doubt favoring the CI in support of a rating recommendation higher than 10% under the criteria defined in VASRD §4.97.  After due deliberation, 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 asthma 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 asthma condition and IAW VASRD §4.97, the Board by a majority vote recommends no change in the PEB adjudication.  There were no other conditions within the Board’s scope of review for consideration. 

RECOMMENDATION:  The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140521, 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 XXXXXXXXXXXXXXXXXX, AR20160000273 (PD201402400)

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