RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02405
BRANCH OF SERVICE:  Army	DATE OF PLACEMENT ONTO TDRL:  20041001
		DATE OF REMOVAL FROM TDRL:  20050930

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Aviation Operations Specialist) medically separated for asthma.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  The profile allowed for an alternate aerobic event to satisfy physical fitness standards.  He was issued a permanent P3 profile and referred for an Medical Evaluation Board (MEB).  Exercised induced asthma was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB (IPEB) 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 the Temporary Disability Retired List (TDRL).  Approximately 14 months later, the IPEB adjudicated asthma as unfitting rated 10% with likely application of the VASRD.  The CI made no appeals and was medically separated.

CI CONTENTION:  The applicant makes no specific contention 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 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 – 20050830	VA Rating Decision* - 20050301	
TDRL Placement – 20041001	Code	Rating	Condition	Code	Rating
Proximate	
Condition		TDRL
Placement	TDRL Removal			TDRL
Placement	TDRL Removal	
Asthma, Exercised Induced	6602	30%	10%	Asthma	6602	30%	30%	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 2	
RATING:  30% → 10%	RATING:  30%	
*Derived from VA Rating Decision (VARD) dated 20050301 (most proximate to date of separation [DOS])
ANALYSIS SUMMARY:

Asthma Condition.  The MEB narrative summary noted that the CI was diagnosed with exercise-induced asthma and despite appropriate treatment, he had very poor exercise tolerance, he got short of breath whenever he tried to exercise, and he still was “not able to control his breathing.”  He was considered non-deployable by his commander and was referred to the MEB.  Review of the service treatment record (STR) indicated that the CI had received parenteral steroids for asthma at least once while in Iraq (more than a year before the IPEB), and twice while at Fort Wainwright in the year before the IPEB.  Pulmonary function tests (PFTs) on 7 April 2004 (5 months prior to separation) showed FVC at 121% of predicted and FEV1/FVC ratio of 84%.  The DD Form 2808, Report of Medical Examination, was completed on/about 26 April 2004 and examination of the lungs was normal.  

PFTs performed by the VA on 21 December 2004, 3 months after separation, showed a FEV1/FVC ratio of 85% and an FVC at 114% of predicted.  A VA Compensation & Pension (C&P) general exam was not accomplished and was not available for review.  

The Board directed its attention to its rating recommendation for TDRL placement based on the above evidence.  The PEB rated the condition at 10%, coded 6602 (Asthma), citing daily corticosteroid and bronchodilator use.  The PEB stated, “Unstable for permanent rating at this time,” and placed the CI on the TDRL.  The VA also rated the condition at 30% under code 6602, citing daily use of inhaled steroids and bronchodilator.  The STR endorsed that the CI was on daily inhaled steroids at the time of the PEB, and supported a rating of 30%.  Available PFTs also supported a rating of 30%.  Although CI had been treated with parenteral steroids, available records did not support a higher rating based on frequency of physician visits, frequency of use of systemic corticosteroids (daily use or at least three courses per year), or episodes of respiratory failure.  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 at TDRL placement.

After placement on TDRL, the CI was reevaluated on 19 May 2005.  He reported no emergency room visits or systemic steroids after separation.  He was able to walk one block without difficulty (did not need to walk more than one block), could walk up two flights of stairs, but had symptoms if he was climbing stairs and carrying at least 30 pounds.  His meds were Albuterol inhaler “at least once a day,” Flovent (inhaled steroid) in the morning, and Singulair.  His lungs were clear on examination.  PFTs showed FEV1 at 116% of predicted, FVC 117% of predicted, and an FEV1/FVC ratio of 83%.  

The Board directed its attention to its rating recommendation for TDRL removal based on the above evidence.  The PEB rated the condition at 10%, coded 6602, citing the reported FEV1 and FVC, and medication regimen that included Singulair and Albuterol.  The Board noted that the one examination available reported that the CI used an albuterol inhaler at least once a day and Flovent (an inhaled steroid) in the morning, which support a 30% rating.  Ratings higher than 30% require significant reduction in PFT parameters, systemic corticosteroids, or hospitalizations – and are not supported in this case.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority recommends a disability rating of 30% for the asthma condition 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.  In the matter of the asthma condition and IAW VASRD §4.97, the Board unanimously recommends no change in the PEB adjudication at TDRL placement.  In the matter of the asthma condition at TDRL removal, the Board by majority vote recommends a disability rating of 30%, coded 6602 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 at TDRL removal 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 separation (TDRL removal):

CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
Asthma, Exercise Induced	6602	30%	30%	
RATING	30%	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140519, 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, AR20160000291 (PD201402405)

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 recharacterize 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