RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02468
BRANCH OF SERVICE:  Army	Separation Date:  20090526

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Petroleum Supply Specialist) medically separated for asthma.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  He was issued a permanent P3L2 profile and referred for a Medical Evaluation Board (MEB).  The “moderate persistent asthma” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded three other conditions (hypertension, allergic rhinitis and low back pain) for PEB adjudication.  The Informal PEB adjudicated “asthma” as unfitting, rated 10% with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be not unfitting.  The CI made no appeals and was medically separated.  

CI CONTENTION:  “His conditions continue to worsen and negatively impact his daily activities.  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/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: 

IPEB – Dated 20090217	VA* - (~2Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Asthma	6602	10%	Asthma	6602	10%*	20090325	
Allergic Rhinitis	Not Unfitting	Allergic Rhinitis	6522	0%	20090325	
Hypertension		Hypertension	7101	0%	20090325	
Low Back Condition		Low Back Condition	5237	NSC		
Other x 0 (Not In Scope)	Other x 7	
RATING:  10%	RATING:  10%	
*Derived from VA Rating Decision (VARD) dated 20090624 (most proximate to date of separation (DOS)).  VARD 20130919 increased the rating to 30% effective 20121012 based on daily bronchodilator use.  

ANALYSIS SUMMARY:  

Asthma Condition.  The CI developed exertional dyspnea and shortness of breath with occasional wheezing prior to deployment to Iraq in 2006.  During his deployment he was exposed to burn pit smoke which caused breathing difficulty on numerous occasions.  The CI was started on an oral bronchodilator and an inhalational anti-inflammatory medication.  He had periodic asthma attacks and was followed closely by pulmonary specialists with multiple medication adjustment.  A chest X-ray done in January 2008 was normal.  A pulmonary function test (PFT) done 3 July 2008 demonstrated an FEV1 80% predicted and an FEV1/FVC ratio of 84% predicted which was interpreted as normal.  The CI underwent a Methacholine Challenge Test on 28 October 2008 which confirmed the diagnosis of asthma.  

The MEB Narrative Summary (NARSUM) exam approximately 6 months prior to separation documented that the CI’s medications were Combivent (inhalational bronchodilator of ipratropium/albuterol) used as a rescue inhaler and Symbicort (inhalational anti-inflammatory/bronchodilator combination of budesonide/formoterol) two puffs twice daily.  The examiner opined that the CI would be able to pass the APFT with a walk but could not pass it with a run.  The physical exam showed normal lungs with no wheezing noted.  The medication profile indicated that Symbicort inhalers were issued on 16 October 2008 (one inhaler) and on 14 January 2009 (quantity of two inhalers), 4 months prior to separation.  

The VA Compensation and Pension (C&P) exam approximately 2 months prior to separation documented that the CI “usually gets flare ups one time per week, treats with albuterol.”  The CI stated that he had “limitations and effects of daily activities and occupation because he cannot do any strenuous activities.”  The lung exam was normal.  The VA examiner did not perform any PFT testing.  Remote from separation, VA new patient intake almost 4 years after separation indicated that the CI had taking non-VA medications including daily inhaled anti-inflammatory medication (budesonide/formoterol) and as needed rescue inhaled bronchodilator medication (albuterol and ipratropium/albuterol).  

The Board directed attention to its rating recommendation based on the above evidence.  Both the PEB and VA rated the CI under code 6602 (Asthma, bronchial).  The CI had no evidence of respiratory failure, hospitalizations or at least three courses of high dose corticosteroid treatment for any rating above 30%.  Code 6602 list PFT; or bronchodilator use; or inhalational anti-inflammatory medication use criteria for ratings of 10% versus 30%.  No PFTs on record would warrant any rating higher than 10%.  In its deliberations, the 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.  The PEB disability description indicated that their 10% asthma rating was for “requiring intermittent inhaler based on his medication profile.”  There was insufficient evidence proximate to separation that the CI was taking daily medication for the asthma condition; however, the “inhalational anti-inflammatory medication” clause of the 30% language does not specify “daily.”  For purposes of a 30% VASRD 6602 rating for unfitting asthma, there is no daily use or minimum amount requirement when the CI uses an inhaled anti-inflammatory medication.  

The NARSUM and treatment record supported that the CI was prescribed and used Symbicort inhaler (containing an anti-inflammatory medication-budesonide), and would therefore warrant a 30% rating even if Symbicort was not used on a daily basis.  The pre-separation VA exam indicated weekly asthma flares treated with albuterol inhaler (bronchodilator) and did not mention any use of an anti-inflammatory medication which would warrant a 10% rating.  Subsequent (remote) VA records indicated use of inhaled anti-inflammatory medication and rescue inhaled bronchodilator medication, but did not indicate any start date or re-start date for inhaled anti-inflammatory medication.  The Board considered if the VA exam, which was closer to the date of separation, definitively indicated that the CI no longer used at least episodic anti-inflammatory medication.  The asthma history in that exam was very terse and noted bronchodilator treatment for weekly flares without noting any positive or negative comments on other medications, triggers, or disease history.  Given the Service medication profile the CI may have had sufficient inhaled anti-inflammatory medication for episodic use, and remote treatment notes indicated the CI had been using inhaled anti-inflammatory use without noting any timeframe when the CI was not using those medications.  Given the CI’s entire medication history, the disability picture was closest to that depicted in the 6602 30% rating criteria.  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 asthma condition.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the allergic rhinitis, hypertension, and low back conditions were not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The low back condition was noted in the profile (P3L2) and the allergic rhinitis and hypertension conditions were not profiled.  None of the contended conditions were specifically implicated in the commander’s statement and all were judged to meet retention standards.  All were reviewed and considered by the Board.  There was no performance based evidence from the record that any of these conditions significantly interfered with satisfactory duty performance.  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 the any of the contended conditions and so no additional disability ratings are recommended.  

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, the Board unanimously recommends a disability rating of 30%, coded 6602 IAW VASRD §4.97.  In the matter of the contended allergic rhinitis, hypertension, and low back conditions, the Board unanimously recommends no change from the PEB determinations as 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; 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	
Asthma 	6602	30%	
RATING	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140529 w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20i 60004500, XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX 

Dear XXXXXXXXXXXXXXXXXXX:

I accept the recommendation of the Department of Defense Physical Disability Board of
Review (DoD PDBR) to re-characterize your separation as a disability retirement with the combined disability rating of 30% effective the date of your medical separation for disability with severance pay.  Enclosed is a copy of the Board's recommendation and record of proceedings for your information.

The re-characterization of your separation as a disability retirement will result In an adjustment to your pay providing retirement pay from the date of your original medical separation minus the amount of severance pay you were previously paid at separation.

The accepted DoD PDBR recommendation has been forwarded to the Army Physical Disability Agency for required correction of records and then to the U.S. Defense Finance and Accounting Service to make the necessary adjustment to your pay and allowances. These agencies will provide you with official notification by mail as soon as the directed corrections have been made and will provide information on your retirement benefits. Due to the iarge number of cases in process; please be advised that it may be several months before you receive notification that the corrections are completed and pay adjusted. Inquiry concerning your correction of records should be addressed to the U.S. Army Physical Disability Agency, (AHRC-00), XXXXXXXXXXXXXXXXXXX.

A copy of this decision has also been provided to the Department of Veterans Affairs.

Sincerely,

Enclosure