RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02602
BRANCH OF SERVICE:  Army	BOARD DATE:  20150319
SEPARATION DATE:  20040119

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Military Police) medically separated for an asthma condition.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was issued a permanent P3 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.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “asthma” 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:  The CI elaborated no specific contention in his application (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 20031125	VA* - (~3 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Asthma	6602	10%	Asthma	6602	30%	20040427	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 10	
RATING:  10%	RATING:  40%	
*Derived from VA Rating Decision (VARD) dated 20040728 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

Asthma.  The first available service treatment record note dated 12 December 2002 indicated the CI had respiratory distress during physical training and he had bronchitis a month earlier.  The CI reported he had allergic stimulated asthma and a dry cough and the inhaler prescribed for the bronchitis was ineffective.  An examination revealed wheezing bilaterally.  Pulmonary function studies were performed on 10 December 2002, which showed moderate obstructive disease with the FEV1 (forced expiratory volume at one second) at 66% predicted and FEV1/FVC (forced vital capacity) at 71% predicted.  After bronchodilator use the FVC increased by 10% and the FEV1 increased by 15%.  The CI noted tightness in the chest on 6 February 2003 at which time he was taking salmeterol (Serevent-an inhaled bronchodilator), budesonide (Pulmicort-an inhaled steroid) and albuterol (Proventil-an inhaled bronchodilator) inhalers and fexofenadine (Allegra-an antihistamine).  Evaluation on 19 February 2003 indicated his symptoms improved since he started inhaled corticosteroids.   However, because he hyperventilated when wearing a chemical protective mask, the CI could not deploy.  In September 2003, he denied improvement of his asthma symptoms on his current medications.  He self-discontinued Singulair (montelukast-a leukotriene receptor antagonist) secondary to pruritus (itching) and a rash, which resolved after the medication was terminated.  Despite an adequate medical regimen, the CI was unable to complete all of his MOS and military tasks.  Repeat pulmonary function studies on 16 September 2003 demonstrated the FEV 90% of predicted and FEV1/FVC at 88% predicted, which was interpreted as mild obstructive disease with no change after a bronchodilator.  The CI was also evaluated for nasal symptoms, which he had since an early age.  Flonase (fluticasone-a steroid nasal spray) daily was instituted. However, the CI was able to run only about one half of a mile then had to stop.

A permanent P3 profile was issued on 11 September 2003 for moderate persistent asthma with limitations of physical fitness training and testing and no chemical mask or MOPP (Mission Oriented Protective Posture-Protective equipment in a toxic environment) training.  The commander’s statement dated 11 September 2003 indicated the CI performed his duties to standard within the limitations of his profile; however, he was unable to participate in tactical related and was limited by his aforementioned profile.  At the MEB examination, dated 18 September 2003 the CI reported he was prescribed an inhaler in May 2002 and was diagnosed with asthma in December 2002.  As part of the MEB physical examination, his CI’s lungs were reported as normal.  The MEB narrative summary (NARSUM) dated 16 October 2003 noted that the CI was treated for asthma, nasal allergies and gastroesophageal reflux disease (GERD).  Because of symptoms wearing his protective mask and inability to run as well as symptoms with wearing his protective vest, the CI was not deployed.  Pulmonary function studies in September 2003 were FEV1 90% predicted and FEV1/FVC 88% predicted.  His medications recorded in the NARSUM included Advair (fluticasone/salmeterol), an inhaled steroid/bronchodilator, Aciphex (rabeprazole), a proton pump inhibitor for GERD (gastrointestinal reflux disease), albuterol (used approximately two times per day), Flonase, and Zyrtec D (cetirizine and pseudoephedrine), an antihistamine and decongestant.  In the year before the NARSUM, the CI took two courses of oral prednisone, the more recent of which was in December 2002.  

At the VA Compensation and Pension (C&P) examination performed on 27 April 2004, 3 months after separation, the CI reported that he was diagnosed with asthma in December 2002 at which time he had symptoms of recurrent shortness of breath along with wheezing, chest discomfort, and a nonproductive cough.  Symptoms were worse at night and with exertion.  His treatment consisted in the past of Serevent, Pulmicort, and albuterol as needed for shortness of breath.  Allergies included various trees, weeds, grasses, dust, cockroaches, and mold, which were treated with Allegra and Flonase.  Pulmonary function results were FEV 83% of predicted and FEV1 84% of predicted.

The pulmonary function lab evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Pulmonary Exam	PT ~13 Mos. Pre-Sep
	MEB ~4 Mos. Pre-Sep
	VA C&P ~3 Mos. Post-Sep
	
FEV1 (% Predicted)	66%	90%	83%	
FEV1/FVC	71%	88%	84%	
Meds		Daily inhaler bronchodilator approximately two times per day	Daily inhaled bronchodilator as needed	
§4.97 Rating	30%	30%; PEB 10%	VA 30%	

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating using code 6602 for asthma (with normal spirometry and “medication profile does not support daily controller therapy”).  The VA assigned a 30% rating using code 6602 for asthma based on the daily use of oral bronchodilator therapy.  The Board sought a route for a higher rating.  Proximate to separation the CI’s FEV1 and FEV1/FVC predicted values would not have rated even a 10% rating, but he was prescribed and took inhalational bronchodilator therapy intermittently, which rates 10%.  However, the NARSUM report indicated the CI used the bronchodilator therapy (albuterol) daily, while the VA noted its use as needed; and the NARSUM indicated the CI took Advair (an inhaled steroid), while the VA examiner noted Pulmicort (an inhaled steroid) had been used; and both of the aforementioned are inhalational anti-inflammatory medications.  Therefore, the CI warrants a 30% rating.  However, in the absence of use of monthly visits to a physician for required care of exacerbations or at least three courses of systemic steroids in a year, his condition does not rise to a 60% rating.  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.  

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.  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%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140530, 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 XXXXXXXXXXXXXXXXXXX, AR20150018791 (PD201402602)

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