RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02631
BRANCH OF SERVICE:  Army 	
DATE PLACED ON TDRL:  20030709	
DATE REMOVED FROM TDRL:  20080201

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Automated Logistical Specialist, medically separated from the Temporary Disability Retired List (TDRL) for “chronic back pain” and “asthma,” rated 10% and 10%, respectively, with a combined disability rating of 20%.

CI CONTENTION:  The applicant contends that his conditions have worsened and that he was not evaluated for additional conditions including feet, hypertension and severe skin disorders.  The applicant’s complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  It is limited to those conditions determined by the Physical Evaluation Board (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 Veterans Affairs Schedule for Rating Disabilities (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:

SERVICE PEB – 20030314/20090203	VARD – 20040112/20080110	
Condition	Code	Rating	Condition	Code	Rating
Proximate	
		TDRL
Placement	TDRL Removal			TDRL
Placement	TDRL
Removal	
Asthma	6602	30%	10%	Asthma	6602	30%	30%	
Chronic Low Back Pain	5299-5295	10%	10%	Low Back Strain	5295	10%	10%	
COMBINED RATING:  40% → 20%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Asthma.  Although the CI first developed intermittent respiratory symptoms in 1995, a formal diagnosis of asthma was established by pulmonology in April 2000.  Inhaled bronchodilators (Albuterol) were prescribed on a daily basis in April 2000.  Despite treatment, the asthma condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and the he was referred for a Medical Evaluation Board (MEB).  The MEB forwarded “asthma, mild seasonal” for PEB adjudication.  Multiple pulmonary function evaluations were reported as normal.  At the MEB examination dated 14 November 2002, 7 months prior to separation, the CI reported nighttime wheezing.  Additionally, he reported taking Advair (inhaled corticosteroid) and Albuterol on a daily basis.  His respiratory-focused physical examination was normal.  Although review of the service treatment record (STR) revealed frequent clinical encounters documenting steroid use to treat his asthma during the year prior to separation, there was no evidence showing a requirement for daily use of a systemic (oral or parenteral) high dose corticosteroid or immunosuppressive medication.  His asthma exacerbations were not frequent enough to require monthly visits to a physician.  At the VA Compensation and Pension (C&P) evaluation on 13 November 2002 (1 day prior to the MEB examination) the examiner also noted that the CI was taking Albuterol and Advair inhalers.  The examiner was silent about frequency of medication use but reported the CI had attacks 1 to 2 times per week.

The Board directed attention to its rating recommendation based on the above evidence.  Upon placement on the TDRL, the PEB rated the asthma condition 30% (coded 6602) citing daily inhalation therapy.  Upon removal from the TDRL, the PEB rated the asthma condition 10% indicating the medication profile did not provide fill dates and therefore did not support a requirement for daily therapy.  The VA also rated the asthma condition 30% (coded 6602), citing daily inhalation medication use.  The VA rating proximate to removal from the TDRL remained at 30% citing daily inhalational or oral bronchodilator use.  

The unequivocal VASRD code for rating asthma is 6602.  VASRD §4.97 defines both spirometry derived criteria and clinical treatment criteria for rating under 6602.  Based solely on spirometry parameters the CI’s condition did not meet VASRD disability criteria.  However, the clinical treatment criteria underpinning any positive 6602 rating is the pivotal point for discussion in this case.  The non-spirometry derived criteria are: “intermittent inhalational or oral bronchodilator therapy” for 10%; and “daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication” for 30%.  Having clear reported evidence of using inhaled anti-inflammatory medication (Advair) on both the narrative summary (NARSUM) and VA examinations easily supported the 30% impairment level upon TDRL placement.  Additionally, the TDRL re-evaluation conducted on 5 October 2007 (3 months prior to TDRL removal) specifically noted the continued required use of inhaled corticosteroids and discussed the proper prescribing schedule of the same.  Therefore, 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 upon TDRL placement.  Additionally, the Board concluded that based upon the same medication criteria that the 30% impairment rating remain as a permanent rating upon TDRL removal.  

Chronic Back Pain.  According to STR and the MEB NARSUM, the CI’s chronic back pain condition began in January 1997 after running.  Diagnostic imaging performed in 2000 revealed normal vertebral bodies without disc herniation or significant arthritic change.  Electro-diagnostic studies of the lower extremities performed on 22 October 2002 were normal.  Repeat diagnostic imaging studies performed on 8 November 2002 were clinically unchanged from prior studies performed in 2000.  There was no surgical indication, and conservative treatment did not result in improvement sufficient to allow unrestricted duty. The MEB forwarded “low back pain, slight intermittent, non-radicular, uncomplicated subjective,” for PEB adjudication.

At the MEB examination dated 14 November 2002, 8 months prior to separation and proximate to placement on the TDRL, the CI reported low back pain that caused difficulty with bending, stooping, and lifting heavy objects.  The pain prevented him from wearing a back pack, wearing chemical protection equipment, and limited his marching to 1/4 mile and lifting to only 30 pounds.  His physical examination revealed a normal gait, spinal contour, strength, reflexes, and sensation with no muscle spasm.  There was decreased and painful motion of the thoracolumbar spine.  Forward flexion was measured at 60 degrees and the combined ROM was 155 degrees.  At the C&P examination performed a day prior to the MEB examination the CI reported low back pain that caused leg numbness when bending and/or standing up.  The physical examination revealed a normal posture and an antalgic gait (attributed to a different musculoskeletal condition).  There was normal sensation and reflexes.  There was tenderness and muscle spasms about the entire lumbar spine.  There was decreased and painful motion of the thoracolumbar spine.  Forward flexion was measured at 35 degrees and the combined ROM was 170 degrees.  Provocative maneuvers for signs of radiculopathy or radiating pain due to spinal nerve root or sciatic nerve involvement were negative.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB, proximate to placement on the TDRL, rated the back pain condition 10% coded 5237 (lumbosacral strain), citing painful limitation of motion.  The VA also rated the back pain at 10% proximate to placement on the TDRL, coded 5295 (lumbosacral strain…using interim spinal rules) based on the MEB examination 8 months before separation, citing painful limitation of motion.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the chronic back pain condition, coded 5292-5237, upon placement on the TDRL.  Both the PEB and VA, proximate to removal from the TDRL, rated the chronic back pain condition at 10% coded 5237 (lumbosacral strain…using new spinal rules) and cited painful limitation of motion.  Board members agreed that the ROM measurements at the TDRL re-evaluation did not support an impairment rating greater than 10%.  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’s adjudication for the chronic low back pain permanent rating upon removal from the TDRL.  

BOARD FINDINGS:  In the matter of the asthma condition, the Board unanimously recommends a disability rating of 30% coded 6602 IAW VASRD §4.97 upon TDRL placement and at permanent dispositon.  In the matter of the chronic low back pain condition, the Board unanimously recommends a disability rating of 20%, coded 5292 IAW VASRD Interim Spine Rules be awarded upon TDRL placement and no change in the PEB adjudication upon removal from the TDRL.  There were no other conditions within the Board’s scope of review for consideration.  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 prior to medical separation:  

CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
Asthma	6602	30%	30%	
Chronic Low Back Pain	5292-5237	20%	10%	
RATING	40%	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140603, 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

JUL 26 2016

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for XXXXXXXXXXXXXXXXXX, AR20160011335 (PD201402631)

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 40% 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 40% 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