RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02672
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20051220

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E3, M1 Armor Crewmember, medically separated for “asthma” with a disability rating of 0%.  

CI CONTENTION:  “Please consider all conditions.”  The CI’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 – 20051021	VARD - 20110228	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Asthma	6602	0%	Asthma	6602	10%	20110128	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Asthma.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s asthma condition began in 2004 during a deployment to Iraq.  At a behavioral health appointment in July 2004, the CI reported that he was constantly out of breath even though he used an Albuterol (inhalational bronchodilator) inhaler throughout the day.  In September 2004, respiratory therapy recorded pulmonary function tests (PFTs) of FEV-1 (forced expiratory volume in one second) at 97 percent of predicted with the FEV1/FVC (forced vital capacity) at 97 percent.  A battalion aid station (BAS) note, on 17 November 2004 (13 months before separation), recorded that the CI had 3 crises in the past 3 weeks requiring Albuterol nebulizer treatments; medications included Advair (inhalational steroid/bronchodilator combination) 2 times per day and Prednisone (oral corticosteroid).  On 6 January 2005, a German internal medicine discharge summary (12 months before separation) documented an acute asthma attack requiring overnight hospitalization and that the CI was treated with Bronchoparat (bronchodilator) and Solodecortin (oral corticosteroid).  A 20 January 2005 BAS examination (11 months before separation) indicated the CI had required treatment with Albuterol nebulizers (X3) and was using Advair, Albuterol, and Singular (oral indirect-acting bronchodilator).  The examiner also recommended a follow-up for a P3 profile and referral to an MEB or Medical Retention Board.  Despite treatment, the asthma condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and the CI was referred for MEB.  The MEB forwarded “asthma” for PEB adjudication.  

At a 23 January 2005 pulmonary follow-up, the examiner noted that the CI was not intubated (placed on a ventilator) during his overnight stay in the German hospital and that the CI had two other episodes requiring acute treatment since an evaluation 2 months prior.  At this previous encounter, Singular was prescribed, and the CI’s Advair dosage was increased.  During a BAS visit the same week, the examiner assessed an “asthmatic crisis exacerbated by upper respiratory infection (URI)/exposure to cold” and the CI was treated with Albuterol nebulizers (X3) and prescribed an antibiotic; active medications included Advair, Singular, and Prednisone.  At a 2 February 2005 allergy appointment (11 months before separation), the CI had normal lung function and had also improved both subjectively and objectively (by auscultation, but not with spirometry) post-Albuterol.  The examiner stated that the CI was “currently taking Prednisone more often than not.”  The recorded medications were Advair 2 times per day, Albuterol 2 times per day, Singular every morning, and Prednisone daily.  The assessment listed moderate persistent asthma, acute URI, and probable allergic rhinitis/allergic asthma.  During a 6 April 2005 BAS encounter (9 months before separation), the examiner recorded that the CI had shortness of breath and that he had taken 4 puffs of Albuterol in 30 minutes without improvement; he was taking Advair and Singular daily.  The CI was treated with Albuterol nebulizers (X3) and intravenous (IV) Methylprednisolone (parenteral corticosteroid).  At an allergy appointment on 25 May 2005 (7 months before separation), the examiner documented PFTs of FEV-1 of 86 percent of predicted and FEV/FVC of 95 percent.  At a BAS encounter on 13 July 2005 (5 months before separation), the CI reported his asthma had improved; active medications included Advair, Albuterol, and Singular.  During a pulmonary visit on 18 July 2005, the examiner noted that the CI had been admitted to a German hospital 4-5 times over 8 months and had been treated at the BAS approximately 10 times in the same timeframe for recurrent exacerbations.  In addition, he had been treated with “several prednisone bursts” and continued Advair use 2 times per day and Albuterol and Singular daily.  The assessment listed moderate persistent asthma that was maximally medically managed.  

The MEB NARSUM evaluation on August 2005 (4 months before separation), noted that the CI was treated with Albuterol and intravenous Aminophylline (bronchodilator) at a German hospital but that no medications were dispensed at discharge; the CI received “intermittent” bursts of oral corticosteroids during follow-up sick call visits.  The examiner referenced the focused examination on 18 July 2005 that was normal but revealed PFT abnormalities.  Active medications included Advair, Albuterol, and Singular.  The MEB examiner stated “The Service Member has been compliant with treatment recommendations since he became educated on the disease.”  

At the VA Compensation and Pension (C&P) examination on 28 January 2011 (62 months after separation), the CI reported taking steroids while he was in Iraq and Germany (2004-2005).  Although he had no hospitalizations since 2005, the CI recounted several emergency room visits for asthma exacerbations.  The PFTs showed FEV-1 of 88 percent of predicted with FEV/FVC of 79 percent; the CI was using an Albuterol inhaler.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the asthma condition 0% (coded 6602) citing non-compliance with medical management.  The VA rated the asthma condition 10% (coded 6602) based on the VA C&P examination over 5 years after separation, citing occasional attacks treated with an Albuterol inhaler.  Although the PEB made a rating deduction for treatment non-compliance, the Board considered its rating recommendation based solely on the impairment and the guidelines of the applicable VASRD diagnostic codes.  A 30% rating stipulates “FEV-1 of 56 to 70 percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication.”  Serial medical appointments recorded daily use of inhalational bronchodilator and inhalational anti-inflammatory medications.  Board members agreed that the VASRD §4.97 threshold for a 30% rating was reasonably satisfied in this case on the basis of bronchodilator and inhalational anti-inflammatory medication use.  A route to a higher than 30% rating was considered.  Although there was no evidence of monthly visits for care of exacerbations, the STR indicated some steroid use.  However, while the CI frequently reported taking Prednisone, review of the medication profile (21 October 2003 to 29 July 2005) revealed only one prescription for Prednisone 20 mg for 12 tabs dated 9 November 2004.  Also, even though examiners reported “several” or “intermittent” bursts of corticosteroids, the STR showed only 2 instances of systemic corticosteroid use in the 12 months prior to separation.  Therefore, Board members concluded that the evidence did not warrant 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, coded 6602.  

BOARD FINDINGS:  In the matter of the asthma condition, the Board majority recommends a disability rating of 30%, coded 6602 IAW VASRD §4.71a.  The single voter for dissent submitted the appended minority opinion.  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 of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Asthma	6602	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140604, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MINORITY OPINION:  The minority member recommends modification of the asthma rating to 10% based on the overwhelming preponderance of evidence at the time of separation that supports a rating higher than the 0% awarded by the PEB, but is inconsistent with the 30% recommended by the Board majority. 

A primary measure of asthma severity is the pulmonary function Test (PFT).  During the allergy clinic appointment on 25 May 2005, performed 7 months before separation, the examiner recorded the PFT results as FEV-1 of 86 percent and FEV/FVC of 95.  VASRD Code 6602 (Asthma, bronchial) stipulates FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; intermittent inhalational or oral bronchodilator therapy for a 10% rating.  The CI's PFTs are clearly better than those minimums required to meet a 10% rating, let alone a 30% rating which requires FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication. 

The Veterans Administration concurred with this application of the VASRD standard by awarding the CI a 10% asthma rating, citing PFT results from the VA C&P examination dated 28 January 2011, of FEV-1of 97 percent predicted, FVC of 100 percent, and FEV-1/FVC of 97 percent.  The CI's very consistent PFT results and general asthma condition over a 5-year period clearly and overwhelmingly support a 10% VASRD rating.

RECOMMENDATION:  The minority member strongly recommends modification of the asthma rating to 10% based on VASRD code 6602 (Asthma, bronchial) effective the date of his prior medical separation.

SFMR-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 XXXXXXXXXX, AR20160010981 (PD201402672)

1.  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 reject the Board’s recommendation and accept the Board’s minority opinion as accurate that the applicant’s final Physical Evaluation Board disability rating be modified from 0% to 10%.  There is insufficient justification to support the Board’s recommendation in accordance with Army and Department of Defense regulations.  

2.  This modification results in a combined rating of 10% and does not result in a recharacterization of the individual’s separation, any change to the separation document or the amount of severance pay.

3.  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.   

4.  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