RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02850
BRANCH OF SERVICE:  Army  	SEPARATION DATE:  20060915

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 asthma rated at 10%.  

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.  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:  

IPEB – Dated 20060817	VA* (~3+ Years Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Asthma	6602	10%	Asthma	6602	0%	20100106	
Right Inguinal Hernia Repair	Not Unfitting	Right Inguinal Hernia s/p Repair	7338	10%	20100106	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 4 	
RATING:  10%	RATING:  10%	
*Derived from VA Rating Decision (VARD) dated 20100317 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:  

Asthma.  The earliest entry in the service treatment record (STR) with regards to a history of asthma is from March 2003 and notes the presence of wheezing with a respiratory tract infection.  The STR documents an evolution to a diagnosis of asthma confirmed by pulmonary function testing (PFT) with pulmonary consult and follow-up.  There are numerous PFT evaluations in evidence throughout the clinical course.  Two of them record an FEV-1 in the range of 71% to 80% predicted (criterion for VASRD rating of 10%); but, the remainder were greater than 80%, which includes a measurement of 92% just preceding and cited in the narrative summary (NARSUM).  The lowest recorded FEV1/FVC ratio was 89%.  With regards to medication use, STR clinical notes corroborate the documentation from the medication profile (PEB evidence).  From the earliest treatment and throughout all Service entries the CI was prescribed rescue albuterol (inhaled bronchodilator) on an as needed basis.  There was no indication of daily maintenance use of this medication.  There are two courses (8-10 days) of prednisone (oral corticosteroid) in evidence, one in September 2005 and another in August 2006.  Daily maintenance use of Advair (inhaled anti-inflammatory plus bronchodilator) was employed and last refilled (3-month supply) in September 2005 (12 months pre-separation), until a new prescription in August 2006 (30 days pre-separation).  The latter was preceded by a one month prescription (from 2 weeks earlier) for Flovent (inhaled anti-inflammatory) and Singulair (oral bronchodilator/anti-inflammatory).  There is no STR evidence for respiratory failure, hospital admissions, continuous requirement for systemic corticosteroids, or monthly exacerbations requiring physician visits (criteria for VASRD ratings higher than 30%).

The NARSUM was conducted 28 June 2006 (about 3 months pre-separation) and documented the clinical course, prior medication use, and PFT evidence described above.  It did not document a concurrent medication list, and it should be noted that it preceded the later prescriptions just elaborated.  The asthma severity was characterized as “mild to moderate.”  As noted above, there was no temporally probative VA or other post-separation evidence in this case; and, the VA Compensation and Pension (C&P) examination over 3 years later documented only the use of albuterol as needed.  The CI failed to keep an appointment for PFT measurements at that time. 

The Board directed attention to its rating recommendation based on the above evidence.  The VASRD provides rating guidance for asthma based on the number and severity of clinical exacerbations, the type and the frequency of medications used to treat the condition, and objective PFT findings.  None of the VASRD §4.97 criteria under code 6602 (asthma) for a rating higher than 30% were supported (as above).  The criteria for the ratings under consideration are excerpted below. 
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…………………..…..….....30  
FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; intermittent 
inhalational or oral bronchodilator therapy…............................................................................................10 
The NARSUM PFT evidence precludes even the minimum 10% rating based on those criteria.  The PEB’s 10% rating was premised on intermittent bronchodilator therapy, accurately citing the medication profile evidence for a long hiatus of any other medication until a month prior to the proceedings.  The VA’s eventual non-compensable rating was compatible with the VA evidence at that time.  The Board deliberated whether the 30% medication criteria were satisfied by the later prescriptions as above, or whether the preponderance of the medication evidence was fairly rated 10% as judged by the PEB.  The Service evidence indicates that at baseline the CI fared well with only a rescue inhaler, and the daily maintenance medications (Advair and/or Flovent with Singulair) would appear to have been a sporadic requirement.  The later VA evidence strengthens that impression of the overall severity and treatment requirements for the condition.  Since the Board’s permanent rating recommendation should reflect the overall severity at separation, member consensus was that the medication criteria for the higher rating were not satisfied by the totality of the evidence.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board consensus was that there was insufficient cause to recommend a change in the PEB adjudication of the asthma condition.

Contended Inguinal Hernia Condition.  The earliest STR entry for this condition is from March 2006 (6 months pre-separation and after MEB referral for asthma) and documents an 8 month history of a tender bulge in the lower abdomen.  An inguinal hernia was diagnosed which did not resolve with profile restrictions, and surgery ensued in April 2006 (14 weeks pre-separation, after the NARSUM).  The final post-operative note a month after surgery documented a favorable course without significant complications, recommending follow-up as needed.  The surgeon provided an addendum to the NARSUM (26 May 2006) indicating that following a 6-week temporary profile after surgery the CI could be returned to normal duty without limitations.  The commander’s performance statement did not provide probative details regarding any fitness implications of the condition.  The VA’s delayed 10% rating for the condition reflected a recurrence and repeat surgery in December 2009 (3+ years post-separation).

The Board directed attention to its recommendation based on the above evidence; and, its main charge with respect to this condition is an assessment of the fairness of the PEB’s determination that it was not unfitting.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The evidence indicates that the condition had responded well to surgery at the time of separation and that it was no longer profiled.  It was judged to meet retention standards at the time of the NARSUM; the commander did not document any contradictory opinion; and, there was no performance based evidence suggesting that it significantly interfered with duty performance.  Furthermore, the condition was subject to DoDI 1332.38 (E3.P3.3.3 - Adequate Performance Until Referral); which stipulates, “If the evidence establishes that the Service member adequately performed his or her duties until the time the Service member was referred for physical evaluation, the member may be considered fit for duty even though medical evidence indicates questionable physical ability to continue to perform duty.”  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 hernia condition; thus, it cannot be recommended for additional disability rating.

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 by a vote of 2:1 recommends no change in the PEB adjudication.  In the matter of the contended right inguinal hernia condition, the Board unanimously recommends no change from the PEB determination as not unfitting.  There were no other conditions within the Board’s scope of review for consideration.  The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination. 

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140612, 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
C~UL 1 4 2016

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for, AR20160005123 (PD201402850)

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 accept
the Board's recommendation and hereby deny the individual's application.
This decision is final. The individual concerned, counsel (if any), and any Members of
Congress who have shown interest in this application have been notified of this decision
by mail.

BY ORDER OF THE SECRETARY OF THE ARMY:
Enclosure
CF:
( ) DoD PDBR
( ) OVA