RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	    CASE:  PD-2014-02883
BRANCH OF SERVICE:  Army	BOARD DATE:  20150430
SEPARATION DATE:  20040412

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Watercraft Engineer) medically separated for asthma.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  He was issued a permanent P3 profile and referred for a Medical Evaluation Board (MEB).  The “asthma, severe, persistent” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB adjudicated “asthma with a history of onset following pneumonia” as unfitting, rated 0%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD), but noting non-compliance with treatment.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Please consider all conditions”

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 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:

IPEB – Dated 20040412	VA* - (~7 Yrs. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Asthma with a history of onset following Pneumonia	6602	0%	Asthma (also claimed as Residuals of Pneumonia)	6602	10%	20110916	
Other x 0 	Other x 3	
RATING:  0%	RATING:  10%	
*Derived from VA Rating Decision (VARD) dated 20120322 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Asthma.  The CI first presented with shortness of breath on 18 September 2002 and was diagnosed with pneumonia.  He was treated with antibiotics, an inhaler, and advised to stop smoking.  His pneumonia resolved, but the asthma symptoms continued.  He also continued to smoke about half a pack per day.  Pulmonary function tests on 2 December 2002 showed a good bronchodilator response and moderate asthma was diagnosed.  He was placed on both an inhaled bronchodilator and anti-inflammatory agent, but continued to have symptoms with exercise, cold, fumes, and smoking.  When seen on 28 May 2003, he was noted to be non-compliant with therapy and to continue to smoke.  He was next seen on 7 October 2003 and noted to continue to smoke and to use the inhaled bronchodilator 3-4 times a day.  He was again advised to stop smoking.  Wheezing was present throughout the lungs and he was started on a different inhaled anti-inflammatory agent.

The narrative summary was dated 29 December 2003.  It noted that the CI had reduced his cigarette use to one pack per week and that an anti-inflammatory agent had been prescribed (Singulair) and he was only using the bronchodilator “about once daily.”  On examination, he was in no distress, but had wheezes in the base of the right lung.

Review of the medication profile shows that he refilled both the bronchodilator and the anti-inflammatory agents in December 2003 and February 2004.

The VA Compensation and Pension examination was not performed until over 7 years after separation as the CI did not submit a claim until then.  At that time, the CI noted that he smoked infrequently and that his use of medications was limited to a bronchodilator three times a week.

DOS 20040412
Pulmonary Exam	MEB ~3 Mo. Pre-Sep
(20031229) p.21	VA C&P ~7 Yrs. Post-Sep
(20110916) p.264	
FEV1 (% Predicted)	92%	101%	
FEV1/FVC	89%	87%	
Meds	Post-bronchodilator	Post-bronchodilator	
§4.97 Rating	30% (For daily meds)	10%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB and VA both used the code 6602 (asthma), but rated the condition at 0% and 10%, respectively.  The PEB assigned a 0% rating for non-compliance.  The Board observed that while the use of medications was often sub-optimal and that the CI continued to smoke despite being advised to stop on multiple occasions, the VASRD does not support a deduction for non-compliance or behavior which aggravates the underlying condition.  The VA rating was based on information remote from separation and not probative for the Board’s adjudication.  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.  As discussed above, the PEB rated the CI for non-compliance and the condition was adjudicated independently of that policy by this Board.  In the matter of the asthma condition, the Board unanimously recommends a disability rating of 30%, coded 6602 IAW VASRD §4.100.  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 20140615, 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 XXXXXXXXXXXXXXXXXX, AR20150018801 (PD201402883)

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