RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	      CASE:  PD-2014-03472
BRANCH OF SERVICE:  Army
DATE PLACED ON TDRL:  20030729
DATE REMOVED FROM TDRL:  20041129

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Military Police, medically separated from the Temporary Disability Retired List (TDRL) for “asthma” with a disability rating of 10%.  

CI CONTENTION:  The CI requests the Board 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 based upon a 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 - 20030429/20040719	VARD - 20041012	
Condition	Code	Rating	Condition	Code	Rating	Exam	
		TDRL
Placement	TDRL Removal					
Asthma	6602	30%	10%	Asthma	6602	NSC	20040628	
				GERD w/ Reflux Esophagus. Aspiration Bronchitis and RAD	7399-7308	20%	20040628	
Hashimoto's Thyroiditis	Not Unfitting	Hypothyroidism	7903	10%	20040628	
Atopic Dermatitis	Not Unfitting	No VA Placement	
Severe Allergic Rhinitis	Not Unfitting	Allergic Rhinitis	6522	0%	20040628	
Left Shoulder Impingement	Not Unfitting	Left Shoulder Impingement	5203	10%	20040628	
Bilateral Pes Planus	Not Unfitting	Flat Feet	5276	0%	20040628	
Headaches	Not Unfitting	Tension Headaches	8100	0%	20040628	
Excessive Worrying	Not Unfitting	No VA Placement	
[Bilateral] Knees Locking	Not Unfitting	No VA Placement	
Mild Overweight	Not Unfitting	No VA Placement	
COMBINED RATING:  30% → 10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

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 September 2000 after she experienced dyspnea (difficulty breathing) and wheezing on exertion.  In 2001 and was started on daily inhalational anti-inflammatory medication (Flovent), as needed inhalational bronchodilator therapy (albuterol) and diagnosed with asthma by pulmonary specialists.  In 2002 a daily oral indirect-acting bronchodilator (Montelukast).  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 an MEB.  The MEB forwarded “asthma, mild persistent” for PEB adjudication.  

At the MEB NARSUM examination, dated 11 March 2003, 5 months before TDRL placement, the CI reported continued significant dyspnea on exertion and trouble keeping up with her unit on marches and runs.  Her asthma medications included Advair twice daily, Singular (Montelukast) and Albuterol prior to exercise and when symptomatic.  Pulmonary function testing documented moderate obstruction with reversibility with FEV-1 of over 80-percent predicted, and FEV-1/FVC of 79 percent after inhaled bronchodilators.  Chest X-ray was normal.  On examination, breath sounds were decreased.  

The VA Compensation and Pension (C&P) examination dated 28 June 2004, 11 months after TDRL placement and 5 months before TDLR removal, the CI reported dyspnea on exertion but could climb stairs or walk unlimited if she did not hurry.  Her current medications included:  Advair, Albuterol and Singular.  Pulmonary function testing was stated by the examiner as “an obstructive pattern, moderately severe with significant bronchodilator response.  My interpretation of that is she has reactive airway disease (RAD).”  

At the TDRL Evaluation examination, dated 12 May 2004, 7 months before TDRL removal, the CI reported nocturnal and exertional asthma.  She said she did well on medications upon entering TDRL placement (July 2003) but her asthma symptoms increased since February/March 2004 when her Advair ran out or other asthma medication ran low which she does not take on a regular basis.  She had been using increased albuterol since her Advair ran out.  
The CI reported not knowing how to fill her medications and waited for this TDRL evaluation for refill.  She was taking daily Singulair and had only misplaced it for one month and had recently restarted.  ).  Pulmonary function testing documented a mild obstruction ventilatory defect without clear improvement on bronchodilators with FEV-1 of over 80-percent predicted, and FEV-1/FVC of 71 percent.  The provider indicated the CI’s symptoms should be decreased with restarting medications and current medications were:  Albuterol (as needed), Advair (twice daily with decreased dosage) and Singular (daily).  

Pulmonary Exam	TDRL Evaluation
7 Mo. Pre-TDRL Removal	VA C&P General
~5 Mo. Pre-TDRL Removal	
FEV1 (% Predicted)	--	Obstructive pattern, moderately severe with significant bronchodilator response	
FEV1/FVC			
Meds	Advair twice daily, Singular daily	Advair and Albuterol	
§4.97 Rating	30% (PEB 10%)	30% (VA NSC)	

The Board first considered its rating recommendation at the time of placement on TDRL.  The PEB rated the asthma condition 30%, coded 6602 (asthma) citing daily inhaled corticosteroids.  There was no VA rating proximate to TDRL entry.  Board members considered that the records and NARSUM examination reported current prescription and use of daily bronchodilators and inhalational anti-inflammatory medications (corticosteroids) supporting the 30% rating.  A 60% rating was not justified in the absence of at least monthly visits to a physician for required care of exacerbations, or intermittent (at least three per year) courses of systemic corticosteroids.  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 at TDRL placement.  

The Board next considered its rating recommendation at the time of removal from TDRL.  The PEB rated the asthma condition 10%, coded 6602 (asthma) citing intermittent inhalational bronchodilator.  The VA did not initially service connect the asthma condition (6602) based on the C&P examination 5 months before TDRL placement, citing the asthma condition did not occur or was caused by service.  However, the VA rated gastroesophageal reflux disease (GERD) with reflux esophagitis, aspiration bronchitis and RAD 20% as 7399-7308 (Post gastrectomy syndromes).  Later VARDs indicated retroactive rating of asthma at 10% coded 6602.  

The Board agreed that pulmonary function tests proximate to TDRL removal did not support a rating higher than 10%.  In its deliberations, the members considered the issue of whether the requirement for daily bronchodilator and/or routine anti-inflammatory therapy was met in this case, as that is the pivotal criteria between a 10% or 30% rating IAW VASRD §4.97.  The Board considered the pre-TDRL separation VA examination, the military medication profile, and the NARSUM examination for evidence for medication frequency/use and weighed the probative value with other evidence in treatment notes and the CI’s statement of medication use.  At the TDRL evaluation the CI had run out of her Advair (inhalational anti-inflammatory medication) for 2 months with increased symptoms.  She was taking Singulair (oral indirect-acting bronchodilator) daily and was taking “more frequent” (unspecified) Albuterol.  The physician restarted the CI on inhalational anti-inflammatory medication.  A 30% rating stipulates “daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication.”  However, the “inhalational anti-inflammatory medication” clause of the 30% language does not specify “daily.”  For purposes of a 30% VASRD 6602 rating for unfitting asthma, there is no daily use or minimum amount requirement when the CI uses an inhaled anti-inflammatory medication.  

Inhaled anti-inflammatories medication (Advair) was prescribed and used during the time leading up to TDRL removal as noted by the VA C&P examination.  
The TDRL reevaluation indicated an approximately 2 month “running out” of Advair, and restarting Advair at the time of the TDRL reevaluation, with daily use of oral bronchodilators aside from an approximately 1 month period.  Board members considered that the examinations in evidence reported current prescription and use of daily bronchodilators and inhaled anti-inflammatories.  Board members agreed that the VASRD §4.97 threshold for a 30% rating was reasonably satisfied in this case on the basis of inhalational anti-inflammatory medication use.  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, at TDRL removal.  

Contended PEB Conditions:  Hashimoto’s Thyroiditis, Atopic Dermatitis, Severe Allergic Rhinitis, Left Shoulder Impingement, Bilateral Pes Planus, Headaches, Excessive Worrying, [Bilateral Knee Locking and Mild Overweight.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended conditions were not unfitting.  Mild overweight (obesity) is a condition that does not constitute a physical disability.  The Board therefore has no reasonable basis for recommending these conditions as additionally unfitting for separation rating.  The contended conditions were not profiled and were not judged to fail retention standards.  The commander’s statement mentioned the thyroid disease, left shoulder condition, and flat feet without specifying any specific duty limitation beyond those assigned to the unfitting asthma condition.  All were reviewed and considered by the Board.  There was no performance based evidence from the record that any of these conditions significantly interfered with satisfactory duty performance.  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 any of the contended conditions and so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the asthma condition, the Board unanimously recommends no change at the time of placement on the TDRL, and a rating of 30% at the time of removal from TDRL and permanent disability disposition, coded 6602 IAW VASRD §4.97.  In the matter of the contended Hashimoto’s thyroiditis, atopic dermatitis, severe allergic rhinitis, left shoulder impingement, bilateral pes planus, headaches, excessive worrying, [bilateral knee locking] and mild overweight conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.  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	RATING	
		TDRL	PERMANENT	
Asthma	6602	30%	30%	

The following documentary evidence was considered:
Exhibit A.  DD Form 294, dated 20140625, with attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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 XXXXXXXXXXXXXXXXXXXXX AR20160017494 (PD201403472)

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 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:

 
CF: 
(  ) DoD PDBR
(  ) DVA