RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03576
BRANCH OF SERVICE:  Army  	PLACEMENT ONTO TDRL:  20030201
	REMOVAL FROM TDRL:  20050826

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-3 (Infantryman) medically separated for asthma and heat injuries.  These conditions 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 “moderate persistent asthma” and “recurrent heat injuries, status post heat stroke” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition (mild mitral valve prolapse [MVP]) for PEB adjudication.  The Informal PEB adjudicated his asthma and heat injuries as unfitting, rated 30% and 0% respectively, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining condition was determined to be not unfitting.  The CI made no appeals and was placed on Temporary Disability Retired List (TDRL).  Approximately 30 months later, the PEB adjudicated the asthma and heat injuries conditions as unfitting, rated 10% and 0% respectively with likely application of the VASRD.  The CI made no appeals and was medically separated.

CI CONTENTION:  The applicant has asked for consideration of all conditions 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, 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 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:  

Final PEB – 20050811	VA Rating Decision1 - 20030904	
TDRL Placement – 20030201	Code	Rating	Condition	Code	Rating
Proximate	
Condition		TDRL
Placement	TDRL Removal			TDRL2
Placement	TDRL3 Removal	
Asthma…	6602	30%	10%	Asthma	6602	30%	30%	
Recurrent Heat Injuries…	7999-7900	0%	0%	Recurrent Heat Injuries	8999-8911	NSC	NSC	
Mild Mitral Valve Prolapse by Echocardiogram	Not Unfitting	Mild Mitral Valve Prolapse	7000	0%	0%	
Other x 0 (Not in Scope)	Other x 5	
RATING:  30% → 10%	RATING:  30%	
1. Most proximate to TDRL Placement
2. Rating based on service treatment record (STR)
3. Rating based on STR

ANALYSIS SUMMARY:  

Asthma.  Following an episode of heat stroke, the CI complained of decreased exercise tolerance and had pulmonary function testing (PFTs) on 16 July 2002 as part of his evaluation.  He showed a response to broncho-dilator medications and was referred for a methacholine challenge test (a provocative test for asthma) which was positive.  He was begun on daily medications (a bronchodilator as needed and a daily steroid inhaler) and entered into the MEB process.  The TDRL placement narrative summary (NARSUM) was dated 10 October 2002.  The CI was noted to have a slight reduction in aerobic capacity, but this was attributed to deconditioning.  He was on a daily inhaled steroid and an inhaled bronchodilator as needed.  His lungs were clear.  The CI entered TDRL status effective 1 February 2003.  His TDRL examination was on 19 May 2005, 3 months prior to TDRL removal.  No active medications were listed on the problem list, but the CI reported the use of daily medications.  His lungs were clear and PFTs normal; however, he had used inhalers that day.  

Pulmonary Exam	~7 Mo. Pre-TDRL Plmt	~3 Mo. Pre-TDRL Rmvl	
FEV1 (% Predicted)	89	103	
FEV1/FVC	84	73, 74, 76	
Meds	Daily medications	Inhalers prior to testing	
§4.97 Rating	30%	30%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB and VA both rated the CI at 30% for asthma, coded 6602 (asthma) for daily medications.  The VA did not readdress the asthma condition until 2011, 6 years after TDRL removal.  The PEB rated the CI for intermittent medication use at 10% at TDRL removal, retaining the 6602 code.  Although the PFTs support only a 10% rating, the use of daily medications supports a 30% rating at both TDRL placement and removal.  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 at TDRL placement and removal, coded 6602.  

Recurrent Heat Injuries.  The record showed that the CI had heat injuries on three occasions in 2002, the last of which was 8 months prior to TDRL placement.  He had no sequelae from these, but was found to fail retention standards due to the risk of recurrence.  The NARSUM noted the above and that he had a normal examination.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the heat stroke at 0%, coded analogously to hyperthyroidism (7999-7900).  The VA determined that the condition was resolved and therefore, not service-connected (NSC).  It was coded 8999-8911 (analogous to petit mal epilepsy).  The Board noted that without sequelae or symptoms from the heat injuries, no route to a higher rating was present.  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 recurrent heat exhaustion condition.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the mitral valve prolapse condition was not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  It was not profiled or implicated in the commander’s statement and was not judged to fail retention standards.  It was reviewed and considered by the Board.  The Board noted that it was an incidental finding in the evaluation for the recurrent heat injuries.  There was no performance based evidence from the record that it 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 contended recurrent heat injury condition and so no additional disability ratings are recommended.

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, the Board unanimously recommends a disability rating of 30%, coded 6602 IAW VASRD §4.100, at both TDRL placement and removal.  In the matter of the recurrent heat injury condition and IAW VASRD §4.104, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended MVP 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.  

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	
		TDRL	PERMANENT	
Asthma	6602	30%	30%	
Recurrent Heat Injuries	7999-7900	0%	0%	
RATING	30%	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140730, 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 XXXXXXXXXXXXXXXXXXXXX, AR20160003513 (PD201403576)

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.

Enclosure
CF:
( ) DoD PDBR
()DVA