RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-04028
BRANCH OF SERVICE:  Marine Corps	SEPARATION DATE:  20070831

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E3, Auto Organizational Mechanic, medically separated for “reactive airway disease,” with a disability rating of 10%.

CI CONTENTION:  The CI contends his asthma, back (spinal stenosis) and bilateral knee conditions.  His back condition continues to worsen and negatively impacts his daily activities.  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 on 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 - 20070629	VARD - 20080211	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Reactive Airway Disease	6602	10%	Asthma	6602	10%	20071206	
Low Back Pain with Spinal Stenosis	Cat III	Degenerative Disc Disease, Lumbar Spine	5243	10%	20071206	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:

Reactive Airway Disease (RAD).  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI had a history of severe asthma as a child requiring intubation.  Since adolescence he had flare-ups once or twice per year, with symptoms occurring 2 months prior to entry on active duty.  In November 2006, persistent symptoms of RAD followed an episode of pneumonia.  Pulmonary function testing (PFT) showed a moderate obstructive airflow defect consistent with asthma.  Despite treatment, the asthma condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and he was referred for an MEB.  The MEB forwarded “unspecified asthma” for PEB adjudication.

Flovent (an inhaled anti-inflammatory) was prescribed on 7 December 2006.  At clinic visits on 2 April and 13 April 2007 (5 months prior to separation) the CI reported that he was not using medications, but was able to jog and play basketball.  According to a clinic evaluation on 11 May (4 months prior to separation) the CI ran out of Xopenex (inhaled bronchodilator) 2 weeks previously and Flovent “some time ago.”  The previous Xopenex prescription was given in November 2006 and Flovent in December 2006.  The examiner prescribed these two medications again.

Pulmonary function tests on 17 May 2007 did not provide VASRD-required measurements.  At a follow-up on 23 May 2007, the CI stated that his shortness of breath, accompanied by a dry cough, had worsened and was not always responsive to the inhaled medication.  Singulair (an oral bronchodilator) was prescribed for daily use, but only given as a 1-month supply.

At the MEB NARSUM examination on 4 June 2007 (3 months prior to separation) the CI’s chief complaint was shortness of breath and wheezing.  Current medications were listed as Flovent and Xopenex, although frequency of use was not specified.  During the MEB examination (recorded on DD Forms 2807) dated 11 June 2007, the CI reported using Flovent and Xopenex.  Review of the STR showed that the prescription for Singulair provided no refills, and follow-up notes after 23 May2007 did not list Singulair as a currently used medication.  There was no evidence of use of an oral or parenteral steroid for asthma during the year prior to separation.

At the 6 December 2007 VA Compensation and Pension (C&P) evaluation 3 months after separation, the examiner noted that the CI was taking Flovent and Xopenex “as needed.”  Recorded PFTs showed an FEV-1 of 84% of predicted and an FEV-1/FVC of 78%.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the asthma condition 10% coded 6602 (asthma), while the VA also assigned a 10% rating under the same code.  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.”  Board members considered that the NARSUM, DD Form 2807 and VA C&P examinations reported current prescription and use of bronchodilators, although the record does not support that these medications were used daily.  However, inhaled anti-inflammatories, which are not specified as a daily requirement under the 30% rating provision, were also prescribed and used.  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.  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 3 per year) courses of systemic corticosteroids.  There was no PFT evidence to support the next higher 60% rating.  After due deliberation, and 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.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that low back pain with spinal stenosis condition was not unfitting.  The CI’s initial presentation for low back pain was on 2 April 2007 (5 months prior to separation) when he complained of the acute onset of pain while playing basketball the previous day.  Subsequent radiographic imaging showed a permanent scoliosis (spinal curvature) and a small disc protrusion with mild spinal stenosis at the L4-5 level.  The back pain was associated with variable lower extremity weakness, and numbness and tingling that resolved.  Over the course of several weeks, back pain improved but was still described as constant.  On 24 May 2007 the CI was placed on limited duty (LIMDU), 1 month before MEB initiation and 3 months before separation, for spinal stenosis, and was restricted from physical fitness testing, attending the rifle/pistol range or lifting greater than 15 pounds.

The MEB NARSUM on 4 June 2007 (3 months before separation) noted the CI’s 2-month history of back pain was improving, “but his back pain has not resolved completely.”  The CI was reportedly not a surgical candidate.  Examination showed lumbar spine tenderness, undefined muscle weakness of the lower extremities and otherwise normal neurologic findings.

The non-medical assessment on 10 June 2007 indicated that:  the CI was not currently working out of his specialty because of his medical condition; was away from work 12 hours per week for treatment, evaluation or recuperation; and was recommended for retention on active duty in a permanent limited duty status if found unfit.

At a physical therapy (PT) assessment on 16 July 2007, the CI reported constant, unchanged low back pain.  Examination showed lumbar tenderness and range of motion (ROM) that was 80-95% of normal in all planes.  Lower extremity muscle strength was normal.

The VA C&P examiner 3 months after separation documented the CI stocked shelves at grocery stores.  He continued to complain of mild chronic lower back pain.  Heavy lifting reportedly caused flares of numbness and weakness of the legs.  Examination showed a normal gait.  Thoracolumbar flexion was 90 degrees (normal) and combined ROM was 230 degrees (normal 240 degrees); there was no change in ROM after repetition.  Painful motion was present but lower extremity neurologic findings were normal.

The lumbar spine condition was included on the LIMDU abbreviated medical evaluation board report and was judged to fail retention standards by the NARSUM and MEB. After due deliberation, the Board agreed that the preponderance of the evidence with regard to the functional impairment of the lumbar spine condition favors its recommendation as an additionally unfitting condition for disability rating.  It is appropriately coded 5243 (intervertebral disc syndrome) and meets the VASRD §4.71a criteria for a 10% rating due the presence of tenderness, painful motion, and combined ROM greater than 120 degrees but not greater than 235 degrees.  There was no documentation of incapacitating episodes caused by intervertebral disc syndrome (IVDS) which would provide for a higher rating under that formula (for IVDS), or evidence of ratable peripheral nerve impairment which would provide for additional rating.

BOARD FINDINGS:  In the matter of the reactive airway disease condition, the Board unanimously recommends a disability rating of 30%, coded 6602 IAW VASRD §4.97.  In the matter of the contended low back pain with spinal stenosis condition, the Board unanimously agrees that it was unfitting and unanimously recommends a disability rating of 10%, coded 5243 IAW VASRD §4.71a.  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%	
Chronic Low Back Pain with Spinal Stenosis	5243	10%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140924, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MEMORANDUM FOR COMMANDER, NAVY PERSONNEL COMMAND
	         DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS	
	                          
Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS          

Ref:  (a) DoDI 6040.44
	(b) PDBR ltr dtd 21 Jun 16 ICO XXXXXXXXXXXXXXXXXXXX 
	(c) PDBR ltr dtd 03 May 16 ICO XXXXXXXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 24 Jun 16 ICO XXXXXXXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 29 Apr 16 ICO XXXXXXXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 17 Jun 16 ICO XXXXXXXXXXXXXXXXXXXX
	(g) PDBR ltr dtd 15 Jun 16 ICO XXXXXXXXXXXXXXXXXXXX
	(h) PDBR ltr dtd 13 Jun 16 ICO XXXXXXXXXXXXXXXXXXXX
	(i) PDBR ltr dtd 29 Apr 16 ICO XXXXXXXXXXXXXXXXXXXX
	(j) PDBR ltr dtd 13 Apr 16 ICO XXXXXXXXXXXXXXXXXXXX
	(k) PDBR ltr dtd 15 Apr 16 ICO XXXXXXXXXXXXXXXXXXXX
	(l) PDBR ltr dtd 22 Jun 16 ICO XXXXXXXXXXXXXXXXXXXX

1.  Pursuant to reference (a), the recommendations of the Physical Disability Board of Review set forth in references (b) through (l) are approved.

2.  The official records of the following individuals are to be corrected to reflect the stated disposition:

     a. XXXXXXXXXXXXXXXXXXXX, former USN: Retroactive placement on the Permanent Disability Retired List with a 50 percent disability rating (increased from 10 percent) effect date of discharge. 

     b. XXXXXXXXXXXXXXXXXXXX, former USN: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 20 percent) effect date of discharge. 
 
     c. XXXXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.
     
     d. XXXXXXXXXXXXXXXXXXXX, former USN: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 10 percent) effect date of discharge.

     e. XXXXXXXXXXXXXXXXXXXX, former USMC: Retroactive placement on the Permanent Disability Retired List with a 40 percent disability rating (increased from 10 percent) effect date of discharge. 
 
     f. XXXXXXXXXXXXXXXXXXXX, former USMC: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 10 percent) effect date of discharge. 

     g. XXXXXXXXXXXXXXXXXXXX, former USN: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 10 percent) effect date of discharge.

     h. XXXXXXXXXXXXXXXXXXXX, former USN: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 10 percent) effect date of discharge.

     i. XXXXXXXXXXXXXXXXXXXX, former USN: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 10 percent) effect date of discharge.

     j. XXXXXXXXXXXXXXXXXXXX, former USN: Retroactive placement on the Permanent Disability Retired List with a 40 percent disability rating (increased from 20 percent) effect date of discharge.

     k. XXXXXXXXXXXXXXXXXXXX, former USMC: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 10 percent) effect date of discharge.

3.  Please ensure all necessary actions are taken to implement these decisions, including the recoupment of disability severance pay, if warranted, and notification to the subject members once those actions are complete.

	XXXXXXXXXXXXXXXXXXXX
	Assistant General Counsel
	(Manpower & Reserve Affairs)