RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-04043
BRANCH OF SERVICE: Army 	
DATE OF PLACEMENT ONTO TDRL:  20030721
DATE OF REMOVAL FROM TDRL:  20050110

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

CI CONTENTION:  The CI requested consideration of 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 – 20030527/20041203	VARD - 20031003	
Condition	Code	Rating	Condition	Code	Rating
Proximate	
		TDRL
Placement	TDRL Removal			TDRL
Placement	TDRL
Removal	
Asthma	6602	30%	10%	Asthma	6602	30%	30%	
Allergic Rhinitis	Not Unfitting	Allergic Rhinitis	6522	0%	0%	
Right Knee Laxity	Not Unfitting	Residuals, R Knee..	5257	10%	10%	
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, who grew up in Florida, presented on 13 September 1999 with a one year history of “allergy” symptoms which began after she moved to Washington state.  She declined immuno-therapy (allergy shots) and was treated with medications with good control initially, but occasional breakthrough symptoms.  She then moved to Texas where her symptoms continued and she also noted shortness of breath with exercise.  Pulmonary function tests (PFTs) were suggestive of asthma and she was placed on medications for this as well.  She also began immuno-therapy (IT).  Despite treatment, she had episodes of asthma twice a week and was referred for MEB.  The MEB forwarded “asthma” for PEB adjudication.  It also forwarded allergic rhinitis and right knee laxity as meeting retention standards.  At the MEB examination dated 23 January 2003, 6 months prior to TDRL placement, the CI reported a history of asthma for over a year.  She was treated with an inhaled bronchodilator and anti-inflammatory medications.  Her lungs were clear to auscultation and she was in no respiratory distress.  The MEB NARSUM examination performed on 16 April 2003, 3 months prior to separation, noted complaints of that the CI remained symptomatic despite treatment.  Her lungs were clear.  The PFTs were done 17 January 2003 and are charted below.  A medication list showed that the CI had sufficient refills to last almost one year (March 2004) if the medications were used as prescribed.  There was not a VA Compensation and Pension (C&P) evaluation proximate to separation.  The VA rated the CI using the STRs.  The CI was placed on TDRL effective 20 July 2003 with a 30% rating for asthma coded 6602 (asthma).  The VA also rated the asthma at 30% and used the 6602 code.  

The TDRL examination was accomplished on 07 July 2004, 12 months after TDRL placement.  The Board noted that the CI turned 34 the next day and that this examination was done in Georgia (the initial was in Texas).  She reported shortness of breath with exertion and occasionally at night.  She did not think that she could pass the run portion of the fitness test, but did believe that she could pass a modified test if she could walk.  She reported the use of inhaled anti-inflammatory medications and the daily use of a bronchodilator prior to walking (for exercise).  On examination, her lungs were clear.  The PFTs are charted below.  A medication profile (undated, but noting that the CI was 34, so after 8 July 2004) indicated that the CI had multiple prescriptions for an inhaled bronchodilator and anti-inflammatory medications.  None were filled.  A memorandum dated 1 December 2004 noted that the CI had not complied with a request to provide a medication profile.  The TDRL removal PEB was dated 3 December 2004.  It recommended separation at 10% noting that the CI did not require daily bronchodilator therapy and had normal PFTs.  On 15 December 2004 the CI concurred with the PEB adjudication.  

There were no further records specific for asthma in evidence until years after separation.  On 6 July 2006, the CI did have a history and physical done by gynecology at a Florida VA medical center for a pre-operative evaluation.  It showed that she had been given a prescription for a long acting bronchodilator on 12 November 2005.  

Pulmonary Function Tests	~6 months  Pre TDRL	~3 months Pre TDRL	Post TDRL Eval
(20040707) p.26	
FEV1 (% Predicted)	67%	82	96	
FEV1/FVC	78%	84	83	
Meds	Anti-inflammatory medications	Not recorded	Reported medication use, but no refills recorded.  PFTs post-bronchodilator; change not significant	
§4.97 Rating	30%	10%	10%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the asthma condition at 30% for TDRL placement and 10% for TDRL removal, coded 6602.  The VA rated the asthma condition at 30%, coded 6602, at the time of separation and did not reevaluate it on subsequent VA rating decisions.  The Board considered the evidence.  The record clearly shows that the CI was on daily medications and an inhaled anti-inflammatory medication at the time of TDRL placement and the criteria for a 30% rating were met.  The criteria for a higher 60% rating (which include worse PFTs, intermittent use of systemic steroids, or monthly physician visits for exacerbations) were not met.  The Board then considered the rating at TDRL removal.  The Board noted that the record does not show that the CI was actually using asthma medications at the time of TDRL removal and that her PFTs were normal with and without a bronchodilator.  In addition, she concurred with the PEB assessment that “not requiring daily bronchodilator therapy.”  However, a post-TDRL removal examination noted that she had been prescribed daily medications for asthma, within one year after TDRL removal, at the Tampa, FL VA medical center.  This supports a 30% rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends no change in the PEB adjudication for the asthma condition at TDRL placement and a disability rating of 30% for the asthma condition, coded 6602 at TDRL removal.  

Contended PEB Conditions:  Allergic Rhinitis and Right Knee Laxity.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended conditions were not unfitting.  Both of the conditions were profiled and the allergic rhinitis was implicated in the commander’s statement.  Neither was judged to fail retention standards.  The last clinical visit documented in the record for the allergic rhinitis was dated 7 November 2002, almost 9 months prior to TDRL placement.  The NARSUM noted that she had partial benefit with medications and had not tolerated IT.  On examination, the mucosa was swollen.  The TDRL NARSUM recorded that she had a post-nasal drip and that the nasal mucosa were pale and swollen.  The right knee was noted to have been injured playing softball in 2000.  She subsequently underwent repair of a right lateral meniscus tear (a tear of an internal cartilage).  In 2002, she was evaluated for recurrent pain and found to have a deficient anterior cruciate ligament (ACL).  This was scheduled for repair in September 2002, but the CI did not complete the pre-operative evaluation.  It was rescheduled for 25 February 2003.  It is not clear from the records if it was actually done.  It was not noted on the NARSUM, but the gynecology history in 2006 recorded that a second knee surgery had been accomplished.  The final profile was L2 and allowed unlimited walking.  The Board considered the evidence.  While there was evidence that the CI remained symptomatic from both conditions, there was not performance-based evidence from the record that either of the conditions significantly interfered with satisfactory duty performance at separation sufficiently to overcome the PEB adjudication that these were not unfitting.  After due deliberation, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for either 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 a disability rating of 30%, coded 6602 IAW VASRD §4.100 at TDRL placement and removal.  In the matter of the contended allergic rhinitis and right knee laxity 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	
		PERMANENT	
Asthma	6602	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 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 AR20160017808 (PD201404043)

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 re-characterize 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