RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00253
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20040610

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Motor Transport Operator, medically separated for “asthma,” with a disability rating of 10%.  

CI CONTENTION:  “My asthma is worse than what the Army thought.”  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 - 20040406	VARD - 20050222	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Asthma	6602	10%	Mild Intermittent Asthma	6602	10%	STR	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

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 July 2002 exacerbated by exercise, weather, and upper respiratory tract infections.  The CI was evaluated in January 2004 for a recent history of recurrent exertional shortness of breath, chest tightness and episodic wheezing.  A diagnosis of asthma was made based on pulmonary function testing (PFT) and clinical presentation.  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 MEB.  The MEB forwarded “mild intermittent asthma” for PEB adjudication.  

The MEB NARSUM examination on 28 Jan 2004, 5 months prior to separation, noted that the CI was taking albuterol (inhalational bronchodilator), 6-8 puffs per day.  Pulmonary function testing (PFT) was normal.  The chest examination and radiographic (X-rays) studies were normal.  The examiner indicated that the CI did not require the use of controller medications in that the symptoms were exertional.  

Records documented that the CI was treated with episodic systemic corticosteroids (prednisone bursts of 5 days) on 3 January 2004, 6 April 2004 (ran out of albuterol), and 22 April 2004 for respiratory problems.  All emergency department treatment plans included use of albuterol 2-4 puffs 4 times per day.  

The CI failed to report for his scheduled VA Compensation and Pension (C&P) evaluation.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the asthma condition 10%, coded 6602, citing intermittent inhalational bronchodilator therapy.  The VA also rated the asthma condition 10%, coded 6602, citing normal pulmonary function studies, VA treatment reports (September 2004 through February 2005) showing the CI continued to use an inhaler intermittently, and a missed VA examination.  Remote VARD increased the asthma rating to 30% effective January 2006.  

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.”  All PFTs were normal (not ratable) and the CI was not on inhalational anti-inflammatory medication.  Board members considered that the NARSUM examination and the preponderance of treatment notes in evidence from January 2004 reported current use of daily bronchodilators.  Board members unanimously agreed that the VASRD §4.97 threshold for a 30% rating was reasonably satisfied in this case on the basis of daily bronchodilator medication use.  

The Board deliberated if the next higher 60% rating was justified based on the CI having been on at least three courses of systemic (oral or parenteral) corticosteroids per year prior.  The record documented the CI had three episodes of steroid use in the year prior to separation (January 2004, April 2004 x2), but that one course was when the CI ran out of inhaled medication, and two episodes were close enough that they could potentially be considered a single episode.  However, each episode of systemic corticosteroid use was through the emergency department and each was for an asthma exacerbation.  There was scant evidence of requirement of systemic corticosteroids at the two or three year prior to separation timeframe, or after separation.  The Board deliberated the VASRD criteria language of “intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids” and the Board majority adjudged that requiring at least three courses of systemic corticosteroids in the year prior to separation, without a multi-year requirement, was sufficient to satisfy the 60% rating requirement.  

After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority recommends a disability rating of 60% for the asthma condition, coded 6602.  

BOARD FINDINGS:  In the matter of the asthma condition, the Board majority recommends a disability rating of 60%, coded 6602 IAW VASRD §4.97.  The single voter for dissent recommended re-characterization at 30% and submitted the appended minority opinion.  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	60%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150325, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MINORITY OPINION:

The minority dissent with the majority recommendation is based on the totality of the evidence from the STR and the marginally probative post-separation VA C&P examination as accurately portrayed in the above proceedings.  Based on a preponderance of this evidence, the minority member opines that the CI met the criteria for a 30% rating and no higher. 

The majority vote favored a 60% rating for the asthma condition, however, the minority member opines that the CI did not meet the criteria for 60%.  Said criteria are: 1) FEV-1 of 40- to 50-percent predicted, or; 2) FEV-1/FVC of 40 to 55 percent, or; 3) at least monthly visits to a physician for required care of exacerbations, or; 4) intermittent (at least three per [emphasis added] year) courses of systemic (oral or parental) corticosteroids.

The first and second criteria were not met.  The FEV-1 and FEV-1/FVC measurements from the only PFT in evidence, as per the proceedings, did not satisfy even the minimum 10% criteria.  The third criterion was not met; there is no evidence in the CI’s service treatment record of monthly visits to a physician for required care of exacerbations.

In the opinion of the minority member, the fourth criterion was also not met.  Although the CI was treated with the courses of systemic corticosteroids noted in the proceedings, these treatments were an attempt to stabilize the CI after experiencing symptoms after running out of his normal medicine.  He was promptly tapered off of corticosteroids after stabilization, and there was no evidence of a subsequent need for that treatment modality.  The minority differs with the majority’s interpretation of the above VASRD §4.97 language, in that the latter equated the stabilization requirement for corticosteroids to the same acuity as a patient requiring that treatment “per year” as clearly specified in the language.  The Board conventionally considers all evidence 2 years prior to separation and 1 year after separation to fairly and accurately assess the ratable Service acuity, a policy which works to the advantage of many applicants.  In this case there was a 5-month interval of treatment (ending over 2 months prior to separation) which satisfied the majority’s recommendation of systemic corticosteroid 60% criterion; but, the evidence establishes there was no such need over the entire earlier time period and for at least an 14-month interval encompassing separation.  Quite logically, and fairly, the “per year” stipulation for the systemic corticosteroid criterion was not satisfied.

The minority member offers no dissent with the Board conclusion that the §4.97 threshold for a 30% rating was reasonably satisfied in this case; since, there was evidence from multiple providers that inhaled anti-inflammatories, which are not specified as a daily requirement under the 30% rating provision, were prescribed.  

Consistent with the DoDI 6040.44 standard of recommendations that are fair and equitable to both the Service and the CI, the Secretary is respectfully requested to consider the minority recommendation that the CI’s discharge with severance pay be re-characterized to reflect a permanent 30% disability retirement. 

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, AR20160018558 (PD201500253)

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