RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00383
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20040305

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E5, Automated Logistical Specialist, medically separated for “asthma” with a disability rating of 10%.

CI CONTENTION:  The CI made no specific contention.  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 - 20040120	VARD - 20080303	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Asthma	6602	10%	Asthma	6602	30%	20080110	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:

Asthma.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI was evaluated as early as March 1987 for a history of recurrent wheezing, and reported that both parents and all siblings had asthma.  An inhaled bronchodilator (Albuterol) was prescribed, as well as inhaled anti-inflammatory medication (Cromolyn), were prescribed as early as October 1988.  A diagnosis of asthma was made as early as November 1988.  At the 15 March 2003 primary care clinic visit (just under 1 year prior to separation), the CI was prescribed a 5-day course of an oral corticosteroid (prednisone systemic).  This course of treatment would have ended on 19 March 2003.

A field hospital visit and an aeromedical evacuation patient record, both dated 15 May 2003, indicated a second discrete course of oral prednisone treatment concluded that day; the start date was not able to be discerned from available evidence.  A prescription list dated 28 May 2003, 9 months prior to separation, documented that a third period of oral corticosteroid was started on that day, ending roughly in the second week of August 2003.

The most limited pulmonary function test evaluations (PFTs) in evidence from July 2003 documented FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71 to 80 percent.  An August 2003 PFT examination showed lower PFTs, but did not document post-bronchodilator results (required for rating IAW VA FAST Letter FL 97-67 [FAST contents later substantively included in VASRD §4.96, para (d)]).  

Despite continued 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” for PEB adjudication.

During the MEB examination (recorded on DD Forms 2807 and 2808) dated 20 November 2003 (which was also the MEB NARSUM examination), 4 months prior to separation, the CI reported taking Fluticasone (an inhaled steroid; anti-inflammatory) and Albuterol (an inhaled bronchodilator), the latter being prescribed on an as-needed basis.  This combination of medications continued for the remainder of time in service until discharge.  Chest X-ray was essentially normal and physical examination documented clear lungs without wheezes.

The 10 January 2008 VA Compensation and Pension (C&P) examination was performed almost 4 years after separation, and therefore is not informative to the severity of asthma at the time of separation.  The CI was, however, reported to still be taking inhalational anti-inflammatory medication.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the asthma condition 10%, coded 6602, citing daily use of inhalational anti-inflammatory medication, likely non-compliance with Montelukast (oral indirect-acting bronchodilator) and adjudicating this disability rating due to “not fully compliant with medical management.”  The VA rated the asthma condition 30%, coded 6602, citing use of inhalational anti-inflammatory medication, based on examination almost 4 years remote from separation.  

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.”  Inhaled anti-inflammatories, which are not specified as a daily requirement under the 30% rating provision, were prescribed, as noted by multiple examiners.  Board members unanimously 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.  There was no PFT evidence to support the next higher 60% rating.  There was no evidence showing a requirement for daily use of systemic (oral or parenteral) high dose corticosteroids or immunosuppressive medication.

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 in the year prior to separation.  As documented above, multiple clinical encounters in evidence documented the use of systemic corticosteroids for asthma, in at least three distinct courses of treatment, during the year prior to separation.  At least one of the courses was sustained high dose corticosteroids requiring a taper, although the Board agreed that the CI’s corticosteroid use did not more nearly approach the requirement for daily use of systemic high dose corticosteroids.  There was scant evidence of requirement of systemic corticosteroids prior to the CI’s deployment over one year prior to separation, 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 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, 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%	
COMBINED	60%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150601, 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 severe symptoms while deployed for 2 months to Kuwait.  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 6 months prior to separation) which supported the majority’s recommendation of systemic corticosteroid 60% criterion; but, the evidence establishes there was no such need for treatment over the entire earlier course and for at least an 18-month interval encompassing a year after 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 
XXXXXXXXXXXXXXXXXX, AR20160018708  (PD201500383)

1. Under the authority of Title 10, United States Code, section 1554(a), I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and minority opinion pertaining to the individual named in the subject line above.  I reject the Board’s recommendation and accept the Board’s minority opinion 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