RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00620
BRANCH OF SERVICE:  Navy 	SEPARATION DATE:  20021127

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

CI CONTENTION:  “Review 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 - 20021028	VARD - 20021230	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Asthma	6602	10%	Asthma	6602	10%	20021104	
Shoulder Capsular Tear with Joint Instability and Poor Functional Status of Shoulder Joint	Cat III	Status Post Labral Tear Repair, Left Shoulder	5201	0%		
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 November 2001. Pulmonary medicine described circumstances of onset of wheezing and dyspnea on exertion.  A follow-on methacholine challenge test revealed abnormal bronchial response leading to the diagnosis of asthma.  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 a MEB.  The MEB forwarded “asthma with severe bronchial hyper-responsiveness and limitations in ability to perform adequately his current job status” for PEB adjudication.  
The MEB NARSUM examination on 15 August 2002, 3 months prior to separation, noted complaints of wheezing, difficulty with exertion and bronchospasms.  Physical examination showed no evidence of respiratory distress and no wheezing.  The Joint Disability Evaluation Tracking System (JDETS) noted on 25 September 2002, the CI had a “history of bronchial asthma verified by wheezing and dyspnea on exertion.”  The pulmonary function evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below:  

Pulmonary Examination	Pulmonary                         ~10 Mos. Pre-Sep	Pulmonary                       ~4 Mos. Pre-Sep	
FEV1 (% Predicted)	95	77	
FEV1/FVC	96	80	
Meds	Not specified	bronchodilator / inhaled 
Albuterol	
§4.97 Rating	10%	30%	

At the 4 November 2002 VA Compensation and Pension (C&P) evaluation, performed 2 weeks before separation, the CI reported recurrent episodes of an asthma attack triggered by fumes and vigorous exercise.  The CI also complained of chest tightness and shortness of breath (SOB), resulting in functional disability with lost time from work.  The physical examination showed a clear chest, normal cardiovascular rhythms and symptomatic of mild asthma.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the asthma condition 10%, coded 6602 (asthma), citing hyper responsiveness and limitation in ability.  The VA rated the asthma condition 10% coded 6602 (asthma), based on the VA C&P examination 2 weeks before separation, citing FEV-1 of 71 to 80 percent predicted value.  Inhaled anti-inflammatories, which are not specified as a daily requirement under the 30% rating provision, were also prescribed and used, as noted in the NARSUM, VA C&P, cardiology, and pulmonology examiners.  Board majority agreed that the VASRD §4.97 threshold for a 30% rating was reasonably satisfied in this case on the basis of bronchodilator and/or inhalational anti-inflammatory medication use.  The next higher rating of 60% was not justified in the absence of at least monthly visits to a physician for required care of exacerbations, or intermittent (at least three per year) courses of systemic corticosteroids.  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, coded 6602.  

Contended PEB Condition:  Shoulder Capsular Tear with Joint Instability and Poor Functional Status of Shoulder Joint (Cat III).  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  Left Shoulder:  According to STR and the MEB NARSUM, the right-hand dominant CI injured his left shoulder in 2001 without specific injury or trauma.  The CI subsequently underwent a surgical repair to correct an abnormal shoulder function with left-sided instability.  Following surgery further treatment did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “shoulder capsular tear with joint instability and poor functional status of shoulder joint, left” for PEB adjudication.  At the time of the Orthopedic evaluation on 25 July 2001, physical examination showed range of motion measurements of flexion at 175 (normal 180) and an abduction of 170 (normal 180), with painful motion.  According to the MEB NARSUM evaluation on 15 August 2002 (3 months prior to separation) the examiner noted abnormal shoulder with left-sided instability.  The CI did not report any shoulder dislocations.  The physical examination showed the CI’s inability to raise his left arm over his head.  

At the 4 November 2002 VA C&P examination, performed 2 weeks before separation, the CI reported left shoulder dislocation, restriction on ROM, instability and moderate pain when reaching for objects overhead.  The physical examination showed no significant shoulder abnormalities.  However, the examiner did mention that the CI had restriction on ROM and limitation due to pain, fatigue, weakness, incoordination and instability during flare-ups.  The ROM showed a normal forward flexion of 180 degrees and an abduction of 150 degrees.   

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned this condition as a Category III, which is a condition that is not separately unfitting and does not contribute to the unfitting condition.  The VA assigned a 0% rating using the 5201 code (arm limitation of motion), citing no residuals of the labral tear repair.  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 left shoulder condition.  The contended condition was not profiled or implicated in the commander’s statement or judged to fail retention standards.  There was no performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at separation.  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 left shoulder condition.

BOARD FINDINGS:  In the matter of the asthma condition, the Board majority recommends a disability rating of 30%, coded 6602 IAW VASRD §4.71a.  The single voter for dissent submitted the appended minority opinion.  In the matter of the contended left shoulder condition, 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	PERMANENT RATING	
Asthma	6602	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, received 20150610, w/attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

Minority Opinion.

The single voter for dissent strongly recommends no re-characterization of the CI’s permanent disability rating.  Both the PEB and the VA were aware that the CI was prescribed an anti-inflammatory inhaler and applied the same VASRD standards within weeks of each other to arrive at their respective ratings.  There is no compelling evidence indicating the PEB incorrectly adjudicated their rating at the time of separation.  

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

Ref:  (a) DoDI 6040.44
	(b) PDBR ltr dtd 03 Nov 16 ICO XXXXXXXXXXXXXXXXXX    
	(c) PDBR ltr dtd 03 Nov 16 ICO XXXXXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 24 Oct 16 ICO XXXXXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 21 Oct 16 ICO XXXXXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 21 Oct 16 ICO XXXXXXXXXXXXXXXXXX
	(g) PDBR ltr dtd 28 Oct 16 ICO XXXXXXXXXXXXXXXXXX
	(i) PDBR ltr dtd 21 Oct 16 ICO XXXXXXXXXXXXXXXXXX

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

2.  The official records of the following individuals are to be corrected to reflect the stated disposition:
     
     a. XXXXXXXXXXXXXXXXXX, former USN: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 10 percent) effective date of discharge.  

     b. XXXXXXXXXXXXXXXXXX, former USN: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 20 percent) effective date of discharge.  

     c. XXXXXXXXXXXXXXXXXX, former USMC: Retroactive placement on the Permanent Disability Retired List with a 50 percent disability rating (increased from 20 percent) effective date of discharge.  

     c. XXXXXXXXXXXXXXXXXX, former USN: Retroactive placement on the Permanent Disability Retired List with a 40 percent disability rating (increased from 10 percent) effective date of discharge.  

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

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

     f. XXXXXXXXXXXXXXXXXX, former USMC: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 0 percent) effective 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.

	
	XXXXXXXXXXXXXXXXXX
	Assistant General Counsel
	(Manpower & Reserve Affairs)