RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01171
BRANCH OF SERVICE:  ARMY 	SEPARATION DATE:  20040605

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E3, Unit Supply Specialist, medically separated from the Temporary Disability Retired List (TDRL) for “asthma” with a disability rating of 0%.   

CI CONTENTION:  “I felt that my asthma was very stressful on my body and that I could not do normal duties because of this complication.  I was only awarded 20% but this truely (sic) impacted my life in a negative way.”  The complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The panel’s scope of review is defined in DoDI 6040.44.  It is limited to review of disability ratings assigned 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 or non-compensable.  Any conditions outside the panel’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 panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The panel’s assessment of the PEB rating determination 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(s) at the time of separation.  The panel 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 panel 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 - 20040504	VARD - 20010728	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Asthma	6602	0%	Asthma	6602	30%	STR	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Asthma.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI was seen for complaints of difficulty breathing in September 2000. He underwent Pulmonary Function Testing (PFT) which showed a mild obstructive pattern. He was diagnosed with asthma and placed on oral and inhalant type medications and discharged with an asthma treatment plan.  He was next evaluated in October 2000 for a history of recurrent wheezing and chest tightness while in the field environment.  A diagnosis of asthma was made based on pulmonary function testing (PFT) and clinical presentation.  Medication for asthma was prescribed and he was treated with Azmacort™ (inhaled anti-inflammatory), albuterol (inhaled bronchodilator) and Singulair™ (oral bronchodilator).  After little improvement in symptoms, the CI was placed on the TDRL in May 2001.  

The 21 May 2001 Pulmonary Function Test (PFTs) demonstrated a forced expiratory volume in the first second (FEV-1) of 83.9% of the predicted level and the FEV-1 divided by the forced vital capacity (FEV1-1/FVC) of 96.9% of the predicted value, both after bronchodilator administration.  The 12 April 2002 PFTs exhibited a FEV-1 of 61.8% of the predicted level and the FEV1-1/FVC of 69% of the predicted value, both after bronchodilator administration.  At the 5 August 2003 VA medical center follow-up note, 10 months before separation, the examiner listed active medications as albuterol (2 puffs per day every 4 hours as needed) and triamcinolone (inhaled anti-inflammatory) (2 puffs, 2 times per day).  

The 24 November 2003 TDRL Re-examination, 6 months prior to separation, noted that the CI was currently on triamcinolone inhaler 2 puffs twice per day and albuterol as-needed, which the CI stated was approximately 2 to 3 times per day. The examiner noted that he was going to increase the CI’s level of treatment by starting him on Advair™ (inhaled combination anti-inflammatory and bronchodilator) 250/50 one puff twice per day and continue the albuterol as needed.  Review of the STR found no clinical encounters in evidence documenting the use of an oral or parenteral (injection) steroid for asthma during the year prior to separation.  There was no evidence in the STR that asthma exacerbations were frequent enough to require monthly visits to a physician.  There was no evidence showing a requirement for daily use of systemic (oral or parenteral) high dose corticosteroids or immunosuppressive medication.   There was no VA Compensation and Pension examination proximate to separation.  

At the 19 February 2004 VA medical center follow-up note, 4 months before separation, the examiner reiterated the CI was still using the albuterol and triamcinolone inhalers as prescribed.  The 10 May 2004 VA medication profile lists Triamcinolone (Azmacort™) as an active medication that was filled with a three month supply on 19 May 2004 and appropriately refilled approximately 3 months later on 9 May 2004 and there was one refill left.  At the 30 September 2004 VA medical center follow-up note, 4 months after separation, the examiner again noted the CI was using albuterol and triamcinolone inhalers as previously prescribed.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the asthma condition 0%, coded 6602, based on non-compliance with medical management.  The VA rated the asthma condition 30%, coded 6602, citing oral bronchodilator therapy and PFT's were FEV1 83.90 percent predicted and FEV1/FVC 96.87 percent predicted.  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.”  Panel majority considered that all the examinations after being placed on the TDRL reported a current prescription and use of daily inhaled anti-inflammatory medications.  The majority of panel 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 three per year) courses of systemic corticosteroids.  There was no PFT evidence to support the next higher 60% rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel majority recommends a disability rating of 30% for the asthma condition, coded 6602.  

BOARD FINDINGS:  In the matter of the asthma condition, the panel majority recommends a disability rating of 30%, coded 6602 IAW VASRD §4.100.  The single voter for dissent submitted the appended minority opinion.  There are no other conditions within the panel’s scope of review for consideration.  
The panel majority 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, dated 20161004, 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.  Based on objective evidence, the minority member opines that the PEB correctly rated the asthma condition at 0% at the time of Temporary Disability Retired List (TDRL) removal.

The PEB conducted on 22 April 2004 reported that pharmacy record noted intermittent use when the CI was supposed to use medication on a daily basis.  The VA pharmacy medication profile showed that the CI last prescription refill date was on 10 March 2003, 15 months prior to TDRL removal.  After the PEB’s adjudication, the CI refilled a medication on 9 May 2004, and then appealed the PEB’s decision.  The Formal PEB upheld the PEB’s decision, and the U.S. Army Physical Disability Agency (USAPDA) concluded that the CI’s case was properly adjudicated.  

The majority based their 30% rating based on subjective evidence reported on the TDRL re-evaluation summary, in which the CI reported the use of medication.  However, based on objective evidence from the VA pharmacy records, the CI did not refill his asthma medications.

Consistent with the DoDI 6040.44 standard of recommendations that are fair and equitable to the Service and the CI, the Secretary is respectfully requested to consider the minority recommendation that there be no re-characterization of the CI’s service disability determination. 

AR20170018929, XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

	I accept the recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) to re-characterize your separation as a disability retirement with the combined disability rating of 30% effective the date of your medical separation for disability with severance pay.  Enclosed is a copy of the Board’s recommendation and record of proceedings for your information.

	The re-characterization of your separation as a disability retirement will result in an adjustment to your pay providing retirement pay from the date of your original medical separation minus the amount of severance pay you were previously paid at separation.
 
	The accepted DoD PDBR recommendation has been forwarded to the Army Physical Disability Agency for required correction of records and then to the U.S. Defense Finance and Accounting Service to make the necessary adjustment to your pay and allowances.  These agencies will provide you with official notification by mail as soon as the directed corrections have been made and will provide information on your retirement benefits.  Due to the large number of cases in process, please be advised that it may be several months before you receive notification that the corrections are completed and pay adjusted.  Inquiry concerning your correction of records should be addressed to the U.S. Army Physical Disability Agency, (AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557.

	A copy of this decision has also been provided to the Department of Veterans Affairs.

Sincerely,					      
Enclosure