RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01680
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20040514

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 10%.  

CI CONTENTION:  No specific contention made.  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 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 - 20031215	VARD - 20040106	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Asthma	6602	10%	Asthma	6602	10%	STR	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:  

Asthma.  According to service records the CI was placed on the TDRL in December 2002 for asthma rated at 30%.  The CI had been treated with Albuterol, Flovent and Serevent producing a favorable outcome to control symptoms.  

The 14 November 2003 TDRL re-evaluation, 6 months prior to TDRL removal, noted nasal congestion, crackling, and cramping of the chest.  Physical examination showed clear lungs without wheezing.  The CI’s pulmonary function tests (PFTs) showed an FEV1 of 74% of predicted and FEV1/FVC ratio of 77%.  The examiner increased the CI’s Advair dosage; she was already using Albuterol as needed and Singulair daily.  There was no VA examination proximate to separation in evidence.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the asthma condition 10%, coded 6602 (asthma), citing FEV-1 of 71% and 74% after inhaled bronchodilator and stating “Soldier’s medication profile does not show that she has received Albuterol which she is said to be using daily.  She received one Advair on 14 April 2003 and 1 October 2003.  There is nothing to verify daily therapy.”  The VA rated the asthma condition 10%, coded 6602, based on the service treatment record (STR), citing an FEV-1 of 71 to 80 percent of predicted value and a higher evaluation of 30% is not warranted.  

A 30% rating stipulates “daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication.”  Panel members considered the examination in evidence at the time of TDRL removal which reported current prescription and use of daily bronchodilators and inhaled anti-inflammatories.  The panel majority 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.  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 §4.97.  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 recommends 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 20161102, w/attachments
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 evidence in the service and VA treatment records for the asthma condition.  

The facts of this case are straightforward.  There was no PFT evidence that would support a rating higher than 10% as per the VASRD §4.97 criteria for code 6602 as cited above in these proceedings.  The CI’s medication profile, 5 December 2000 to 1 October 2003, showed the CI first filled asthma medication in April 2003, 4 months after placement on TDRL, and next filled her medication 5 months later on 1 October 2003, both times with Advair, an inhalational anti-inflammatory medication that meets the 30% rating criterion.  There was no other evidence of asthma medication prescriptions being filled.  It is the minority opinion that this infrequent use of asthma medication justified the 10% rating adjudicated by the PEB and the VA’s 10% rating based on the STR.  

The Formal PEB reaffirmed a 10% rating based on FEV-1 of 71% and 74% after inhaled bronchodilator criterion, specifying that daily use was not required; but, the PEB decision did not directly address the question of whether an inhaled anti-inflammatory was in use.  

The majority members concede reasonable doubt in favor of acknowledging the above 30% criterion at the time of final separation.  The minority member, although taking reasonable doubt into account, strongly disagrees.  The totality of the evidence for the period under review should form the basis for the panel’s permanent rating recommendation.  That evidence in this case portrays a relatively mild and stable asthma condition that in general required only infrequent use of inhaled anti-inflammatory medication.  The sporadic use of an inhaled anti-inflammatory does not, in the minority view, constitute sufficient support for meeting the criterion.  The majority recommendation is based on a snapshot confined to the date of final separation, and requires an unacceptable degree of speculation to propose that the criterion was satisfied even then.  

Consistent with the DoDI 6040.44 standard that Physical Disability Board of Review recommendations are fair and equitable to both the Service and the CI, the Secretary is respectfully requested to consider the minority recommendation that there be no modification or re-characterization of the CI’s disability and separation determination.

AR20180002573, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:  

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