RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-01609
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20080327

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty, Construction Equipment Operator, medically separated for “asthma” and “anxiety disorder, not otherwise specified (NOS),” rated 10% each, with a combined disability rating of 20%.  

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 Medical Evaluation Board (MEB), but determined by the PEB 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.  The panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections when appropriate.  The panel’s assessment of the PEB rating determination is based on review of medical records and all available evidence relevant to application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards for 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, which operates 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 disability at the time of separation.  

RATING COMPARISON:  

SERVICE PEB - 20080326	VARD - 20080415	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Asthma	6602	10%	Asthma	6602	10%	20080313	
Anxiety Disorder, NOS	9413	10%	Anxiety Disorder	9413	10%	20080313	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Asthma.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI had asthma symptoms for several years and was able to deploy twice on medications.  The 4 September 2007 MEB NARSUM examination, 6 months prior to separation, noted complaints of continued dyspnea, feeling short of breath while walking up steps and hills and inability to jog or run.  Current medications were listed as Advair (inhalational anti-inflammatory) once daily, Flovent (inhalational anti-inflammatory) at night, Singulair (oral indirect-acting bronchodilator) once a day, and Xopenex (inhalational bronchodilator) as needed.  Physical examination revealed lungs with wheezing on inspiration diffusely and on expiration, without other abnormalities.  X-rays showed no acute lung abnormalities.  

The 12 October 2007 MEB addendum indicated a clear clinical diagnosis of asthma with diffuse inspiratory and expiratory wheezing on examination, normal pulmonary function testing (PFT) from 19 September 2007 with normal flow loops, volumes, and diffusion capacity and no need for further diagnostic testing (methacholine challenge).  The medication profile (as of 17 December 2007) documented the most recent filling of asthma medications as Singulair 90 pills on 30 October 2007 (3-month supply), Advair, three inhalers on 30 August 2007 (3-6 month’s supply), Xopenex, two inhalers on 24 July 2007; and Flovent, two inhalers on 1 December 2006 (4-month supply).  

At the 13 March 2008 VA Compensation and Pension (C&P) evaluation, 2 weeks before separation, the CI reported that “he was only using the short acting inhaler with exercise” and had no problem with chronic cough.  He could climb 20 stairs before he had shortness of breath.  Active asthma medications were:  “Flonase [Flovent] inhaler 2 puffs nightly for asthma; Flonase nasal spray 2 sprays in each nostril daily for allergic rhinitis; and levalbuterol inhaler 2 puffs as needed for cough or shortness of breath.”  Physical examination of the chest was normal.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the asthma condition 10%, coded 6602 (asthma bronchial), citing required inhalational therapy.  The VA also rated the asthma condition 10%, coded 6602, based on the STR and C&P examination, citing intermittent inhalational or oral bronchodilator therapy.  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.”  The NARSUM and STR indicated a long history of inhalational anti-inflammatory medication use (with Advair and/or Flovent).  The medication profile reflected multiple months’ supply of inhalational anti-inflammatory medication.  Although the C&P examination history specified the CI was “only using the short acting inhaler with exercise” (occasional inhalational bronchodilator use), the current medication section listed nightly inhaled steroid use for asthma (inhalational anti-inflammatory medication).  

The 30% rating criteria for asthma for “inhalational anti-inflammatory medication” does not require daily use, and the rating criteria is met with use of inhaled anti-inflammatories at least intermittently.  Inhaled anti-inflammatories were required/prescribed, as noted by the medication profile, NARSUM and C&P examinations.  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 recommends a disability rating of 30% for the asthma condition, coded 6602.  

Anxiety Disorder, NOS.  According to the STR and the MEB mental health (MH) consult, the CI’s MH disorder began proximate to his first deployment to Iraq (March 2003-March 2004).  There was a 6 December 2006 entry for depression and antidepressant medication refill (Prozac) that noted the CI had ongoing counseling and treatment for PTSD.  The mental status findings were normal.  The diagnosis was depression, and the physician refilled the CI’s Prozac.  There were no MH entries in evidence until the MEB information below.  

The 29 August 2007 psychiatric consultation to the MEB, 7 months prior to separation, noted the history of the CI’s MH disorder included the post-deployment diagnosis and treatment of PTSD, although nightmares about combat stopped shortly after returning from his first deployment (March 2004).  The CI had a second deployment to Iraq from October 2005-October 2006.  History indicated the CI had significant problems with his temper after deployment, with irritability and suicidal ideation.  He was started on Prozac and following increased dosage, he no longer had problems with his temper or thoughts of self-harm.  He endorsed problems with memory, forgetfulness, hypervigilance, avoidance and poor sleep.  On mental status examination (MSE), his mood was euthymic, affect was normal and memory was intact.  There was exaggerated startle response, but no other psychomotor abnormalities.  There was no suicidal ideation, delusions, speech disturbance, objective cognitive impairment, hallucinations or other symptoms suggestive of psychosis.  The diagnosis was anxiety disorder, NOS, “manifested by exposure to hazardous and frightening combat situations followed by extreme irritability, depressed affect with suicidal ideation, poor temper control, an exaggerated startle response, insomnia, avoidance of talking about Iraq, avoidance of people who appear Middle Eastern and problems with short term memory.”  Impairment for military duty was moderate, and impairment for social and industrial adaptability was definite.  The psychiatrist stated: “occupationally and socially the (CI) experiences an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to depressed mood, chronic sleep impairment and mild memory loss.”  The provider also indicated that treatment somewhat improved the CI’s condition.  He recommended additional medications to improve sleep and mood, noted the condition was not yet stable, and that short-term prognosis was fair.  

A commander’s statement, dated 27 November 2007, indicated the CI was performing a Security Desk position, was able to remember locations, work-like procedures and instructions, maintain an acceptable level of attention and concentration to carry out instructions and complete tasks assigned; communicated with others on work related matters, related respectfully to supervisors and other workers, sustained ordinary routines without special supervision, worked with others without being unduly distracted by them, could make simple work related decisions, did not take unreasonable number of rest periods that would interfere with his duty performance, asked simple questions, requested help when appropriate, responded appropriately to changes in the work setting and was aware of normal hazards and took appropriate precautions.  

At the 13 March 2008 C&P MH evaluation, 2 weeks before separation, the CI reported symptoms of frequent irritability and anger outbursts; exaggerated startle; intrusive memories and possible flashbacks.  He related anxiety about finances and his behavior, as well as being "worried that someone is trying to make him really sick” (implicating his spouse who he was having relationship problems with).  There was a recent episode of violence (grabbed his wife by the neck and then let her go) and the CI noted that he vacillated between suppressing his anger and expressing it verbally and physically at inanimate objects.  He related low energy, sleep problems and a number of anxiety symptoms.  The CI indicated that medication (Prozac) was working well and he did not get upset easily anymore except when around his wife.  MSE was notable only for an “anxious” mood with a normal affect.  There was no active suicidal ideation, speech disturbance, objective cognitive impairment, delusional or hallucinatory symptoms or other symptoms suggestive of psychosis.  The diagnosis was anxiety disorder, NOS.  The psychologist stated, “symptoms do not appear to affect [the CI’s] ability to maintain employment.  However, the [CI’s] current marital discord appears to be significantly affected.”  The Global Assessment of Functioning was 77 (less than mild symptom range) and the psychologist indicated there was no occupational or social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks during periods of significant stress.  

The 4 December 2008 psychiatrist note indicated the CI would have an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to depressed mood, chronic sleep impairment, avoidance of certain individuals based on their appearance and mild memory loss; and that although the commander’s information indicated performance at a Security Desk position, the CI’s symptoms would be detrimental in a civilian work setting.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the MH disorder 10%, coded 9413 (anxiety disorder), citing psychotropic medication use and outpatient treatment.  The VA also rated the MH condition 10%, coded 9413, based on the STR and C&P examination, citing occupational and social impairment due to mild or transient symptoms.  

The panel considered whether the provisions of VASRD §4.129 (mental disorders due to traumatic stress) was applicable.  The military psychiatrist indicated the CI’s MH condition was due to traumatic stress and was unstable.  Although the VA psychologist’s C&P evaluation did not make that linkage clear, it did not disprove that nexus.  The panel majority agreed that the stipulations of §4.129 were met in this case and therefore recommended a minimum 50% rating for a retroactive 6‐month period on the Temporary Disability Retired List (TDRL).  All members agreed there was no evidence to support a rating higher than 50% at the time of placement on the TDRL.  

In regards to the rating recommendation at the time of TDRL removal and permanent disability disposition, all members agreed that the §4.130 threshold for a 50% rating was not approached and that the criteria for a 0% rating were well‐exceeded.  The deliberation therefore settled on consideration of a 10% versus a 30% permanent rating recommendation.  There was no post-separation MH evidence proximate to the rating timeframe and the panel considered the VA C&P examination was 6 months closer to separation and had the highest probative value for rating at TDRL removal.  The psychologist indicated no occupational and social impairment, but use of chronic medication, which best supports a 10% rating.  After due deliberation, considering the totality of evidence and mindful of VASRD §4.3 (reasonable doubt), the panel majority recommends a retroactive 6-month period of TDRL with a rating of 50% IAW §4.129, and unanimously recommends a permanent rating of 10% for anxiety disorder, NOS (9413) IAW §4.130.  

BOARD FINDINGS:  In the matter of the asthma condition, the panel recommends a disability rating of 30%, coded 6602 IAW VASRD §4.97.  In the matter of the MH disorder, the panel majority recommends placement on the TDRL with a rating of 50% in retroactive compliance with VASRD §4.129 as DoD directed, and a permanent rating of 10%, coded 9413 IAW VASRD §4.130.  The single voter for dissent recommends modification to a combined 40% without a retroactive TDRL period, but did not elect to submit a 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 the date of medical separation:  

CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
Asthma	6602	30%	30%	
Anxiety Disorder	9413	50%	10%	
COMBINED	70%	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170225, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record

AR20180007958, XXXXXXXXXXXXXXXXXX 

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX

I accept the recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) to constructively place you on the Temporary Disability Retired List (TDRL) at 70% disability for six months effective the date of your original medical separation for disability with severance pay and then following this six month period re-characterize your separation as a disability retirement with the combined disability rating of 40%.  Enclosed is a copy of the Board’s recommendation and record of proceedings for your information.  

	The constructive TDRL period and the re-characterization of your separation as a disability retirement will result in an adjustment to your pay providing you 70% retired pay for six months from the date of your original medical separation and then 40% disability retired pay effective the date following the constructive six month TDRL period, 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