RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-01669
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20060731

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was a National Guard E4, Motor Transport Operator, medically separated from the Temporary Disability Retired List (TDRL) for “chronic asthma” with a disability rating of 0%.  

CI CONTENTION:  “Asthma initially rated 50% at time of discharge.”  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 - 20060626	VARD - NA	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Asthma	6602	0%	No VA Examination Proximate to Separation in Evidence	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  NA	

ANALYSIS SUMMARY:  

Chronic Asthma.  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s asthma condition began in February 2003.  He was separated and placed on TDRL on 31 July 2003.  

At the 9 August 2004 TDRL re-evaluation, the CI stated his asthma was slightly worse because of inadequate treatment that was partly due to emotional trauma after his wife’s death.  He became winded with running, and further noted that he continued to smoke and only took albuterol (inhalational bronchodilator), and not Advair (inhalational steroid/bronchodilator combination).  Physical examination revealed lungs clear to auscultation without wheezing, rhonchi or crackles.  Pulmonary function tests (PFTs) showed an FEV-1 of 84% predicted and FEV-1/FVC of 74%.  

During the 27 March 2006 MEB NARSUM examination, 4 months before TDRL removal, the CI complained of daily cough and chest tightness and reported he had decreased his smoking to approximately three cigarettes a day.  The pulmonologist noted the CI was under the impression that he “did not have to take his stabilizer medication and so he had not been using Advair since his last evaluation.”  Pulmonary function tests the same day showed an FEV-1 of 81% predicted and an FEV-1/FVC of 74%, and spirometry was interpreted as “moderate obstruction” with “significant improvement with bronchodilation.”  The examiner stated the CI “should start and continue” Advair daily and albuterol as needed and 10 minutes before strenuous exercise. The 28 March 2006 PEB memorandum noted there was no medication profile because the CI had not been on medication.  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 0%, coded 6602 (asthma, bronchial), citing that the CI continued smoking against medical advice and was not taking prescribed medication.  The panel majority agreed that a 10% rating, which requires an “FEV-1 of 71- to 80-percent predicted” was supported by an FEV-1/FVC of 74% as recorded by the NARSUM pulmonary examination.  There was no evidence of “daily inhalational or oral bronchodilator treatment; or daily inhalational anti-inflammatory medication treatment” to support the next higher 30% rating.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel majority recommends a disability rating of 10% for the asthma condition, coded 6602, at TDRL removal.  

BOARD FINDINGS:  In the matter of the asthma condition, the panel majority recommends a disability rating of 10%, coded 6602 IAW VASRD §4.97 at the time of removal from TDRL and permanent disability disposition.  The single voter for dissent submitted the appended minority opinion.  

The panel recommends the CI’s prior determination be modified as follows, effective the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Asthma	6602	10%	

MINORITY OPINION:  The minority voter recommends a VASRD 6602 rating of 30% and permanent retirement for the CI at TDRL removal.  He did present with symptoms, to include cough and chest tightness, on a daily basis.  The TDRL NARSUM examiner related the CI had a “general misunderstanding until today regarding the necessity for compliance with ICS/LABB with rescue prn.”  The objective evidence in the examination recorded a diagnosis of “asthma, severe persistent” from the record history and the TDRL NARSUM examiner assessed the condition as “moderate to persistent asthma.”  Lastly, the minority voter believes that the specificity of the TDRL NARSUM examiner’s recommendation, to include dosage, assumes the CI was given a prescription.  Therefore, the diagnosis of moderate to persistent asthma and prescriptions, would qualify for the 30% rating by virtue of (emphasized) “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 minority 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 TDRL removal:

CONDITION	VASRD CODE	PERMANENT RATING	
Asthma	6602	30%	

AR20180010279, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear  XXXXXXXXXXXXXXXXXX

The Department of Defense Physical Disability Board of Review (DoD PDBR)
reviewed your application and found that your disability rating should be modified but
not to the degree that would justify changing your separation for disability with
severance pay to a permanent retirement with disability. I have reviewed the Board’s
recommendation and record of proceedings (copy enclosed) and I accept its
recommendation. This will not result in any change to your separation document or the
amount of severance pay. A copy of this decision will be filed with your Physical
Evaluation Board records. I regret that the facts of the case did not provide you with the
outcome you may have desired.
This decision is final. Recourse within the Department of Defense or the
Department of the Army is exhausted; however, you have the option to seek relief by
filing suit in a court of appropriate jurisdiction.
A copy of this decision has also been provided to the Department of Veterans
Affairs.