DEPARTMENT OF THE NAVY
SECRETARY OF THE NAVY COUNCIL OF REVIEW BOARDS 720 KENNON STREET SE STE 309
WASHINGTON NAVY YARD DC 20374-5023

IN REPLY REFER TO

1850
CORB:003
12 Feb 20

From: To:

Director, Secretary of the Navy Council of Review Boards PD-2017-01692

Subj:	PHYSICAL DISABILITY BOARD OF REVIEW (PDBR)

Ref:	(a) DoDI 6040.44
(b) PDBR ltr of 7 Feb 19

1.	Pursuant to reference (a), the PDBR reviewed your case and forwarded its recommendation (reference (b)) to the Department of the Navy for appropriate action.

2.	On 31 January 2020, the Assistant Secretary of the Navy took action in your case by accepting the correct recommendation of the PDBR.	Accordingly, your records will be corrected to reflect an increase in the disability rating awarded by the Physical Evaluation Board from 10 to 60 percent with assignment to the Permanent Disability Retired List.

3.	The Assistant Secretary's determination, which represents final action in your case by the Department of the Navy, was sent to the Navy Personnel Command for correction of your records as stated above.	You will be notified once those changes are complete.

RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXX		CASE: PD-2017-01692 BRANCH OF SERVICE:  NAVY	SEPARATION DATE: 20080506

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Global Command and Control System Common Operational Picture/Maritime Operator, medically separated for “pulmonary embolism” with a disability rating of 10%.

CI CONTENTION: “Since being medically separated front the Navy, I have not obtained a job due to my medical issues. I’m also currently using a CPAP machine after being diagnosed with sleep apnea again after having the surgery while I was active duty.” 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 - 20080225	VARD - 20090316	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Pulmonary Embolism	7199-7121	10%	Recurrent Pulmonary Embolism Asthma, and Obstructive Sleep Apnea	
6602-6817	
60%	
20090112	
Obstructive Sleep Apnea	Cat III					
Mild Persistent Asthma	Cat III					
0besity	Cat IV	No VA Placement	
COMBINED RATING: 10%	COMBINED RATING OF ALL VA CONDITIONS: 80%	

ANALYSIS SUMMARY:

Pulmonary Embolism. According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s lung condition began in January 2007 after waking up with severe chest pain.  Upon initial evaluation, the CI was diagnosed with a pulmonary embolism (PE)   and

was hospitalized for the initiation of anticoagulants. For a significant amount of time, the CI did well with the medication treatment, but in September 2007, he again developed bilateral PE’s. Due to the recurrent condition, the CI was advised that he would require lifetime anticoagulant therapy. Although the STR indicated that the etiology of the CI’s PE was from a lower extremity deep vein thrombosis (DVT), all invasive tests performed during 2007 to identify a DVT (blood clot) were negative. The 7 February 2008 pulmonary addendum, 3 months prior to separation, documented “evaluation of pulmonary embolism” as the chief complaint. The cardiorespiratory focused examination was normal.

At the 12 January 2009 VA Compensation and Pension (C&P) examination, 8 months after separation, the CI reported a long-standing blood-tinged productive cough and shortness of breath at rest. He had no episodes of respiratory failure requiring respiration assistance from a machine. The CI reported functional impairment as dyspnea (painful breathing). The cardiorespiratory examination was normal and specifically, there was no edema or stasis dermatitis seen in the lower extremities.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the lung condition 10%, analogously coded 7199-7121 (post-phlebitic syndrome of any etiology [DVT]). The VA rated the lung condition together with obstructed sleep apnea (OSA) at 60%, dual coded 6602-6817 (bronchial asthma and pulmonary vascular disease), based on the C&P examination, citing chronic pulmonary thromboembolism requiring anticoagulant therapy.

Panel members considered the two possible rating schemes (7121 and 6817) for a vascular condition leading to a situation of an acute or chronic PE and concluded that although code 7121 notes a post-phlebitic syndrome of any etiology, its specific additional note of DVT would not accurately be reflected in this case noting the absence of the finding of a DVT. Therefore, panel members agreed that VASRD code of 6817 most accurately reflected the CI’s condition near the time of separation. The associated rating levels under 6817 include 0% when asymptomatic following PE resolution, 30% when being symptomatic following PE resolution or 60% when there exists chronic PEs that require anticoagulant medication. Clearly, the STR remained consistent  in the CI’s requirement for continued anticoagulation therapy and therefore, after due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 60% for the lung condition, coded 6817.

Contended PEB Conditions: Obstructive Sleep Apnea, Mild Persistent Asthma and Obesity. The panel’s main charge is to assess the fairness of the PEB’s determination that the contended conditions were not unfitting. Although diagnosed with OSA in 2004, the CI underwent surgical correction for the same in 2005 and reported the same condition as “resolved.” A post-surgical sleep study was normal. The CI was diagnosed with mild persistent asthma based upon varying parameters of serial pulmonary function tests (PFT) not revealing significant airway obstruction as well as the CI’s subjective complaints. Additionally, the PFT was associated with a negative methacholine challenge test. Neither of these two conditions (OSA and asthma) were noted on limited duty forms, implicated in the non-medical assessment or judged to fail retention standards. There was no performance-based evidence from the record that either of these conditions significantly interfered with satisfactory duty performance at or near separation. After due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB’s fitness determination for the contended conditions, so no additional disability ratings are recommended. The PEB also adjudicated “obesity” as a Category IV condition which does not constitute a physical disability. IAW DoDI 1332.38 the CI’s obesity condition is not a physical disability and therefore is not compensable.

BOARD FINDINGS: In the matter of the lung condition, the panel recommends a disability rating of 60%, coded 6817 IAW VASRD §4.97. In the matter of the contended OSA and mild persistent asthma, the panel recommends no change from the PEB determinations as not unfitting. In the matter of the contended obesity condition, the panel agrees it cannot recommend it for additional disability rating. 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	PERMANENT RATING	
Pulmonary Embolism	6817	60%