RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2017-02326
BRANCH OF SERVICE:  army	SEPARATION DATE:  20050706

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Food Service Specialist, medically separated from the Temporary Disability Retired List (TDRL) for “asthma, moderate persistent” and “obstructive sleep apnea,” rated 0% and 0%, respectively, with a combined disability rating of 0%.

CI CONTENTION:  Review all conditions.  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 - 20050607	VARD - 20060707	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Asthma…	6602	0%	Obstructive Asthma	6602	30%	20041021	
Obstructive Sleep Apnea (OSA)	6847	0%	OSA	6847	50%	20041021	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  80%	

ANALYSIS SUMMARY:

Asthma.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s condition began with symptoms of allergic rhinitis and progressive shortness of breath (SOB) for several years and he was subsequently diagnosed with asthma in January 2003.  The CI was separated and placed on the TDRL on 30 May 2004.  At the 21 October 2004 VA Compensation and Pension (C&P) examination, 9 months before TDRL removal, the CI reported SOB with excessive exposure to dust or smoke, and running.  An abbreviated respiratory examination documented clear lungs, and current medications included daily montelukast (oral indirect-acting bronchodilator), fluticasone inhaler (steroid), and albuterol (inhalational bronchodilator) as needed.  Pulmonary function testing (PFT) was not addressed. 

The 28 March 2005 TDRL examination, 3 months before TDRL removal, noted CI complaints of a dry cough with any attempt at physical activity resulting in SOB and increased coughing.  Current medications included daily montelukast, fluticasone, and albuterol taken as needed. Physical examination showed lungs clear to auscultation with diminished breath sounds at the bases, but no rales or rhonchi.  Pulmonary function studies were noted to be “normal.”  A VA medication profile dated 11 August 2005, 1 month after separation, showed the CI was prescribed albuterol inhaler to be taken twice daily and montelukast to be taken daily. 

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the asthma 0%, coded 6602 (asthma, bronchial), based on normal PFTs and medication non-compliance.  The VA rated the asthma 30%, coded 6602, based on the C&P examination, citing the use of daily inhalational or oral bronchodilator therapy.   Panel members agreed that CI’s daily use of montelukast as well as the fluticasone inhaler, as documented by the TDRL and C&P examiners, met the 30% criteria requiring “daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication” under code 6602.  A higher 60% rating was not justified in the absence of documented 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 the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 30% for the asthma, coded 6602.

OSA.  According to the STR and MEB NARSUM, the CI was diagnosed with OSA in November 2003 and was treated with a continuous positive airway pressure (CPAP) device.  At the C&P examination, the CI reported the CPAP unit was annoying, but found it did markedly improved his nighttime fidgeting, snoring, day time somnolence, and fatigue.  The examiner recorded that the CI was diagnosed with sleep apnea via a sleep study.  During the TDRL examination, the CI reported that he was unable to use the CPAP unit because he woke up with a dry throat and irritability.  Nevertheless, he attempted to use the CPAP unit on a number of occasions with the same effect.  A VA home respiratory assessment on 5 May 2005, 2 months before separation, indicated the “CPAP was checked at 5/5, current hours 247, nasal mask noted to be not working well, changed over to full mask.”  At the VA clinic visit on 22 November 2005, 5 months after separation, the CI was assessed with “sleep apnea: pt [patient] on cpap.” 

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the OSA 0%, coded 6847 (sleep apnea syndromes (obstructive, central, mixed), based on non-compliance with CPAP.  The VA rated the OSA 50%, coded 6847, based on the C&P examination, citing “if a breathing assistance device, such as continuous airway pressure (CPAP) machine is required.”  Panel members agreed that the OSA diagnosis was continued during the TDRL period and the CI was treated with CPAP, as recorded at the C&P and TDRL examinations, and VA treatment records.  In accordance with VASRD §4.97, a minimum rating of 50% is assigned for OSA requiring a breathing assistance device, and the evidence supported this rating.  However, with regards to using codes 6602 and 6847, VASRD §4.96 (special provisions regarding evaluation of respiratory conditions) states, “A single rating will be assigned under the diagnostic code which reflects the predominant disability with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation.”  The panel thus determined the asthma was more severe or detrimental to the CI’s health of the two conditions, since he required two bronchodilators and an anti-inflammatory medication on a regular basis proximate to TDRL removal.  Panel members then discussed whether elevation of the asthma disability was warranted, but as discussed above, the criteria for a 60% rating is not achievable in the absence “of documented monthly visits to a physician for required care of exacerbations, or intermittent (at least three per year) courses of systemic corticosteroids.”

BOARD FINDINGS:  IAW VASRD §4.96, the panel can only rate the predominant respiratory disability which was determined to be the asthma.  In the matter of the asthma, the panel recommends a disability rating of 30%, coded 6602 IAW VASRD §4.97.  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	
Asthma	6602	30%	

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

AR20190011715, 

Dear XXXXXXXXXXXXXX:

I accept the recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) to re-characterize your separation as a permanent 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 permanent 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 and to the counsel you listed on your application, Disable American Veterans (DAV), National Service Office, PO Box 3151, Augusta, ME 04330.

Sincerely,		      

Enclosure