RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-02885
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20050905

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty, AH-64 Armament/Electrical/Avionic Systems Repairer, medically separated for “chronic low back pain” and “asthma,” rated 10% each, with a combined disability rating of 20%.

CI CONTENTION:  Requested review his leg problems.  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 - 20050718	VARD - 2006022	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5299-5242	10%	Lumbar Back Strain	5242	10%	20060112	
Asthma	6602	10%	Asthma	6602	30%	20060112	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain (LBP).  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s LBP began in March 2001 without trauma, but was aggravated in January 2002 after falling on ice.  His symptoms worsened in 2004 with another injury during physical fitness training.  An MRI in August 2004 showed degenerative disc disease at L5-S1 with a moderate size disc protrusion and S1 nerve root impingement.  A neurology examination on 8 April 2005, 5 months prior to separation, noted complaints of LBP with occasional tingling down the legs to the toes.  Physical examination showed normal range of motion (ROM) of the lumbar spine and no palpable deformity or visible pathologic skin change over the thoracolumbar spine.  

The 13 May 2005 MEB NARSUM examination, 4 months before separation, noted CI complaints of constant throbbing LBP with occasional radiation of pain and numbness down both legs about twice per month.  The pain was worse with prolonged sitting and standing.  Physical examination showed a normal gait and some mild tenderness and palpable muscle spasm in the thoracolumbar region.  Lumbar spine ROM with painful flexion of 70 degrees (normal 90) and combined ROM of 215 degrees (normal 240).  The examiner noted electromyogram nerve conduction studies were completed in February 2005 with no evidence of neuropathy or radiculopathy affecting the symptomatic left leg.  

At the 12 January 2006 VA Compensation and Pension (C&P) examination, 4 months after separation, the CI reported LBP flares with sitting more than 5 minutes or with standing.  Physical examination showed a normal posture and gait, and no tenderness.  Forward flexion was to 50 degrees, with pain, and combined ROM was 180 degrees.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the LBP 10%, analogously coded 5299-5242 (degenerative arthritis of the spine), citing thoracolumbar ROM limited by pain with localized tenderness.  The VA also rated the LBP 10%, coded 5242, based on the C&P examination, citing limitation of spine motion.  Members agreed that a 10% rating, but no higher, was justified for limitation of flexion (greater than 60 degrees but not greater than 85 degrees) as reported on the NARSUM examination most proximate and prior to separation.  There was no muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  

The panel also considered if an additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI had a herniated disc with radicular pain treated conservatively and there were symptoms of radiating pain documented in the treatment records; however, examinations indicated normal strength and gait, and the sensory changes did not affect his job.  The presence of functional impairment with a direct impact on fitness is the key determinant in the panel’s decision to recommend any condition for rating as additionally unfitting.  While the CI may have suffered additional pain from the nerve involvement, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  Members found no evidence that motor weakness existed to any degree that could be described as functionally impairing and therefore agreed that an additional disability rating was not justified.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded there was insufficient cause to recommend a change in the PEB adjudication for the LBP.  

Asthma.  According to the STR and MEB NARSUM, the CI’s asthma condition was diagnosed in 1999 and confirmed with pulmonary function testing (PFT).  He had multiple visits to primary care over the years for upper respiratory symptoms and was treated with prednisone for one episode in 2001.  He was not hospitalized for asthma, but had one emergency room visit. 

A 22 March 2005 PFT, 5 months prior to separation, showed an FEV-1 of 58% of predicted and an FEV-1/FVC of 64%.  At a 9 May 2005 pulmonology evaluation, the CI reported shortness of breath with wheezing throughout the day, no specific exacerbating or alleviating factors, and a dry Intermittent cough.  The examiner noted he was taking Azmacort (inhaled anti-inflammatory) and albuterol (inhaled bronchodilator) daily without good control.  Physical examination showed clear normal respirations.  On the same day, PFTs showed an FEV-1 of 70% of predicted and an FEV-1/FVC of 65%.  The examiner diagnosed moderate to severe persistent asthma with poor daily control and started the CI on Advair (combination inhaled anti-inflammatory and bronchodilator) and recommended continued use of Singulair (oral bronchodilator).  

The MEB NARSUM examination noted complaints of shortness of breath and chest tightness with pollen exposure and activities such as walking up one flight of stairs or with fast walking.  Medications included Advair and Singulair daily and albuterol as needed.  At the C&P examination, 4 months after separation, the CI reported no symptoms with his current daily anti-inflammatory medications and had not used his albuterol in several months.  Physical examination showed clear lungs bilaterally.  

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 87% after inhaled bronchodilator and intermittent inhalational bronchodilator therapy.  The VA rated the asthma condition 30%, also coded 6602, based on the C&P examination, citing inhalational anti-inflammatory medication.  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.”  Panel members considered that while the NARSUM examiner was silent regarding frequency of use of medications, the VA C&P examination reported daily use of inhalational bronchodilators.  The medication record also supported current prescription and daily use of Azmacort and Advair, both inhalational anti-inflammatory medications, during the period prior to separation.  Members agreed that the VASRD §4.97 threshold for a 30% rating was clearly satisfied in this case on the basis of FEV-1 of 70% predicted, a FEV-1/FVC of 65%, and 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 recommends a disability rating of 30% for the asthma condition, coded 6602.

BOARD FINDINGS:  In the matter of the chronic low back pain condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  In the matter of the asthma condition, 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	
Chronic Low Back Pain	5299-5242	10%	
Asthma	6602	30%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170426, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record

AR20180008790, 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 40% 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