RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-03207
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20061114

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an E3, Infantryman, medically separated from the Temporary Disability Retired List (TDRL) for “asthma” with a disability rating of 10%. 

CI CONTENTION:  “Sever acute asthma, arthritis in both knees.” 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 - 20061114	VARD - NA	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Asthma	6602	10%	No VA Examination Proximate to Separation in Evidence	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS: NA	

ANALYSIS SUMMARY:  

Asthma. According to the service treatment record (STR) and the MEB narrative summary (NARSUM), the CI’s asthma condition began in August 2002 after exposure to dust in a woody-grassy area.  He became acutely short of breath and was medically evacuated.  The CI was separated and placed on TDRL on 1 June 2004.  Thereafter, he received care in the emergency room (ER) on several occasions for acute exacerbations.  The STR showed prescriptions for albuterol and prednisone in September 2005, and the CI was prescribed prednisone on discharge from an ER visit on 7 November 2005, for 7 days, as well as other medications for an acute asthma exacerbation with acute bronchitis.  

The 27 July 2006 pulmonary function testing, 4 months prior to TDRL removal, showed an FEV-1 at rest, which was 50% of predicted and an FEV-1/FVC of 64%.  After bronchodilator, the FEV-1 was 83% of predicted and an FEV-1/FVC of 77%.  According to the TDRL evaluation on 22 August 2006, 3 months prior to separation, the CI reported he did not have a regular doctor and obtained care in a local ER.  The examiner noted in an average week the CI used his albuterol inhaler approximately four times; however, when he had more of a problem with the asthma, he would use it more than that.  He also noted nocturnal symptoms, including chest discomfort and dyspnea, which responded to the albuterol.  He had wheezes during his day-to-day activities, which were not troublesome, but he had to quit a job because he had dyspnea climbing up and down stairs on a frequent basis.  Physical examination showed nasal mucosa which appeared somewhat edematous and “boggy.” In the lungs there were a few scattered wheezes, but no crackles.  The examiner’s assessment was moderate asthma not under good control.  He opined the CI ought to be on a maintenance medication such as an inhaled steroid, and should remain on TDRL status.

In a time stamped note on 20 October 2006, the CI wrote:  “I do not concur with the Board information that was wrongfully written.  I use my inhaler 4 times a day.”  The PEB responded on 6 November 2006 that the CI “provided no evidence of that; such as pharmacy records which [would] show that [he] picked up enough medication to total 4 times a day use, since being placed on the TDRL.” 

The CI was seen in the ER on 12 March 2007, 4 months after separation, for shortness of breath after he “ran out of his inhaler.”  On examination of the lungs, he had diffuse inspiratory and expiratory wheezes and was slightly tachypneic (abnormally rapid breathing).  X-rays showed no active or acute chest disease.  Treatment consisted of an hour long DuoNeb (ipratropium bromide and albuterol sulfate) bronchodilator therapy as well as 60 mg of prednisone.  He was discharged home with an albuterol inhaler and a prescription for a 4-day course of prednisone. 

Review of the STR found one clinical encounter in evidence documenting the use of an oral or parenteral (injection) steroid for asthma during the year prior to separation and at least one within the year after separation; however, there was no evidence in the STR that asthma exacerbations were frequent enough to require monthly visits to a physician.  

The panel directed attention to its rating recommendation based on the above evidence.  The CI was removed from the TDRL with a permanent disability disposition of separation with severance pay at 10% citing intermittent inhalational therapy and FEV1 of 83%.

A 10% rating stipulates “intermittent inhalational or oral bronchodilator therapy.”  A majority of panel members agreed that the PEB’s 10% rating was justified by the intermittent use of inhaled bronchodilator therapy reflected in the TDRL evaluation.  A 10% rating was also justified by the FEV-1 of 83% predicted and/or the FEV-1/FVC of 77%, as noted by the 27 July 2006 examination.  Panel members did note that those values reflected measurements after bronchodilator use, which is IAW VASRD §4.96 (special provisions regarding evaluation of respiratory conditions), which states “When evaluating based on PFT's, use post-bronchodilator results in applying the evaluation criteria in the rating schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results. In those cases, use the pre-bronchodilator values for rating purposes.”  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel majority concluded there was insufficient cause to recommend a change in the PEB adjudication for the asthma at the time of TDRL removal.

BOARD FINDINGS:  In the matter of the asthma condition and IAW VASRD §4.97, the panel recommends no change in the PEB adjudication.  The single voter for dissent submitted the appended minority opinion.  There are no other conditions within the panel’s scope of review for consideration.  Therefore, the panel recommends no modification or re-characterization of the CI’s disability and separation determination.  

The following documentary evidence was considered:

	

Minority Opinion.  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 TDRL separation examination reported in an average week the use of a bronchodilator was approximately four times a week.  Additionally, the CI reported when he had more of a problem with the asthma, he would use the inhaler more than that.  He also noted nocturnal symptoms, including chest discomfort and dyspnea, which responded to the albuterol, but never quantified the frequency of inhaler use.   However, the CI wrote to the PEB that it was wrong for them to rely on use of the inhaler four times a week, when in fact, he used the inhaler four times a day.  Although the PEB challenged the CI’s written statement for lack of evidence such as pharmacy documentation, it did not request pharmacy documentation to 
confirm either the examiner’s recording of the CI’s use of an inhaler approximately four times a week or more or the CI’s contention that he used an inhaler four times a day, albeit the CI bore the burden to produce documentation to support his contention.  However, whether the CI used the inhaler approximately four times a week or four times a day, without stating the number days of the week, the use was not exactly daily use.  Nevertheless, the key to a 30% rating is that the inhaler was used approximately four times a week and the report that when the CI had more of a problem with the asthma, he used the inhaler more than that.  Furthermore, the TDRL separation examiner opined the CI ought to be on a maintenance medication such as an inhaled steroid, and should remain on TDRL status, which the PEB did not take into consideration.  Instead it permanently separated the CI, although the asthma was not stable for rating purposes.  The CI had documented significant asthma marked by impairment of pulmonary function studies prior to bronchodilator use, frequent ER visits for asthma treatment and more frequent use of the inhaler when asthma was problematic.  All the aforementioned reasons favor the inhaler use as closely approximating daily inhaler use when the asthma was significant and breathing was compromised.  Of interest, while the VASRD indicates “daily use of a bronchodilator,” it does not address the number of times a day it should be used or how many days, weeks, or months of use must take place in order to meet the minimum requirement for daily use to be achieved.  Certainly, approximate use in an average week of four times a week is closer to daily use than intermittent use.  Furthermore, while the use recorded in the TDRL examination was for an average week, the examiner never asked what the inhaler use was at its maximum or minimum based on asthma symptomatology.  Therefore, based on VASRD §4.3 (reasonable doubt), the CI’s use of the inhaler was unquestionably closer to daily use than not.  Therefore, the minority voter notes that the VASRD §4.97 threshold for a 30% rating was reasonably satisfied in this case on the basis of bronchodilator medication use at least for times a week of regular use and more so with significant asthma flares.  

The minority voter recommends the ROP be modified as follows:  After due deliberation, considering all of the evidence and mindful of VASRD §4.3, the panel recommends a disability rating of 30% for the asthma condition, coded 6602.  

Additionally, the minority voter also recommends the Board Findings be modified as follows:  

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%	

  AR20180015321, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found your separation disability rating and your separation from the Army for disability with severance pay to be accurate.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed), and I accept its recommendation.  I regret to inform you that your application to the DoD PDBR is denied.  

	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.

					       

Enclosure