RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2017-04242
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20051107

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Infantryman, medically separated from the Temporary Disability Retired List (TDRL) for “asthma” with a disability rating of 10%.  

CI CONTENTION:  “I can’t check the box in line 2…because my rating is 30%...VA has the records and all the information needed.”  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 (TDRL) – 20051019	VARD - NA	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Asthma	6602	10%	No VA Examination in Evidence	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  NA	

ANALYSIS SUMMARY:  

Asthma.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI developed exertional bronchospasm in January 2003 and was diagnosed with asthma.  He underwent an MEB and was placed on the TDRL, rated 30%, on 1 October 2004.  At that time he was treated with albuterol (inhalational bronchodilator) and Combivent (inhalational anti-inflammatory medication) and other medications.  His most recent pulmonary function test (PFT) had yielded an FEV1 of 70% predicted and an FEV1/FVC ratio of 69%.

The only available TDRL evidence were STR entries in 2005.  July and August 2005 entries unrelated to asthma documented “no active medications found.”  A 1 September 2005 repeat PFT yielded an FEV1 of 92% predicted and an FEV1/FVC ratio of 74.5%, with no medications listed.  At a provider visit 2 weeks later the examiner prescribed Flovent (inhalational anti-inflammatory medication), Serevent (inhaled bronchodilator), and Singulair (daily oral bronchodilator).  The pharmacy log confirmed that those medications were dispensed on the date of that visit, but no refills were dispensed.  It also corroborated that no asthma medications had been dispensed during the preceding period of TDRL.   There was no STR evidence for respiratory failure, hospital admissions, continuous requirement for systemic corticosteroids, or monthly exacerbations requiring physician visits (criteria for VASRD ratings higher than 30%).

The 3 October 2005 TDRL re-evaluation, one month prior to TDRL removal, documented, “the patient states that he has not been having much problems with his breathing ... that he only uses his albuterol inhaler ... the only medication he is on currently for his asthma ... approximately one to two times a week if he plans on doing any highly aerobic activities ... states other than that he is breathing fine and he does not need any other type of inhaler.”  The TDRL examiner was the prescriber of the medications listed above (Flovent, Serevent, and Singulair) and he acknowledged that they had been started, but noted the CI “states that these medications have not changed his respiratory status in any way.”  The medications appeared on the automated list of active medications in the STR entry for the TDRL re-evaluation, but the examination itself documented, “Current Medications: He states his only medication is albuterol approximately once to twice a week.”  The physical examination recorded comfortable respirations and clear lungs.  The documented diagnosis was “mild intermittent asthma which the patient states is responsive to one to two puffs of albuterol as needed.” The examiner recommended that the CI be returned to active duty.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB ruled that the asthma condition had not improved sufficiently for a return to infantry duty, and rated it 10%, coded 6602 (asthma), citing intermittent use of albuterol as the only treatment.  The CI prohibited access to his VA records and there was no other evidence probative to the date of separation.

Both the FEV-1/FVC ratio from the TDRL PFT measurements and the intermittent use of a bronchodilator satisfied the criteria of code 6602 for the PEB’s 10% rating.  The criteria for the next higher 30% rating are “FEV-1 of [56-70%] predicted, or; FEV-1/FVC of [56-70%], or; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication.”  The PFT-derived criteria were not supported; but, if the prescribed medications from the later TDRL period were conceded as ratable, the 30% treatment criteria (Flovent and Singulair as elaborated above) would be satisfied.  The panel thus deliberated this issue.

Panel members ultimately agreed that treatment with those medications at the time of separation could not be justified for rating purposes.  The pharmacy log indicated that the medications had been dispensed, and the TDRL examination suggested that they may have been tried at some point during the 2-week interval since they had been prescribed.  The TDRL examiner, however, compellingly and repeatedly emphasized that only intermittent albuterol was in active use at that time and that it was the only medication of any therapeutic consequence.  There was strong evidence that no 30% ratable medications were in use for any significant amount of time during the 12-month interval before final separation, and that the mild severity (compatible with active duty per the TDRL examiner) was attributable solely to the intermittent use of a bronchodilator.  It would be very speculative to premise a recommendation on the likelihood that the CI resumed the use of the newly-prescribed medications after the TDRL examination and over a period probative to rating at the time of separation.  After due deliberation, considering all 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 asthma condition.  

BOARD FINDINGS:  In the matter of the asthma condition and IAW VASRD §4.97, the panel recommends no change in the PEB adjudication.  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:

PD-2017-04242

AR20190012195, XXXXXXXXXXXXXXXXXXXXXXXXX 

Dear XXXXXXXXXXX

	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.