RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2020-00157
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20060406

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Motor Transport Operator, medically separated for “reactive airway disease [RAD]” and “posttraumatic stress disorder [PTSD],” each rated 10%, with a combined  disability rating of 20%.  

CI CONTENTION:  “I was seeing my therapist while in the Army for PTSD in 2003…”  The CI also requested review of additional conditions not identified by the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB).  

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 PEB to be unfitting for continued military service, and when specifically requested by the CI, those conditions identified by the 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 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 - 20060210	VARD - 20060523	
Condition	Code	Rating	Condition	Code	Rating	Exam	
RAD	6699-6602	10%	Asthma/Obstructive Sleep Apnea	6602-6847	50%	20060209	
PTSD	9411	10%	PTSD	9411	50%	20060213	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  90%	

ANALYSIS SUMMARY:  

RAD.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s reactive airway condition began in 2003. A 10 November 2005pulmonary function test (PFT) showed FEV1 at 75.1 % predicted, and FEV1/FVC at 95.5%, and post bronchodilation values of FEV1 87.8% and FEV1/FVC 100%.  

The 16 December 2005 MEB NARSUM examination, 4 months prior to separation, noted complaints of acute flare-ups of shortness of breath and difficulty performing his duties secondary to environmental pollen and other dust exposures.  The CI was currently using albuterol inhaler (bronchodilator) for his asthma.  Physical examination showed clear lungs bilaterally, normal heart rate, rhythm and sound, good oxygenation, and a body mass index of 33.97.  

At the 9 February 2006 VA Compensation and Pension (C&P) examination, 2 months before separation, the CI reported having a cough with purulent sputum, orthopnea and having shortness of breath at rest.  He reported weekly asthma attacks, and respiratory infections that required antibiotic treatment eight times per year.  He reportedly stated he had suffered three episodes of respiratory failure and each required respiration assistance from a machine. (No evidence of recurrent infections or respiratory failure at any time during service).  Physical examination revealed normal lungs and heart, but noted nasal obstruction in both nostrils.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the reactive airway condition 10%, analogously coded 6699-6602 (bronchial asthma), citing intermittent bronchodilator therapy.  The VA rated for sleep apnea with asthma 50% (rated as asthma/obstructive sleep apnea), analogously dual coded 6602-6847 (bronchial asthma - sleep apnea syndromes), based on the C&P examination, citing requirement of a breathing assistance device. 

 As noted below, the CI was placed on the temporary duty retirement list (TDRL) for PTSD.  As such, the panel considered the rating at constructive TDRL placement and removal.  A 10% rating stipulates “intermittent inhalational or oral bronchodilator therapy.”  Panel members agreed that the PEB’s 10% rating was justified by the intermittent use of inhaled bronchodilator therapy reflected in the STR.  A clinic note dated 8 November 2005 recorded the use of a bronchodilator inhaler with once a week frequency.  

There was no PFT evidence (i.e. FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56 to 70 percent) to support the next higher 30% rating.  Likewise, a 30% rating was not justified in the absence of daily inhalational or oral bronchodilator therapy, or inhalational anti-inflammatory medication.  The panel acknowledged that the CI had been prescribed Advair (anti-inflammatory) and Prednisone at one time; however, there was no evidence to support the report of daily steroid use, or inhaled anti-inflammatory medication use in the 11 months prior to separation. The last prescription for daily oral anti-inflammatory medication was filled in November 2005 with two refills (2 additional months).  However, evidence of prescription use beyond February 2006 was not in the record.  The primary care visits in November 2006 and January 2007, prescribed an as needed rescue inhaler.  There was nothing prescribed for daily inhalation therapy or oral bronchodilation therapy.  

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.  During the constructive TDRL period, the STR showed the CI continued to use intermittent inhalational bronchodilator therapy (as needed), and no other was medication prescribed.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel majority agreed there was insufficient cause to recommend a change in the PEB adjudication for the RAD at TDRL placement and removal.  

PTSD.  According to the STR and MEB NARSUM, the CI’s PTSD began in September 2004 after a suicide bomber detonated a bomb at the guard point where the CI was stationed while deployed to Iraq.  During the 6 December 2005 MEB examination (recorded on DD Forms 2807-1 and 2808), 4 months prior to separation, the CI reported depression and frequent trouble sleeping.  The MEB NARSUM Psychiatric Addendum examination, one week later, noted complaints of daytime anxiety attacks, depressed mood, loss of motivation, and occasional suicidal thoughts.  The CI endorsed symptoms consistent with PTSD including disturbed sleep related to nightmares.  The mental status examination (MSE) documented depressed mood with irritable affect.  There was no evidence of psychosis and cognition was intact.  Judgment was noted as good, and suicidal or homicidal ideation was absent.  There was no report of chronic insomnia, panic attacks, or memory problems.  

At the 13 February 2006 VA C&P mental examination, 2 months prior to separation, the CI reported PTSD symptoms and noted he only got about 4 hours of sleep at night.  He also reported difficulty concentrating at times.  The CI had been married for 2.5 years and had five kids, two living with him and his wife.  He interacted well with the children and there was no report of marital discoid or domestic violence. The CI participated in housework and enjoyed playing basketball at the gym.  He was also a barber student, spending about 30 hours a week working on acquiring a barber’s license.  The MSE was unremarkable with the exception of anxious affect.  The examiner noted an absence of panic attacks, memory issues, or a history of suicidal behavior, and that the CI was able to work about 45 hours weekly.  

The 22 January 2007 psychiatry consultation note, 9 months after separation, noted the CI had not had any mental health (MH) treatment since March 2006 when he received psychotropic medication.  He reported problems with sleep and nightmares.  The CI worked as a barber since leaving the military, and indicated he was only able to work a short while due to sleep and nightmares issues.  The CI was still using CPAP for sleep apnea.  He had remained married and his wife was attending college.  There was no report of marital problems or problems with others.  The MSE was normal.  There were no additional MH visits documented.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the PTSD 10%, coded 9411, citing required psychotropic medication and outpatient treatment.  Using the same code, the VA rated the PTSD 50%, based on the C&P examination, citing occupational and social impairment with reduced reliability and productivity.  

The panel noted the NDAA 2008 Memorandum directing the application of VASRD section §4.129 to unfitting PTSD, effective 28 January 2008 was not in effect for this CI prior to separation.  Panel members agreed, however that the provisions of VASRD §4.129 were applicable in this case, and recommend a 6-month period of constructive TDRL.  

The panel next proceeded with its rating recommendation under VARSD§ 4.130 based on the evidence at constructive TDRL placement.  The panel considered the record in evidence did not support a higher than 50% rating for TDRL placement.  There was no evidence of impaired judgment, panic attacks, impairment in memory, or suicidal ideation with intent at any time during service. After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 50% for the PTSD at TDRL placement.  

The panel next considered whether the evidence at the time of TDRL removal and permanent disability disposition supported a rating higher than the 10% rating adjudicated by the PEB.  At the psychiatry consultation visit, 9 months after constructive TDRL placement, the CI was employed as a barber.  He complained of sleep problems that limited his work schedule, and he continued to use CPAP for sleep apnea. There was no report of problems at work or at home.  The CI had remained married and there were no reported problems in his marriage or with the children.  The MSE was normal. There was no indication the CI had participated in any MH treatment since separation, and he was not taking any psychotropic medications.  There was no history of psychiatric hospitalization or visits to the emergency room during the constructive TDRL period or at any time during service.  There was no complaint of panic attacks or memory issues due to PTSD, and suicidal ideation was absent.  There was no evidence that his reported problems had significantly interfered with social or occupational functioning.  

The panel considered the record in totality, and panel members concluded the evidence demonstrated the CI’s condition was most reflective of the 10% level of disability for “occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress...”  After due deliberation, considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a retroactive 6-month period of TDRL with a rating of 50% (in accordance with §4.129), and a permanent rating of 10% for the PTSD, coded 9411.  

BOARD FINDINGS:  In the matter of the reactive airway disease and IAW VASRD §4.97, the panel majority recommends no change in the PEB adjudication at the time of constructive TDRL placement and removal.  The single voter for dissent submitted the appended minority opinion.  

In the matter of the PTSD, the panel recommends a disability rating of 50%, coded 9411 IAW VASRD §4.129 for 6 months from the time of discharge consistent with a constructive period of TDRL and then a permanent separation rating of 10% IAW VASRD §4.130.  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, effective the date of medical separation:  

CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
Reactive Airway Disease	6699-6602	10%	10%	
Post-Traumatic Stress Disorder	9411	50%	10%	

The following documentary evidence was considered:

Minority Opinion

Although I agree with the majority that the permanent rating for the PTSD should be 10%, I contend the RAD should be rated at 30% for clear evidence of intermittent inhalational anti-inflammatory use.  The 15 November 2005 medication profile shows that Advair (inhalational anti-inflammatory) was prescribed on 3 and 5 May 2005, 11 months prior to separation.  An emergency room visit for shortness of breath on 16 October 2005, 6 months prior to separation, showed the CI using Advair and Flovent (inhalational anti-inflammatory).  The 9 February 2006 C&P examination, 2 months before separation, showed the CI using Advair on a daily basis.  Although the 16 November 2006 primary care clinic note for thumb pain noted the CI was just taking albuterol for his asthma, the 24 February 2007 C&P examination noted he was taking Advair.  The evidence clearly shows that the CI’s RAD was intermittently treated with an inhalational anti-inflammatory medication proximate to separation and, therefore, the condition should be rated at 30%.    

The panel minority 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	
Reactive Airway Disease	6699-6602	30%	
Post-Traumatic Stress Disorder	9411	10%	
COMBINED	40%	

AR20210005025

Dear XXXXXXXXXXXXXXXXXX:

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application, by majority vote, 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.