RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY CASE NUMBER: PD1101084 DATE OF PLACEMENT ON TDRL: 20010813 BOARD DATE: 20130212 DATE OF PERMANENT SEPARATION: 20021105 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (75H20/Personnel Service Specialist), medically separated for asthma. He developed persistent shortness of breath and exercise intolerance shortly after entering service and was diagnosed with asthma. His treatment was initially successful and he was able to fully function in garrison. However, his symptoms worsened and he did not respond adequately to treatment to fully perform within his Military Occupational Specialty or to meet physical fitness standards. The CI was placed on a permanent P3 profile and underwent a Medical Evaluation Board (MEB). The moderate persistent asthma condition was forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW AR 40-501. The MEB forwarded no other conditions for PEB adjudication. The PEB adjudicated the moderate persistent asthma condition as unfitting, rated 30% with application of Department of Defense Instruction (DoDI) and the Veterans Affairs Schedule for Rating Disabilities (VASRD), respectively. The CI was placed on Temporary Disability Retired List (TDRL) with ratings as reflected in the chart below. The CI was re-evaluated on 22 July 2002 and was given a 0% disability rating by the PEB and was removed from the TDRL. The CI made no appeals, and was medically separated with a 0% disability rating. CI CONTENTION: “VA gave a rating of 30%.” SCOPE OF REVIEW: The Board wishes to clarify that the scope of its review as defined in DoDI 6040.44, Enclosure 3, paragraph 5.e. (2) is limited to those conditions which were determined by the PEB to be specifically unfitting for continued military service; or, when requested by the CI, those condition(s) “identified but not determined to be unfitting by the PEB.” The ratings for unfitting conditions will be reviewed in all cases. Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Army Board for Correction of Military Records. TDRL Rating Chart Final Service IPEB – Dated 20021001 VA – All Effective Date 20030911 Condition Code Rating Condition Code Rating Exam On TDRL – 20010813 TDRL Sep. Asthma 6602 30% 0% Asthma 6602 30%* 20031023 .No Additional MEB/PEB Entries. Not Service Connected x 3 20031023 Combined: 0% Combined: 30% *VA initially rated 0% when CI failed to show for initial C&P citing lack of post-service evidence of symptoms. However, after the first C&P examination was completed 20031223, a 30% rating was assigned. ANALYSIS SUMMARY: The Board’s authority as defined in DoDI 6040.44, resides in evaluating the fairness of Disability Evaluation System fitness determinations and rating decisions for disability at the time of separation. The Board utilizes VA evidence proximal to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence. Post-separation evidence is probative only to the extent that it reasonably reflects the disability and fitness implications at the time of separation. Asthma Condition. The post-bronchodilator pulmonary function tests (PFTs) in evidence that the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below. Pulmonary Exam Pulm ~17 Months Pre-TDRL Entry MEB ~3.5 Months Pre-TDRL Entry NARSUM ~3.5 Months Pre-TDRL Exit VA C&P ~11 Months Post-Sep FEV1 (% Predicted) 2.86 (82%) MEB NARSUM refers to PFTs completed by IM 13 April 2001 but record unavailable 2.6 (68.7%*) 2.58 (67%) FEV1/FVC 89% 85% (2.6/3.13) 80% Meds FEV1 Increased 17% post-bronchodilator; on Pulmicort 2p bid; renewed Singulair; “sx improving on anti- inflammatory” FEV1 increased greater than 15% post-bronchodilator; Allegra; Singulair; Flovent; Albuterol; “moderate persistent asthma” “moderate persistent asthma”; Allegra, Singulair, AeroBid/Advair, Albuterol. FEV1 increased 12% post- bronchodilator; Singulair 1x/every evening, Albuterol and Advair Inhalers as needed; Allegra every day §4.97 Rating 30% 30% 30% 30% *68.7%, predicted calculated by CDC calculator. However, it is not clear if this is pre- or post-bronchodilator. The pre-TDRL entry pulmonary and MEB exams proximate to TDRL entry are summarized above. There was no VA Compensation and Pension (C&P) exam proximate to TDRL entry as the CI failed to show for his scheduled examination. Based on the above evidence, the Board directed its attention to its rating recommendation for the asthma condition at TDRL entry. The PEB rated the condition as 6602 asthma, bronchial and assigned a 30% disability stating the asthma condition was only moderately controlled on multiple medications, including daily inhaled anti-inflammatory aerosols. The PEB also stated that a permanent rating was not yet possible and the CI was placed on the TDRL. The VA determined asthma was service-connected. However, without any post-service medical evidence showing current findings for asthma, the VA assigned a 0% disability rating effective 14 August 2001. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (Resolution of reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the asthma condition at TDRL entry. At the TDRL narrative summary (NARSUM) completed approximately 3 months prior to TDRL exit, the CI reported that he did very little physical training but felt that if he were to do it again, he would still have consistent wheezing with exercise. He stated that his medications were Allegra, Singulair, AeroBid, and Albuterol. However, his medication profile shows that he had been prescribed Advair in July 2002 in place of the Aerobid. Advair consists of an inhaled beta agonist combined with an inhaled anti-inflammatory medication. The pulmonary exam was normal. The NARSUM does not specifically state whether the FVC and FEV1 reported in the chart above were measured pre- or post-bronchodilator but the examiner did opine the values were consistent with moderate asthma. A C&P examination was completed approximately 11 months after TDRL exit and the post-bronchodilator PFT results are recorded in the chart above. The CI reported he had asthma attacks about two times per week and during an attack, he was able only to walk about an eighth of a mile or three flights of stairs. He reported he was taking Singulair and Allegra daily and using his albuterol and Advair inhalers as needed. The Board directs attention to its rating recommendation for the asthma condition at TDRL exit based on the above evidence. The TDRL exit PEB rated 6602 asthma at 0% stating that, based on the pharmacy record, the CI was intermittently using medication and that while he remained unfit for the rigors of Army life, he appeared to be unaffected by his asthma in civilian life. The VA assigned a 30% rating for asthma based on the PFT result of FEV-1 at 2.58 liters or 67% of predicted. The TDRL NARSUM reported an FEV-1 of 2.60 or 68.7% of predicted. These results are essentially equivalent and both support a 30% disability rating. While the TDRL NARSUM did not specifically state whether the values reported were obtained from testing pre- or post- bronchodilator administration, the values were consistent with other post-bronchodilator measurements. Additionally post-bronchodilator results are required for rating and applying resolution of reasonable doubt, the Board determined that, more likely than not, these results were obtained after administration of a bronchodilator. The TDRL NARSUM reported the use of inhaled beta agonist medication as well as both inhaled and oral anti-inflammatory medication; however did not specify the doses or frequency of these medications. The PEB stated the medication profile documented intermittent use of medication and assigned the 0% rating. However, intermittent use of medication meets the criteria for a 10% rating and it not clear why the PEB did not assign this rating. Additionally, a complete review of both service (Composite Health Care System) and VA medication profiles indicated consistent use of oral, inhaled anti-inflammatory, and inhaled beta agonist medication at the time of separation. Aerobid inhaled anti-inflammatory medication was issued by the VA on 6 March 2002 and 21 March 2002. A 3 month supply of Advair, a combination of inhaled anti-inflammatory, and inhaled beta agonist medications was issued by the military treatment facility (MTF) on 11 July 2002 (4 months prior to TDRL exit) with three refills remaining. The 3 month supply of Singulair (an oral anti-inflammatory medication), was dispensed by the VA on both 29 November 2001 and 21 March 2002. An additional 3 month supply was dispensed by the MTF on 11 July 2002. The MTF medication profile does not have a date and therefore contains no information regarding prescriptions dispensed after 11 July 2002. The VA medication profile includes a through date of 9 September 2002. However, with the medications dispensed on 11 July 2002, the CI would not require any refills until October 2002. Albuterol was neither prescribed nor issued in sufficient quantities to support daily use, and it appears to have been used as a rescue medication. Normal usage of chronic medication includes occasional missed doses, especially for conditions with only intermittent symptoms such as asthma and this may account for some of the gaps in dispensing dates. There is adequate evidence to show the CI was taking both daily inhaled (Advair) and oral anti-inflammatory (Singulair) medications, as well as daily inhaled bronchodilator medication (Advair), at the time of separation and this independently supports a 30% disability rating. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (Resolution of reasonable doubt), the Board recommends a disability rating of 30% for the asthma condition at TDRL exit. BOARD FINDINGS: IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication. The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised. In the matter of the asthma condition, the Board unanimously recommends a 30% permanent rating at TDRL exit, coded 6602 and IAW VASRD §4.97. There were no other conditions within the Board’s scope of review for consideration. RECOMMENDATION: The Board recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation: UNFITTING CONDITION VASRD CODE RATING PERMANENT Asthma 6602 30% COMBINED 30% The following documentary evidence was considered: Exhibit A. DD Form 294, dated 20111121, w/atchs Exhibit B. Service Treatment Record Exhibit C. Department of Veterans’ Affairs Treatment Record XXXXXXXXXXXXXXXXXXXXXX, DAF Acting Director Physical Disability Board of Review Grant SFMR-RB MEMORANDUM FOR Commander, US Army Physical Disability Agency (TAPD-ZB / XXXXXXXXXXXX), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXX, AR20130004001 (PD201101084) 1. Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 30% effective the date of removal from the Temporary Disability Retired List (TDRL) with severance pay. 2. I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum: a. Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of his removal from the TDRL with severance pay. b. Providing orders showing that the individual was retired with permanent disability effective the date of the removal from the TDRL with severance pay. c. Adjusting pay and allowances accordingly. Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 30% effective the date of the removal from the TRDL with severance pay. d. Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options. 3. I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures. BY ORDER OF THE SECRETARY OF THE ARMY: Encl XXXXXXXXXXXXXX Deputy Assistant Secretary (Army Review Boards)