RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY CASE NUMBER: PD1201248 SEPARATION DATE: 20021118 BOARD DATE: 20130315 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PFC/E-3 (31U10/Signal Support Systems Specialist), medically separated for asthma. He began experiencing atypical chest pain in July 2000 and exercise-induced breathing difficulties in June 2001, with no prior history noted. Following a Methacholine Challenge Test (MCT) he was diagnosed with asthma and was placed on maximal asthma and allergy medications with initiation of allergy immunotherapy. Despite these efforts the CI did not improve adequately with treatment to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was issued a permanent P4 profile and referred for a Medical Evaluation Board (MEB). Allergic rhinitis, intermittent non-radiating lower back pain, essential hypertension, chronic gastritis and hypercholesterolemia conditions, identified in the rating chart below, were also identified and forwarded by the MEB. The Physical Evaluation Board (PEB) adjudicated the asthma condition as unfitting, rated 10% with application of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD). The remaining conditions were determined to be not disqualifying. The CI made no appeals, and was medically separated with a 10% disability rating. CI CONTENTION: “even when the Army knew. I have more medical condition, They only evaluted one.” [sic] 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. The MEB medical conditions alluded to on the application: allergic rhinitis, intermittent non-radiating lower back pain, essential hypertension, chronic gastritis and hypercholesterolemia meet the criteria prescribed in DoDI 6040.44 for Board purview; and, are addressed below, in addition to a review of the rating for the unfitting condition. 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. RATING COMPARISON: Service IPEB – Dated 20020725 VA (2 Mos. Post-Separation) – All Effective Date 20021119 Condition Code Rating Condition Code Rating Exam Asthma 6602 10% Bronchial Asthma 6602 30% 20030126 Allergic Rhinitis Not Unfitting Allergic Rhinitis 6522 0% 20030123 Intermittent Low Back Pain Not Unfitting Low Back Pain 5299-5292 NSC 20030127 Essential Hypertension Not Unfitting Arterial Hypertension 7101 10% 20030126 Chronic Gastritis Not Unfitting Gastritis 7307 10% 20030126 Hypercholesterolemia Not Unfitting Hypercholesterolemia 7199-7114 NSC 20030126 .No Additional MEB/PEB Entries. 0% X 3 / Not Service-Connected x 4 20030126 Combined: 10% Combined: 40% ANALYSIS SUMMARY: The Board acknowledges the CI’s contention that suggests ratings should have been conferred for other conditions documented at the time of separation. The Board wishes to clarify that it is subject to the same laws for Service disability entitlements as those under which the Disability Evaluation System (DES) operates. While the DES considers all of the member's medical conditions, compensation can only be offered for those medical conditions that cut short a member’s career, and then only to the degree of severity present at the time of final disposition. However the Department of Veterans Affairs (DVA), operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service- connected conditions and to periodically reevaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time. Asthma Condition. The narrative summary (NARSUM) 5 months prior to separation notes a history atypical chest pain and shortness of breath beginning in January 2000. The symptoms improved with Albuterol. In June 2001, a cardiologic evaluation ruled out cardiogenic chest pain and shortness of breath (SOB). In September 2001, the CI underwent pulmonary function tests (PFTs) and a MCT which confirmed the diagnoses of asthma with exercise induced bronchospasms and allergic rhinitis. He was treated with Albuterol (inhaled bronchodilator), Singular (oral anti-inflammatory), and Advair (inhaled bronchodilator/anti-inflammatory combination) without improvement. At the time of the narrative summary (NARSUM), the CI reported asthmatic symptoms at rest at least 3 times per week. He was placed on a permanent P4 profile. The allergy/immunology consultation 6 months prior to separation, noted that the CI’s symptoms were severe and persistent despite compliance with all treatment recommendations. The NARSUM respiratory examination was unremarkable. Pulmonary Exam MEB ~5 Mo. Pre-Sep VA ~2 Mo. Post-Sep FEV1 (% Predicted) 86.5% “Normal” FEV1/FVC 85% “Normal” Meds Albuterol 2 puffs QID, Advair, Singulair 10MG QD Proventil & AeroBid puffs §4.97 Rating 30%* 30%* *Based on medications, not PFT results At the VA Compensation and Pension (C&P) exam 2 months after separation, the CI reported asthma symptoms consisting of a choking sensation, chest tightness, wheezing, and productive cough twice a week. There was no history of incapacitating episodes. The CI reported use of Proventil (inhaled bronchodilator) and AeroBid (inhaled anti-inflammatory). The physical examination and PFTs were normal. The Board directs attention to its rating recommendation based on the above evidence. The PEB rated the asthma condition at 10%, coded 6602, for intermittent inhalational or oral bronchodilator therapy. The VA assigned a 30% rating under the same code for daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication. The CI’s service treatment record (STR) documented compliance with the prescribed medications to include daily anti-inflammatories and as needed inhaled bronchodilator. The VA examiner documented medical compliance with daily inhaled bronchodilator and daily inhaled anti- inflammatory. Board members agreed that the requirement and use of daily bronchodilator and anti-inflammatory medication in this case clearly met the VASRD §4.97 threshold for a 30% rating. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 30% for the asthma condition. Contended PEB Conditions. The contended conditions adjudicated as not unfitting by the PEB were allergic rhinitis, intermittent non-radiating lower back pain, essential hypertension, chronic gastritis and hypercholesterolemia. The Board’s first charge with respect to these conditions is an assessment of the appropriateness of the PEB’s fitness adjudications. The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard. Allergic Rhinitis Condition. The NARSUM notes the diagnosis of perennial allergic rhinitis as part of a non-cardiac chest pain evaluation in 2001. The CI skin tested positive for multiple allergens. The allergy consultant documented the condition as mild and stable on daily medication. Although the allergic rhinitis condition was listed as part of the permanent profile and was mentioned in the commander’s statement, it was not judged to fail retention standards. Furthermore, at the VA C&P examination 2 months after separation, the CI reported no nasal or sinus symptoms and was not on any medications for allergic rhinitis. The Board concluded that the allergic rhinitis condition, independent of his asthma, would not impair his ability to perform the duties of his MOS. Low Back Condition. The NARSUM notes the CI first presented with lower back pain in April 1999. There was no history of trauma. Although mentioned in the commander’s statement as one of many reasons that the CI should not continue his service, the STR documents one episode per year for mid or lower back pain which resolved with activity modification and pain medication. Radiographs of the thoracic and lumbar spine were normal. There was one temporary profile issued in 2001 for back pain. Essential Hypertension Condition. The CI was diagnosed with essential hypertension (HTN) in 2000 and was treated with diet modification and oral anti-hypertensive medication with moderate control of the HTN. The HTN condition was included with the P4 profile during the MEB process, but there were no prior profiles for this condition. The HTN was not implicated in the commander’s statement. At the C&P exam 2 months after separation, the CI reported no hypertensive complaints. Chronic Gastritis and Hypercholesterolemia Conditions. These conditions were not permanently profiled; were not implicated in the commander’s statement; and, were not judged to fail retention standards. All the above conditions were reviewed by the action officer and considered by the Board. There was no performance based evidence from the record that any of these conditions significantly interfered with satisfactory duty performance. After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the any of the contended conditions and so no additional disability ratings are recommended. 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 disability rating of 30%, coded 6602 IAW VASRD §4.97. In the matter of the contended allergic rhinitis, intermittent non-radiating lower back pain, essential hypertension, chronic gastritis and hypercholesterolemia conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting. 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 Asthma 6602 30% COMBINED 30% The following documentary evidence was considered: Exhibit A. DD Form 294, dated 20120702, w/atchs Exhibit B. Service Treatment Record Exhibit C. Department of Veterans’ Affairs Treatment Record XXXXXXXXXXXXXXXXXXXX, DAF Acting Director Physical Disability Board of Review 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, AR20130006138 (PD201201248) 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 the individual’s original medical separation for disability 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 the original medical separation for disability with severance pay. b. Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability 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 original medical separation for disability 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 xxxxxxxxxxxxxxxxxxxxxxxxxx Deputy Assistant Secretary (Army Review Boards)