RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY CASE NUMBER: PD1201559 DATE OF PLACEMENT ON TDRL: 20020225 BOARD DATE: 20130116 DATE OF PERMANENT SEPARATION: 20031105 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PFC/E-3 (13F10/Fire Support Specialist), medically separated for asthma. The CI began having wheezing, shortness of breath, and chest tightness during physical therapy (PT). He did not improve adequately with inhalational medications 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). Asthma was forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW AR 40-501. There were no other conditions on the MEB submission. The PEB adjudicated the asthma condition as unfitting, rated 60%, with application of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD). However, the US Army Physical Disability Agency (USAPDA) reviewed the case and recommended a 30% rating. The PEB changed the rating to 30% and the CI was placed on Temporary Disability Retired List (TDRL). The CI was reevaluated over a year later and the PEB adjudicated the asthma condition as unfitting, rated 10%, with application of the VASRD. The CI made no appeals, and was medically separated with a 10% disability rating. CI CONTENTION: “Asthma (My rating was 30%) This conditions [sic] limits my abilities tremendously. I couldn’t make an appointment and never knew how to get another one and get help. I also lost my.” 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 asthma condition requested for consideration meets the criteria prescribed in DoDI 6040.44 for Board purview, and is accordingly addressed below. Any condition 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 COMPARISON: Service IPEB – Dated 20030902 VA – All Effective Date 20060424 Condition Code Rating Condition Code Rating Exam On TDRL – 20011019 TDRL Sep. Asthma 6602 30% 10% Asthma 6602 0%* 20060830 No Additional MEB/PEB Entries Combined: 10% Combined: 0%* *VA rated 0% because the CI did not report for his C&P exam on 20060830. ANALYSIS SUMMARY: The Board acknowledges the sentiment expressed in the CI’s application regarding the significant impairment with which his service-incurred condition continues to burden him. The Board wishes to clarify that it is subject to the same laws for disability entitlements as those under which the Disability Evaluation System (DES) operates. The DES has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation. That role and authority is granted by Congress to the Department of Veterans Affairs (DVA), operating under a different set of laws (Title 38, United States Code). The Board evaluates DVA evidence proximal to separation in arriving at its recommendations, but its authority resides in evaluating the fairness of DES fitness decisions and rating determinations for disability at the time of separation. 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. The DVA, however, is empowered to compensate service-connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time. Asthma Condition. The MEB narrative summary (NARSUM) in June 2001, 8 months prior to TDRL-entry, cited the pulmonary function test (PFT) in December 2000. That PFT showed a pre- bronchodilator FEV-1 of 55% predicted and FEV-1/FVC of 44%, upon which the PEB based its rating of 60% for code 6602. The USAPDA returned the case and the PEB rating was changed to 30% by applying, instead, the post-bronchodilator PFT results. There was no VA exam proximate either to entry into TDRL or at exit from TDRL. The TDRL NARSUM in July 2003, 4 months before TDRL-exit, reported results of a PFT in May 2003 which showed a pre- medication FEV-1 of 58% predicted and an FEV-1/FVC of 62.8%. The CI reported that he used inhaler medication daily, as well as weekly rescue inhalers. The PEB, citing “far less than daily use of inhalational medications” based on the available pharmacy records, assigned a final rating of 10%. Pulmonary Exam MEB ~30 Mo. Pre-Sep TDRL Eval ~4 Mo. Pre-Sep Pre-Med Post-Med Pre-Med Post-Med FEV-1 (% Predicted) 55 67 58 “10% better” FEV-1/FVC (%) 44 56 62.8 “10% better” Meds Flovent, Singulair, Serevent, & Albuterol avg 4x/day “Albuterol, Salmeterol, and Flovent” (see text) §4.97 Rating 30% 30% (PEB 10%) The Board directs attention to its rating recommendation based on the above evidence. The TDRL-entry rating of 30% was supported by all of the data. There were no hospitalizations or courses of systemic corticosteroids to support a higher rating. VASRD guidance in effect at that time matched the former DoDI language for post-bronchodilator PFT use for ratings and mirrors the current VASRD §4.96 provisions added in 2006. The PEB at TDRL-exit rated the asthma condition at 10% based on available pharmacy records, which indicated less than daily medication use. However, the PFT results cited in the TDRL NARSUM were within the rating criteria range for 30%, for both FEV-1 and FEV-1/FVC, as charted above; the estimated “10% better” results with pre-treatment were still within the 56-70% criteria for a 30% rating. The Board also discussed the use of daily controller medications by prescription requirement and NARSUM statement versus medication profile, but the PFTs alone supported the 30% rating. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a final TDRL exit rating of 30% for the asthma condition. 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. In the matter of the asthma condition, the Board unanimously recommends a a permanent disability rating of 30%, coded 6602, 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; TDRL entry at 30%, 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 20120808, w/atchs Exhibit B. Service Treatment Record Exhibit C. Department of Veterans’ Affairs Treatment Record xxxxxxxxxxxxxxxxxxxxxx, 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 xxxxxxxxxxxxxxxxxxxx, AR20130007476 (PD201201559) 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 day suspense date: 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 xxxxxxxxxxxxxxxxxxxxxxx Deputy Assistant Secretary (Army Review Boards)