RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXX                                                                                              BRANCH OF SERVICE:  Army
CASE NUMBER:  PD1200954                                Date of Permanent SEPARATION:  20031204
BOARD DATE:  20130307                                             DATE OF PLACEMENT ON TDRL:  20001221

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (310/Communication Specialist), medically separated for asthma.  He was issued a permanent P3 profile and could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was referred to a Medical Evaluation Board (MEB) and diagnosed with asthma in 1998. The MEB forwarded no other conditions for Informal Physical Evaluation Board (IPEB) for adjudication.  The IPEB placed the CI to the TDRL on 21 December 2000.  He remained on the TDRL for 3 years.  The IPEB re-adjudicated asthma as permanently unfitting on 3 Novermber 2003 at a 10% rating.  The CI appealed to the Formal PEB, which affirmed the IPEB decision.

CI CONTENTION:  “1. Both feet had bunions wich had to be removed one was removed since separation.  2.  Left wrist was operated on during service have limited movement.  3.  Asthmas should have been rated higher.  It has limited by ability to function 4.  Right eye was injured in training causing a permanent scar at  bass on eye.  The joint disease has tetrioated my spine to the degree that increased mediction is needed to control the pain that  have been constent for many years.  (14+ years).  The pain is located in the lower back as well as the upper spine in the neck area.  Recent x-rays have shown that in at least two verterbraes that spurs are present and the some for the upper spine. ”

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 condition of asthma as requested for consideration meet the criteria prescribed in DoDI 6040.44 for Board purview; and, are addressed below.  The other requested conditions feet, wrist, lower and upper back and eye are not within the Board’s purview.  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 COMPARISON:

Final Service FPEB – Dated 20031103	VA -   (15 Mos. Pre/Post- Final Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
On TDRL – 20001221		TDRL	Sep.					
Asthma	6602	30%	10%	Asthma	6602	10%	20040924	
↓No Additional MEB/PEB Entries↓	
1 X Other /Not Service Connected x 2	 
 20040924	

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 service 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 time of separation.

Asthma Condition.  The TDRL entry narrative summary (NARSUM) of 4 October 2000 states that the CI was diagnosed with asthma in 1998, and continued with exacerbations despite use of multiple medications.  He was hospitalized for asthma while in Korea and was returned to the United States as unable to perform his duties.  At the MEB exam, the CI reported having shortness of breath (SOB) with exertional activity running, walking, hills, stairs etc.  The MEB physical exam 14 August 2000 chest X-ray was normal; and a pulmonary function test (PFT) showed a 15% increase in FEV1 after bronchodilation.  A review of the records revealed the CI in the preceding 12-month period had been prescribed oral steroids on three occasions, treated with intramuscular (IM) steroids once while hospitalized for asthma, and was additionally provided oral steroids for self-treatment of exacerbations, as needed, according to an asthma care plan.  The PEB placed the CI on TDRL for the unfitting condition of asthma as charted above.

At the first TDRL re-evaluation on 19 February 2002, about 22 months prior to separation, the CI reported worsening of his asthma despite smoking cessation.  He had difficulty breathing at least weekly and required oral steroids about once per month for severe flares.  The examiner stated that the CI’s moderate, persistent asthma was not adequately controlled and counseled the CI on the use of long-term control medications on a consistent basis.  Medication was changed to include daily inhalational Advair (anti-inflammatory steroid and bronchodilator combination).  The PEB continued the CI on TDRL for asthma.

The TDRL exit NARSUM of 9 July 2003, approximately 5 months prior to separation, stated that the CI still had episodic difficulty with breathing and in the past year had been in the emergency room for nebulizer treatment, as well as on an oral prednisone taper.  Lung exam was normal.  PFT showed an FEV1 of 71% predicted normal.  Medications were listed as Advair daily and albuterol as needed.  At the VA Compensation and Pension (C&P) exam on 24 October 2004, approximately 10 months after separation, the CI reported intermittent shortness of breath at rest and at night.  He reported needing to see a doctor to control attacks as often as five times per year.  Physical examination of the lungs was normal.  A PFT showed an FEV1 of 69% predicted normal.  Medications were described as “inhalation of anti-inflammatory medication and steroid therapy intermittently – approximately four courses per year”.  The examiner stated that the effect of the condition in the CI’s occupation and daily activity was moderate impairment.

The Board directs attention to its rating recommendation based on the above evidence.  At TDRL entry, the PEB adjudicated the CI’s asthma condition as unfitting and coded 6602 (bronchial asthma) at 30%.  The Board deliberated whether the CI’s asthma condition met the 30%, or the 60% 6602 rating at the time of TDRL entry.  The 60% evaluation requires an “FEV1 of 40 to 55 percent; FEV1/FVC ratio of 40-55%; at least monthly visits to a physician for required care of exacerbation or; intermittent (at least three per year) courses of (oral or parenteral) corticosteroids”.  The Board opined that the evidence in the record supported that the CI’s asthma condition most nearly met the 60% rating criteria of 6602.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board unanimously recommends a disability rating of 60% for the asthma condition at TDRL entry.

At the conclusion of TDRL, the PEB, 3 November 2003, adjudicated the asthma condition as unfitting rated as 6602 at 10%.  The PEB noted daily therapy was not documented by the medication profile.  Approximately 10 months post separation, the VA rated 6602 at 10% citing intermittent inhalational or oral bronchodilator therapy use.  At the time of TDRL separation, the Board unanimously agreed that the 10% rating criteria were met and undertook to determine whether a 30% or 60% rating was indicated.  The CI was prescribed daily use of an anti-inflammatory inhaler for the optimum control of his asthma at the time of TDRL exit.  The record, including the medication profile, provides clear and convincing evidence that the CI was using inhaled steroids on a regular basis in the 6 months prior to permanent separation.  The Board adjudged that the “fair and equitable” rating of the CI’s asthma condition at the time of permanent separation most nearly met the 6602 30% rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board unanimously recommends a disability rating of 30% for the asthma condition at permanent separation.
______________________________________________________________________________

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 rating of 60% for the TDRL interval and 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; 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	
		TDRL	PERMANENT	
Asthma	6602	60%	30%	
COMBINED	60%	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120604, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

Physical Disability Board of Review

SFMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(TAPD-Z), 

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for AR20130006034 (PD201200954)

1.  I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual.  Under the authority of Title 10, United States Code, section 1554a, 
I reject the Board’s recommendation and hereby deny the individual’s application.  There is insufficient justification to support the Board’s recommendation in accordance with Army and Department of Defense regulations.  

2.  Although the DoD PDBR determined that the record, including the medication profile, “provides clear and convincing evidence that the covered individual (CI) was using inhaled steroids on a regular basis in the 6 months prior to permanent separation”, the medication profile does not support this conclusion.  The medication profile from Dwight David Eisenhower Army Medical Center, which the individual’s Physical Evaluation Board (PEB) Liaison Officer certified as the only place where he received medications, shows that he received 2 steroid inhalers (2 months supply) in the first 2 years on the Temporary Disability Retirement List (TDRL) and in 2013 he received 1 inhaler in July and 1 in October, the month of his PEB.  The objective record does not support a conclusion that the individual used inhalational steroids on a regular basis.

3.  This decision is final.  The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

BY ORDER OF THE SECRETARY OF THE ARMY:

Encl						
						
						         (Army Review Boards)
CF: 
(  ) DoD PDBR
(  ) DVA