Author: JOHN J. D'ORAZIO
Last saved by: BARKSDALE, JAMEILL M GS7 USAF SAF SAF/MRBE
Company: Pre-installed Company

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  	BRANCH OF SERVICE:  Army
CASE NUMBER:  PD1201083	SEPARATION DATE:  20021227
BOARD DATE:  20130222

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PRC/E-3 (45B10/Small Arms Repair Mechanic), medically separated for asthma.  The CI first expressed difficulty with chest tightness in 1999 during basic training, followed by difficulty with breathing while running during physical training (PT).  He was initially diagnosed laryngospasm versus bronchospasm and treated with bronchodilators, then diagnosed with mild intermittent asthma.  The CI did not respond adequately with treatment to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was issued a permanent P3 profile and referred for a Medical Evaluation Board (MEB).  Asthma and mild restrictive pattern were forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW AR 40-501.  The PEB adjudicated the asthma and mild restrictive pattern as unfitting, rated 10% with application of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals, and was medically separated with a 10% disability rating.

CI CONTENTION:  “Bunion on left foot, left knee, my asthma gets worse I laugh.  I can’t play with my son.” 

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 and mild restrictive pattern conditions requested for consideration meet the criteria prescribed in DoDI 6040.44 for Board purview, and are accordingly addressed below.  Any condition or contention not requested in this application, or otherwise outside the Board’s defined scope of review (bunion on left foot and left knee) remain eligible for future consideration by the Army Board for Correction of Military Records.

RATING COMPARISON:

Service IPEB – Dated 20020918 | VA* – All Effective Date 2201228
Condition | Code | Rating | Condition | Code | Rating | Exam
Asthma | 6602 | 10% | Bronchospasm (claimed Asthma) | 6699-6602 | 30%** | STR
Mild restrictive pattern | | | | | |
No Additional MEB/PEB Entries | Bunionectomy, Right Hallux Valgus | 5280 | 10% | STR
| 0% X 2 | STR
Combined:  10% | Combined:  40%
*Derived from VA Rating Decision (VARD) dated 20021231
**Rating decreased to 10% and then increased to 60% with VARDs and C&P exams greater than 2 years after date of separation

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.  It is a fact, however, that the Disability Evaluation System has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation.  This role and authority is granted by Congress to the Department of Veterans Affairs.

Asthma and Mild Restrictive Pattern Condition.  The records indicated the CI first noticed chest tightness with running in 1999.  His respiratory symptoms increased over time and noted to be exercised induced.  He was treated with bronchodilators with noted benefit.  On 6 June 2000, the CI was seen in the troop clinic for rapid breathing after reporting he collapsed during physical training.  Chest exam was normal and revealed no wheezing; the doctor assessed panic attack versus laryngospasm.  The CI presented to the emergency room (ER) in September 2002, reporting he could not breathe and was experiencing diffuse tingling in his arms.  Chest exam was clear.  He was assessed as having a panic reaction or questionable upper respiratory tract infection.  On 21 November 2001 the CI reportedly collapsed again during PT; and reported shortness of breath (SOB).  Chest exam had wheezes.  On exam 27 November 2001, the CI noted his breathing much improved when he uses the Azmacort (questionably prescribed 21 November 2001).  On 11 March 2002, the CI presented to primary care with SOB and chest pain during PT; no wheezing noted on physical exam.  He indicated he had run out of his rescue inhaler, but had not run out of the steroid inhaler which was prescribed for daily use.  He was instructed to continue his Albuterol four times daily.  On 24 April 2002, during a pulmonary function test (PFT) the CI reported taking no asthma medicines.  He was begun on Advair daily.  Upon an ER visit on 24 August 2002, the CI reported his medication as both Albuterol and Advair at undefined intervals.  On 7 June 2002, during PFT testing the CI again reported taking only medication for his back.  At the MEB/narrative summary (NARSUM) evaluation on 7 June 2002, 6 months prior to separation, the CI was reported to be taking inhaled Advair in the standard daily fashion and Albuterol as needed.  No VA Compensation and Pension (C&P) evaluation was performed; the VA Rating Decision was based on the service treatment records (STR).

The Board directs attention to its rating recommendation based on the above evidence.  The PEB rated the condition at 10% under the 6602 code and cited the intermittent use of bronchodilator inhaler and the VA used the STR to rate the condition at 30% under 6602 code, based on the need for daily inhalational therapy.  An evaluation of 10% is granted whenever there is forced expiratory volume in one second (FEV -1) of 71 to 80 percent of predicted value; or the ratio of FEV -1 to forced vital capacity (FEV1/FVC) of 71 to 80 percent; or intermittent inhalational or oral bronchodilator therapy.  A higher evaluation of 30% is warranted if there is FEV -1 of 56 to 70% predicted; or FEV -IIFVC of 56 to 70%; or daily inhalational or oral bronchodilator therapy; or inhalational anti-inflammatory medication.”  The Board agreed that a 10% was supportable by the clear evidence in the pulmonary function studies.  The Board deliberated whether a 30% rating level was supported by the evidence at hand.  The Board noted the confliction in the record concerning medication use.  The Board noted the report in the NARSUM that daily inhaled anti-inflammatory medication was prescribed; however, the Board opined that daily use could not be supported by the electronic medication summary evidenced in the record.  This recorded the last prescriptions of both Advair and Albuterol to be filled 5 months prior to separation and, if taken as prescribed to have expired 3 months prior to separation.  The Board opined that the criterion of daily medication use for a 30% rating was not achieved.  The Board further agreed that treatment records showed no evidence of hospitalizations for asthma, episodes of respiratory failure or monthly visits to a physician which would require daily use of the ‘as needed’ inhaler for rescue care of exacerbations.  The Board found no pathway to a higher rating using any other applicable VASRD code.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication 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.  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 and IAW VASRD §4.97, the Board by a 2:1 vote, recommends no change in the PEB adjudication.  The single voter for dissent, who recommended 30%, submitted the appended minority opinion.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows:  

UNFITTING CONDITION | VASRD CODE | RATING
Asthma | 6602 | 10%
COMBINED | 10%

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

MINORITY OPINION:

The critical issue for this case is to determine if the “requirement” for daily bronchodilator and/or anti-inflammatory therapy was met, as that is the pivotal criteria between a 10% or 30% rating IAW VASRD §4.97.  The entirety of the record supports a chronic requirement and use of medication and in clinical entries and the NARSUM, dated 07 June 2002 approximately 6 months prior to separation, documented prescription for and use of chronic controller medication.

The PEB and Board majority relied almost exclusively on the electronic medication profile for chronic controller medication [daily Advair (inhalational steroid/bronchodilator combination)] issued from the military pharmacy to make a determination of intermittent medication use, as the medication profile indicated sufficient medication for only 2 of 5 months if taken as prescribed, meaning the medications would be exhausted 3 months prior to separation.

However, in the 2002 timeframe, the electronic medication profile did not comprehensively document all medication issued (not completely reliable) as there were other medication sources not directly linked to the electronic medical records network; such as troop clinics, satellite clinics, urgent care or ER dispensing points, physician samples, pulmonary lab dispensing, or through a civilian pharmacy.  In fact the Army amended its asthma rating policy when it released the USAPDA memo Asthma, dated 05 May 2009, focusing PEBs on the requirement for asthma therapy and not the compliance or use of asthma therapy, please see:  https://www.hrc.army.mil/site/active/tagd/pda/Rating_Asthma.pdf.

Additionally, there was evidence in the record indicating the CI's confusion on taking the medication (29 April 2002 Record of Medical Care) which may have resulted in taking as little as 1 puff per day (versus prescribed 2 puffs 2 times a day) and allowed the profile-documented medication to last the entire period in question.

The medication profile also indicated the CI was given a short course of corticosteroids (29 August 2002, Medication profile) 4 months prior to separation, although no STR reference was found.  This likely demonstrated poor control of the CI’s asthma.

The CI visited the Emergency Room for a non-asthma issue on 24 August 2002, a month prior to the PEB, documenting chronic controller medication use.

The VA did not conduct a C&P exam; therefore, it based its 30% rating on the “same” STRs utilized by the PEB and rated the asthma IAW VASRD criteria for a “requirement” of daily inhalational therapy as contended by this minority opinion. 

VASRD §4.97 rating language under 6602 makes no provision for either compliance with or dependency on the specified daily medications; and, as for all medical treatment, rigorous patient compliance can arguably be regarded as an unrealistic expectation.

Although a reasonable question is raised in this case, as per the PEB’s and majority’s determination, that the CI was not fully compliant with a daily treatment regiment; the clinical entries in evidence specify daily treatment with Advair (inhalational steroid/bronchodilator combination) medications.  There are no clinical notes documenting non-compliance or otherwise refuting an assumption that daily maintenance with the medications was in effect.  Therefore, the minority concludes that undue speculation was required by the PEB and Majority to overcome reasonable doubt favoring the CI in this matter.

The Minority respectfully submits that the Secretary consider the following Minority recommendation in this case: 

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%

SFMR-RB									

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

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for AR20130006016 (PD201201083)

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 accept the Board’s recommendation and hereby deny the individual’s application.  
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

PD1201083