RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XX	CASE:  PD1201436
BRANCH OF SERVICE:  MARINE CORPS	BOARD DATE: 20130430
SEPARATION DATE:  20040115

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty LCpl/E-3 (5811/Military Police) medically separated for asthma with approximately 4 years of service.  The CI first complained of shortness of breath in 2000 which was eventually diagnosed as mild persistent asthma.  The asthma could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty (MOS) or physical fitness standards.  He was therefore placed on limited duty (LIMDU) and referred for a Medical Evaluation Board (MEB).  The asthma, characterized as “mild persistent asthma” was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other conditions were submitted by this MEB.  The PEB adjudicated “mild persistent asthma” as unfitting and rated 10%.  The CI requested a reconsideration of his case due to additional conditions he felt should be considered.  A new MEB was convened that included the additional diagnoses of “migraine headaches” and “attention deficit with memory problems”.  A reconsideration PEB was convened which upheld the original PEB findings, adjudicating migraine headaches as Category III and attention deficit with memory problems as Category IV.  The CI made no appeals and was discharged with a 10% disability rating.

CI CONTENTION:  “As of 04/2011, VA rating increased to 30% after additional condition of related tenitis was included." 

SCOPE OF REVIEW: The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2).  It is limited to those conditions determined by the PEB to be unfitting for continued military service and those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The rating for the unfitting asthma condition is addressed below.  Of the conditions determined to be not unfitting by the PEB, members judged that the migraine headaches condition was specified sufficiently in the application to meet the DoDI 6040.44 scope requirements; and is accordingly addressed below.  The attention deficit with memory problems condition, identified as not unfitting by the PEB, was not requested for review and thus is not within the defined scope.  The requested tendinitis condition was not identified by the PEB, and thus is not within the DoDI 6040.44 defined purview of the Board.  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 Board for Correction of Naval Records.

RATING COMPARISON:  

Service Reconsideration PEB – Dated 20031023	VA - based on Service Treatment Record (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Mild Persistent Asthma	6602	10%	Asthma	6602	10%	STR	
Migraine Headaches	Cat III	Migraine Headaches	8100	10%	STR	
Attention Deficit with Memory Problems	Cat IV	No VA Entry	
No Additional MEB/PEB Entries	Other x 2		
Combined:  10%	Combined:  20%	
Derived from VA Rating Decision (VARD) dated 20040720.   

ANALYSIS SUMMARY:  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.  The Board further acknowledges the CI’s contention for ratings for other conditions documented at the time of separation, and notes that its recommendations in that regard must comply with the same governance.  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.

Mild Persistent Asthma Condition.  The service treatment record (STR) notes assessment of shortness of breath and palpitations in December 2000, followed by recurrent shortness of breath with exertion.  Echocardiograms showed no significant cardiac abnormalities.  At an MEB exam reportedly performed in August 2001, the CI complained of exertional shortness of breath since arriving at his current duty station.  The heart and lung exams were normal.  He was prescribed four medications, which included an inhaled anti-inflammatory (steroid) and inhaled bronchodilator (Albuterol) for mild persistent asthma.  Because the evidence of mild airway obstruction, as confirmed by pulmonary function testing PFTs), was “out of proportion to” his symptoms of dyspnea on exertion despite prescriptions for multiple asthma medications, a referral was made for an Ear, Nose, and Throat (ENT) exam in July 2002.  This evaluation was normal.  At a pulmonary medicine exam in October 2002, the CI reported little relief of his symptoms despite a new oral bronchodilator medication and continued prescriptions of inhaled steroids and bronchodilators.  A PFT at that time (15 months prior to separation) showed an FEV-1 of 92% predicted, and an FEV-1/FVC of 73%.  Exercise resulted in a 15% decline in FEV-1, which normalized after an inhaled bronchodilator.  Post exercise oxygen saturation remained at normal pre-exercise levels (97%); and exercise resulted in no audible wheezing on examination.  The narrative summary (NARSUM) in January 2003 notes that the CI continued to complain of exertional shortness of breath and no benefit from medications.  The physical exam findings were unremarkable.  The examiner noted that, “…on subsequent review of his medical therapy on the CHCS computer system, as of 08 Jan 03, the patient had not picked up any refills of any asthma-related medication dating back to Jun 01.  This suggests that the patient was noncompliant with his medical therapy.”  The NARSUM in September 2003 confirmed the diagnosis of mild persistent asthma.  At a separation physical on 27 October 2003 (3 months prior to separation), the CI indicated that his only current medication for asthma was albuterol.  The examiner stated that it was being used “as needed” and had been used “5-6 times in last month.”

The Board directs attention to its rating recommendation based on the above evidence.  The PEB and VA both assigned a 10% rating under code 6602 (asthma, bronchial); the VA relied on the STR in lieu of a VA Compensation and Pension (C&P) exam.  Board members agreed that a 10% rating was justified by the FEV-1/FVC of 73%, or by the use of inhaled bronchodilator therapy.  The next higher 30% rating requires daily inhalational or oral bronchodilator therapy, or inhalational anti-inflammatory medication.  In its deliberations the Board devoted ample attention to the issue of whether the requirement for daily bronchodilator and/or anti-inflammatory therapy was met in this case, as that is the pivotal criteria between a 10% or 30% rating IAW VASRD §4.97.  The Board does take the reasonable position that the evidence should satisfy an assumption that the treatment regimen supporting the higher rating is necessary to maintain good control of the condition.  That question is raised in cases where there is evidence that the condition is well controlled in spite of documented non-compliance or only sporadic use of the medications in question (as indicated by the NARSUM examiner in this case).  It was debated as to whether it was satisfactorily established in this case that the CI, although clearly prescribed treatments meeting the 30% criteria, actually required (as specified in the VASRD rating language) the daily regimen.  Relying only on the STR, the VA declined to regard the medications as required.  The CI’s statements that all attempted medications were completely unhelpful appeared inconsistent with objective measures indicating at most mild disease, and normalization of post-exercise PFT parameters after bronchodilator inhalation.  And finally the statements by the CI and the examiner at the separation physical 3 months prior to separation clearly indicated that Albuterol was used intermittently, and no other asthma medications were being used at all.  The Board thus concluded that the 30% criteria were not met.  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 mild persistent asthma condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the migraine headaches were not unfitting.  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.  At a neurology consultation in April 2003, the CI complained of headaches since moving to his current duty station in 2000.  The headaches were described as located around the temples and “behind the eyes.”  There was occasional “blurry vision,” light and noise sensitivity, but no nausea or vomiting.  He denied a history of head trauma or seizures.  The neurologic exam was normal.  Two magnetic resonance imaging scans of the brain were normal.  The condition did not carry attached duty limitations and was not judged to fail retention standards.  The condition was reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that the condition 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 contended condition and so no additional disability rating is 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 mild persistent asthma condition and IAW VASRD §4.100, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended migraine headaches condition, 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, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows:  

UNFITTING CONDITION	VASRD CODE	RATING	
Mild Persistent Asthma	6602	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120802, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

	XX
	Director of Operations
	Physical Disability Board of Review

MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW
                                       BOARDS 

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS
 
Ref:   (a) DoDI 6040.44
          (b) CORB ltr dtd 12 Jun 13

      In accordance with reference (a), I have reviewed the cases forwarded by reference (b), and, for the reasons provided in their forwarding memorandum, approve the recommendations of the PDBR that the following individual’s records not be corrected to reflect a change in either characterization of separation or in the disability rating previously assigned by the Department of the Navy’s Physical Evaluation Board:

- x former USMC   
- x former USN  
- x former USMC
- x former USMC
- x former USMC
- x former USMC
- x former USMC
- x former USN 

						  xx
	     				             Assistant General Counsel
						    (Manpower & Reserve Affairs)