RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-00907
BRANCH OF SERVICE:  MARINE CORPS	BOARD DATE:  20141016
SEPARATION DATE:  20040415

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty CPL/E-4 (3531/Motor Vehicle Operator) medically separated for a pulmonary asthma condition.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was placed on limited duty (LIMDU) and referred for a Medical Evaluation Board (MEB).  The pulmonary asthma condition characterized as asthma was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.   No other conditions were submitted by the MEB.  The Informal PEB (IPEB) adjudicated asthma as unfitting rated 10%.  The CI appealed to the Formal PEB (FPEB), which affirmed the IPEB finding, specifically citing SECNAVINST 1850.4E in its justification.  The CI made no further appeals and was medically separated.

CI CONTENTION:  “I request Board for Correction of Naval Records (BCNR) review for medical retirement vice separation for conditions sustained during active service that have resulted in permanent.  The assigned department of defense disability rating does not reflect the severity and subsequent post-discharge effects of my medical condition.  Please refer to my personal statement for justification and requested corrective action.  Ongoing and frequent emergent medical care.  My rating was 10% at the time of medical discharge, but later it was proven to be 30% based on use of inhalers daily.  I am requesting a medical retirement instead of a medical discharge since my disability has been proven to be 60%. when I was diagnosed with Asthma while on Active Duty I used inhalers daily.  l was granted 100% disability with severance pay and had to pay back the severance when the VA rated me 30% just months after my discharge, I now use a continuous positive airway pressure (CPAP) machine and have been on and off Prednisone for 11 years averaging at least 3 courses per year since 2011 alone.  I’ve had nighttime symptoms of asthma and Sleep apnea as well and have developed a sinus condition in which I use flonase daily.  I’ve also been diagnosed with posttraumatic stress disorder (PTSD) due to my injury incurred on active duty.  As of today I am rated at 60% asthma service-connected and 70% PTSD service-connected with a combined rating of 90% service-connected.  

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.  The contended PTSD condition was not documented by the MEB or PEB and is therefore not within the Board’s scope of review.  No additional conditions are 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 BCNR.

RATING COMPARISON:

Service FPEB – Dated 20031204 | VA - (2 Mos. Post-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
Asthma | 6602 | 10% | Asthma | 6602 | 30% | 20040602
Other x 0  (Not in Scope) | Other x 6 (Not in Scope)
Combined:  10% | Combined:  30%
Derived from VA Rating Decision (VARD) dated 20070619 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:  The Board makes note that the original VARD was not available in the evidence before it; and, could not be located after the appropriate inquiries.  Any further attempt at obtaining the relevant documentation would likely be futile and introduce additional delay in processing the case; and, it is was judged by the members that the missing evidence would not materially alter the Board’s recommendations.

Asthma Condition.  The narrative summary notes the CI was diagnosed with asthma by methacholine challenge testing performed on 13 March 2002.  He was started on oral bronchodilator medication and pulmonary function testing (PFT) performed on 5 November 2002 showed an FVC of 98% predicted normal (PRED) and FEV1 of 94% PRED and an FEV1/FVC ratio of 83%, with no response to bronchodilator.  Chest X-ray performed on 7 June 2002 was normal.  He was placed on 6 months LIMDU in March 2002 followed by a second 6 month LIMDU in October 2002.  During this time the CI was treated for asthma symptoms aggravated by exercise and cold temperatures.  His medications were listed as a steroid containing inhaler twice daily, an oral anti-inflammatory agent daily and a bronchodilator (BD) inhaler as needed.  Exercise stress testing performed on 7 February 2003 was normal with good exercise tolerance, but was ended due to asthma symptoms.

At the MEB examination performed on 19 June 2003, approximately 10 months prior to separation, the CI reported continued difficulty with cough and breathing triggered by fumes, exercise and cool weather, with nighttime symptoms.  The CI reported he had used oral steroids (Prednisone) in the past.  The MEB examiner noted that the CI had been on “a several week course of oral prednisone” prior to a 4 March 2003 examination without benefit.  The MEB physical examination noted the CI was in no distress with a normal respiratory rate.  There was occasional wheezing on lung exam and the cardiac evaluation was normal.  The IPEB adjudicated the asthma condition as unfitting and rated 10%, coded 6602 (asthma).  The CI requested a FPEB and requested a 30% rating with placement on the Temporary Disability Retired List.  At the FPEB the CI presented evidence of courses of oral steroid in January 2002, January 2003 and December 2003 and a PFT, which appears to be of poor technical quality and without interpretation.  The FPEB affirmed the findings of the IPEB.  The FPEB provided a rationale that although the CI met a 30% rating for the asthma condition according to the VA Schedule for Rating Disabilities (VASRD), according to SECNAVINST 1850.4E the 30% rating also required evidence that the CI could not perform normal daily activities without medication and must consider PFT results.  The CI submitted an undated Petition for Relief (PFR) (but documents indicate it was mailed on 21 February 2004) in which he reported submitting an SF 600 which documented daily use of an oral steroid in addition to his other three noted medications (SF 600).  The PFR was received by the PEB beyond the specified time frame for submission.  An SF 600 in the records dated 10 February 2004 listed the following medications - a steroid containing inhaler, an oral anti-inflammatory agent, a BD inhaler and Prednisone 20mg daily (oral steroid), with instructions to decrease Prednisone to 10 mg daily.

At the VA Compensation and Pension (C&P) examination dated 2 June 2004, performed 6 weeks after separation, the CI reported a persistent cough with asthma symptoms triggered by minimal exercise.  He reported use of the following medications - a steroid containing inhaler, an oral anti-inflammatory agent and a BD inhaler.  The exam was normal.  Chest X-ray was normal.  PFT performed in February 2004 was noted but not described or available in the record.  The examiner noted the CI had persistent daily symptoms with flares due to the noted triggers.  The VARD dated 19 June 2006, 26 months after separation, noted that VA treatment records from 18 December 2006 to 16 May 2007 indicated that the CI’s asthma medications were increased, but noted “only one mention of steroid use in 2006 for an asthma exacerbation.”

The Board directs attention to its rating recommendation based on the above evidence.  The FPEB rated the asthma condition 10%, coded 6602.  The original VARD is not available in the record and the CI did not attend a scheduled C&P examination 4 May 2007.  However, the VARD dated 19 June 2007 noted that the 30% rating for the asthma condition was continued.  The Board agreed unanimously that the evidence in the record supports that the CI met the 30% rating IAW VASRD §4.97, coded 6602, based upon daily inhalational bronchodilator therapy or anti-inflammatory inhalational therapy.  The Board reviewed to see if the evidence supported the 60% rating, which specifies moderately severe reduction in FEV1 or FEV1/FVC on PFT, or monthly visits for treatment of exacerbations, or at least three courses of oral systemic steroids in the past year.  PFT was normal in February 2002.  The PFT submitted by the CI to the FPEB dated 3 December 2003 was uninterpretable.  There is no other information regarding this result in the record.  There was no evidence in the record of monthly visits to a physician for treatment of asthma exacerbations.  The CI was documented to be treated with oral steroids intermittently and in the year prior to the date of separation performed on 15 April 2004 the evidence in record supports only one, albeit long, period of steroid which began in December 2003 and indicated the dosage began to be tapered in February 2004, which would be consistent with standard medical practice for asthma exacerbations.  At the VA C&P examination in June 2004 there is no indication of current oral steroid medication use.  The Board concluded that the CI did not meet the 60% rating at the time of separation based upon treatment criteria or PFT results and noted that the initial VA 30% rating and later post-separation VA treatment records supported this conclusion.  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.

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.  As discussed above, PEB reliance on SECNAVINST 1850.4E for rating the asthma was operant in this case and the condition was adjudicated independently of that instruction by the Board.  In the matter of the asthma condition, the Board unanimously recommends a 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
Asthma | 6602 | 30%
COMBINED | 30%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130625, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		
XXXXXXXXXXXXXXX
President
Physical Disability Board of Review

MEMORANDUM FOR COMMANDER, NAVY PERSONNEL COMMAND
		   DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS
	                          
Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS          

Ref:   (a) DoDI 6040.44
       (b) PDBR ltr dtd 6 Mar 15 ICO XXXXXXXXXXXXXXXXX
	 (c) PDBR ltr dtd 13 Mar 15 ICO XXXXXXXXXXXXXXXXX
	 (d) PDBR ltr dtd 17 Feb 15 ICO XXXXXXXXXXXXXXXXX
	 (e) PDBR ltr dtd 24 Feb ICO XXXXXXXXXXXXXXXXX
          
1.  Pursuant to reference (a) I approve the recommendations of the Physical Disability Board of Review set forth in references (b) through (f).

2.  The official records of the following individuals are to be corrected to reflect the stated disposition:

     a. XXXXXXXXXXXXXXX, former USMC: Placement on the Permanent Disability Retired List with a 30 percent disability rating effective date of discharge.

     b. XXXXXXXXXXXXXXX, former USN: Entitlement to disability severance pay with a 20 percent (increased from 10 percent) disability rating effective date of discharge.

     c. XXXXXXXXXXXXXXX, former USMC: Placement on the Permanent Disability Retired List with a 30 percent disability rating effective date of discharge.

     d. XXXXXXXXXXXXXXX, former USMC:  Placement on the Permanent Disability Retired List with a 30 percent disability rating effective date of discharge.

3.  Please ensure all necessary actions are taken to implement these decisions, including the recoupment of disability severance pay, if warranted, and notification to the subject members once those actions are completed.

	XXXXXXXXXXXXXXX
	Assistant General Counsel
	  (Manpower & Reserve Affairs)

PD-2013-00907