RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX		CASE:  PD-2014-02094
BRANCH OF SERVICE:  Army	BOARD DATE:  20150529
SEPARATION DATE:  20051229

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Wheeled Vehicle Mechanic) medically separated for asthma.  The condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty (MOS).  The profile allows for an alternate aerobic event to satisfy physical fitness standards.  She was issued a permanent P3/U3/L3 profile and referred for an Medical Evaluation Board (MEB).  The MEB forwarded “asthma, moderate persistent” to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded four other conditions for PEB adjudication (see rating chart below), all judged to meet retention standards.  The Informal PEB adjudicated the asthma condition as unfitting rated 10% citing criteria of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining conditions were adjudicated as “medically acceptable” (de facto not unfitting).  The CI made no appeals and was medically separated.

CI CONTENTION:  “Please consider all conditions”

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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the VASRD standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.

RATING COMPARISON:

IPEB – Dated 20051103 | VA* (~1 Mo. Post-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
Asthma | 6602 | 10% | Bronchial Asthma | 6602 | 10% | 20060208
Bilateral Carpal Tunnel Syndrome | Not Unfitting | Residual Scar Right Wrist Carpal Tunnel Release | 8515 | 0% | 20060208
| | Residual Scar Left Wrist Carpal Tunnel Release | 8515 | 0% | 20060208
Thoracolumbar Scoliosis | Not Unfitting | Thoracolumbar ...  Dextroscoliosis | 5237 | 20% | 20060208
Major Depressive Disorder | Not Unfitting | PTSD | 9411 | NSC | 20060208
Obsessive Compulsive Disorder | Not Unfitting | | | |
Other MEB/PEB Conditions x 0 (Not In Scope) | Other x 12
RATING:  10% | RATING:  60%
* Derived from VA Rating Decision (VARD) dated 20060614 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Asthma.  The service treatment record (STR) confirms an onset of exertional asthma in late 2002 (3 years prior to separation), although pulmonary function tests (PFT) were normal and all STR entries portray a mild and stable course.  The CI tolerated a deployment to Iraq (January – July 2003), but continued to experience exertional limitations due to asthma, and an MEB was initiated in October 2004.  The STR evidence documents treatment with a rescue inhaler (Albuterol, inhaled bronchodilator) at varying frequency (“only with physical training” to “almost daily”); and, additionally indicates treatment with Advair™ (inhalational steroid [anti-inflammatory] and bronchodilator), Singulair™ (oral anti-inflammatory with bronchodilator properties), and Flovent™ (inhalational steroid).  Daily dosing of the latter agents is listed, and no entries confirm or question compliance.  A review of the medication profile indicates, however, that actual dispensing was significantly less than the quantities required to meet daily dosing demands for all of the medications (with specific attention to the 12-month interval preceding separation).  The PFT results for the MEB were FEV-1 of 85% predicted and FEV1/FVC ratio of 84%.  There is no STR evidence for respiratory failure, hospital admissions, requirement for systemic corticosteroids, or monthly exacerbations requiring physician visits (all criteria for higher ratings as below).

The MEB narrative summary (NARSUM) was conducted on 3 October 2005 (2 months prior to separation), and documented limitation of running and physical training by asthma symptoms which were “relieved with the use of albuterol.”  Daily use of Advair was recorded, without further comment regarding medication use or documentation of specific queries regarding actual use.  The MEB PFT results were cited.

A VA Compensation and Pension (C&P) examination was conducted on 8 February 2006 (a month after separation), and documented only the symptom of “shortness of breath with forward bending or lifting;” and, and stated “she does not have any asthma attacks ... [and] ... no functional impairment resulting from [asthma].”  With regards to medication use, the VA examiner stated, “For her respiratory condition, she requires inhalation of anti-inflammatory medication, bronchodilator by inhalation daily and bronchodilator by mouth daily.”  As with the NARSUM and all probative medication histories in evidence, there is no directed evidence addressing actual medication use or documentation of record review for corroboration.  The VA PFT results were FEV-1 of 96% predicted and FEV1/FVC ratio of 89%.

The Board directed attention to its rating recommendation based on the above evidence.  The VASRD provides rating guidance for asthma based on the number and severity of clinical exacerbations; the type and the frequency of medications used to treat the condition; and objective PFT findings.  None of the VASRD §4.97 criteria under code 6602 (asthma) for a rating higher than 30% were supported (as above).  The criteria for the ratings under consideration are excerpted below.
FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; daily inhalational 
or oral bronchodilator therapy, or; inhalational anti-inflammatory medication…………………..…..….....30  
FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; intermittent 
inhalational or oral bronchodilator therapy…............................................................................................10 
The PFT evidence precludes even the minimum 10% rating based on those criteria. The PEB’s DA Form 199 rationale for its 10% rating stated, “Soldier uses intermittent [emphasis added] Advair, and Montelukast [Singulair] and rescue Albuterol.”  The VARD conferring a 10% rating referenced the C&P medication evidence from above, but did not state a rationale for why it was not invoked to achieve a 30% rating (the STR was in evidence but not cited).

It is clear that the Board’s recommendation in this case hinges on its judgment as to whether the 30% “daily” or 10% “intermittent” medication criteria are more reasonably satisfied by the evidence.  Daily dosing is not corroborated by the pharmacy evidence; but, there is documentation throughout the STR, and explicitly stated in the NARSUM and C&P, that the CI was on a daily maintenance regimen of Advair and Singulair at the time of separation.  The pharmacy evidence confirms enough dispensing to reasonably conclude that the CI was dependent on this regimen to adequately control her asthma; and, certainly at least the regular, if not daily, use of Advair is reflected by the objective pharmacy evidence.  Latitude in interpretation of the 30% language (“daily” is not repeated in the 30% clause “for inhalational anti-inflammatory medication”) is itself sufficient to credit any regular use of Advair (or other inhaled steroid) as a 30% criterion; an, approach sanctioned by Board precedence and guidance.  After due deliberation, considering all of the evidence and conceding VASRD §4.3 (reasonable doubt), the Board recommends a 30% rating for the asthma condition under code 6602.

Contended Bilateral Carpal Tunnel Syndrome (BCTS).  The STR contains an initial visit for “hand and wrist pain x 1.5 years” in August 2004 (proximate to initiation of MEB for asthma).  This was followed by electrodiagnostic confirmation of “moderate” BCTS.  The symptoms persisted and the CI underwent surgery (carpal tunnel release) for the right wrist in January 2005, and the same for the left in April of that year.  STR entries corroborate the NARSUM impression of “good results ... near immediate resolution” for each of the surgeries.  A physical therapy (PT) entry from June 2005 (6 months prior to separation) documented improvement, but with pain “on occasion” and difficulty with push-ups; and, recorded grossly normal range-of-motion (ROM) and normal measured grip strength.

The NARSUM documented residual “mild discomfort with heavy lifting and heavy use of the hand” and opined that the condition met retention standards.  The physical examination noted healed surgical scars with normal strength and sensation.  The commander’s performance statement provided a history of the condition, but did not elaborate any current limitations or document any work loss attributed to it.  A temporary U3 profile for “status post upper extremity surgery” was issued in January 2005, which was converted to a permanent U3 for BCTS in October (2 months pre-separation).  This prohibited push-ups and lifting greater than 30 pounds (not differentiated from lumbar limitations), but permitted upper body training and all alternative aerobic events.

The VA C&P examination a month after separation (same as cited for asthma) documented intermittent “tingling and numbness of the fingers” with “no weakness,” and noted “functional impairment is gripping.”  The VA physical examination recorded the absence of tenderness, normal strength and sensory findings, and normal ROM measurements for both wrists in all planes without painful motion.  The VA’s 0% ratings under nerve codes were premised on the assessment that they did not satisfy the minimal compensable threshold for “mild” impairment.

The Board directed attention to its recommendation based on the above evidence; and, its main charge with respect to this condition (acknowledging the potential for rating separate right and left conditions) is an assessment of the fairness of the PEB’s determination that it was 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.  The evidence indicates that the BCTS condition had responded well to surgery, that it was on a rapidly improving course, and that the functional limitations by the time of separation were not overly constraining.  Although it was profiled, it was judged to meet retention standards and there is no evidence from the commander’s statement or elsewhere indicating any specific interference with MOS requirements.  Fitness determinations are performance based, and, members agreed that it was overly speculative to conclude that the condition in itself would have precluded continued military service.  Furthermore, the evidence indicates that the BCTS condition surfaced as a clinical issue in close proximity to MEB referral for another condition.  This arguably renders the fitness determination subject to DoDI 1332.38 (E3.P3.3.3 - Adequate Performance Until Referral); which stipulates, “If the evidence establishes that the Service member adequately performed his or her duties until the time the Service member was referred for physical evaluation, the member may be considered fit for duty even though medical evidence indicates questionable physical ability to continue to perform duty.”  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 BCTS condition.

Contended Thoracolumbar Condition.  The STR contains an initial visit for “intermittent back pain x several years” in September 2004 (proximate to initiation of MEB for asthma).  The CI was referred to the same orthopedic consultant evaluating the BCTS condition (who also provided the orthopedic addendum to the NARSUM).  At this time the orthopedist documented a normal neurological exam and cited an imaging (MRI) interpretation of “mild rotatory levoscoliosis” (congenital curvature abnormality) with otherwise normal findings (no disc disease or neurologic compromise).  Formal ROM measurements for the MEB by PT were flexion to 45 degrees (normal 90) and combined ROM of 180 degrees (normal 240).  There are no STR entries documenting gait disturbance, abnormal neurologic findings, more significant ROM impairment, or incapacitating episodes.

The orthopedic addendum to the NARSUM described “mild thoracolumbar scoliosis ... [with] ... mechanical back pain” as “mild and stable with no neurological deficits,” and judged that it met retention standards; although, the NARSUM provider (prior to MEB orthopedic consultation) stated that it “limited her ability to perform her duties.”  The physical examination (consolidated NARSUM and addendum) recorded a normal gait, the absence of spasm, normal neurological findings (5/5 strength), and “full [ROM] of her lumbar spine” (dated a month after the above PT measured ROM).  The commander’s performance statement provided a history of the condition, but did not elaborate any current limitations or document any work loss attributed to it.  There was no profile for the back condition until the permanent L3 issued 2 months prior to separation (permitting alternate aerobic events, as per BCTS discussion).

The C&P evaluation a month after separation noted “symptomatic scoliosis” with constant pain rated 6/10, and stated “the functional impairment is heavy lifting and positional changes.”  The VA physical examination specified the absence of gait disturbance, tenderness, and spasm; although, the recorded ROM was flexion to 45 degrees with combined ROM of 170 degrees.  Neurological findings were normal.

The Board directed attention to its recommendation based on the above evidence, addressing the PEB’s fitness determination per the standard elaborated for the BCTS condition.  Given the nature of the MOS, it is possible that the lumbar condition imposed significant restrictions; but, there is no performance based evidence that it did so.  The recorded ROM limitation was inconsistent (“full” to 45 degrees flexion), and there was no functional neurologic impairment.  The L3 profile, initial NARSUM impression that the condition interfered with duties, and C&P notation that it prohibited heavy lifting are all factors suggesting the condition could have been unfitting; but, the MEB orthopedic opinion that it met retention standards and the lack of any evidence from the commander associating it with MOS limitations are significant barriers to a firm conclusion that it was unfitting.  Furthermore, the principle of adequate performance until referral, as elaborated above, is also applicable to this condition.  After due deliberation, based on a preponderance of evidence, the Board recommends no change in the PEB fitness determination for the thoracolumbar condition.

Contended Psychiatric Conditions.  The post-deployment health assessment after the CI’s 2003 Iraq deployment noted some symptoms of avoidance and detachment; but, it denied Criterion A stressors for PTSD or intent to seek mental health (MH) care.  There are no MH treatment notes in the available STR (possibly sequestered for confidentiality reasons and not re-incorporated); but, the MEB’s DD Form 2807-1, Report of Medical History, documents outpatient treatment for anxiety and depression and lists an anti-depressant (Celexa™) as a current medication.  There is a MH addendum to the NARSUM dated 18 October 2005, 2 months prior to separation which documents self-referral to MH services upon command advice in September 2004 (concurrent with MEB referral for asthma) “due to problems with anger, stress, depression, low tolerance, and feeling overwhelmed.”  The examiner recorded a completely normal mental status examination (MSE), provided the Axis I diagnoses of MDD and obsessive compulsive disorder (OCD) submitted by the MEB, assigned a Global Assessment of Functioning (GAF) score of 65 (mild range of impairment), and opined “the individual does meet the retention standards and will not be referred to the [PEB] for disposition.”  The commander’s statement acknowledged MH treatment, but did not comment on any active MH symptoms or impairment.  The CI’s performance evaluation of 30 November 2004, furthermore, yielded high appraisals in all areas other than physical fitness (acknowledging profile limitations).  The profile remained S1 throughout service.

A VA psychiatric C&P evaluation was conducted 8 February 2006 (a month after separation), and documented an observation that the CI “is not a reliable historian [and] overly endorses symptoms.”  The examiner recorded a normal MSE, assigned a GAF of 60 (cusp of mild/moderate impairment), and opined that diagnostic criteria were not met for the claimed PTSD condition.  Axis I diagnoses of depression, anxiety and OCD were entered, as well as an Axis II diagnosis of borderline personality disorder.  As charted above, PTSD was denied service-connection by the VA, and no additional MH conditions were rated.

The Board directed attention to its recommendation based on the above evidence, assessing the PEB fitness determination as with the above conditions.  In the case of the psychiatric conditions, they were judged to meet retention standards by specialty opinion; there were no psychiatric profile limitations; there were no performance limitations implicated by the commander or elsewhere in the record; and, a performance evaluation post-dating MEB referral would appear to counter any conclusion that there was functionally significant cognitive or MH impairment at the time of separation.  In addition, the principle of adequate performance until referral is particularly applicable to the MH conditions.  After due deliberation, based on a preponderance of evidence, the Board recommends no change in the PEB fitness determinations for the psychiatric conditions (MDD and OCD).

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 disability rating of 30%, coded 6602, IAW VASRD §4.97. In the matter of the contended bilateral carpal tunnel syndrome, the Board unanimously recommends no change from the PEB determination as not unfitting.  In the matter of the contended thoracolumbar condition, the Board unanimously recommends no change from the PEB determination as not unfitting.  In the matter of the contended psychiatric conditions (major depressive disorder and OCD), 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 recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of her prior medical separation:

CONDITION | VASRD CODE | RATING
Asthma | 6602 | 30%
COMBINED | 30%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140508, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXXXXXXX
President
Physical Disability Board of Review

SAMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 
for XXXXXXXXXXXXXXXXXXXX, AR20150015744 (PD201402094)

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 days from the date of this memorandum:

	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						     XXXXXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						          (Review Boards)
						
CF: 
(  ) DoD PDBR
(  ) DVA

PD-2014-02094