RECORD OF PROCEEDINGS

PHYSICAL DISABILITY BOARD OF REVIEW

NAME: BRANCH OF SERVICE: Army

CASE NUMBER: PD1100200 DATE OF PLACEMENT ON TDRL: 20020317

BOARD DATE: 20120315 Date of Permanent SEPARATION: 20030709

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PFC/E-3 (95B, Military Policeman) medically separated for asthma. He began developing shortness of breath and wheezing associated with running soon after enlistment; had a family history of asthma; and, was diagnosed by a methacholine challenge test. Despite maintenance medications and a rescue inhaler, he remained unable to satisfy Army fitness standards. He was consequently issued a permanent P3 profile and referred for a Medical Evaluation Board (MEB). Asthma was forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW AR 40-501. No other conditions were included on the MEB’s submission. Other conditions included in the Disability Evaluation System (DES) file are addressed below. The PEB adjudicated the asthma as unfitting, rated 30%, citing a requirement for daily medication IAW the Veterans Administration Schedule for Rating Disabilities (VASRD). The CI was placed on the Temporary Disability Retired List (TDRL) for a period of 16 months and re-evaluated. At that time the condition was considered to be stable but still unfitting. It was permanently rated 10% by the PEB, citing “intermittent bronchodilator therapy” IAW VASRD criteria. The CI non-concurred with the decision, but waived a Formal PEB (FPEB). The PEB decision was affirmed on review by the U. S. Army Physical Disability Agency (USAPDA); and, the CI was medically separated with a 10% service disability rating.

CI CONTENTION: “The member on daily medication for the condition, Montelukast na 10mg tablet and Albuterol 90 mcg (nfa) 200 dose oral inhaler. The member has tried to get a job in the field of his military career and on multiple occasions failed the running physical agility test. The member has a rating of 30% from the VA since his discharge.” He mentions no additionally contended conditions.

RATING COMPARISON:

*Represents VA rating proximate to TDRL placement; no VA rating proximate to permanent separation.

ANALYSIS SUMMARY: The Board acknowledges the sentiment expressed in the CI’s application regarding the significant impairment with which his service-aggravated condition continues to burden him. It is a fact, however, that the DES has neither the role nor the authority to compensate service 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 (DVA). The DVA, operating under a different set of laws (Title 38, United States Code), 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. The Board utilizes DVA evidence proximal to separation in arriving at its recommendations; which in this case was the period proximate to the CI’s permanent medical separation in July 2003. Since the DVA examination and rating at the time of TDRL placement falls well outside the 12-month window specified in DoDI 6040.44 regarding Board consideration of VA or non-service evidence, little probative value can be assigned to it. Post-separation evidence is probative only to the extent that it reasonably reflects the disability and fitness implications at the time of separation.

Asthma Condition. The CI’s pulmonary function testing (PFT) at the time of TDRL placement was confined to the responses to methacholine challenge, thus incomplete for all of the VASRD §4.97 criteria; although, baseline FVC (forced vital capacity) and FEV (forced expiratory volume) were 102% and 98% of normal, respectively. Daily treatment with inhalational anti-inflammatory agents was documented, however. Thus the PEB’s TDRL rating and the concurrent VA rating were IAW the §4.97criteria for a 30% rating (“daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication”). There are no records in evidence documenting active treatment or further evaluation of asthma during the 16 month period of TDRL; or, for the 12-month period following permanent separation. The TDRL re-evaluation preceding permanent separation stated (bold emphasis added for passages critical to rating):

The veteran gives a history of asthma symptoms only during exercise. He has tightening of the chest and difficulty with running and biking, exposure to baby powder and cigarette smoke. He states he seldom has to use albuterol. He carries it in case he needs it. He denies any hospitalizations, emergency room visits, or steroid bursts for the asthma. He was prescribed albuterol, Atrovent, Azmacort, Intal, and Singulair. He stopped using the inhalers and the Singulair in March of 2002 as he saw no improvement in his symptoms. He denies any chronic cough, productive or nonproductive. He has dyspnea on exertion, tightness of the chest and wheezing. His symptoms are not as much because he is not physically active.

The concurrent PFT performed by the service for TDRL re-evaluation demonstrated an FEV1 of 97% predicted and an FEV1/FVC ratio of 101% predicted. The §4.97 criteria for a 10% rating is “FEV-1 of 71 to 80 percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; intermittent inhalational or oral bronchodilator therapy.” 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 TDRL or permanent PEB adjudications for the asthma condition.

Remaining Conditions. The narrative summary for the MEB addressed, and provided an orthopedic addendum for, left ankle and right knee conditions. The orthopedic consultant described a full range-of-motion (ROM) and minimal physical findings for each joint; and, stated “A MEB is not indicated for the current orthopedic complaints.” These two conditions were thus not submitted for PEB adjudication, and it is clear that they met retention standards. The pre-TDRL VA examiner likewise documented full ROMs and a benign exam; and, opined that the conditions were clinically resolved (not service-connected by the VA). Neither condition was profiled or implicated in the commander’s statement, which incidentally stated “there seems to be no effect of [CI’s] work ability due to his medical condition.” The MEB physical additionally documented a remote finger fracture, a history of vasovagal syncope (benign fainting), and a history of concussion. No additional conditions were noted in pre-TDRL VA evaluation. None of the above conditions were clinically active during the MEB period, profiled, or implicated by the commander. They were reviewed by the action officer and considered by the Board. It was determined that none could be argued as unfitting and subject to separation rating. The Board therefore has no reasonable basis for recommending any additional unfitting conditions for separation rating.

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 §4.7, the Board unanimously recommends no change in the PEB adjudications at temporary retirement or permanent separation. In the matter of the left ankle and right knee conditions, or any other medical conditions eligible for Board consideration; the Board unanimously agrees that it cannot recommend any findings of unfit for additional rating at separation.

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

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20110804, w/atchs

Exhibit B. Service Treatment Record

Exhibit C. Department of Veterans Affairs Treatment Record

President

Physical Disability Board of Review

SFMR-RB

MEMORANDUM FOR Commander, US Army Physical Disability Agency

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation

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

Deputy Assistant Secretary

(Army Review Boards)