RECORD OF PROCEEDINGS

PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXX BRANCH OF SERVICE: Army

CASE NUMBER: PD1100784 SEPARATION DATE: 20030827

BOARD DATE: 20120411

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (88M10/Motor Transport Operator), medically separated for asthma. She did not respond adequately to treatment and was unable to perform within her Military Occupational Specialty (MOS) or meet physical fitness standards. She was issued a permanent P3 profile and underwent a Medical Evaluation Board (MEB). Moderate, persistent asthma was forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW AR 40-501. No other conditions appeared on the MEB’s submission. Other conditions included in the Disability Evaluation System (DES) packet will be discussed below. The PEB adjudicated the asthma condition as unfitting, rated 10%; with application of the Veterans Administration Schedule for Rating Disabilities (VASRD). The CI made no appeals, and was medically separated with a 10% combined disability rating.

CI CONTENTION: “At the time of discharge I had a permanent profile for asthma.” She elaborates no specific contentions regarding rating or coding and mentions no additionally contended conditions.

RATING COMPARISON:

* Lumbosacral strain 5237 at 10% added effective 20091231 (combined 30%)

ANALYSIS SUMMARY: The Board acknowledges the sentiment expressed in the CI’s application, i.e., “at the time of discharge I had a permanent profile for asthma.” The Board wishes to clarify that it is subject to the same laws for service disability entitlements as those under which the DES operates. While the DES considers all of the service member's medical conditions, compensation can only be offered for those medical conditions that cut short a service member’s career, and then only to the degree of severity present at the time of final disposition. The Department of Veterans’ Affairs (DVA) ratings which the Board considers in that regard are those rendered most proximate to separation. The Board utilizes DVA evidence proximal to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence. The Board’s authority as defined in DoDI 6040.44, however, resides in evaluating the fairness of DES fitness determinations and rating decisions for disability at the time of separation. Post-separation evidence therefore is probative only to the extent that it reasonably reflects the disability and fitness implications at the time of separation. However the DVA, operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service-connected conditions and to periodically reevaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time.

Asthma Condition: The CI began having asthma symptoms in February 2002. Symptoms included a nocturnal cough on majority of nights; dyspnea on exertion (one mile) with described sensation of chest tightness, wheezing, and difficulty getting her breath out of her chest; symptoms increase during warm months. The CI had a positive methacoline challenge and her diagnosis was “moderate, persistent asthma.” The CI’s multiple pulmonary function tests (PFTs) all indicated FEV-1 of over 80% predicted and FEV-1/FVC of over 80% (not to the level of the VA 6602 rating criteria for 10%). Records showed no evidence of using systemic steroids, frequent ER visits or hospitalizations for asthma, episodes of respiratory failure or monthly visits to a physician for required care of exacerbations.

The primary rating issue in this case is the frequency of asthma medication use. The NARSUM, (2 months prior to the PEB and 3 months prior to separation) indicated current medications were “1. Albuterol 2 puffs p.o. q 4-6 hours prn. She uses this on a one-time per day basis. 2. Foradil b.i.d. 3. Flovent 220 microgram MDI 2 puffs p.o. b.i.d., indicating daily medications of inhaled short-term and long-term bronchodilators and inhaled corticosteroid.

The PEB (performed 3 July 2003) specifically stated “intermittent inhalational therapy” and “medication profile shows that soldier last received controller medications on 10 January 2003.” Of note, Albuterol would not be classified as a controller medication and was indicated as being used daily in the narrative summary (NARSUM) (“one-time per day basis”).

The VA Compensation and Pension (C&P) exam, 4 months after separation (performed 23 December 2003), indicated “mild asthma requiring Albuterol inhaler PRN” and the only asthma medication the CI was taking was albuterol at a frequency of, “Albuterol inhaler two puffs three times per week when her asthma bothers her. The most she takes is about two puffs two to three times per week.”

The service treatment record (STR) had numerous entries for prescribed asthma medication and usage prior to and including the NARSUM. The Board deliberated between the 10% (intermittent medication use) and 30% (daily medication use) rating level and weighed all available evidence. The NARSUM exam would rate 30% for daily use and the VA exam would rate 10% for intermittent use. The PEB cited the medication profile and rated the CI on intermittent inhalational therapy indicating, “medication profile shows that soldier last received controller medications on 10 January 2003.”

The Board further deliberated the CI’s pulmonary function tests, her use of Albuterol on a daily basis vice intermittent use; ongoing chronic symptoms indicating sub-optimal control; the diagnosis of moderate persistent asthma (versus exercise induced asthma); the possible issuance of medication outside normal channels documented on a medication profile during the 2003 timeframe; her Army physical fitness test (performed 7 August 2002 with a total score of 240), and her 5 February 2002 and 7 April 2003 physical profiles.

It was also noted by the Board members that the CI did not challenge the PEB’s conclusion on the DA Form 199 that she was using her medications on an intermittent basis, indicating to the Board that the CI acknowledged her treatment was not daily and constant. From this evidence and the evidence documented in the CI’s records made available to the Board, the Board majority concluded that the preponderance of evidence suggest the CI did not require daily asthma treatment on a sustained basis at the time of separation. After due deliberation and considering the totality of the evidence, the Board majority does not find sufficient reasonable doubt favoring the CI in support of recommending a rating higher than 10% for the asthma condition.

Remaining Conditions. Other conditions identified in the DES file were low back pain, left leg numbness, hand pain, GERD (VA 10%), ovarian cyst, cervical cyst, pain during sex and thyroid enlargement. Several additional non-acute conditions or medical complaints were also documented. None of these conditions were occupationally significant during the MEB period, none carried attached profiles, and none were implicated in the commander’s statement. These conditions 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. No other conditions were service-connected with a compensable rating by the VA within 12 months of separation or contended by the CI. 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 §4.97, the Board by a vote of 2:1, recommends no change in the PEB adjudication. The single voter for dissent (who recommended rating 6602 at 30%) submitted the addended minority opinion. In the matter of the low back pain, left leg numbness, hand pain, GERD 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 determination, as follows:

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20110909, w/atchs

Exhibit B. Service Treatment Record

Exhibit C. Department of Veterans Affairs Treatment Record

XXXXXXXXXX

President

Physical Disability Board of Review

MINORITY OPINION: The AO recommends that 30% is the fair and equitable asthma rating as there was sufficient reasonable doubt in favor of “daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication” at the time of the NARSUM and at separation. My judgment is that the Board majority placed too much probative value on the accuracy/comprehensiveness of the medication profile, which was the single pre-separation indicator used to adjudge that the CI was not using daily medications. Although the medication profile provided some reasonable doubt, VASRD §4.3 (reasonable doubt) can only be used in the CI’s favor, and not to support a lower rating.

It is very highly likely that non-controlled medication (like Albuterol) would be dispensed outside of channels that would normally be documented on the medication profile. For example, it was routine to provide Albuterol inhalers from pulmonary function testing labs, medication samples from providers, from troop clinic or “MOD” cabinets, etc., in 2002-3. Such very common medication dispensing was rarely captured by the electronic medication profile.

Treatment notes prior to separation indicated daily controller medication use and the NARSUM and treatment notes proximate to separation indicated the CI was using her Albuterol (inhaled rescue bronchodilator) on a daily basis for her asthma which was diagnosed as moderate persistent (not seasonal or exercise induced).

Albuterol is not considered a controller medication, but daily use does meet the 30% VASRD rating criteria. The medication profile indicated Albuterol was dispensed on 10 January 2003, 174 days prior to the 3 July 2003 PEB. As the CI stated she used two puffs per day, a single 200-dose Albuterol canister would last 100 of the 174 days. Therefore, any single “left over” or off-medication profile Albuterol issuance would be sufficient medication for daily use. It is more likely than not that the CI had sufficient Albuterol for her claimed two puffs per day daily use.

By 4 months after separation (VA exam), the CI stated she was taking no controller medication and was taking Albuterol two to three times per week with continuing symptoms. This post-separation information enhances the value of the CI’s truthfulness in describing medication usage and also indicated poor control of her asthma off of controller medication. The totality of the record provided sufficient reasonable doubt (IAW VASRD §4.3) to adjudge the CI was closer to the 30% criteria for asthma with daily inhaled medication use.

RECOMMENDATION: The minority voter recommends therefore, 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 her prior medical separation.

SFMR-RB

MEMORANDUM FOR Commander, US Army Physical Disability Agency

(TAPD-ZB /), 2900 Crystal Drive, Suite 300, Arlington, VA 22202

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXX, AR20120007694 (PD201100784)

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 XXXXXXXXX

Deputy Assistant Secretary

(Army Review Boards)

CF:

( ) DoD PDBR

( ) DVA