RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW
BRANCH OF SERVICE: ARMY
NAME: XXXXXXXXXXXXXX
DATE OF PLACEMENT ON TDRL: 20020113
CASE NUMBER: PD1200717
BOARD DATE: 20130108 DATE OF PERMANENT SEPARATION: 20031024
SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this
covered individual (CI) was an active duty SPC/E‐4 (55B/Ammunition Specialist) medically
separated for asthma. He experienced on onset of exertional dyspnea in 1996 and was
eventually diagnosed with asthma. He remained under satisfactory control until his symptoms
escalated in 2001, and failed to respond adequately to meet the physical demands of his
Military Occupational Specialty (MOS). 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. A second condition,
sensorineural hearing loss, was forwarded as meeting retention standards. No other conditions
were submitted by the MEB. The Informal PEB (IPEB) adjudicated the asthma condition as
unfitting, rated 30%, citing the criteria of the Veterans Administration Schedule for Rating
Disabilities (VASRD); additionally determining that the hearing condition was not unfitting. The
CI was placed on the Temporary Disability Retired List (TDRL); and, after 21 months on TDRL,
the asthma condition was considered to be stable but still unfitting. The IPEB at this time rated
the asthma at 10%, determining that the VASRD daily medication criterion was no longer met.
The CI appealed to a Formal PEB (FPEB), which likewise arrived at a 10% rating under VASRD
criteria; and, he was permanently separated with that disability rating.
CI CONTENTION: The application states: “Was diagnosed with mild to severe asthma while
currently on active duty. Then was put on TDRL from 2002‐2004. Went to Ft Sam Houston TX
to a rating board where I was down grated [sic] from 30% to a final 20% [sic]. I have other
disabilities that render my daily activities as noted below but wasn’t given the opportunity to
discuss other issues that are listed below. All these illness are service connected according to
the VA.” The additional conditions referenced were listed as lumbar spine, left knee, and right
knee conditions.
SCOPE OF REVIEW: The Board wishes to clarify that the scope of its review as defined in DoDI
6040.44, Enclosure 3, paragraph 5.e.(2) is limited to those conditions which were determined
by the PEB to be specifically unfitting for continued military service; or, when requested by the
CI, those condition(s) “identified but not determined to be unfitting by the PEB.” The rating for
the unfitting asthma condition is addressed below. The hearing condition, identified as not
unfitting by the PEB, was not requested for review and is thus not within the DoDI 6040.44
defined purview of the Board. The requested lumbar spine and knee conditions were not
identified by the PEB, and accordingly are also not within the Board’s purview. The above
conditions which were excluded from scope, or any condition or contention outside the Board’s
defined scope of review, remain eligible for future consideration by the Army Board for
Correction of Military Records (ABCMR). The Board further acknowledges the CI’s assertion
that he was not given the opportunity for consideration of other conditions for rating; and,
notes for the record that it has no jurisdiction to investigate or render opinions in reference to
such allegations. Remedy for these alleged procedural improprieties must also be sought from
the ABMCR.
RATING COMPARISON:
Final FPEB ‐ 20031027
On TDRL ‐ 20020114
Condition
Asthma
Sensorineural Hearing Loss
Code
6602
Rating
TDRL
Sep.
30%
10%
Not Unfitting
No Additional MEB Entries.
VA (17 Mo. Prior to Adjudication Date*) – All Effective 20020114
Exam
Condition
Asthma
Bilateral Hearing Loss
Chondromalacia, R Knee
Medial Meniscal Tear, L Knee
DDD, Lumbar Spine
Code
6602
6100
5010
5003‐5260
5242
Rating
30%
0%
10%
10%
10%
20020411
20020410
20020417
20020417
20020417
20020417
Combined: 30% → 10%
0% X 2 / Not Service Connected X 1
Combined: 50%
*Represents VA rating proximate to TDRL placement; no VA rating proximate to permanent separation.
in 1996.
in Germany
ANALYSIS SUMMARY:
Asthma Condition. With no pre‐existing pulmonary history, the CI developed episodes of
exertional bronchospasm while stationed
This was treated
symptomatically until July 1997 when a diagnosis of asthma was made, and he was started on
maintenance medications. He fared well and pulmonary function testing (PFT) was normal until
more severe symptoms developed in January 2001. His medications were changed to daily
Flovent (inhalational steroid) and Serevent (inhalational bronchodilator), with a rescue inhaler
(Albuterol) as needed. Despite this regimen, his PFT parameters deteriorated; and, the
pulmonary consultant recommended a MEB. The narrative summary (NARSUM) at that time
documented the medication regimen noted above, and the CI was placed on TDRL.
VA outpatient records for the period of TDRL are in evidence. Early notes indicate continued
maintenance on the same meds, although a pulmonary note from 24 April 2002 indicates that
the symptoms were worse and that the CI had ran out of medicines 2 months previously. A
follow‐up orthopedic note of 16 September 2002 lists asthma meds on the medication list (with
no comment on symptomatology), but subsequent notes do not include asthma meds on the
medication list until after the IPEB of 18 July 2003. The TDRL NARSUM of 17 April 2003 states,
“He has usually been controlled with his flovent and serevent. However, he ran out of these
one month ago and has not got them refilled. He is consequently using his albuterol on a
frequent basis.” In his rebuttal to the IPEB finding (which invoked the medication profile as a
basis for concluding that daily medication use was not sustained), the CI submitted his copy of
the medication profile and recent progress notes from the VA. The medication profile lists
24 April 2002 as the last dispensing of asthma meds until 20 August 2003 (after IPEB). The
earliest entry in the submitted VA progress notes was dated 20 August 2003 and did not include
asthma meds on the medication list. An entry dated 9 September 2003 stated, “Patient called
for refill of all meds and stating he needs a doctor’s statement saying that he uses an inhaler
daily.” The ratable PFT results and medication use attendant to the Board’s recommendation
are charted below:
20020411 (VA Rating)
20030217 (Final Service)
Ratable Parameters 20010314 (Pre‐TDRL)
FEV1 (% Predicted)
FEV1/FVC
Meds
§4.97 Rating
66%
87%
30%
68%
84%
30%
102%
99%
Disputed.
10%*
Daily inhaled agents.
Daily inhaled agents.
*30% if daily inhaled medication requirement is supported.
2 PD1200717
The Board directs attention to its rating recommendation based on the above evidence. The
unequivocal VASRD code for rating asthma is 6602. VASRD §4.97 defines both PFT‐derived
criteria and clinical treatment criteria for rating under 6602. The specified PFT parameters (as
charted above) support in themselves the 30% ratings conferred by the IPEB entering TDRL and
by the VA evaluation shortly thereafter. The PFT parameters probative to the Board’s
permanent rating recommendation, however, support only a 10% rating. The Board must
judge, regarding its permanent rating recommendation, whether the 30% criterion of “daily
inhalational or oral bronchodilator therapy, or; inhalational anti‐inflammatory medication” was
adequately supported by the evidence. It is acknowledged that the VASRD is somewhat
outdated for asthma since modern treatment has expanded to include many treatment agents
not employed when the existing rating criteria were promulgated. Contemporary regimens
routinely employ daily maintenance with a variety of inhaled anti‐inflammatory (steroid) and/or
bronchodilator agents. The VA most commonly concedes the 30% rating if there is a
prescription for daily use of any of these agents; and, the Board accepts the precedent that the
therapeutic use of these newer agents satisfies the 30% criteria in effect; even though it is clear
that this encompasses many cases of relatively mild disease associated with minimal limitations
and disability. Members agreed, however, that it is reasonable to take the position that the
evidence in such cases should satisfy an assumption that the treatment regimen supporting the
higher rating was necessary to maintain the good control which would otherwise satisfy only
the 10% criteria. The evidence establishes fairly conclusively that the CI could not have
maintained daily medication use during at least a 12‐month period (conceding a 3 month
treatment period from his April 2002 refills) leading up to the IPEB. This encompassed the
interval during which his PFT performance was quite satisfactory. The re‐initiation of active
daily treatment occurred after a compelling secondary gain impetus was apparent, and it is
difficult to conclude that this was based on worsening acuity of disease. 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’s TDRL or
permanent adjudications of 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. 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
unanimously recommends no change in the PEB adjudications for the period of temporary
retirement or permanently. 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:
Asthma
UNFITTING CONDITION
VASRD CODE
6602
COMBINED
RATING
TDRL PERMANENT
30%
30%
10%
10%
3 PD1200717
The following documentary evidence was considered:
Exhibit A. DD Form 294, dated 20120519, w/atchs.
Exhibit B. Service Treatment Record.
Exhibit C. Department of Veterans Affairs Treatment Record.
SFMR‐RB
XXXXXXXXXXXXXXX, DAF
President
Physical Disability Board of Review
MEMORANDUM FOR Commander, US Army Physical Disability Agency
(TAPD‐ZB / XXXXXXXXXX), 2900 Crystal Drive, Suite 300, Arlington, VA 22202‐3557
SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for
XXXXXXXXXXXXXXX, AR20130000728 (PD201200717)
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
XXXXXXXX
Deputy Assistant Secretary
(Army Review Boards)
CF:
( ) DoD PDBR
( ) DVA
4 PD1200717
AF | PDBR | CY2011 | PD2011-00224
After 12 months of TDRL the asthma condition was considered to be stable, but still unfitting. The Board does not have the authority under DoDI 6040.44 to render fitness or rating recommendations for any conditions not considered by the DES. The Board therefore has no reasonable basis for recommending any additional unfitting conditions for separation rating.
AF | PDBR | CY2011 | PD2011-00618
The CI was thus medically separated with a 0% service disability rating. Asthma Condition . In the matter of the asthma condition, the Board unanimously recommends a rating of 60% during the prescribed period of TDRL; and, a permanent service disability rating of 10% coded 6602 IAW VASRD §4.97.
AF | PDBR | CY2010 | PD2010-01171
The CI was then medically separated with a 10% disability rating. The FPEB and the USAPDA, armed with all the evidence available to this Board plus the benefit of testimony not in evidence, thoroughly addressed the medication compliance issue; and, the Board finds no opposing evidence or adequate support in the FPEB minority opinion to conclude that the CI was using and requiring daily treatment during the rating period contrary to those findings. Service Treatment Record
AF | PDBR | CY2014 | PD-2014-02832
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AF | PDBR | CY2013 | PD-2013-02765
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AF | PDBR | CY2012 | PD2012 01210
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AF | PDBR | CY2012 | PD-2012-01559
Any condition or contention not requested in this application, or otherwise outside the Boards defined scope of review, remain eligible for future consideration by the Army Board for Correction of Military Records. Asthma Condition. 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...