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AF | PDBR | CY2012 | PD2012 00466
Original file (PD2012 00466.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX         CASE: PD1200466
BRANCH OF SERVICE: MARINE CORPS  BOARD DATE: 20131030
SEPARATION DATE: 20011005


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty CPL/E-4 (5811/Traffic Court Bailiff) medically separated for a respiratory condition. He experienced an onset of symptoms in 2001 and could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards. He was referred for a Medical Evaluation Board (MEB). The condition was characterized as “asthma, moderate persistent” and was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E. The PEB adjudicated “asthma, moderate persistent” as unfitting, rated 10%. The CI made no appeals and was medically separated.


CI CONTENTION: “Asthma controls my life and the way I live. I had no asthma symptoms prior to being in the Marine Corps and now I live with it everyday. Physical activities are difficult and limited due to my disability. The worst part is not being able to keep up with my children. The use of the steroid medication has caused me additional health issues. For that reason, I have stopped taking them and I try to control my asthma by keeping my health in order and limiting physical activities. I use a rescue inhaler (albuterol) as needed. I see my family physician through my work insurance rather than VA medical.”


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. 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 Board for Correction of Naval Records.


 RATING COMPARISON :

Service IPEB – Dated 20010726
 VA - (3 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Asthma, Moderate Persistent 10% 6602 Asthma 6602 30% 20020108
No Additional MEB/PEB Entries
 Other x 3 20020108
Combined: 10%
 Combined: 30%
Derived from VA Rating Decision (VA RD ) dated 200 20729 ( most proximate to date of separation [ DOS ] ).



ANALYSIS SUMMARY:

Asthma. The narrative summary notes the CI developed shortness of breath (SOB) with activity approximately 11 months prior to separation, which progressively worsened, occurring throughout the day, including during rest periods. The CI was treated with inhaled bronchodilators and a short course of oral steroids with some improvement. During follow-up daily inhaled daily steroids, long acting inhaled bronchodilators, oral anti-inflammatory medication and a rescue inhaler as needed were added to his treatment regimen. The CI continued to be symptomatic despite his maximal medical regimen. At the MEB exam on 30 May 2001, approximately 4 months prior to separation, the CI reported some improvement in his SOB but that he still required a pre-exercise rescue inhaler, often needing to halt PT and required additional rescue inhaler use throughout the day. The MEB physical exam noted a normal lung exam without wheezing. Chest X-ray was normal and pulmonary function testing (PFT) was consistent with a diagnosis of asthma, with an FEV1 of 85% of predicted after bronchodilator. Medications were twice daily steroid inhaler, twice daily long acting bronchodilator inhaler, daily oral anti-inflammatory medication and a rescue inhaler as needed. At the VA Compensation and Pension (C&P) exam on 8 January 2002, approximately 3 months after separation, the CI reported his asthma symptoms were variable, with his last attack 6 weeks earlier, and SOB with exercise in between attacks. The VA exam noted a normal lung exam. PFTs showed mild obstruction, with an FEV1 of 88% of predicted after bronchodilator. The exam noted that currently “the veteran is on Singulair (anti-inflammatory/bronchodilator) and Albuterol (bronchodilator).”

The Board directs attention to its rating recommendation based on the above evidence. The PEB adjudicated the CI’s asthma condition as unfitting, coded as 6602 (bronchial asthma) at 10%. The VA coded the asthma condition 6602, rated at 30% citing daily inhalational or oral bronchodilator therapy use. The Board deliberated whether the CI’s asthma condition at the time of separation met the disability rating of 10%, specified as “FEV1 of 71 to 80 percent predicted, or; FEV1/FVC of 71 to 80%, or; intermittent inhalational or oral bronchodilator therapy” or 30%, specified as “FEV1 of 56 to 70 percent, or; FEV1/FVC ratio of 56-70%, or; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication.” The MEB examination listed twice daily steroid and bronchodilator inhaler medication, daily oral medication for asthma prevention and a rescue inhaler. Medication profiles in the record document the CI filled prescriptions for an inhaled steroid, bronchodilator (Singulair) and oral steroids in April 2001; for inhaled bronchodilator and Singulair at the end of May 2001 and for an inhaled steroid and bronchodilator at the end of July 2001. The C&P examination did not explicitly state the frequency of the bronchodilator inhaler and oral medication use as noted above, saying only that the veteran was currently “on Singulair and Albuterol.” However, the VARD dated 29 July 2007 cited “the VA exam shows that you require bronchodilator therapy such as Singulair and Albuterol daily” as rationale for assigning a 30% evaluation. Despite the fact that the CI reported variable asthma symptoms at the VA exam, the Board could not tell from the evidence in the record whether the CI was improved because he was responding to medications or because of a change of locale. The Board agreed that the preponderance of the evidence in the record supported that the CI’s asthma condition at the time of separation met the 30% rating criteria of 6602 and did not meet the higher evaluation of 60% specified as “FEV1 of 40-55%, or; FEV1/FVC of 40 – 55%, or; at least monthly visits to a physician for care of exacerbations, or; intermittent (at least three per year) of systemic steroids.” After due deliberation, considering all of the evidence and mindful of the Veterans Affairs Schedule for Rating Disabilities (VASRD) §4.3 (reasonable doubt), the Board recommends a separation disability rating of 30%.
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. 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 Condition 6602 30%
COMBINED
 30%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120502, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record





         XXXXXXXXXXXXXXXXXX
         President
         Physical Disability Board of Review

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

Ref: (a) DoDI 6040.44
(b) PDBR ltr dtd 5 Feb 14 ICO XXXXXXXXXXXXXXXXXX
(c) XXXXXXXXXXXXXXXXXX
(d) XXXXXXXXXXXXXXXXXX

1. Pursuant to reference (a) I approve the recommendations of the Physical Disability Board of Review set forth in references (b) through (d).

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

         a. XXXXXXXXXXXXXXXXXX , former USMC, XXX XX XXXX : Retroactive placement on the Permanent Disability Retired List with a rating of 30% effective 6 October 2001.

         b. XXXXXXXXXXXXXXXXXX

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


          XXXXXXXXXXXXXXXXXX
         Assistant General Counsel
         (Manpower & Reserve Affairs)

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