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AF | PDBR | CY2012 | PD2012 00856
Original file (PD2012 00856.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:    CASE: PD1200856
BRANCH OF SERVICE: Army  BOARD DATE: 20130515
DATE OF PLACEMENT ON TDRL: 19980610
Date of Permanent SEPARATION: 20021211


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active Guard/Reserve (AGR) SGT/E-5 (63B/Light Wheel Vehicle mechanic) medically separated for asthma and left knee pain. In 1992, the CI slipped and fell on snow and ice, injuring his left knee. In 1997, he underwent a left lateral partial meniscectomy. The CI also had a long history of respiratory problems with extensive treatment and was diagnosed with asthma requiring daily medications. The asthma and left knee conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was issued a permanent P3L3 profile and referred for a Medical Evaluation Board (MEB). Three conditions, characterized as “asthma,” “sinusitis,” and “left lateral meniscal tear” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The Informal PEB (IPEB) adjudicated the asthma and left knee condition as unfitting, rated 10% and 10%. The remaining condition, sinusitis, was determined to be not unfitting and, therefore, not rated. The CI appealed to the Formal PEB; it affirmed the IPEB findings. Upon review at the US Army Physical Disability Agency (USAPDA), the rating for the asthma was increased to 30% with no change to the knee rating and the CI then placed on the Temporary Disability Retired List (TDRL). After 4.5 years on TDRL, the asthma and left knee conditions were considered to be stable, but still unfitting. He was removed from TDRL on 11 December 2002. The asthma condition was rated at 10% for intermittent use of a bronchodilator. The knee condition remained at 10%; however, the description was changed from chronic pain status post arthroscopy to chronic knee pain due to degenerative joint disease (DJD). He made no further appeals and was permanently separated with a 20% combined disability rating.


CI CONTENTION: The CI simply stated “Sinusitis, Asthma, Partial lateral meniscectomy, left knee with degenerative joint disease and hemorrhoids.” The CI further stated he was pending a decision on restless leg syndrome and unemployability from the VA.


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 unfitting asthma and left knee condition and the requested but not unfitting sinusitis condition are all addressed below. The hemorrhoids and restless leg syndrome conditions contended in the application were not identified conditions and are not within the DoDI 6040.44 defined purview of the Board. 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 Military Records.


RATING COMPARISON :

Final Service PEB - 20021112
 VA (Rated at TDRL entry) - Effective 199806011
On TDRL - 19980610
 Code Rating Condition Code Rating Exam
Condition
 TDRL Sep.
Asthma 6602 30% 10% Asthma 6602 30% 19980605
Left Knee s/p Arthroscopic Repair 5299-5003 10% 10% L Knee Partial Lateral Meniscectomy w/DJD 5010-5257 10% 19980605
Sinusitis Not Unfitting Sinusitis 6513 10% 19980605
No Additional MEB/PEB Entries.
 Other x 3 19980605
Combined: 40% → 20%
 Combined: 40%


ANALYSIS SUMMARY:

Asthma. The CI was first treated for allergies in 1980, but was not diagnosed with reactive airway disease (asthma) until 1994. He was given a bronchodilator inhaler with good results. He was seen on a regular basis over the next few years for asthma. In 1997, he was given a permanent profile and referred to an MEB. The narrative summary (NARSUM), dated 3 October 1997, 8 months prior to TDRL entry, documented an FEV1 of 68% (low) with a FEV1/FVC ratio of 81% (normal) as well as the use of oral steroids, which were not well tolerated and later with an inhaled steroid, Flovent. He was taking greater that the recommended daily dose of Flovent and still needed to use a rescue inhaler, Proventil, on a daily basis. The PEB recommended severance with a 10% disability rating for the asthma condition; however, the USAPDA reviewed the PEB findings and determined that the CI should be placed on TDRL with the asthma condition rated at 30% for the use of oral steroids. The VA Compensation and Pension (C&P) examination on 5 June 1998, 5 days prior to TDRL entry, noted that the CI had been to the emergency room four times in the past year. He was noted to be using an Albuterol inhaler four times a day. On examination, his lungs were clear and pulmonary function tests (PFTs) showed significant improvement with bronchodilators. The Board first considered the TDRL entry rating. The Army and VA both rated the asthma condition at 30% and coded it 6602, asthma. The Board noted that both the FEV1 and the use of a steroid inhaler were sufficient to support a 30% disability rating as was the use of Albuterol four times a day, but that there was no evidence of monthly exacerbations requiring medical care or of oral steroid use three or more times a year to support a higher rating. After due deliberation, considering all of the evidence and mindful of Veterans Administration Schedule of Rating Disabilities (VASRD) §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the asthma condition at TDRL entry.

The Board then considered the permanent rating for the asthma condition. The VA performed a C&P examination 2 years prior to permanent separation which noted that the CI used an inhaler three to four times a day. There was no other VA examination more proximate to permanent separation. The NARSUM dictated by a pulmonary consultant and dated 21 October 2002, 2 months prior to TDRL exit, noted that the CI had been on Advair, but stopped secondary to a cough. He had been using Albuterol three to four times a day, but had decreased the frequency to “approximately once a day.” His lungs were clear to examination. PFTs prior to bronchodilators showed an FEV1 of 80% and a FEV1/FVC ratio of 83%, both within normal limits. The examiner noted that “this test is significantly improved from previous.” Further, the examiner noted that there was minimal change after bronchodilators and that “this patient may not benefit from continued bronchodilator therapy.” The CI was diagnosed with moderate, persistent asthma and the consultant recommended that the CI, who also suffered from allergies, be treated with Albuterol, as needed, and Singulair, a medication for allergies and asthma, 10 mg per day. The records in evidence do not indicate if the CI began this regimen prior to separation. The first records which indicate the use of Singulair are 3 years after separation. The PEB adjudicated a permanent rating of 10% noting “intermittent bronchodilator therapy.”

The Board observed that the NARSUM documented that the use of the Albuterol was “approximately once a day,” but did not indicate if this was less than once a day, daily, or more than once a day. The determination of a 10% vice 30% rating hinges on the difference. The Board carefully considered this and the unanimous consensus was that this phrase “approximately once a day” was not equivalent to daily use and, to the members of the Board, implied use less than daily. However, the Board also considered VASRD §4.3 (reasonable doubt) and reviewed the remainder of the record for further evidence to support or refute this interpretation. It was noted that the CI had been awarded a 30% disability rating by the VA at TDRL entry and at a reassessment 2 years prior to TDRL exit. The Board also noted that the CI had successfully rebutted the initial PEB adjudication of 10% and was subsequently placed on TDRL with a 30% rating for the asthma. It is, therefore, reasonable to presume that the CI was aware that the disability rating depended upon the level of treatment and the severity of the condition. At the time of TDRL exit, the PEB, reviewing the above evidence, determined that the CI was on intermittent therapy and, accordingly, adjudicated a 10% rating. The CI concurred with this determination (intermittent therapy rather than daily) and adjudication. The Board also noted that the TDRL examiner judged that the PFTs (which were normal) did not support the continued use of a bronchodilator, although Albuterol was continued on an ‘as needed’ basis. The action officer opined that this would also indicate that the Singulair was primarily recommended for the allergy condition vice the asthma. Regardless, there is no evidence that the CI actually was taking the medication at the time of separation or any daily medications for asthma. The Board determined that the evidence supported an improvement in the asthma condition over the course of the TDRL period as noted by the PEB and that the criteria for a 30% rating was not supported by the evidence. 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 adjudication for the 10% condition.

Left Knee . The CI had noted persistent left lateral and posterior knee pain for years since he slipped on ice and fell. In June 1997, he underwent a left lateral meniscectomy. Despite rehabilitation, he was unable to return to full duty, issued a L3 profile, and referred to a MEB. The Board first considered the disability rating for TDRL entry. The initial orthopedic NARSUM, dictated around October 1997, noted full extension with flexion reduced to 100 degrees, 10 degrees less than the unaffected right side. The Lachmans test for the anterior cruciate ligament (ACL) was 1+ positive with a solid endpoint. Other testing for ligamentous instability was normal. Slight atrophy of the quadriceps was noted. Minimal DJD was noted on X-ray. A second NARSUM was dictated on 21 January 1998, 5 months prior to placement on TDRL. The CI reported persistent pain. On examination, he had no effusion and full range of motion. There was tenderness along the lateral joint line. He had no ligamentous laxity nor was there muscle atrophy. It was thought that there could be future improvement. At the VA Compensation and Pension (C&P) exam performed five days prior to TDRL entry, the CI reported daily burning pain of 8/10. On examination, posture and gait were normal. The range-of-motion (ROM) lacked 10 degrees of flexion, but no comparison was made to the unaffected side. Motion was limited by pain. Suprapatellar edema was present as was crepitus. Testing for meniscal irritation was negative. A test for the ACL was mildly positive, but he was able to stand on his heels and toes. Strength was normal and no deformity noted. The Board considered the TDRL entry rating. The PEB and VA both rated the left knee condition at 10%, but coded it 5010-5257 (traumatic arthritis and other impairment of the knee) and 5299-5003 (degenerative arthritis), respectively. The Board considered the different coding options available for the knee. None offered a route to a rating higher than the 10% awarded by both the PEB and the VA at TDRL entry. The Board next considered the rating for TDRL exit. There were no additional VA examinations proximate to separation. The PEB TDRL exit examination was accomplished 6 June 2002, 6 months prior to separation. The CI reported pain less than once a week primarily with exertional activities such as mowing grass. He used a brace with partial relief of his symptoms. He denied instability or locking. He took Motrin for pain several times a week. On examination, his gait was normal. There was a slight effusion on the left knee. The ROM was reduced 5 degrees compared to the right. There was palpable crepitus along the lateral joint line. There was no instability nor were there meniscal signs. The examination was otherwise normal. X-rays showed very mild DJD. The PEB continued the 10% rating at TDRL exit. The Board again considered the different coding options available, but noted that the CI had shown improvement from the examination at TDRL entry. No code provided an avenue to a higher rating than the 10% adjudicated by the PEB. 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 adjudication for the left knee condition for either TDRL entry or exit.

Contended PEB Conditions. The Board’s main charge is to assess the fairness of the PEB’s determination that the sinusitis condition 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 sinusitis was not profiled or implicated in the commander’s statement and was not judged to fail retention standards. It was reviewed and considered by the Board. There was no performance based evidence from the record that it significantly interfered with satisfactory duty performance. 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 contended sinusitis 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 service ruling in this case that any prerogatives outside the VASRD were exercised. In the matter of the asthma and left knee conditions and IAW VASRD §4.100 and §4.71a, the Board unanimously recommends no change in the PEB adjudication for either TDRL entry or exit. In the matter of the contended sinusitis condition, the Board unanimously recommends no change from the PEB determination as not unfitting. 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:

UNFITTING CONDITION
 VASRD CODE RATING
TDRL PERMANENT
Asthma 6602 30% 10%
Left Knee 5003 10% 10%
COMBINED
 40% 20%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120505, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record





         Physical Disability Board of Review


 SFMR-RB                                                                         


MEMORANDUM FOR Commander, US Army Physical Disability Agency
(TAPD-ZB),

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for AR20130010953 (PD201200856)

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                                                 
                                                      (Army Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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