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AF | PDBR | CY2012 | PD2012 01914
Original file (PD2012 01914.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:    CASE: PD1201914
BRANCH OF SERVICE: Army  BOARD DATE: 20130709
DATE OF PLACEMENT ON TDRL: 20020401
Date of Permanent SEPARATION: 20030314


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (63H/Track Vehicle Repairer) medically separated for asthma and obstructive sleep apnea (OSA). In 2001, the CI experienced shortness of breath (SOB) with exertion. This prevented him from keeping up with training runs and the run portion of a physical training (PT) test. During the same period, the CI began experiencing daytime somnolence with reports by his wife of the CI gasping for air in the middle of the night and stopping breathing. The CI was subsequently diagnosed with asthma and OSA. Despite medication and appliance therapy as well as profile limitations, he was unable to meet the physical requirements of his Military Occupational Specialty. He was issued a permanent P3 profile and referred for a Medical Evaluation Board (MEB). The asthma and OSA conditions, characterized as “exercise induced asthma” and “moderate to severe obstructive sleep apnea” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded “ankylosing spondylitis” for PEB adjudication. The PEB adjudicated “exercise induced asthma” and “obstructive sleep apnea” as unfitting, rated 30% and 0% respectively. The PEB found the “ankylosing spondylitis” as not unfitting and not ratable. The PEB determined the CI’s asthma to be unstable and placed him on the Temporary Disability Retired List (TDRL). Subsequent to the CI’s first TDRL examination, the PEB found his asthma as stable and unfitting, rated 10%. The OSA rating was continued at 0% unfitting and the ankylosing spondylitis condition was continued as not unfit. The CI made no appeals, and was medically separated.


CI CONTENTION: The CI attached a letter to his application in which he alleges the “military medical review board made an error” in that his exercise induced asthma was controlled with medication while it was his obstructive sleep apnea and his hip injury – associated with his spine – which were not recognized to the extent they should have been by the PEB. He requested that he “be rated on all of the injuries and illnesses that made it necessary to medically discharge me from the Army because I was non deployable.”


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 ratings for the unfitting asthma and OSA conditions are addressed below. In addition, the board will consider the ankylosing spondylitis condition as contended. No additional conditions are 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 (BCMR).

The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues to burden him; but, must emphasize that the Disability Evaluation System has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation. That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws. Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation. The Board likewise acknowledges the CI’s contention for rating of his ankylosing spondylitis condition which was determined to be not unfitting by the PEB; and, emphasizes that disability compensation may only be offered for those conditions that cut short the member’s career. Should the Board judge that any contested condition was most likely incompatible with the specific duty requirements; a disability rating IAW the Veterans Affairs Schedule for Rating Disabilities (VASRD), and based on the degree of disability evidenced at separation, will be recommended. Finally, the Board acknowledges the CI’s assertions that his disability disposition was in error. The Board acknowledges the CI’s opinion that this error may have caused him to be incorrectly rated at the time of his separation. It is noted for the record that the Board has no jurisdiction to investigate or render opinions in reference to such allegations; and, redress in excess of the Board’s scope of recommendations (as noted above) must be addressed by the BCMR and/or the United States judiciary system.


RATING COMPARISON :

Final Service PEB - 20030212
 VA (14 Mo. Prior to Perm Sep Date*) - Effective 20020402
On TDRL - 20011217
 Code Rating Condition Code Rating Exam
Condition
 TDRL Sep.
Asthma 6602 30% 10% Sleep Apnea Syndrome with Asthma 6899-6847 50% 20020125
Obstructive Sleep Apnea 6847 0% 0%
Ankylosing Spondylitis Not Unfit Not Unfit Not Unfit Low Back Pain Secondary to Ankylosing Spondylosis 5299-5002 10% 20020125
Sacroiliitis, Right Hip 5299-5255 10% 20020125
Sacroiliitis, Left Hip 5299-5255 10% 20020125
No Additional MEB/PEB Entries.
 Other x 3 20020125
Combined: 30% → 10%
 Combined: 80%
*Reflects VA rating exam proximate to TDRL placement; no VA rating evidence proximate to permanent separation.


ANALYSIS SUMMARY:

Asthma. The TDRL entry narrative summary (NARSUM) of 16 November 2001 states that the CI was diagnosed with asthma in 2000 and continued to report SOB with exertion which prevented him from running and passing PT tests. He was prescribed inhaled bronchodilators for daily use and a rescue inhaler as needed. The CI reported improvement with use of medication. A pulmonary function test (PFT) with methacholine challenge on 9 September 2000, was positive. Chest radiographs performed on 1 February 2001 were normal. Follow up PFT in September 2001 revealed spirometry within normal limits. Treatment records did not record visits to the emergency room or frequent exacerbation of asthma symptoms. The CI was never hospitalized for treatment of asthma. The MEB physical exam on 16 November 2001, documented clear lungs without wheezes. Exercise induced asthma was diagnosed and the examiner noted the CI was prescribed daily inhalational bronchodilator therapy of Serevent and Singulair. The PEB placed the CI on the TDRL for the unfitting condition of asthma as charted above. At the VA Compensation and Pension (C&P) examination on 25 January 2002, approximately 10 weeks prior to being placed on TDRL and 14 months prior to separation, the CI reported daily symptoms of asthma and good control with medication. Hospitalizations had not been required and steroids had never been used. Physical examination of the lungs was normal. PFTs were not performed. The TDRL exit NARSUM of 6 January 2003, approximately 2 months prior to separation, recorded the CI stated his asthma was not affecting his life style. He was able to walk three miles on his treadmill about three times a week and very rarely he needed to use his rescue medication. The CI indicated his last flare up was approximately a year prior and Albuterol was effective in resolving the attack. The CI indicated he was still on daily preventive inhalational therapy of Singulair and Serevent. Lung exam was normal. PFT showed an FEV1/FVC ratio pre and post of 78 and 79 percent. Spirometry was officially read as normal without any response to bronchodilators. Chest radiographs were normal.

The Board directs attention to its rating recommendation based on the above evidence. At TDRL entry, the PEB adjudicated the CI’s asthma condition as unfitting, and coded 6602 (bronchial asthma) at 30%. The Board deliberated whether the CI’s asthma condition met the 30%, or the 60% 6602 rating at the time of TDRL entry. The 60% evaluation requires an “FEV1 of 40 to 55 percent; FEV1/FVC ratio of 40-55%; at least monthly visits to a physician for required care of exacerbation or; intermittent (at least three per year) courses of (oral or parenteral) corticosteroids”. The Board opined that the evidence in the record did not support a higher than 30% rating based on criteria. There was no evidence of frequent visits for exacerbations or evidence of the need for corticosteroid treatment at any time during the course of illness. 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 asthma condition. At the conclusion of TDRL, the PEB adjudicated the asthma condition as unfitting rated as 6602 at 10%. The PEB noted the CI was on intermittent oral and inhalational therapy. Approximately 10 weeks prior to separation, the VA rated the asthma condition combined with the OSA condition coded analogously 6899-6847 and indicated the two conditions could not be rated separately due to overlap in symptoms and IAW VASRD §4.14 (avoidance of pyramiding) could not be recommended for separate ratings. A 50% evaluation was assigned. At the time of exiting TDRL, the Board unanimously agreed that the 10% rating criteria were met and undertook to determine whether a 30% or 60% rating was indicated. The CI was prescribed daily use of an anti-inflammatory inhaler for the optimum control of his asthma at the time of TDRL exit. However, the medication profile was not consistent with daily asthma therapy; last asthma medication for daily therapy was entered on 12 September 2001. There had been only two daily therapy prescriptions filled, (both in 2001) from 1996-2003. Additionally, the Board noted one entry on the medication profile for the rescue inhaler Albuterol dated 21 April 2001. The Board noted other non-asthma medications were documented in the medication profile as late as January 2003. The Board adjudged that the “fair and equitable” rating of the CI’s asthma condition at the time of permanent separation most nearly met the 6602 10% rating. 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 asthma condition.

Obstructive Sleep Apnea. The CI was first evaluated for a history of excessive daytime sleepiness, snoring and witnessed nocturnal apneic episodes in May 2001 (6 months prior to TDRL). A sleep study confirmed the diagnosis of moderately severe OSA soon afterwards. The overnight polysomnography study recorded oxygen desaturation to as low as 74%. A continuous positive airway pressure (CPAP) device was prescribed. Follow up visits indicated marked improvement in energy and sleep. A specialty NARSUM addendum dictated 6 months prior to separation, indicated the CI’s condition was moderate to severe and noted his condition had dramatically improved with CPAP but made no reference to treatment compliance. The physician indicated the CI’s condition required CPAP and, thus, referred the CI to the PEB. At the C&P examination the CI indicated improvement in sleep with the aid of the CPAP. Physical examination of the lungs was normal; weight and height were recorded as 250 pounds and 71.5 inches, respectively.

The Board directs attention to its rating recommendation based on the above evidence. At TDRL entry, the PEB adjudicated the CI’s OSA condition as unfitting and coded 6847, assigned a 0% rating under DODI 1332.39 (E2.A1.2.21), and based the fitness adjudication solely on level of impairment, noting the condition produced “mild industrial impairment.” The Board has the obligation to apply VASRD §4.100 which mandates a minimum rating of 50% under 6847 for sleep apnea syndromes requiring a breathing assistance device. Compliance with CPAP and its continued requirement was sufficiently documented in the records. Therefore, after due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 50% for the sleep apnea condition. At the conclusion of TDRL, the PEB adjudicated the OSA condition as unfitting coded as 6847 and assigned a 0% rating under DODI 1332.39 (E2.A1.2.21), and based the fitness adjudication solely on level of impairment, noting the condition produced “mild industrial impairment” and noted the CI was using CPAP. Once again, the Board has the obligation to apply VASRD §4.100 which mandates a minimum rating of 50% under 6847 for sleep apnea syndromes requiring a breathing assistance device. Compliance with CPAP and its continued requirement was sufficiently documented in the records. The TDRL exit NARSUM noted the CI remained on CPAP with improvement of his symptoms. The Board adjudged that the “fair and equitable” rating of the CI’s OSA condition at the time of permanent separation met the 50% criteria. There were no reported episodes of respiratory failure or cor pulmonale to justify the higher rating. Therefore, after due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 50% for the sleep apnea condition.

Contended PEB Conditions. The contended condition adjudicated as not unfitting by the PEB was ankylosing spondylitis. The Board’s first charge with respect to the condition is an assessment of the appropriateness of the PEB’s fitness adjudications. 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 Board notes that the TDRL exit MEB examination dated specifically stated that the CI’s condition was controlled with medication and opined that the disease process can have a variable progression in patients, but at the present the disease was reasonably controlled. The condition was profiled; however, the CI’s profile allowed stretching of all extremities, high jump, jogging in place, bending, hip, neck, back, stretches, upper and lower body weight training, marching up to two miles, carry rifle, fire rifle, walk and bike at own pace and distance. PT tests allowed push-ups, sit-ups, walk and bike. The commander noted that the CI’s profile did not affect the performance of his duty. The commander stated, “I did not know SGT K--- physical performance was limited until he brought the matter to my attention.” The commander recommended discharge based on the CI’s daily report of pain and stated not because of his daily duty performance. There was no indication from the record that this condition significantly interfered with satisfactory duty performance, and no evidence of incapacitating episodes that resulted in prescribed time off from duty, and no visits to the emergency room for acute care due to the condition. 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 ankylosing spondylitis condition and, therefore, no additional disability ratings can be recommended.


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 OSA condition, the Board unanimously recommends a disability rating of 50%, coded 6847 IAW VASRD §4.100. In the matter of the asthma condition and IAW VASRD §4.97, the Board unanimously recommends no change in the PEB adjudication. In the matter of the contended ankylosing spondylitis 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 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
TDRL PERMANENT
Obstructive Sleep Apnea 6847 50% 50%
Asthma 6602 30% 10%
COMBINED
 70% 60%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20121114, 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), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557


 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for AR20130016791 (PD201201914)


1. Under the authority of Title 10, United States Code, section 1554(a), I approve, in part, 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 to recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 60%.

2. I reject the DoD PDBR recommendation related to the individual’s temporary rating. The DoD PDBR is not given the legal mandate to review temporary separations. Additionally, the DoD PDBR is not entitled to review separations with a rating of 30% or more. His Temporary Disability Retirement List (TDRL) rating was 40%.

3. I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days for the date of this memorandum:

         a. Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay.

         b. Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay.

         c. Adjusting pay and allowances accordingly. Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 60% effective the date of the original medical separation for disability with severance pay.

         d. Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.


4. I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures.

BY ORDER OF THE SECRETARY OF THE ARMY:




Encl                                                 
                                                      (Army Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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