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AF | PDBR | CY2013 | PD-2013-01964
Original file (PD-2013-01964.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX    CASE: PD-2013-01964
BRANCH OF SERVICE: Army  BOARD DATE: 20150730
DATE OF PLACEMENT ONTO TDRL: 20040105
DATE OF REMOVAL FROM TDRL: 20050216


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Helicopter Electrical Systems) medically separated for asthma. The condition did not improve adequately to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was issued a permanent P3 profile and referred for a Medical Evaluation Board (MEB). The “chronic asthma” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also forwarded four other conditions (low back pain, acne, pes planus, and hypertension) for PEB adjudication. The Informal PEB adjudicated asthma as unfitting rated 60%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The remaining conditions were determined to be not unfitting . The CI made no appeals and was placed on Temporary Disability Retired List (TDRL). Approximately 13 months later, the IPEB adjudicated the asthma condition as unfitting, rated 10%. The CI was removed from the TDRL and was permanently separated with a 10% disability rating.


CI CONTENTION: “Was separated and placed on TDRL with 60% rating in Jan 2004. Was removed from TDRL in Feb 2005 and rating was lowered to 20%. Was advised not to appeal. Continue to battle service connected disabilities with asthma and chronic lower back pain. Can provide medical records from civilian providers if needed. Will be happy to provide a mountain of medical records from past eight years. Continue to take asthma medications and battle related health issues, mostly bronchitis. Still pay for medications and treatment for asthma and chronic lower back strain. If I had to do it all over again, I would have appealed the PEB decision in 2005 and turned down severance package. Was essentially told that since I didn’t have a bout of respiratory failure in 2004 that my condition had improved and that was cause for medical separation. I currently have a 20% disability rating through the VA. Currently in the process to try to increase percentage. I recently started receiving compensation after making up difference from severance package. Seeking higher disability percentage for chronic low back strain. Process has been recently started.”


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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting. Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records. Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate. The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation. The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions. That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws. The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.


RATING COMPARISON :

Final PEB – 20050202
 VA Rating Decision1 - 20040623
TDRL Placement – 20040104
 Code Rating Condition Code Rating
Proximate
Condition
 TDRL
Placement		 TDRL Removal TDRL2
Placement
Asthma, Bronchial 6602 60% 10% Asthma 6602 10%
Recurrent Low Back Pain Not Unfitting Chronic Low Back Strain 5237 10%
Other x 3 (Not in Scope)
 Other x 3
RATING: 60% → 10%
 RATING: 20%
1. Most proximate to TDRL Placement
2. Rating derived from C&P exam dated 20040309 , ~ 2 mos. post-TDRL placement


ANALYSIS SUMMARY:

Respiratory disorder. During 2001-2002, this CI had multiple bouts of pneumonia. Then in March 2003, he suffered a severe episode of respiratory illness. He was admitted to the Intensive Care Unit and required endotracheal intubation. With treatment, his condition improved. He was discharged from hospital on 17 March 2003. Discharge diagnoses were: “respiratory failure” and “status asthmaticus.” Discharge medications included oral Augmentin (an antibiotic), oral Prednisone (a corticosteroid), Advair (an inhaled combination medication that includes corticosteroid), and Albuterol (a short-acting inhaled bronchodilator). After his hospitalization, the CI received outpatient follow-up from the Army doctors, as well as a civilian pulmonologist. The doctors attempted to taper him off the oral Prednisone, but were not successful. In August 2003, an MEB was initiated.

On 2 September 2003, pulmonary function tests (PFTs) were done. The forced expiratory volume in the first second (FEV-1) was 2.94 liters (60.6% of predicted). The FEV-1 divided by forced vital capacity (FVC) was 69.2%. The MEB physical examination (PE) was on 10 September 2003. He was taking 7.5mg of oral Prednisone, every other day. His lung fields were clear to auscultation and the PE was considered unremarkable. The narrative summary said: “His prognosis can be best estimated as currently clinically stable, although long-term prognosis is uncertain. He requires close medical follow-up, and consideration should be given to TDRL status.” On 4 January 2004, the CI was placed on the TDRL with a rating of 60%.

The Board carefully examined all available evidence. As noted above, the CI was temporarily retired at 60%, effective 4 January 2004. At that time, a rating higher than 60% was not warranted. The CI’s asthma was not severe enough to justify a higher rating of 100%. IAW VASRD §4.97, a rating of 100% would require: FEV-1 less than 40% of predicted, or; FEV-1 divided by FVC less than 40%, or; more than one attack per week with episodes of respiratory failure, or; daily use of systemic high dose corticosteroids or immuno-suppressants. Since the treatment record did not show sufficient evidence of these findings, the Board had no basis to recommend a rating higher than 60%, when the CI was placed on TDRL.

On 9 March 2004, the CI had a VA Compensation and Pension (C&P) exam. He reported shortness of breath at rest and with walking. Any physical activity made his asthma worse. The asthma attacks were occurring weekly, but no time had been lost from work. He could participate in all normal activities of daily living. On PE, his lungs were normal. PFTs revealed FEV-1 of 3.56 liters (70.8% of predicted). The FEV-1 divided by FVC was 67.3%.

On 5 January 2005, after a year of TDRL, the CI was re-evaluated by the Army doctors. His medications at that time included: Serevent (a beta adrenergic bronchodilator), Atrovent (an anti-cholinergic bronchodilator), Flovent (an inhaled corticosteroid), and Albuterol (a short-acting beta adrenergic bronchodilator). He was no longer on Advair, or taking oral Prednisone. During the previous year, he had one emergency room (ER) visit for asthma. At the ER, he was given nebulizer treatments, but did not require systemic steroids. The CI was working as a security guard for the Adidas shoe company, which mainly involved sitting down. He reported that he was not able to run, or do any type of outdoor activities. With his job, as long as he stayed sedentary, he was doing okay. He had missed 2 days of work due to asthma. On PE, he was in no acute distress. Respiratory rate was normal, and pulse oximetry showed an oxygen saturation of 95% on room air. His lung fields were clear to auscultation, but there was occasional wheezing with forced expiration.

PFTs revealed an FEV-1 of 3.44 liters (66.5% of predicted). The FEV-1 divided by FVC was 64.9%. The CI’s pulmonary function tests (PFTs) are summarized in the chart below.

Pulmonary Function Tests (PFTs) MEB ~ 17 mos. Pre- Sep (removal from TDRL)
(20030902)
VA ~ 11 mos. Pre-Sep (removal from TDRL)
(20040309)

VA ~ 7 weeks Pre-Sep (removal from TDRL)
(20041230)		 TDRL ~ 6 weeks Pre-Sep
(20050105)
FEV-1 (% of Predicted) 60.6 70.8 76.5 66.5
FEV-1/FVC 69.2% 67.3% 63.7% 64.9%
Meds on oral Prednisone on “inhalation treatment” on Fluticasone (inhaled) on Fluticasone (inhaled)
invalid font number 31502
The Board directed attention to its permanent rating recommendation based on the above evidence. The February 2005 PEB rated the CI’s asthma at 10%. On DA Form 199, the Final PEB wrote: “The present PEB rating of 10% more accurately reflects the current degree of severity of your condition. The PEB considers your condition to have improved so as to be ratable at less than 30%.” For the reader’s convenience, the VASRD §4.97 language for the 10%, 30%, and 60% ratings (diagnostic code 6602) is excerpted below:

FEV-1 of 40 to 55 percent predicted, or; FEV-1/FVC of 40 to 55
percent, or; at least monthly visits to a physician for required
care of exacerbations, or ; intermittent (at least three per year)
courses of systemic (oral or parenteral ) corticosteroids ....................................... 6 0

FEV-1 of 56 to 70 percent predicted, or; FEV-1/FVC of 56 to 70
percent, or; daily inhalational or oral bronchodilator therapy,
or; inhalational anti-inflammatory medication .....................................................30

FEV-1 of 71 to 80 percent predicted, or; FEV-1/FVC of 71 to 80
percent, or; intermittent inhalational or oral bronchodilator therapy .................10

The Board determined that the best source of information upon which to base a permanent rating recommendation was the 5 January 2005 examination. This PE was just 6 weeks before the DOS, and therefore had significant probative value. Using data from that January 2005 exam, the Board determined that at the time of final separation, the CI was using Flovent on a regular basis. This would justify a 30% rating. Flovent is fluticasone (an inhalational corticosteroid anti-inflammatory drug). The Board also noted that the FEV-1 was 66.5% of predicted, and the FEV-1/FVC was 64.9%. These PFT values also justify a 30% rating.

There was no evidence for respiratory failure, frequent exacerbations requiring physician intervention, or use of systemic corticosteroids. Therefore, a higher rating of 60% was not justified. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a permanent disability rating of 30% for the asthma condition. It is appropriately coded 6602, and IAW VASRD §4.97, meets criteria for the 30% rating level based on PFT values, and due to use of inhalational anti-inflammatory medication.

Low Back Pain (LBP). In July 2002, this CI injured his back by stepping on a rock. In September 2002, 2 months later, he was sent home from the Professional Leadership Development Course due to back problems. After that, he continued to have recurrent episodes of LBP. He was treated with medications, physical therapy, therapeutic exercises, and other conservative measures. The LBP condition was adjudicated by the October 2003 PEB as “not unfitting and therefore not ratable.” The Board’s main charge with regard to this condition is an assessment of the appropriateness of the PEB’s fitness adjudication. The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendation, but remains adherent to the DoDI 6040.44 “fair and equitable” standard. The LBP condition was reviewed by the action officer and considered by the Board. The Board noted that this condition was not specifically profiled, nor was it judged to fail retention standards. There was no indication from the record that this condition significantly interfered with satisfactory duty performance. After due deliberation, in consideration of the preponderance of the evidence, the Board found insufficient cause to recommend a change in the PEB fitness determination for the LBP condition. Therefore, no additional disability rating 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. In the matter of the asthma condition, the Board unanimously recommends a permanent disability rating of 30%, coded 6602, IAW VASRD §4.97. In the matter of the LBP 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 the CI’s prior determination be modified as follows; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

CONDITION VASRD CODE RATING
TDRL PERMANENT
Asthma, bronchial 6602 60% 30%
COMBINED 60% 30%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131023, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans Affairs Treatment Record







XXXXXXXXXXXXXXX
President
DoD Physical Disability Board of Review

                 



SAMR-RB                                                                         

MEMORANDUM FOR Commander, US Army Physical Disability Agency
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557


SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for XXXXXXXXXXXXXXX, AR20150013256 (PD201301964)


1. 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 to recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 30% effective the date of the individual’s original medical separation for disability with severance pay.

2. I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of 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 30% 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.










3. 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                                                  XXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary of the Army
                                                      (Review Boards)
                                                     
CF:
( ) DoD PDBR
( ) DVA

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