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AF | PDBR | CY2013 | PD-2013-02045
Original file (PD-2013-02045.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXX  CASE: PD-2013-02045
BRANCH OF SERVICE: Army  BOARD DATE: 20140625
SEPARATION DATE: 20050330


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (88N/Transportation Specialist) medically separated for asthma and chronic patellofemoral syndrome (PFS). The condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty or satisfy physical fitness standards. She was issued a permanent P3/L3 profile and referred for a Medical Evaluation Board (MEB). The asthma and chronic PFS conditions, characterized as “medically unacceptable,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded one other condition. The Informal PEB adjudicated asthma and chronic PFS as unfitting, rated 0% and 0%, with likely application of AR 635-40 and DoDI 1332.39. The remaining conditions were determined to be medically acceptable. The CI made no appeals and was medically separated.


CI CONTENTION: “While I was in the Army, the doctors and nurses believed that I had high blood pressure and/or hypertension. I submitted a claim for to the VA for that but, I was denied. Approximately around 2006-2007, I resubmitted an appeal (for PTSD and hypertension) with the Dept. of Veteran Affairs and I was denied again for both. Interestingly enough, in 2008 Dr. G., at VA medical center (in Hampton, Virginia) "finally" diagnosed me with "tachycardia" (rapid heartbeat). I have been on medication (Atenolol, 25mg) to slow down my heart since 2005 (before my pregnancy) until today. If i miss my medication for 2 days, I get headaches and feel extremely ill. My point is, I was misdiagnosed in the Army and by the Dept. of Veteran Affairs, until I was correctly diagnosed by Dr. G. at VA medical CTR (Hampton, VA). I was about to file a new claim for "tachycardia" when I received a letter in the mail, from PDBR, pertaining to possibly appealing my denial. As a result, I will wait until I get the results from PDBR, before I press forward.”


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 chronic PFS conditions are addressed below; as well as the contended adjustment disorder. No additional conditions (such as hypertension or tachycardia) 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 (such as any other mental health [MH] condition), remain eligible for future consideration by the Board for Correction of Military Records.



 RATING COMPARISON :

Service IPEB – Dated 20050216
 VA - (2 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Asthma 6602 0% Asthma 6602 30% 20050511
Chronic Patellofemoral Syndrome 5099-5003 0% Right Knee Patellofemoral Syndrome 5099-5024 10% 20050511
Left Knee Patellofemoral Syndrome 5099-5024 10% 20050511
Adjustment disorder with Depression and Anxiety Medically Acceptable General Anxiety Disorder 9413 30% 20050505
No Other MEB/PEB Conditions
 Other x 2 (Not in Scope)” 20050511
Combined: 0%
 Combined: 70%
Derived from VA Rating Decision (VA RD ) dated 200 51115 ( most proximate to date of separation [ DOS ] ).


ANALYSIS SUMMARY: The Board acknowledges the CI’s information regarding the significant impairment with which her service-connected condition continues to burden her; 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 (DVA), operating under a different set of laws. The CI should be aware that there is no direct relationship between consideration by this DoD Board and any DVA appeal she is considering. Adjustment disorder is not a condition considered a physical disability and is not compensable IAW DoDI 1332.38 in effect at the time. No other MH condition or MH diagnosis is considered in scope.

Asthma Condition. The CI had initial complaints of wheezing, dyspnea (shortness of breath [SOB]) and coughing after cutting grass and moving into old barracks in June 2003. Initial treatment was inhaled Proventil (Albuterol; inhalational bronchodilator) as needed. Symptoms included chest pain and SOB with running or putting on a protective mask [Note: The CI had panic attacks with similar shortness of breath and chest pain symptoms]. Pulmonary function testing (PFT) was reported as diagnostic of exercise induced asthma. She was also noted to have seasonal allergies and atopic dermatitis symptoms and inhaled Fluticasone (Flovent; inhalational steroid) twice daily was added. She had a year-long trial of asthma medications including a trial of Advair™ (inhalational steroid/bronchodilator combination) without relief of symptoms and medications at the time of the narrative summary (NARSUM) dated 15 December 2004 were noted as inhaled Flovent twice a day and inhaled Albuterol as needed with use at “approximately three times weekly with exposure to pollen, grass, dust or molds.” The MEB physical exam noted a normal lung exam and PFTs from November 2004 were normal. The exercise PFTs were signed as consistent with exercise induced bronchospasm. The examiner stated the CI “has been compliant with treatment recommendations.” At the VA Compensation and Pension (C&P) exam performed 2 months after separation, the CI reported continued asthma symptoms with continued inhaled medication use. Exam documented normal PFTs and normal lung exam.

The Board directs attention to its rating recommendation based on the above evidence. The PEB rated the asthma at 0% coded 6602. The disability description indicated “uses Flovent and an Albuterol inhaler 2-3 times a week. Review of pharmacy records reveal questionable compliance with medication regimen.” The VA rated the asthma at 30% based on medication use. There was no evidence of systemic steroid use or abnormal PFTs for rating. Medication use was the pivotal criteria for rating this case IAW VA Schedule for Rating Disabilities (VASRD) §4.97. There was evidence of intermittent use of inhalational bronchodilator therapy. In its deliberations the members devoted ample attention to the issue of whether the requirement for inhaled anti-inflammatory therapy was met in this case (meeting the 10% rating criteria). There is no requirement in VASRD 6602 criteria that inhalational anti-inflammatory medication be used on a daily basis to warrant a 30% rating. That question of type and frequency of medication use was raised in this case where the PEB referenced the pharmacy records for questionable compliance.

Although a reasonable question is raised in this case, as per the PEB’s determination, that the CI was not fully compliant with a daily treatment regimen, the clinical entries in evidence specify daily treatment with Flovent and episodic use of Albuterol. There are no clinical notes documenting non-compliance or otherwise refuting an assumption that at least episodic inhalational anti-inflammatory medication was used. The pharmacy record indicated inhalational anti-inflammatory medication dispensed in October 2003, June 2004, September 2004 and December 2004. Additionally, the pharmacy record may not be 100% comprehensive in the 2005 timeframe due to potential other non-captured sources of medication. Thus, members agreed that undue speculation was required to overcome reasonable doubt favoring the CI that she used at least episodic inhalational anti-inflammatory medication that warrants a 30% rating IAW VASRVD-only criteria. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 30% for the Asthma condition.

Chronic Patellofemoral Syndrome Condition. The NARSUM addendum, dated 16 December 2004 (3 months prior to separation), noted complaint of swelling and bilateral knee pain following a road march in basic training, that evolved into chronic bilateral knee pain diagnosed as PFS. The CI reported bilateral knee pain exacerbated by stair climbing, running and prolonged standing. “She occasionally experiences locking and giving way in both knees.” Exam documented pain on patellar compression and distraction of each knee, with no laxity or meniscal signs. X-rays of both knees were reported as normal. Active range-of-motion (ROM) evaluations from physical therapy documented flexion to 135 degrees on the left and 129 degrees on the right (normal flexion is 140 degrees), with normal extension. The DD Form 2808 MEB exam dated 8 September 2004 documented crepitus of both knees with flexion and prior orthopedic evaluation from 17 November 2003 documented a positive grind test for patellar dysfunction.

The VA C&P exam performed 11 May 2005, 2 months after separation, indicated continuing knee symptoms with reported use of analgesics medication with exercise and functional limitations in walking and squatting. Exam documented joint line tenderness to palpation with full active ROM (0-140 degrees). There was no decrease ROM or other DeLuca findings on repetitive testing and the knee had no erythema, edema or joint changes.

The Board directs attention to its rating recommendation based on the above evidence. The Board, IAW VASRD §4.7 (higher of two evaluations), must consider separate ratings for PEB bilateral joint adjudications; although, separate fitness assessments must justify each disability rating. In this case, both knees were considered to fail retention standards; both were implicated by the NARSUM and in the commander’s statement and, both were profiled. Member consensus was that each knee should be reasonably conceded as separately unfitting; and, that coding and rating features were logically identical. The PEB considered both knees unfitting and rated together as 0% specifying ROMs of 0-140 degrees and 0-142 degrees which appeared to be passive ROMs. This was in-line with historic Army guidance in AR 635-40, B–29. However, rating IAW VASRD use active ROMs (limited flexion for each knee as noted above) and consider painful motion (§4.59) and DeLuca criteria for joint ratings using §4.40 (functional loss) and §4.45 (the joints).

The diagnosis of PFS was well supported and there was objective evidence of pathology based on crepitus and positive patellar grind (patellar dysfunction). No abnormal imaging was noted, however, there was no magnetic resonance imaging or bone scan recorded (for cartilage pathology or inflammation). After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt) and §4.40 (functional loss), the Board majority recommends a disability rating of 10% for the right knee, and 10% for the left knee, chronic patellofemoral 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. As discussed above, likely PEB reliance on AR 635-40 and DoDI 1332.39 for rating the asthma and knee conditions was operant in this case and the condition was adjudicated independently of those instructions by the Board. In the matter of the asthma condition, the Board unanimously recommends a disability rating of 30%, coded 6602 IAW VASRD §4.97. In the matter of the bilateral chronic PFS condition, the Board majority recommends that each knee be considered unfitting and each knee have a disability rating of 10%, coded 5099-5024 IAW VASRD §4.71a. The contended anxiety disorder condition is not a compensable disability condition and any other MH condition is outside the scope of the Board. 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 her prior medical separation:

UNFITTING CONDITION VASRD CODE RATING
Asthma 6602 30%
Right Knee, Chronic Patellofemoral Syndrome 5099-5024 10%
Left Knee, Chronic Patellofemoral Syndrome 5099-5024 10%
COMBINED (w/ BLF) 50%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131028, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record



                 
XXXXXXXXXXXXXXXXX
President
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 XXXXXXXXXXXXXXXXX, AR20150001815 (PD201302045)
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 50% 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 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 50% 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                                                  XXXXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary of the Army
                                                      (Review Boards)
                                                     
CF:
( ) DoD PDBR
( ) DVA

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