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AF | PDBR | CY2013 | PD-2013-02236
Original file (PD-2013-02236.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXX  CASE: PD-2013-02236
BRANCH OF SERVICE: Army          BOARD DATE: 20140715
DATE OF PLACEMENT ON TDRL: 20040507
Date of Permanent SEPARATION: 20041230


SUMMARY OF CASE: The available evidence indicates this covered individual (CI) was an active duty SPC/E4 (95C10/Corrections Specialist) medically separated for a lung condition that was reportedly first diagnosed as asthma in June 1999. This condition could not be adequately rehabilitated to meet the requirements of her Military Occupational Specialty or physical fitness standards, so she was issued a permanent P3S1 profile and referred for a Medical Evaluation Board (MEB). The lung condition, characterized as “asthma, mild intermittent,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded 5 other conditions for PEB adjudication. The PEB adjudicated “asthma”, rated 30%, citing criteria of the VA Schedule for Rating Disabilities (VASRD) and placed the CI on the Temporary Disability Retired List, effective 7 May 2004. The remaining conditions were determined to be not unfitting. In December 2004 the MEB found the asthma condition had stabilized sufficiently and the PEB adjudicated “exertion asthma” unfitting, rated at 10% disability and the CI was removed from the TDRL on 30 December 2004. The CI agreed with the board findings and recommendations and was medically separated.


CI CONTENTION: “Eligible for PDBR (Physical Disability Board of Review). Only one factor was considered out of all my medical issues. P3 profile, Migraines resulting from several head injuries, Major Depression/OCD, Tinnitus.”


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; the contented major depression/OCD is likewise addressed below. No additional conditions are within the DoDI 6040.44 defined purview of the Board; the contended migraines, head injuries, and tinnitus were not identified by the PEB so are not in the scope of review. 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.

The Board acknowledges the CI’s contention for ratings of the various conditions noted above, but must emphasize that disability compensation may only be offered for those conditions that cut short the member’s career. Should the Board judge that any contended condition was most likely incompatible with the specific duty requirements, a disability rating IAW the VASRD, based upon the degree of disability evidenced at separation, will be recommended.




RATING COMPARISON :
Final Service PEB - 20041223
 VA (based on Service Treatment Record) - Effective 20040507
On TDRL - 20040507
 Code Rating Condition Code Rating Exam
Condition
 TDRL Sep.
Exertional Asthma…only uses as needed Albuterol… 6602 30% 10% Asthma 6602 10% STR
Obsessive Compulsive Disorder Not Unfitting Major Depression w/ OCD 9404-9434 30%
Other x 0 (Not in Scope)
Other x 4
Combined: 30% → 10%
 Combined: 50%


ANALYSIS SUMMARY:

Asthma Condition: The narrative summary (NARSUM) noted in the CI’s service treatment records the diagnosis of exercise induced asthma, as early as 1999, which was control with principally Albuterol inhaler until 2002. Due to increasing symptoms she was started on additional asthma medications including Flovent (fluticasone an anti-inflammatory/steroid inhalational), Singulair (a montelukast oral indirect-acting bronchodilator) and pre-exercise treatment of Albuterol (inhalational bronchodilator) with relatively good control. Pulmonary function tests (PFT) were relatively normal (FEV-1 and FEV-1/FVC over 80% predicted). The diagnosis was “Asthma, mild intermittent” with disease progression and inability to wear a protective mask and provide riot control, the CI was adjudged to not meet standards and was found unfit by the PEB, rated at 30% for TDRL entry. During her TDRL reevaluation in December 2004, the CI had continued having episodic asthma symptoms of shortness of breath (SOB) with prolonged chest tightness with exercise. She reported she was using Albuterol weekly and “self-discontinued her Flovent approximately May 2004.” She had no hospitalizations or systemic steroid use and reported that she did not see a physician regarding her diagnosis of asthma since placement on the TDRL. Current medications related to pulmonary functioning were listed as Albuterol inhaler as needed and Singular by mouth every day (Albuterol MDI 2 puffs every 4-6 hour as needed SOB, and Singulair 10 mg by mouth daily). The medication profile indicated the last documented prescription fill for Singulair was on 27 May 2004. The diagnosis remained “asthma, mild intermittent.” Recommendations stated: “patient's asthma symptoms have improved dramatically since her removal from her environment working as a guard. She currently has rare Albuterol use, but is still required when exercising. She also still has symptoms when she exerts herself. Case is referred to the PEB for adjudication.”

There was no pulmonary or general VA Compensation and Pension examination performed proximate to TDRL entry or permanent separation and the VA Rating Decision dated 
1 December 2004 awarded a rating of 10%, citing intermittent therapy and PFT.

The Board directs attention to its rating recommendation based on the above evidence. Both the PEB and VA rated the asthma condition under code 6602. There was no evidence of systemic steroid use or abnormal PFTs for rating. Medication use was the pivotal criteria for rating this case IAW VASRD §4.97. In its deliberations the members devoted ample attention to the issue of whether the requirement for daily bronchodilator and/or routine anti-inflammatory therapy was met in this case, as that is the pivotal criteria between a 10% or 30% rating IAW VASRD §4.97. The TDRL entry rating for asthma at 30% was clearly supported by medication use. There was no evidence of systemic steroid use or exacerbations sufficient to warrant any higher rating.

At TDRL exit, the CI was no longer taking inhalational anti-inflammatory medication (self discontinued her Flovent) and had decreased from daily inhalational bronchodilator (Albuterol) to episodic use (weekly). The TDRL NARSUM listed Singulair 10mg by mouth once a day in the “current medications”. The PEB disability description stated “exertion asthma, on TDRL since May 04, pulmonary function is normal, Soldier has discontinued inhaled corticosteroids and only uses as needed Albuterol. Stable for rating purposes and awarded a 10% rating”. The use of oral Singulair was not included in the PEB description and the CI agreed with the PEB findings and recommendations.

The Board deliberated if the TDRL NARSUM current medications’ listing oral Singulair was supported by the record and if it met the VASRD 6602 30% rating criteria for daily oral bronchodilator therapy. The Board discussed the evidence of record concerning Singulair use. Singulair was noted in the treatment records as prescribed for and effective in decreasing the CI’s asthma symptoms (pre-TDRL). Singulair was mentioned in the current medications of the TDRL NARSUM, but was not mentioned in the TDRL NARSUM recommendations area or in the VARD. The CI reported only taking Albuterol with no mention of Singulair use and not seeing a physician regarding her asthma diagnosis during her TDRL exam. The medication profile showed Singulair was last filled on 27 May 2004, 7 months prior to removal from the TDRL. And finally, the CI’s concurrence of the PEB description of “has discontinued inhaled corticosteroids and only uses as needed Albuterol”. There was no additional evidence in the record for any increase in the 10% VA asthma rating (based on intermittent therapy and PFT) through July 2010 and no post-separation exams or treatment notes for asthma in the record. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority concluded that there was insufficient cause to recommend a change in the PEB adjudication for the asthma condition.

Contended PEB Condition (Obsessive Compulsive Disorder (OCD)): The Board’s main charge is to assess the fairness of the PEB’s determination that the contended OCD 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 psychiatrist’s MEB addendum dated December 2003 documented the CI’s long standing obsessive compulsive symptoms and considered the obsessive-compulsive disorder condition as existing prior to service, but with service aggravation. There were noted symptoms of anxiety and depression and the CI had been started on medications (Prozac) with a good response. Exam indicated a “very mildly depressed” mood and affect “very mildly dysphoric”. The Global Assessment of Functioning was assessed at 75 (71-80 is “If symptoms are present they are transient and expectable reactions to psychosocial stressors; no more than slight impairment in social, occupational, or school functioning.”) The psychiatrist indicated the CI met retention standards from a mental health perspective. Treatment notes had indicated an additional diagnosis of major depression and prior to TDRL entrance also documented increased symptoms with prescription and use of two additional psychoactive medication (Wellbutrin; and Trazadone for sleep), with noted continued duty performance. The OCD condition was not profiled or implicated in the commander’s statement and was not judged to fail retention standards. There was insufficient performance based evidence from the record that the OCD condition 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 OCD condition and so no additional disability ratings are 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 asthma/exertional asthma condition and IAW VASRD §4.97, the Board by a vote of 2 to 1 recommends no change in the PEB adjudication. The single voter for dissent submitted the appended minority opinion. In the matter of the contended OCD condition, the Board unanimously agrees that it cannot recommend an additional disability rating. 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.


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131105, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record









                          
                  XXXXXXXXXXXXXXXXX
                  President
                  Physical Disability Board of Review
MINORITY OPINION: The AO recommends that 30% is the fair and equitable asthma rating as there was sufficient reasonable doubt in favor of “daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication” at the time of TDRL exit. The critical rating determinant in this case is if the CI was using daily oral bronchodilator therapy at the time of TDRL exit. Use of daily oral bronchodilator therapy for asthma (6602) would warrant a 30% rating under VASRD §4.97.

The NARSUM examiner and PEB clearly placed a great deal of reliance on the CI’s history for determining that she had “self discontinued her Flovent” and was therefore no longer using an inhalational anti-inflammatory medication (even episodic use would warrant a 30% rating). However, that same NARSUM indicated daily use of oral bronchodilator therapy (Singular 10mg by mouth once a day) under current medications which neither the PEB nor VA noted in their rating determinations. Daily oral bronchodilator therapy warrants a 30% rating.

The recommendations area of the NARSUM noted “she currently has rare Albuterol use but is still required to use Albuterol with exercise” and did not either reiterate or refute the daily oral Singulair use noted under current medications.

The medication profile indicated the last fill date for a 3 month supply of Singulair (Montelukast #90) was 27 May 2004 (20 days after TDRL entry, and 6 months prior to TDRL exit). It is very highly likely that non-controlled medication (like Singulair) would be dispensed outside of channels that would normally be documented on the medication profile. For example, in 2004, it was routine to provide Singulair from medication samples from providers, from troop clinic or “MOD” cabinets, etc…. Such very common medication dispensing was rarely captured by the electronic medication profile. Therefore, any Singulair “left over” or off-medication profile Singulair issuance would have accounted for sufficient medication to have taken it on a daily basis.

Although the medication profile provided some reasonable doubt if the CI had sufficient medication to take on a daily basis, VASRD §4.3 (reasonable doubt) can only be used in the CI’s favor, and not to support a lower rating. The totality of the record provided sufficient reasonable doubt (IAW VASRD §4.3) to adjudge the CI was closer to the 30% criteria for Asthma with daily oral bronchodilator therapy use.

RECOMMENDATION: The minority voter recommends therefore, 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
TDRL PERMANENT
Asthma → Exertional Asthma 6602 30% 30%
COMBINED 30% 30%


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, AR20150004691 (PD201302236)

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                                                  XXXXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary of the Army
                                                      (Review Boards)
                                                     
CF:
( ) DoD PDBR
( ) DVA

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