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AF | PDBR | CY2013 | PD-2013-02603
Original file (PD-2013-02603.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXX       CASE: PD-2013-02603
BRANCH OF SERVICE: AIR FORCE     BOARD DATE: 20141219
SEPARATION DATE: 20051018


SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E-5 (Air Transportation Specialist) medically separated for asthma. This condition could not be adequately rehabilitated to meet the requirements of his Air Force Specialty or physical fitness standards. He was issued a permanent P4 profile and referred for a Medical Evaluation Board (MEB). The MEB characterized referred the condition “obstructive sleep apnea (OSA) requiring continuous positive airway pressure (CPAP)” to the Physical Evaluation Board (PEB) IAW AFI 48-123; no other conditions were submitted by the MEB. The PEB adjudicated “asthma” as unfitting, rated 10%, r eferencing the VA Schedule for Rating Disabilities (VASRD). The PEB listed five conditions as Category II (conditions that can be unfitting but are not currently compensable or ratable); these five were “obstructive sleep apnea requiring CPAP,” “hypertension,” “seasonal allergic rhinitis,” “steatohepatitis,” and “gastro-esophageal reflux disease.” The PEB also listed three conditions as Category III (conditions not separately unfitting and not compensable or ratable); these three were “hyperlipidemia,” “obesity,” and “history of tobacco habituation.”


CI CONTENTION: “Veteran/active duty Air Force participant feels Boards original decision does not reflect service connected issue highlighted in members records used to rate 70% service connected rating within Veterans Administration.” His complete submission, with attachments, is at Exhibit A.


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 :

Service IPEB – Dated 20050826
 VA - (2 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Asthma 6602 10% Sleep Apnea and Bronchial Asthma 6602-6847 50% 20051130
OSA Requiring CPAP Cat II
Fatty Liver Fatty Liver Disease 7399-7345 0%
Hypertension Hypertension 7101 0%
No Additional MEB/PEB Entries in Scope
 No Other VA Conditions in Scope
Combined: 10%
 Combined: 50%*
Derived from VA Rating Decision (VA RD ) dated 200 60419 . *Increased to 70% effective 20110323


ANALYSIS SUMMARY:

Asthma Condition. The CI first presented with a complaint of difficulty breathing on 17 February 2005. He noted a 2-month history of this as well as poor sleep. He was referred to a pulmonologist who recommended a sleep study and also placed the CI on an inhaler for possible asthma. Sleep studies demonstrated OSA for which he was entered into the MEB process on 26 May 2005. The narrative summary was dated that same day. It noted that he used an inhaler prior to exercise and that his lungs were clear to auscultation. He was next evaluated for his asthma in pulmonary medicine on 3 August 2005. He reported frequent use of the inhaler and daily anti-inflammatory medications were recommended. Pulmonary function tests (PFTs) were done that day, but an hour after the use of an inhaler; no studies off of medications were in evidence. The pulmonary note documented that the PFTs were normal, but the actual report states that there was a restrictive defect (rather than an obstructive defect as is typical for asthma). The lungs were clear to auscultation. At the VA Compensation and Pension examination on 30 November 2005, just over 7 weeks after separation, the CI reported resolution of his symptoms on medications. His lungs were clear to auscultation; the PFTs are below. The PFTs in evidence the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Pulmonary Exam ination Pulm ~2 Mo. Pre-Sep VA ~2 Mo. Post-Sep
FEV1 (% Predicted) 92% 95%
FEV1/FVC 90 % 85%
Comments Restricted pattern
Albuterol used PRN
Advair recommended
Daily medication
§4.97 Rating 10 % 30 %

The Board directed its attention to its rating recommendation based on the above evidence. The CI was placed on daily medications, which included an anti-inflammatory agent, by the pulmonologist prior to separation. The use of daily medications supports a 30% rating. 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.

Contended PEB Conditions. The Board’s main charge is to assess the fairness of the PEB’s determination that the contended not unfitting OSA, hypertension, and fatty liver conditions were 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. No condition was specifically profiled. The commander’s statement noted only that the CI could not be deployed, but did not specify the condition. Neither the hypertension nor fatty liver was judged to fail retention standards, but the OSA condition was. The Board noted that the CI had a good response to the treatment of his OSA, which was CPAP and that individuals with this condition are routinely returned to duty if the treatment is successful. All conditions were reviewed by the action officer and considered by the Board. There was no performance based evidence from the record that any of these conditions significantly interfered with satisfactory duty performance after being placed on treatment. 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 any of the contended conditions 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 surmised from the record or PEB ruling in this case that no prerogatives outside the VASRD were exercised. In the matter of the asthma condition, the Board unanimously recommends a disability rating of 30%, coded 6602 IAW VASRD §4.100. In the matter of the contended OSA, hypertension, and steatohepatitis conditions and IAW VASRD §4.100, §4.114, and §4.115, the Board recommends no change in the PEB adjudication. There were no other conditions within the Board’s scope of review for consideration.


The Board 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:

UNFITTING CONDITION VASRD CODE RATING
Asthma 6602 30%
COMBINED 30%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131124, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record








                                   
XXXXXXXXXXXXXXXXXXXX
President
DoD Physical Disability Board of Review


 SAF/MRB
1500 West Perimeter Road, Suite 3700
Joint Base Andrews, MD 20762
Dear XXXXXXXXXXXXXXXXXXXX :
         Reference your application submitted under the provisions of DoDI 6040.44 (Title 10 U.S.C. § 1554a), PDBR Case Number PD-2013-02603.
         After careful consideration of your application and treatment records, the Physical Disability Board of Review determined that the rating assigned at the time of final disposition of your disability evaluation system processing was not appropriate under the guidelines of the Veterans Affairs Schedule for Rating Disabilities. Accordingly, the Board recommended your separation be re-characterized to reflect disability retirement, rather than separation with severance pay.
         I have carefully reviewed the evidence of record and the recommendation of the Board. I concur with that finding, accept their recommendation and determined that your records should be corrected accordingly. The office responsible for making the correction will inform you when your records have been changed.
         As a result of the aforementioned correction, you are entitled by law to elect coverage under the Survivor Benefit Plan (SBP). Upon receipt of this letter, you must contact the Air Force Personnel Center at (210) 565-2273 to make arrangements to obtain an SBP briefing prior to rendering an election. If a valid election is not received within 30 days from the date of this letter, you will not be enrolled in the SBP program unless at the time of your separation, you were married or had an eligible dependent child, in such a case, failure to render an election will result in automatic enrollment.

                                                               Sincerely,





XXXXXXXXXXXXXXXXXXXX
Director
Air Force Review Boards Agency
Attachment:
Record of Proceedings

cc:
SAF/MRBR
DFAS-IN

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