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AF | PDBR | CY2013 | PD-2013-02765
Original file (PD-2013-02765.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXX  CASE: PD-2013-02765
BRANCH OF SERVICE: Army  BOARD DATE: 20150106
TDRL PLACEMENT: 20041201
SEPARATION DATE: 20060712


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (92A10/Automated Logistical Specialist) medically separated for asthma. The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards. He was issued a permanent P3 profile and referred for a Medical Evaluation Board (MEB). The asthma condition, characterized as “moderate, persistent asthma” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. No other conditions were submitted by the MEB. The Informal PEB (IPEB) adjudicated asthma as unfitting, rated at 30%, and placed the CI on the Temporary Disability Retired List (TDRL). The IPEB met a year later and based on the TDRL examination, determined that the asthma condition had stabilized with the CI no longer requiring medication and was now rated 10%. The CI made no appeals and was medically separated.


CI CONTENTION: “Asthma Moderate Persistent should been greater than 10%. Sleep Apnea that was to be tested for while in service, but was [sic] appoint was cancel so, I could be involuntary extended to go to National Training Center. When I returned I was quickly exited from service. Treatment records from Eisenhower Army Medical Center shows a diagnosis of obstructive sleep apnea in Oct of 2005 and using a breathing machine for sleep apnea. Still I my claim was denied. Even though I was in the one year time frame after discharge. Also headaches connected and in my army medical records I had a couple of episodes of anxiety. Also hypertension at 10%. Rhinitis aggravating factor of the asthma.”


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; no additional conditions are within the DoDI 6040.44 defined purview of the Board. The requested sleep apnea, anxiety, hypertension and rhinitis conditions were not identified by the PEB, and therefore not 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. Any contention related to VA ratings or VA service-connection should be addressed to the VA.


RATING COMPARISON :

Final Service PEB - 20060202
 VA (15 Mo. Prior to Adjudication Date*) - Effective 20041201
On TDRL - 20041130
 Code Rating Condition Code Rating Exam
Condition
 TDRL Sep.
Asthma 6602 30% 10% Exercise Induced Asthma & Chronic Obstructive Pulmonary Disease 6604-6602 30% 20050403
Other x 0 (Not is Scope)
 Other x 1
Combined: 30% → 10%
                 Combined: 40%
Derived from VA Rating Decision (VARD) dated 20060515 ( most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Asthma Condition. The treatment record and narrative summary prior to TDRL entry indicated an onset of exertional shortness of breath (SOB) while the CI was deployed in 2003. He developed wheezing on redeployment and a medical evaluation diagnosed asthma. Pulmonary function tests (PFTs) showed a 15% improvement after bronchodilator therapy, with a negative methacholine challenge test. Chest X-ray was negative and there was no vocal cord dysfunction. He was treated with Albuterol (an inhaled bronchodilator) and Azmacort (an inhaled anti-inflammatory steroid) without resolving his wheezing and exertional SOB. An exercise pulmonary stress test was markedly positive and the pulmonology specialist treated him with daily Intal (inhaled anti-inflammatory), daily Advair 500/50 (inhaled anti-inflammatory steroid and bronchodilator), and as needed Albuterol (inhaler). Despite a 3-month treatment with this regimen, his symptoms continued and interfered with duty performance. MEB exam documented a dry hacking cough, with clear lungs and normal heart. PFTs documented an FEV1 of 89% (normal) and FEV1/FVC of 78% (VA normal is >80%). The CI underwent disability processing and was placed on TDRL at 30% effective 22 September 2004.

At the VA Compensation and Pension exam performed on 3 April 2005; 7 months after TDRL placement and 15 months prior to TDRL removal, the CI reported he was working as a truck driver, with some SOB getting in and out of the truck but no time off work in the past 12 months. He had SOB on any exertion but denied any set asthma attacks since discharge. Medications included Singulair for his sinuses and Advair with Albuterol four times daily for breathing. Physical examination noted coarse breath sounds at the base of the lungs without wheezing. PFTs on 24 March 2005 showed an FEV1 of 91% (normal) after bronchodilators and were interpreted as early obstructive pulmonary impairment. Chest X-ray was read as mild chronic obstructive pulmonary disease (COPD) with a few healed granulomas. The diagnoses were exercised induced asthma and COPD.

TDRL removal exam dated 12 October 2005 (9 months pre-separation) noted the CI had daily asthma mostly on exertion, rarely at rest but about twice per week at night, coughing up clear sputum and wheezing. He had night time SOB and slept upright or with extra pillows. He used a breathing machine (continuous positive airway pressure) to treat sleep apnea nightly. Exam of the chest revealed clear lungs and normal heart. PFTs were interpreted as consistent with mild obstructive lung disease. Medications included Albuterol as needed, Cromolyn (intal) four times daily and before exercise, Advair disk 500mg, 1 inhalation twice daily, and Singulair at night. Advair and Albuterol were last filled on 17 March 2005 per the electronic AutoCites note.

VA exam in July 2008, two years after TDRL exit, documented multiple bursts of oral steroid use and the VA increased their pulmonary rating to 60% effective July 2008.

The Board directed attention to its rating recommendation based on the above evidence. The Board first considered the rating at the time of placement on TDRL. The PFTs were non-compensable; however, the CI was using an inhaled anti-inflammatory medication four times daily which warranted a 30% rating. The Board next considered the rating at the time of removal from the TDRL. The PEB TDRL exit rating was 10%, with the disability description stating: “not requiring daily controller medications per Medication Profile.” The VA rated the asthma at 30% based on medication use. Medication use was the pivotal criteria for rating this case IAW VASRD §4.97, as no PFTs would rate higher than 10%.

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 30% 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. The PEB-referenced medication profile did not account for electronic documentation of inhaled asthma medication noted in the TDRL exam note, and treatment notes and that exam indicated daily use of inhaled anti-inflammatory and inhaled bronchodilator medications. The use of inhalational anti-inflammatory medication and daily inhaled bronchodilator medication supported the 30% rating IAW VASRD 6602 (§4.97).

There was no evidence of systemic steroid use for any higher rating proximate to TDRL removal (the steroid use 2 years after TDRL removal was adjudged post-separation worsening and not indicative of the CI’s disability picture at the time of TDRL removal). 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 (6602) at the time of removal from the TDRL.
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 and IAW VASRD §4.97, the Board unanimously recommends a 30% rating both at entry on the TDRL and permanently at the time of removal from the TDRL. 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
Asthma 6602 30% 30%
COMBINED
 30% 30%



The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131220, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans Affairs Treatment Record








                 
XXXXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXXXX , AR20150007084 (PD201302765)
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 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 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                                                  XXXXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary of the Army
                                                      (Review Boards)
                                                     
CF:
( ) DoD PDBR
( ) DVA

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