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AF | PDBR | CY2013 | PD-2013-02803
Original file (PD-2013-02803.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXX       CASE: PD-2013-02803
BRANCH OF SERVICE: Army  BOARD DATE: 20150429
SEPARATION DATE: 20050904


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Avenger Crewmember) medically separated for chronic obstructive pulmonary disease (COPD) with associated vocal cord dysfunction (VCD). The COPD with VCD condition could not be adequately rehabilitated 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 obstructive pulmonary disease” and “vocal cord dysfunction,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded two other conditions (perennial allergic rhinoconjunctivits and tobacco abuse) for PEB adjudication. The Informal PEB (IPEB) adjudicated “COPD with associated vocal cord dysfunction” as unfitting, rated 10%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The perennial allergic rhinoconjunctivits was determined to be not unfitting and the tobacco abuse was determined not to constitute a physical disability. The CI appealed the IPEB decision, but elected not to convene a Formal PEB. The US Army Physical Disability Agency upheld the IPEB decision and during the process issued an Administrative Correction PEB changing the CI’s promotion and severance pay information however, no rating changes were made and the CI was medically separated.


CI CONTENTION: “Conditions are worse than rated.”


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 :

Admin Corr PEB – Dated 20050606
 VA* - (~10 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
COPD with Associated Vocal Cord Dysfunction 6604 10% COPD with Restrictive Lung Disease 6604 30% 20060714
Vocal Cord Dysfunction 6516 NSC 20060714
Perennial Allergic Rhinoconjunctivits Not Unfitting No VA Placement
Tobacco Abuse Does Not Constitute a Physical Disability
Other x0
 Other x7
RATING: 10%
 RATING: 50%
* Derived from VA Rating Decision (VA RD ) dated 200 61122 (most proximate to date of separation [ DOS ] )


ANALYSIS SUMMARY: IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations. The Board reviews medical records and other available evidence to assess the fairness of PEB rating determinations, using the VASRD standards, based on ratable severity at the time of separation; and, to review those fitness determinations within its scope (as elaborated above) consistent with performance-based criteria in evidence at separation.

The PEB combined the COPD and VCD conditions under a single disability rating and coded both conditions under VASRD code 6604 (Chronic obstructive pulmonary disease). IAW DoDI 6040.44, the Board must consider separate ratings for separately compensable conditions provided that each “unbundled” condition can be reasonably justified as separately unfitting in order to remain eligible for rating. If the members judge that separately ratable conditions are justified by performance based fitness criteria and indicated IAW VASRD §4.7 (higher of two evaluations), separate ratings are recommended; with the stipulation that the result may not be lower than the overall combined rating from the PEB. The Board first considered if VCD, having been de-coupled from the combined PEB adjudication, remained itself “reasonably justified” as separately unfitting. Although the VCD was separately profiled and forwarded by the MEB as medically unacceptable; Board members agreed that, after review of the evidence, there was a questionable basis for arguing that it was separately unfitting. The well-established principle for fitness determinations is that they are performance-based. The Board could not find evidence in the service treatment records that documented any significant interference of VCD with the performance of duties at the time of separation, nor were any physical findings documented by the MEB or VA examiners which would logically be associated with significant disability. It should also be noted that there is insufficient evidence in support of a compensable rating for the vocal cord dysfunction, even if were conceded as separately unfitting. After due deliberation, members agreed that the evidence does not support a conclusion that the functional impairment from vocal cord dysfunction was integral to the CI’s inability to perform his MOS; and, accordingly cannot recommend a separate rating for it.

COPD with Vocal Cord Dysfunction. The CI began complaining of dyspnea (shortness of breath [SOB]) on exertion in August 2001 when he noticed that running in cold temperatures elicited significant SOB. Significantly, an aircraft he was flying on had to return to the airport because the CI became SOB due to air blowing on his face. A cardiac evaluation was performed that included a Holter monitor, exercise stress test, and echocardiogram all of which were normal. He was treated for asthma symptoms which did not decrease the symptoms. The CI did have pulmonary function tests (PFTs) performed in February 2003 that were consistent with mild obstruction and did not improve with bronchodilator. The CI also related that he awoke from sleep extremely dyspenic, feels as if smothering, throat closes off. He stated that often times he was afraid to fall asleep, concerned that he might stop breathing. A sleep study was performed with normal results. Multiple plain film chest X-rays were normal and he was treated with inhaled bronchodilators without much relief. He was evaluated for asthma with a Methacholine Challenge test in November 2003 that was negative. The narrative summary (NARSUM) prepared approximately 10 months prior to separation noted multiple emergency room visits and days lost from work due to his breathing problems. He was unable to successfully perform the 2-mile Army Physical Fitness Test run in-the time required for his age and was unable to-wear a chemical mask without triggering SOB. He continued to smoke cigarettes, but was in the process of attempting to quit. His medications included inhaled bronchodilators and anti-inflammatory medications. His physical exam was significant for a thin, white male, speaking in full sentences without audible wheezes or evidence of air hunger. There was a nasal quality to his voice. There was no stridor over the anterior neck and his lungs were clear to auscultation bilaterally with good air movement. The NARSUM documented a chest CT scan performed on 30 July 2004 revealed “bullous changes consistent with COPD” (the primary document was not available for review by the Board) and that the alpha-1 anti-trypsin test was normal. A summary of the various PFTs documented in the evidence is summarized in a chart below. The NARSUM examiner diagnosed COPD and made the following statement, “This condition is likely a result of SPC Figueroa's long standing history of tobacco use. This· condition, in addition with vocal cord dysfunction, is preventing SPC Figueroa from performing physical activities at a level required for his MOS.” At the VA Compensation and Pension (C&P) exam performed 10 months after separation, the CI reported an acute pneumothorax after getting into and airplane needing acute medical intervention. He was diagnosed with COPD during that hospitalization. He stated he did not have any asthma attacks. He stated he had suffered from respiratory failure requiring respiration assistance from a machine one time in 1999. For his respiratory condition, he required daily inhalation of anti-inflammatory and bronchodilator medications. Physical exam of the lungs revealed diminished air movement in the bases. Plain film X-ray showed hyper-inflated lungs with flattening of diaphragms (evidence of COPD). The C&P exam contained the following statement, “A DLCO [diffusion capacity sic] was not done as the PFT results were sufficient to evaluate the pulmonary status of the claimant.”

There were three PFT evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the following chart:

Pulmonary Exam
 NARSUM ~ 10 Mo. Pre-Sep
PFTs from 20040729 (~13 mo. Pre-Sep)		 PFTs ~6 Mo. Pre-Sep. VA ~ 10 Mo. Post-Sep
FEV1 (% Predicted)
 85 % 98 70%
FEV1/FVC
 7 3 % 94 77
Meds/Comments
 DLCO 70%; Post bronchodilator Post-bronchodilator -
§ 4.97 Rating
 10% (PEB 10%) 0% 30%

The Board directed attention to its rating recommendation based on the above evidence. The PEB adjudicated the COPD with VCD condition by applying VASRD code 6604 and rated it 10%. The VA also applied code 6604 and rated the CODP condition at 30%. The VA did not grant service-connection for the VCD condition citing, “…because the medical evidence of record fails to show that this disability has been clinically diagnosed.” The Board notes that IAW VASRD §4.97, the ratings for COPD are based on PFT results, DLCO values and possible sequela of severe COPD, no consideration of medication use is given. The CI’s comprehensive cardiovascular evaluation was essentially normal with no evidence of any sequel due to COPD. No PFT data proximate to separation meets the 10% rating under code 66604; however, the prior to separation DLCO value is consistent with the 10% rating as applied by the PEB. The FEV-1 VA data obtained 10 months after separation was consistent with the 30% rating as applied by the VA. The Board noted that COPD is a progressive condition that is expected to worsen over time; therefore, after separation worsening of the COPD likely occurred. Considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), Board members agreed that the disability rating of 10% for the COPD condition was appropriately recommended in this case.

Contended Perennial Allergic Rhinoconjunctivits and Tobacco Abuse Conditions. The Board’s main charge is to assess the fairness of the PEB’s determination that perennial allergic rhinoconjunctivits and tobacco abuse conditions were not unfitting. The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard. The perennial allergic rhinoconjunctivits was not profiled or implicated in the commander’s statement and was not judged to fail retention standards. All service treatment record entries were reviewed and considered by the Board. There was no performance based evidence from the record that this condition significantly interfered with satisfactory duty performance. Regarding the tobacco abuse condition, according to DOD and VA guidelines, tobacco abuse does not constitute a physical disability. 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 perennial allergic rhinoconjunctivits and tobacco abuse 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 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 COPD condition and IAW VASRD §4.97, the Board unanimously recommends no change in the PEB adjudication. In the matter of the contended perennial allergic rhinoconjunctivits and tobacco abuse conditions, 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 there be no re-characterization of the CI’s disability and separation determination.


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131219, 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 XXXXXXXXXXXXXXXXXXXX , AR20150012816 (PD201302803)

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

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