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AF | PDBR | CY2013 | PD2013 02351
Original file (PD2013 02351.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX                 CASE: PD1302351
BRANCH OF SERVICE: ARMY          BOARD DATE: 20140612
SEPARATION DATE: 20060629


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (91E/Dental Assistant) medically separated for asthma and anxiety. The conditions 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 L3/S1 and referred for a Medical Evaluation Board (MEB). The asthma and anxiety conditions, characterized as “post-infection pleurodynia with mild asthma/reactive disease” and “generalized anxiety disorder,” both medically unacceptable, were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded five other conditions, all medically acceptable, for PEB adjudication. The PEB adjudicated “asthma, mild, persistent” and “anxiety disorder, NOS (not otherwise specified)” as unfitting, rated 10% and 0% respectively. The remaining conditions were determined to be not unfitting. The CI made no appeals and was medically separated.


CI CONTENTION: “The conditions which rendered me unfit should be changed because of the continued need for treatment and medications. Also the rating should be changed because the conditions that rendered me unfit have increased in severity and effect my daily life.”


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. In addition, the CI was notified by the Army that his case may be eligible for review of the military disability evaluation of his mental health (MH) condition in accordance with Secretary of Defense directive for a comprehensive review of Service members who were referred to a disability evaluation process between 11 September 2001 and 30 April 2012 and whose MH diagnoses were changed or eliminated during that process. The CI is also eligible for PDBR review of other conditions evaluated by the PEB and has elected review by the PDBR. The ratings for the unfitting asthma and anxiety conditions are addressed below and no other conditions meet the criteria prescribed in DoDI 6040.44 for Board purview. In addition, in accordance with Secretary of Defense directive for a comprehensive review of the MH diagnoses that were changed or eliminated during the Disability Evaluation System (DES) process, the applicant’s case file was reviewed regarding diagnosis change or elimination, fitness determination, and rating of any unfitting MH diagnoses in accordance with the VA Schedule for Rating Disabilities (VASRD) §4.129 and §4.130. 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.


RATING COMPARISON :

Service IPEB – Dated 20060522
 VA - (9 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Asthma, Mild, Persistent 6602 10% Bronchial Asthma, Post Pneumonia with Obstructive Sleep Apnea (OSA) 6602-6847 50% 20070319
Anxiety Disorder, NOS 9413 0% Anxiety Disorder, NOS 9413 30% 20070329
No Other Items In Scope
 Other x 6 20070319
Combined: 10%
 Combined: 70%
Derived from VA Rating Decision (VA RD ) dated 200 80110 (most proximate to date of separation [ DOS ] ).


ANALYSIS SUMMARY: The Board acknowledges the CI's information regarding the significant impairment with which his service-connected condition continues to burden him; but, must
emphasize that the DES 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, operating under a different set of laws.
Asthma Condition. Available treatment records document that the CI was treated in winter 2004 for a “regular cold with cough and mucous”, as well as pleuritic (lung) chest pain. A chest X-ray in February 2004 revealed an infiltrate (fluid) in the left lung. Bronchopneumonia was diagnosed and he was treated with a course of antibiotics. He improved, but later developed wheezing and shortness of breath at rest and on exertion, associated with mid-thoracic (mid-back) and pleuritic (lung) back pain. In May 2004, asthma was diagnosed and he began treatment with Advair (combination of inhaled corticosteroid and bronchodilator) and Atrovent (bronchodilator). Pulmonary (asthma) symptoms persisted and resulted in multiple emergency room visits requiring nebulizer treatments, but no hospitalizations. Magnetic resonance imaging (MRI) of the thoracic and cervical spine and a cardiac workup (including stress test and echocardiogram) did not identify the source of the chest and back pain. The pulmonary workup, MRI and computed tomography (CT) studies were negative for lung disease. Despite therapy, the chest pain persisted. On 1 September 2005, a pulmonary consultation for management of symptoms occurred at Johns Hopkins. Pulmonary function studies were abnormal, showing mild obstruction consistent with asthma. Blood studies to evaluate him for autoimmune diseases were negative. His medications were adjusted to include an increased dosage of Advair to 500/50mcg, Aciphex was started for potential gastroesophageal reflux (GERD), Flonase for possible postnasal drip and continuation of non-steroidal anti-inflammatory drugs for chest pain. On this new regimen, the cough improved, but the chest pain persisted. The diagnoses rendered were mild asthma and pleurodynia (chest pain) that was likely post-infectious. Pulmonary functions tests were performed at Walter Reed Army Medical Center on 11 January 2006 and were consistent with vocal cord dysfunction (VCD) rather than asthma. Subsequent testing for VCD was normal. The diagnosis of asthma was continued and a diagnosis of costochondritis (inflammation of the small muscles of the chest wall) was rendered for the chest pain.

During the narrative summary (NARSUM) dated 2 March 2006, the CI reported difficulty breathing with mid and upper back pleuritic pain. Medications included Advair 500/50mg twice daily, Albuterol (steroid) inhaler as needed, Singulair (antiinflammatory) 10mg daily and Flonase (steroid nasal spray) 50 mcg twice daily. The NARSUM also noted that CI had several pain syndromes and symptoms affecting chest, lower back, wrist and extremities ranking between 4 to 9 on a scale of 1 to 10 in severity. The pain syndromes and symptoms were present most of the time and exacerbated by exertion or emotional distress. The examiner noted that the CI had mild sleep apnea diagnosed in 2005, but untreated. The physical examination, including the lungs, was normal. The examiner rendered a diagnosis of post-infectious pleurodynia (chest pain) with mild asthma/reactive airway disease. The MEB forwarded this diagnosis to the PEB as medically unacceptable. On 22 May 2006, the PEB determined that mild asthma, coded 6602, was unfitting. The PEB determined that the CI had not been fully compliant with prescribed medications based on a review of pharmacy records and rated the asthma condition at 10%.

At the VA Compensation and Pension (C&P) examination dated 19 March 2007, 9 months after separation, the CI reported persisting pain in his upper back since a bout of pneumonia in March 2004. He described a dull pain which worsened with movement or deep inspiration. Treatment consisted of albuterol inhaler averaging two puffs every 6 hours daily. Asthma did not limit or restrict his physical activity. He did calisthenics and weight lifting daily, which affected his back pain, but not his asthma. There was no cough or sputum production. Physical examination was within normal limits. The diagnosis was mild asthma was rendered.

The Board directs attention to its rating recommendation based on the above evidence. The PEB adjudicated the mild, persisting asthma as unfitting with a service disability rating of 10%, coded 6602. The VA rated the bronchial asthma, post pneumonia with OSA condition 50%, coded 6602-6847, denoting coexisting respiratory conditions and IAW VASRD§ 4.7, higher of two evaluations. The Board considered whether criteria for a higher than 10% rating criteria had been met. The NARSUM documented that CI received daily bronchodilator and inhalation therapy, meeting criteria for a 30% disability 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.

Mental Health Review. Service treatment records (STRs) noted that CI was referred for psychiatric evaluation for depression on 15 December 2004. The C&P examination noted there was a question of treatment for generalized anxiety disorder (GAD). The CI reported a psychologist treated him for GAD in July 2004 and from September 2004-February 2006 via telemedicine, one to two times per month from Walter Reed. He was prescribed Zoloft with good response. One STR noted that the CI appeared in clinic on 27 July 2005 with complaints of chest pain and previous visits to the emergency department (ED). Clinic examiner opined CI likely had anxiety related chest pain and transferred him to the ED to rule out a cardiac problem. However; there were no STRs that documented MH treatment. CI received a P3 profile that for respiratory syndrome with pleuritic chest pain and chronic back pain; and an S1 for chronic anxiety.

A clinical psychologist under the supervision of the Chief of Telepsychiatry provided a psychiatric evaluation in the form of a memo for his MEB on 17 March 2006. The memo noted he was evaluated 30 November 2005 and 5 March 2006 and documented that his mood was mild to moderately anxious, a restricted affective range, hypervigilance and focus on his multiple somatic complaints. The diagnosis was GAD. Examiners noted he had initially objected to evaluation through Telemedicine (statements that if the Army cared about him they would not treat him through this modality). Outpatient MH care was recommended, but he declined face-to-face treatment. Examiners noted that he had a treatable condition, but that it was not possible to determine whether he met retention standards because he had not been compliant with treatment recommendations (AR 40-501). The examiner opined that he was competent in management of financial affairs and to participate in Board proceedings. A second psychiatry memo dated 6 April 2006, documented the proposed treatment plan which included cognitive behavior therapy, biofeedback and relaxation response training. The examiner opined that upon completion of the treatment plan, the CI, from a psychiatric perspective “would be able to perform all assigned duties.” The examiners opined that the CI’s refusal of treatment was not reasonable, that there were no risks associated with the treatments and that the refusal was based on “cognitive distortions which only serve to increase and explain his anxiety.” The MEB forwarded GAD, medically indeterminate, to the PEB. The PEB adjudicated anxiety disorder, NOS associated with occasional panic attacks as unfitting, noted that he had repeatedly declined treatment by MH providers and assigned a disability rating of 0%, coded 9413. At the VA C&P general medical examination on 19 March 2007, 9 months after separation, CI denied any psychiatric problems. However, during the C&P examination for mental disorders on 29 March 2007, CI reported his anxiety problems were “largely gone,” that he was not having “too many significant symptoms,” but while in the service he had three to four panic attacks per week. The CI reported he was in full remission, but later endorsed feeling stressed, on edge, restless and “having a racing mind” with the inability to relax and having to do something. He was a stay at home parent caring for his one and two year old children. He had not worked outside of the home since discharge from the service, but planned to take the examination to work at the United States Postal Service. The CI reported social contact with family members. The MSE was essentially normal. The diagnosis of anxiety disorder, NOS with stressors of transition from military to civilian life and caring for two children was rendered. A Global Assessment of Functioning (GAF) score of 60 (moderate) was assessed. The examiner noted that the CI was functioning reasonably well and symptoms were in the moderate range. The VARD assigned a rating of 30% for some difficulty with short and long term memory and a GAF of 60, denoting moderate symptoms.

The Board reviewed the records for evidence of inappropriate changes in diagnosis of the MH condition during processing through the military DES. The evidence of the available records shows that prior to and at the time of processing through the DES the MEB examiner diagnosed GAD and the C&P examiner diagnosed anxiety disorder, NOS. GAD and anxiety disorder can be equal in severity and functional impact, therefore; no MH diagnoses were changed to the CI’s possible disadvantage. The CI did not appear to meet the inclusion criteria in the Terms of Reference of the MH Review Project.

The Board agreed that the preponderance of evidence supported the PEB adjudication of unfitting GAD. The Board considered whether criteria for a higher than 0% rating had been met. A rating of 10% would require occupational and social impairment due to mild or transient symptoms during periods of significant stress or symptoms controlled by continuous medication. During the DES processing, CI himself denied psychiatric symptoms, refused treatment for anxiety and indicated he had no significant symptoms. At the time of separation, there was no evidence psychotropic medication use and he declined talk therapy. The CI had a good relationship with his wife and was a “house dad,” taking care of his two small children. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the anxiety disorder, NOS condition. The Board concluded therefore that this condition could not be recommended for additional disability rating.


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 condition, the Board unanimously recommends a disability rating of 30%, coded 6602 IAW VASRD §4.100. In the matter of the MH review, the Board unanimously agrees no mental health diagnoses were changed to the CI’s possible disadvantage, anxiety disorder, NOS rose to the level of unfitting, but could not be recommended for an additional disability rating.


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
Asthma Condition 6602 30%
Anxiety NOS Condition 9413 0%
COMBINED
 30%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131001, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record








                                   
XXXXXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXXXXX , AR20140016137 (PD201302351)


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                                                  XXXXXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary
                                                      (Army Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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