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AF | PDBR | CY2014 | PD-2014-02668
Original file (PD-2014-02668.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXX       CASE: PD-2014-02668
BRANCH OF SERVICE: Army  BOARD DATE: 20150505
DATE OF PLACEMENT ONTO TDRL: 20040615
DATE OF REMOVAL FROM TDRL: 20070608


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Food Service Specialist) medically separated for asthma. The condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty. She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The “asthma, moderate and persistent” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded one other condition (probable vocal cord dysfunction) for PEB adjudication. The Informal PEB (IPEB) adjudicated “asthma (with possible vocal cord dysfunction)” as unfitting, rated 30%. The remaining condition could not be separately rated due to pyramiding. The CI made no appeals and was placed on Temporary Disability Retired List (TDRL). Approximately 3 years later, the IPEB adjudicated the asthma condition as unfitting, rated 10% with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).


CI CONTENTION: “Please consider all conditions” [sic]


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 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 :

Final PEB – 20070608
 VA Rating Decision - 20040924
TDRL Placement – 20040413
 Code Rating Condition Code Rating
Proximate
Condition
 TDRL
Placement		 TDRL
Removal		 TDRL
Placement
 TDRL Removal
Asthma (with … Vocal Cord Dysfunction) 6602 30% 10% Asthma 6602 30%
Other x 0 (Not in Scope)
 Other x 3
RATING: 30% → 10%
 RATING: 40%
* Derived from VA Rating Decision (VA RD ) dated 200 41203 (most proximate to date of separation ( DOS ) ) . No addit ional VARD available in the record.

ANALYSIS SUMMARY:

Asthma Condition (With Possible Vocal Cord Dysfunction). The narrative summary (NARSUM) in March 2004 (a month prior to TDRL placement) noted the CI had asthma which was moderate and persistent with shortness of breath with exercising. Pulmonary function testing was normal with a positive methacholine challenge. There was probable vocal cord dysfunction clinically, although laryngoscopy (looking at the vocal cords) was normal. The CI was taking daily inhaled anti-inflammatory medications (fluticasone/salmeterol: Advair™ an inhalational steroid/bronchodilator combination) as well as Albuterol (inhaled bronchodilator therapy) on an as needed basis. The MEB physical exam noted a normal chest and lung exam.

At the VA Compensation and Pension (C&P) exam performed 5 months after TDRL placement, the CI reported wheezing and shortness of breath. Her asthma was treated with inhalers and oral medication which she used daily. Pulmonary exam was normal.

The outpatient pulmonary medicine evaluation (acting as the TDRL re-evaluation NARSUM) dated 15 February 2007 (4 months prior to TDRL removal) indicated that the CI had no symptom improvement or worsening since she had moved from Texas, and that she was pregnant at the time of the exam. She had never used Prednisone (systemic steroids), had never been intubated nor had to be hospitalized because of her respiratory symptoms. The CI related feeling like she was “breathing through a filter” and had worse symptoms during exercise and at night. Her medications were Advair one inhalation daily; Albuterol as needed (approximately 2-4 per week); and Singulair™ (montelukast - oral indirect-acting bronchodilator) daily as needed. Pulmonary function testing showed an FEV1% of 77% and was otherwise normal. Pulmonary examination was essentially normal. The impression was that the patient rarely used Albuterol and that increasing Advair to twice a day could improve her symptoms.

The Board directed its attention to its rating recommendation based on the above evidence. Asthma and vocal cord dysfunction are coexisting respiratory conditions and are combined in a single rating IAW VASRD §4.96 (Special provisions regarding evaluation of respiratory conditions). The CI had no evidence of respiratory failure, hospitalizations or at least three courses of high dose corticosteroid treatment for any rating above 30%. Pulmonary function testing did not support any rating above 10%. 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 June 2007 PEB disability description indicated possible non-compliance as a rating factor specifying that the “medication profile shows no asthma medications have been issued since that time (Oct 06 re-evaluation).”

The NARSUM and treatment record all supported that the CI was prescribed Advair for daily use and was using it. Advair in addition to being an inhalational bronchodilator (salmeterol) also contains an inhalational anti-inflammatory medication (fluticasone), and would therefore warrant a 30% rating even if it was not used on a daily basis. 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 at the end of the TDRL period for permanent separation.


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 §4.97 at both TDRL entry and at the end of the TDRL period as a permanent separation rating. 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 re-characterized to reflect permanent disability retirement, effective as of the date of her prior medical separation:

CONDITION
 VASRD CODE RATING
TDRL PERMANENT
Asthma (with … Vocal Cord Dysfunction) 6602 30% 30%
COMBINED
 30% 30%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20140423, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans Affairs Treatment Record









XXXXXXXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXXXXXXX , AR20150014904 (PD201402668)


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                                                  XXXXXXXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary of the Army
                                                      (Review Boards)

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