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AF | PDBR | CY2014 | PD-2014-02832
Original file (PD-2014-02832.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX    CASE: PD-2014-02832
BRANCH OF SERVICE: Army          BOARD DATE: 20150408
DATE OF PLACEMENT ONTO TDRL: 20020511
DATE OF REMOVAL FROM TDRL: 20040811


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Infantryman) medically separated for asthma. The 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). “Moderate persistent asthma” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. No other condition was submitted by the MEB. The Informal PEB adjudicated the asthma as unfitting, rated 30%, c iting application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The CI made no appeals and was placed on the Temporary Disability Retired List (TDRL). Approximately two years later, the IPEB adjudicated the asthma condition as unfitting, rated 10%, citing application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The CI made no appeals and was medically separated.


CI CONTENTION: “Condition worsened i.e. asthma, knee”


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 :

Final PEB – 20040706
 VA Rating Decision1 - 20030121
TDRL Placement – 20020511
 Code Rating Condition Code Rating
Proximate
Condition
 TDRL
Placement		 TDRL Removal TDRL2
Placement
 TDRL3 Removal
Asthma 6602 30% 10% Asthma 6602 10% 10%
Other x 0 (Not in Scope)
 Other x 8
RATING: 30% → 10%
 RATING: 30%
1. Most proximate to TDRL Placement
2. Rating derived from Service Treatment Records (STR)
3. Rating derived from STR


ANALYSIS SUMMARY:

Asthma. The first record in evidence for the asthma condition is a note dated 16 October 2001 which noted that the CI had been sent home from the National Training Center for poorly controlled asthma. Review of the records showed that he had been a smoker for the prior 10 years and that his father had asthma as well. He was placed on multiple daily medications including oral steroids (while in the field, but it is not clear from the record when this was) and inhaled steroids. Pulmonary functions showed a mild restrictive defect and are charted below. He was entered into the MEB process for moderate, persistent asthma. The TDRL placement narrative summary (NARSUM) was dated 1 March 2002. The CI reported symptoms dating back to 1999 and that he had gained 50 pounds on the oral steroids. Medications included daily inhaled bronchodilators and anti-inflammatory agents. He reported that he was on a steroid burst and had been on multiple bursts the prior year. However, a review of the medication profile documents only one “burst” of oral steroid treatment which began on 26 February 2002, a week earlier. On examination, he was noted to be obese with mild expiratory wheezing. Pulmonary function tests (PFTs) are below. At the VA Compensation and Pension (C&P) examination performed on 17 December 2002, 7 months after TDRL placement, the CI reported that he had been given antibiotics for an upper respiratory infection two months earlier with improvement in symptoms. He was on daily inhaled bronchodilators and anti-inflammatory agents. On examination, he was obese and the lungs were clear, but with a prolonged expiratory phase, consistent with asthma. Following TDRL placement, he was treated in the VA outpatient clinic with a nebulizer on 9 October 2002 and then at a local emergency room on 10 December 2003. An outpatient note on 23 February 2004 recorded continued use of a daily inhaled bronchodilator and anti-inflammatory agent. The TDRL removal NARSUM was dated 23 February 2004. The CI reported that he was doing well on his regimen of daily medications and that he had gone to an emergency room 2 months earlier with an exacerbation. His medications were changed, but continued daily bronchodilator and anti-inflammatory treatment was recommended. His lungs were clear. No PFTs are available proximate to TDRL removal; both attempts were invalid. A medication profile a month later showed refills of the daily asthma medications. The TDRL removal PEB was dated 6 July 2004. It noted that the PFTs were invalid due to poor effort and that the CI was on intermittent bronchodilator therapy. The CI did not dispute these findings. A VA C&P examination in 2014 noted that the CI was still smoking until a year earlier, 2013, and had for 12 years.






Pulmonary Exam
PT ~ 3 Mo. Pre- TDRL Placement
MEB ~ 03 Mo. Pre-TDRL Removal
MEB ~ 6 Wks Pre-TDRL Removal
FEV1 (% Predicted) 83% 49% 29%
FEV1/FVC 85% 83% 81%
Meds Daily Cough. Invalid test. Poor effort. Test invalid
§4.97 Rating 30 % (For medications) --- ---
invalid font number 31502

The Board directed its attention to its rating recommendation based on the above evidence. The Board first considered the rating for TDRL placement. The PEB and VA both used the code 6602 (asthma) and rated the condition at 30% and 10%, respectively. The record shows that the CI was on daily medications. This supports a 30% rating. The criteria for a higher 60% rating were not met for PFTs, use of oral steroids, or frequency of appointments for the asthma. The Board then considered the rating at TDRL removal. The PEB rated the CI at 10% retaining the 6602 code. The VA did not change the 10% initial adjudication until 8 years after TDRL removal. Review of the TDRL removal NARSUM shows that the CI was on daily medications and remained on them at time of this evaluation with refills a month later; these were, though, 6 and 5 months prior to TDRL removal. It is not clear from the record what evidence was used by the PEB for its comment that the CI used inhalational bronchodilators intermittently. The CI did not dispute this though. After due deliberation in consideration of the preponderance of the evidence and IAW VASRD §4.3 (benefit of the doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the asthma condition at TDRL placement, but the Board recommends a disability rating of 30% for the asthma condition at TDRL removal.


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 no change in the PEB adjudication at TDRL placement and a disability rating of 30%, coded 6602 at TDRL removal IAW VASRD §4.100. 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 his prior medical separation:

CONDITION VASRD CODE RATING
PERMANENT
Asthma 6602 30%
RATING 30%







The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20140609, 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 XXXXXXXXXXXXXXX, AR20150009530 (PD201402832)


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

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