IN THE CASE OF: BOARD DATE: 3 December 2015 DOCKET NUMBER: AR20140017378 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests correction of his DA Form 199 (Physical Evaluation Board (PEB) Proceedings) to show: * his diagnosis of post-traumatic stress disorder (PTSD) was found to be unfitting and combat-related * his diagnoses of asthma and a lung condition were found to be combat-related and incurred in the line of duty during a time of war 2. The applicant states, in effect, that the PEB committed an error and injustice regarding his PTSD and asthma conditions. The PEB considered out of date information that should not have been considered and failed to consider evidence of a more recent nature, which would have resulted in a finding of unfit for duty for PTSD and a determination that his PTSD was combat-related, and a finding that his asthma condition was also combat-related and incurred during a period of war. 3. The applicant defers to counsel regarding supporting documents submitted with his application. COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 1. Counsel requests that the applicant’s PEB Proceedings be corrected to show: * the applicant's diagnosis of PTSD was found to be unfitting and combat-related * the applicant's diagnosis of asthma and a lung condition was found to be combat-related and incurred in the line of duty during a time of war 2. Counsel states, in effect, that: a. The PEB committed two errors that resulted in an injustice to the applicant; they did not review current information and they made a determination that the applicant’s PTSD was not unfitting and his asthma diagnosis was not a combat-related injury. b. The PEB relied on an inaccurate and outdated commander’s statement to evaluate the applicant’s fitness for duty. Additionally, the PEB ignored the Medical Evaluation Board (MEB) findings that either his asthma or PTSD conditions were debilitating enough to fail retention standards and that both conditions were combat-incurred. 3. Counsel provides a two-page index of documents submitted with the application. CONSIDERATION OF EVIDENCE: 1. The applicant was serving in the rank/grade of sergeant/E-5 in the Minnesota Army National Guard (MNARNG), in military occupational specialty 44B (Metal Worker), when he was ordered to active duty on 21 September 2005 in support of Operation Iraqi Freedom. 2. The applicant deployed to Iraq during the period 27 March 2006 – 2 July 2007 and was released from active duty on 29 August 2007. He was promoted to the rank/grade of staff sergeant/E-6 on 20 August 2009. 3. He filed a claim for disability with the Department of Veterans Affairs (VA) on 10 February 2012, under the Integrated Disability Evaluation System (IDES), and was subsequently awarded a 70 percent (%) service-connected disability rating by the VA for PTSD and asthma. 4. An MEB convened at the Eisenhower Army Medical Center on 5 September 2012, determined his conditions of PTSD and asthma failed to meet the retention standards of Army Regulation 40-501 (Standards of Military Fitness), and recommended his referral to a PEB. The applicant agreed with the findings and recommendation of the MEB and the proceedings were approved. 5. An informal PEB was conducted at Fort Sam Houston, Texas on 8 January 2013, which found: a. His condition of PTSD was not unfitting because there was no evidence available to indicate his condition had an adverse effect on his duty performance and his evaluation reports consistently indicated that he received excellent ratings in competence, leadership, and responsibility. b. His condition of asthma was unfitting; therefore, he was assigned a 30% service-connected disability rating. His commander previously indicated this condition had no impact on his duty performance and recommended his retention. The PEB found that this condition did not result from a combat-related injury under the provisions of Title 26, U.S. Code, section 104, or Title 10, U.S. Code, section 10216. The proceedings indicate the recommendations were determined by the PEB based on the VA disability rating proposed, applicable statutes, and regulations for the Physical Disability Evaluation System (PDES). 6. The applicant concurred with the findings and recommendations of the PEB and waived a formal hearing of his case. He also indicated that he did not request reconsideration of his VA ratings. 7. The applicant was retired on 13 March 2013, by reason of permanent disability with a 30% disability rating. 8. A review of the applicant’s Noncommissioned Officer (NCO) Evaluation Reports (NCOER) shows he received maximum evaluations ("Success" or higher ratings) up until the time he was retired by reason of permanent disability. 9. The third-party statements provided with his application all appear to have been authored subsequent to his PEB. 10. The U.S. Army Physical Disability Agency (USAPDA) Legal Advisor provided the following advisory opinion on 8 September 2015: a. The applicant requests his military records be corrected to show his PTSD was unfitting at the time of his permanent disability retirement from the military for asthma, and that his disability retirement be found to have been combat-related. b. The applicant's MEB listed his PTSD as not meeting medical retention standards in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 3. The MEB case file noted the applicant's complaints of various symptoms he related were caused by his PTSD and his physical profile restricted some aspects of military training and restricted his future deployability based on those symptoms. However, the applicant's commander at that time indicated he did not observe any adverse effects on the applicant's ability to perform his assigned military duties and he recommended that he be retained in the military. All of the applicant's NCOERs indicated exceptional duty performance and future potential. c. The applicant's subsequent commander (January 2012 through March 2013) indicated the applicant was a good Soldier and performed his duties well. However, he indicated that he observed several instances of what may have been behavioral health related difficulties during periods of military duty and opined that he would not have recommended the applicant's future retention. d. The applicant's respiratory condition is claimed to have been the result of "extremely harsh and toxic environmental conditions" and the daily environmental and industrial conditions he had to endure while deployed. Environmental conditions (dust storms and local air or land pollution) are not a direct result of armed combat, nor are they properly classified as instrumentalities of war. Those environmental factors are not designed or used by the military nor are they different than what individuals may experience in many parts of the world; to include the United States. The fact that some may hypothesize that burn pits may have been the cause of the applicant's respiratory condition is simply conjecture on their part and there is no factual data or research to document such a relationship. Nor is it possible to determine what trash may have been burning at the time and whether it would be considered an instrumentality of war. The fumes associated with his work of recovering military vehicles is no different from fumes encountered in many other similar industrial activities in the United States and it cannot be considered a "special danger associated with armed combat" or that the "use or occurrence differs from the use or occurrence under similar circumstance in civilian pursuits" (see Army Regulation 635-40, para 4- 19. J & K, and definition of instrumentality of war). Simply because some of these environmental conditions may have been experienced in a combat zone does not rendered any possible results from said conditions to be automatically considered a combat-related injury. The subsequent line of duty determination by the ARNG only establishes whether a condition is service-related and potentially compensable if the condition becomes unfitting; it does not establish whether it is combat-related or not, which is within the sole province of the PEB. Further, all diseases incurred while on active duty orders for more than 30 days are presumed in line of duty and such designation has no bearing on how the disease was caused. For the PEB to find that a condition is combat-related the PEB must find, by a preponderance of the evidence, that the clear facts of the case support such a finding. In the present case, it was proper for the PEB to find that the evidence in the case file did not support such a finding. The applicant's assertion that one of the many different types of environmental factors may have caused his disease supports the PEB's findings that there is no clear preponderance of the evidence to support a specific cause. There is no clear error or injustice in regard to this finding by the PEB. e. Although the PEB did have some foundation for their findings regarding PTSD being found fit for duty, the medical evidence would seem to support the condition as unfitting, based upon duty restrictions and potential difficulties and requirements to protect the applicant from further stressful events. Accordingly, it is recommend that the applicant's military records be corrected to reflect that he was found unfit for his PTSD and rated in accordance with the VA's IDES rating of 50% that was provided at the time of his PEB processing. Combined with the applicant's previous rating of 30%, it would equal 65% which would round off to 70%, permanent disability retirement. The PTSD should be determined to be a direct result of armed combat. 11. The applicant was provided a copy of the advisory opinion on 9 September 2015, in order to allow him the opportunity to submit comments or a rebuttal; however, he did not respond. 12. Army Regulation 635-40 establishes the PDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. It provides for the convening of MEBs to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501, chapter 3. Disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted when they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. This regulation also provides the following: a. Paragraph 3-1 provides that the mere presence of impairment does not of itself justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated. b. Paragraph 3-2b(2) states that when a member is being processed for separation for reasons other than physical disability (e.g., retirement, resignation, reduction in force, relief from active duty, administrative separation, discharge, etc.), his continued performance of duty creates a presumption that the member is fit for duty. Except for a member who was previously found unfit and retained in a limited assignment duty status in accordance with chapter 6 of this regulation, such a member should not be referred to the PDES unless his or her physical defects raise substantial doubt that he or she is fit to continue to perform the duties of his or her office, grade, rank, or rating. c. Paragraph 3-2b(2)(a) and 3-2b(2)(b) state that when a member is being processed for separation for reasons other than physical disability, the presumption of fitness may be overcome if the evidence establishes that the member, in fact, was physically unable to adequately perform the duties of his or her office, grade, rank, or rating even though he or she was improperly retained in that office, grade, rank, or rating for a period of time and/or acute, grave illness or injury or other deterioration of physical condition that occurred immediately prior to or coincidentally with the member's separation for reasons other than physical disability rendered him or her unfit for further duty. d. Paragraph 3-5 states the percentage assigned to a medical defect or condition is the disability rating. A rating is not assigned until the PEB determines the Soldier is physically unfit for duty. Ratings are assigned from the VA Schedule for Rating Disabilities (VASRD). The fact that a Soldier has a condition listed in the VASRD does not equate to a finding of physical unfitness. An unfitting, or ratable condition, is one which renders the Soldier unable to perform the duties of their office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of their employment on active duty. 13. Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. Chapter 3 gives the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for the individual in paragraph 3-2, below. These medical conditions and physical defects, individually or in combination: * significantly limit or interfere with the Soldier's performance of duties * may compromise or aggravate the Soldier's health or well-being if the Soldier remains in the military; this may involve dependence on certain medications, appliances, severe dietary restrictions, frequent special treatments, or a requirement for frequent clinical monitoring * may compromise the health or well-being of other Soldiers * may prejudice the best interests of the government if the individuals were to remain in the military service 14. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish an error or injustice on the part of the Army. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have authority or responsibility for determining physical fitness for military service. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties. Unlike the Army the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 15. There is a difference between the VA and the Army disability systems. The Army’s determination of a Soldier’s physical fitness or unfitness is a factual finding based upon the individual’s ability to perform the duties of his or her grade, rank or rating. If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature. The Army system requires that the Soldier only be rated as the condition(s) exist(s) at the time of the PEB hearing. The VA may find a Soldier unfit by reason of service-connected disability and may even initially assign a higher rating. The VA’s ratings are based upon an individual’s ability to gain employment as a civilian and may fluctuate within a period of time depending on the changes in the disability. 16. Title 26, U.S. Code (the Internal Revenue Code), section 104 states, in pertinent part, that for purposes of this subsection, the term “combat-related injury” means personal injury or sickness which is incurred as a direct result of armed conflict, while engaged in extra hazardous service, or under conditions simulating war; or which is caused by an instrumentality of war. DISCUSSION AND CONCLUSIONS: 1. The applicant and his counsel request correction of the applicant's PEB proceedings to show: * his diagnosis of PTSD was found to be unfitting and combat-related * his diagnoses of asthma and a lung condition were found to be combat-related and incurred in the line of duty during a time of war 2. The applicant’s medical conditions were evaluated by a PEB on 8 January 2013. His PTSD was not deemed to be unfitting at the time the PEB convened, based on a review of his official records and evaluations that indicated he was successfully performing his duties at the time. He was afforded the opportunity to appeal the PEB decision and elected not to do so. 3. Although the PEB did have some foundation for their fit for duty findings vis-à-vis the applicant's PTSD, the medical evidence seems to support the condition as unfitting, based upon duty restrictions and potential difficulties and requirements to protect the applicant from further stressful events. 4. Accordingly, the USAPDA Legal Advisor recommended that the applicant's records be corrected to show his PTSD condition was found unfitting and rated in accordance with the VA's IDES rating of 50% that was provided at the time of his PEB processing. Combined with the applicant's previous rating of 30%, it would equal 65%, which would round off to a 70% permanent disability retirement. The PTSD should be determined to be a direct result of armed combat (combat-related). 5. The applicant and counsel contend the applicant's asthma should have been determined to be combat-related and incurred in the line of duty during a time of war. The PEB found the applicant's asthma to be unfitting; therefore, he was assigned a 30% service-connected disability rating for this medical condition. However, his commander previously indicated this condition had no impact on his duty performance and recommended his retention and the PEB subsequently found that this condition did not result from a combat-related injury under the provisions of Title 26, U.S. Code, section 104, or Title 10, U.S. Code, section 10216. 6. His respiratory condition is claimed to have been the result of "extremely harsh and toxic environmental conditions" and the daily environmental and industrial conditions he had to endure while deployed. Environmental conditions (dust storms and local air or land pollution) are not a direct result of armed combat, nor are they properly classified as instrumentalities of war. Those environmental factors are not designed or used by the military nor are they different than what individuals may experience in many parts of the world; to include the United States. 7. The fact that some may hypothesize that burn pits may have been the cause of the applicant's respiratory condition is simply conjecture on their part and there is no factual data or research to document such a relationship. Nor is it possible to determine what trash may have been burning at the time and whether it would be considered an instrumentality of war. The fumes associated with his work of recovering military vehicles is no different from fumes encountered in many other similar industrial activities in the United States and it cannot be considered a "special danger associated with armed combat" or that the "use or occurrence differs from the use or occurrence under similar circumstance in civilian pursuits." 8. Simply because some of these environmental conditions may have been experienced in a combat zone does not rendered any possible results from said conditions to be automatically considered a combat-related injury. 9. The subsequent line of duty determination by the ARNG only establishes whether a condition is service-related and potentially compensable if the condition becomes unfitting; it does not establish whether it is combat-related or not, which is within the sole province of the PEB. 10. All diseases incurred while on active duty orders for more than 30 days are presumed in line of duty and such designation has no bearing on how the disease was caused. For the PEB to find that a condition is combat-related the PEB must find, by a preponderance of the evidence, that the clear facts of the case support such a finding. In the present case, it was proper for the PEB to find that the evidence in the case file did not support such a finding. 11. The applicant's assertion that one of the many different types of environmental factors may have caused his disease supports the PEB's findings that there is no clear preponderance of the evidence to support a specific cause. There is no clear error or injustice in regard to this finding by the PEB. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ___x____ ____x___ ____x___ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the applicant's PEB Proceedings, dated 8 January 2013, to show a 50% disability rating for PTSD, combat-related, and a 30% disability rating for asthma. His combined disability rating should be 70% and he should remain permanently retired by reason of disability at the higher percentage. 2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to correction of his PEB Proceedings, dated 8 January 2013, to show his diagnoses of asthma and a lung condition were found to be combat-related and incurred in the line of duty during a time of war. _____________x____________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20140017378 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140017378 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1