BOARD DATE: 4 April 2017 DOCKET NUMBER: AR20150017129 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ____x____ ___x_____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 4 April 2017 DOCKET NUMBER: AR20150017129 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. ______________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. BOARD DATE: 4 April 2017 DOCKET NUMBER: AR20150017129 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, in effect, a review of his disability processing for medical retirement at 30 percent vice disability separation with severance pay at 10 percent. 2. The applicant states the physical disability board (PEB) should have assigned a 30-percent disability rating back in 1997 for his condition of reactive airway disease. The U.S. Code of Federal Regulations (CFR) supports a 30-percent rating for Department of Veteran's Affairs Schedule for Rating Disabilities (VASRD) Code 6602. The PEB Proceedings failed to mention the use of an inhaler for his asthma. 3. The applicant provides: * Physical Profile * Medical Examination * Respiratory Examination * PEB Proceedings * Treatment Reports * VA Compensation and Pension Examination * VA rating decision CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the Regular Army on 16 June 1985 and he held military occupational specialty (MOS) 91B (Medical Specialist). 3. He served through multiple reenlistments in a variety of stateside or overseas assignments, and he attained the rank/grade of sergeant first class (SFC)/E-7. 4. On 11 April 1997, he was seen for shortness of breath. He underwent conservative treatment, was issued a permanent physical profile, and was placed on a modified physical fitness program; however, his discomfort continued. He was diagnosed with hypertension and was determined to be at an increased risk for the development of early coronary artery disease. 5. On 19 June 1997, a medical evaluation board (MEB) convened and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed as having the medical conditions of: * reactive airway disease, medically unacceptable * hypertension, medically acceptable * hyperlipidemia, medically acceptable 6. The MEB recommended his referral to a PEB. On 23 June 1997, he was counseled and he indicated he agreed with the MEB's findings and recommendation. He also indicated he did not desire to continue on active duty. The MEB proceedings were approved. 7. On 18 July 1997, an informal PEB convened. The PEB found the applicant's condition prevented him from performing the duties required of his grade and MOS and determined that he was physically unfit due to reactive airway disease. The informal PEB rated his condition under the VASRD, assigned code 6602, and recommended a 10 percent combined disability rating. The informal PEB considered his other conditions but did not find it unfitting and therefore were not rated, as they met retention standards. The informal PEB recommended his separation with entitlement to severance pay, if otherwise qualified. 8. On 22 July 1997, the applicant was counseled by a PEB liaison officer who explained to him his rights, the disability process, the MEB process and how to appeal, the PEB adjudication, the difference between an informal and formal PEB, and the role of the U.S. Army Physical Disability Agency (USAPDA). He elected to concur with the PEB's findings and recommendation and waived his right to a formal hearing. 9. The applicant was honorably discharged on 22 August 1997 under the provisions of paragraph 4-24b(3), Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation), by reason of physical disability with entitlement to severance pay. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 12 years, 2 months, and 7 days of active service and he was entitled to severance pay. 10. He provides a VA summary of benefits. It shows the VA awarded him service connection. 11. The Army Review Boards Agency (ARBA) forwarded his disability packet together with his VA summary of benefits to the USAPDA for review. An advisory official reviewed his cased and stated: a. The applicant claims that his disability rating for his reactive airway disease (asthma) should have been 30 percent and not 10 percent as provided by the PEB. The applicant requests the rating be increased to 30 percent and his disposition be changed to military disability retirement. On 18 July 1997, an informal PEB found the applicant unfit for his condition of asthma and rated him at 10 percent in accordance with VASRD 6602. The applicant concurred with the PEB's findings and waived his right to a formal hearing. b. The applicant's medical records provided for his MEB and PEB review indicated that his post-medication testing FEV-1 percentage at that time was 86 percent; pre-medication testing FEV-1 was 76 percent; and, his albuterol inhaler was prescribed for use only before exercise and the albuterol tablets were only prescribed at onset of dyspnea. A 30 percent rating for VASRD code 6602, asthma, requires an FEV-1 percentage of between 56 and 70 percent or required daily inhalational medication therapy. Since the applicant's FEV-1 was over 70 percent, and his medications were only to be taken as needed, he did not qualify for the 30 percent rating. Accordingly, the PEB properly rated him at the next lowest rating he met the criteria for; a 10 percent rating. Subsequent VA ratings that may have been higher are not evidence of error regarding the PEB's rating at the time of his separation in August 1997. c. The PEB's findings were supported by a preponderance of the evidence; were not arbitrary or capricious; and were not in violation of any statute, directive, or regulation. The PEB's rating was correct based upon the medical evidence in effect at that time and based upon the VASRD listed criteria. The applicant has not provided any evidence of PEB error. Recommend no changes to the applicant's military records. 12. ARBA also received an advisory opinion from the Agency Medical Advisor, USAPDA. She stated: a. ARBA asked for an advisory opinion regarding whether the applicant was properly found unfit for (only) asthma and whether this condition was properly rated at 10 percent (i.e., "reevaluation of his medical conditions for a higher disability rating for retirement"). b. With respect to the applicant's asthma rating, on 18 July 1997 an informal PEB found the applicant unfit for asthma and rated him at 10 percent with reference to VASRD 6602. The applicant concurred with the PEB's findings and waived his right to a formal hearing. c. The applicant's medical records provided for his MEB and PEB review indicated that his post-medication testing FEV-1 percentage at that time was 86 percent, pre-medication testing FEV-1 was 76 percent, and his albuterol inhaler was prescribed for use only before exercise and the albuterol tablets were only prescribed at onset of dyspnea. For a 30 percent rating, VASRD code 6602 requires an FEV-1 percentage of between 56 and 70 percent, or "daily" inhalational medication therapy. The evidence submitted does not support a conclusion that the applicant was using either inhaled or oral bronchodilator medications "daily" as required to support the higher (30 percent) rating. Accordingly, based on the evidence submitted it appears the PEB properly rated the applicant with reference to VASRD 6602 at 10 percent based on pulmonary function testing and intermittent inhalational and intermittent oral bronchodilator therapy. Subsequent VA ratings that may have been higher are not evidence of error regarding the PEB's rating at the time of his separation in August 1997. d. The advisory official noted that the MEB found that the applicant failed medical retention standards for hypertension. [Note: This is not reflected in the MEB Proceedings, but is addressed in a medical evaluation dated 11 April 1997.] The MEB indicated that for three years physicians had been unsuccessful in their efforts to control the applicant's blood pressure (with various medications take on a daily basis). The MEB discussed that his hypertension was dramatically aggravated by physical exertion and that this put him at risk for a stroke or other cardiovascular event. The MEB listed this condition on his physical profile. Given the close correlation between medical retention standards and considerations of unfitness (which at that time was reflected in the now outdated Department of Defense Instruction 1332.38, paragraph E3.P3.2.2.1) evidence supports that this condition was an unfitting condition based on its "decided medical risk''. Therefore, and with reference to VASRD diagnostic code (DC) 7101, hypertensive vascular disease, and based on the reports submitted, the applicant meets the requirements for an additional 10 percent evaluation. Specifically, with reference to VASRD DC 7101, the reports indicate that the applicant's blood pressures were in the systolic range of 170 - 190 (i.e., "systolic pressure predominantly 160 or more") and required continuous medication (though the medications did not control his blood pressure, as appears to have been envisioned in the 10 percent rating). e. Based on the foregoing, at the time the applicant separated from the military, the evidence supports that he met the requirement for a rating of 20 percent based on a 10 percent rating with reference to VASRD DC 6602, combined with a 10 percent rating with reference to VASRD DC 7101, hypertensive vascular disease (38 CFR 4.25, combined ratings table). This additional 10 percent rating does not result in the 30 percent minimal rating required for this applicant to receive a permanent disability retirement. Therefore, we recommend denial of the applicant's request for permanent disability retirement. 13. The applicant was provided with a copy of this advisory opinion. He did not respond. REFERENCES: 1. Title 10, U.S. Code chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The USAPDA, under the operational control of the Commander, U.S. Army Human Resources Command (HRC), is responsible for administering the Physical Disability Evaluation System (PDES) and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and AR 635-40. a. The objectives of the system are to maintain an effective and fit military organization with maximum use of available manpower; provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability; and provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected. b. Soldiers are referred to the PDES when they no longer meet medical retention standards in accordance with AR 40-501, chapter 3, as evidenced in an MEB; receive a permanent medical profile rating of "3" or "4" and are referred by an MOS/Medical Retention Board; are command-referred for a fitness-for-duty medical examination; or are referred by the Commander, HRC. c. The PDES assessment process involves two distinct stages: the MEB and the PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are separated receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. d. The mere presence of medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 2. AR 635-40 establishes the Army 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. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. 3. AR 40-501 governs medical fitness standards for enlistment, induction, appointment, retention, and separation (including retirement). Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD. 4. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. 5. Title 38, U.S. Code, sections 1110 and 1131, permit 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. 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. DISCUSSION: 1. The applicant incurred an illness. He underwent treatment, but he continued to experience discomfort. He was seen by various medical specialists and recommended for entry into the PDES due to his breathing difficulties. The MEB diagnosed him with one physical condition that did not meet retention standards, reactive airway disease. 2. The MEB referred him to a PEB. The informal PEB determined he was physically unfit due to the reactive airway disease. Based on a review of the medical evidence of record, the PEB concluded his medical condition prevented satisfactory performance of duty in her grade/MOS and rated her with a 10-percent disability rating. 3. The informal PEB recommended his separation with entitlement to severance pay, if otherwise qualified. He was counseled, concurred with the PEB's findings and recommendation, and waived his right to formal hearing of his case. He was discharged due to disability in August 1997 with severance pay. 4. The reason for the applicant's entry into the PDES was his reactive airway disease. This is the only condition that failed retention standards and was found unfitting. His disability rating was not intended to be a prediction of her future medical condition. 5. Conditions that are not diagnosed and/or are not unfitting are not ratable or compensable. Likewise, conditions that are not unfitting are neither assigned a VASRD code nor a rating. A key element of the Army's disability system is the Soldier's condition at the time of separation. It is possible that this condition and other conditions may have worsened with time is noted. Conditions that worsen after a Soldier is separated may be treated by and are compensated for by the VA. 6. The mere presence of medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. 7. The Army and the VA disability evaluation systems are independent of one another. A diagnosis of a medical condition and an award of a rating by another agency do not establish error by the Army. Operating under different laws and their own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service. The VA may award ratings because of a medical condition related to service (service-connected) and affects the individual's civilian employability. The VA has the responsibility and jurisdiction to recognize any changes in a condition over time by adjusting a disability rating. 8. If and when identified, diagnosed, evaluated, and rated, a disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation. Only those conditions that render a member unfit for continued military duty at the time of separation will be rated. However, the VA can potentially rate all service-connected conditions. 9. The PEB is tasked to assess the degree of disability at the time of discharge. The PEB did so and rated his physical condition as 10-percent disabling. Although the USAPDA Agency Medical Advisor found that he should have received a rating for hypertension, she also noted that this rating would not have been high enough to make him eligible for a disability retirement. (Note: The percentage of disability does not affect the amount of severance pay a Soldier receives. Had he received the 20 percent rating the USAPDA Agency Medical Advisor believes he should have, he would have received the same amount of severance pay.) Since his rating was less than 30 percent, by law he was only entitled to severance pay. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017129 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017129 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2