BOARD DATE: 1 June 2017 DOCKET NUMBER: AR20160001835 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: 1 June 2017 DOCKET NUMBER: AR20160001835 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: 1 June 2017 DOCKET NUMBER: AR20160001835 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 reconsideration of his earlier request to correct his military records by reviewing his military disability evaluation pertaining to his conditions of chronic obstructive pulmonary disease (COPD), post-traumatic stress disorder (PTSD), and diabetes. 2. The applicant states in a letter dated 6 January 2015 that at the time of his discharge he had been prescribed inhaled steroids and albuterol for his COPD. He used them multiple times daily. The evidence he submitted states the minimum rating for COPD if on inhaled steroids is 30 percent. The Department of Veterans Affairs (VA) also prescribed a nebulizer for daily use multiple times during the day. His PTSD diagnosis was ignored by the Army but was granted by the VA. He states the previous Board did not consider all pertinent evidence that he presented with his application. He adamantly states his military counsel negligently represented him during his medical board proceedings. He has tried to contact his former military counsel but cannot reach him. He believes these conditions should be “grandfathered in” presumably to his physical disability evaluations. 3. The applicant provides copies of: * Memorandum for Presidents, U.S. Army Physical Evaluation Boards (PEB) subject: Diagnostic Code for Asthma, dated 5 May 2009 * A VA letter announcing the applicant’s award of disability compensation benefits due to individual unemployability rated at 100 percent effective 1 January 2010 * Medical records, progress notes, and active medication lists CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20150003039 on 10 December 2015. 2. The applicant’s request to review his claim for PTSD was considered by the Department of Defense (DoD) Physical Disability Board of Review (PDRB) Special Review Panel concerning mental health. The Secretary of Defense directive called 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 mental health diagnosis was changed or eliminated during that process. The applicant’s case file was reviewed and on 1 August 2014, the President of the PDRB accepted the recommendation of the Panel which did not recommend any changes to the applicant’s physical disability diagnoses or ratings specifically concerning mental health. 3. On 10 September 2014, the Board in ABCMR Docket Number AR20140013480 denied the applicant’s request to change his mental health diagnosis based on the recommendation of the PDRB. 4. On 23 February 2015, the staff of the applicant’s Member of Congress stated by email through the Army Medical Legislative Liaison Officer, Office of Chief Legislative Liaison that the senator’s staff “are good with the PTSD piece”; however, the ABCMR should acknowledge, review and render a decision for his claim of COPD. [DOD Instruction 6040.44 (PDRB), Enclosure 2 (Responsibilities), paragraph 4.d.2 states that the recommendation of the PDRB, once accepted by the respective Military Department, is final. Therefore, the applicant’s latest request to add the diagnosis of PTSD to his medical evaluation board (MEB) proceedings will not be further discussed in this record of proceedings. The decision of the ABCMR in AR20140013480 is the Army’s final decision regarding adding PTSD to his evaluation proceedings.] 5. The applicant, with prior enlisted service, enlisted in the Army National Guard (ARNG) on 8 February 2006. He entered active duty in an Active Guard Reserve status on 2 October 2006. 6. A DA Form 3349 (Physical Profile), dated 3 October 2008, shows the applicant had a permanent physical profile rating of 3 due to COPD, an illness or disease. He was found to be nondeployable and could not take the Army Physical Fitness Test (APFT) or an alternative APFT. 7. On 22 June 2009, the applicant underwent a medical examination for the purpose of a medical board. He completed a DD Form 2807-1 (Report of Medical History) where he stated in pertinent part he had COPD with emphysema. He stated his symptoms were shortness of breath and that he used inhalers. He got bronchitis more frequently because of his emphysema and he also wheezed more often. He stated he took three medications for COPD: Albuterol (oral inhaler), Flovent (inhaled corticosteroid medicine) and Combivent (inhaler used to treat bronchospasms). He also indicated he did not have sugar or protein in his urine though he did experience low blood sugar. The same date he was evaluated by a medical provider at a military health clinic who acknowledged on the DD Form 2807-1 that the applicant had COPD with emphysema. He used Albuterol two the three times daily and inhaled steroids. There is no mention of diabetes. 8. The applicant’s MEB is not available to the Board for review. 9. On 19 October 2009, a PEB found the applicant physically unfit and recommended a combined disability rating of 40 percent due to: * degenerative arthritis of the cervical spine (20 percent) * degenerative arthritis of the thoracolumbar spine (10 percent) * emphysema or COPD (10 percent) 10. The DA Form 199 (PEB Proceedings) disability description for emphysema or COPD stated the applicant had a "37.5 pack-year smoking history. He developed exertional dyspnea and has not been able to complete an alternate APFT since 2006, which was unfitting." The computed tomography scan of his chest showed early emphysematous changes. Pulmonary function tests showed decreased values even after treatment. He had a slightly elevated carbon monoxide level from smoking. A methacholine challenge test showed some reversible bronchospasm. A cardiology evaluation was normal. He was assigned a 10-percent disability rating for this condition because his forced expiratory volume (FEV) FEV-1 test was 76 percent. This condition was noted as stable and was also listed as a diagnosis on his MEB. There is no mention of diabetes or asthma as disabling conditions. 11. On 20 October 2009, the applicant concurred with the findings and recommendation of the PEB and waived a formal hearing of his case. He and his counsel reviewed and signed the DA Form 199. The U.S. Army Physical Disability Agency (USAPDA) approved the PEB findings and recommendation. 12. On 7 January 2010, he was retired from active duty by reason of permanent disability. He was also simultaneously discharged from the ARNG. 13. A VA Rating Decision, dated 19 June 2012, notified the applicant of its decision to award him service-connected disability compensation for the following conditions all incurred during the Gulf War (1991): * PTSD (50 percent) * bilateral shoulder strain (10 percent) * left knee strain (10 percent) * sclerotic change of the distal right femur (10 percent) * thoracolumbar strain (10 percent) * degenerative disc disease cervical spine (10 percent) * tinnitus (10 percent) * asthma (10 percent) * gastroesophageal reflux disease (10 percent) * hearing loss left ear (0 percent) * chronic sinusitis (0 percent) There is no mention of a diagnosis of diabetes in this VA decision. 14. The VA determined the applicant’s condition of emphysema/COPD was not service connected and not incurred or caused by his service and was not subject to compensation. Three other medical conditions were also determined to not be service-related: right wrist condition, right ear hearing loss and headaches associated with degenerative disc disease. 15. On 18 July 2012, the applicant was notified that his claim for Combat-Related Special Compensation (CRSC) was approved for degenerative disc disease with a combat-related disability rating of 10 percent. The following conditions were not verified as a combat-related disability: gastroesophageal reflux disease, hearing loss left ear, thoracolumbar strain, PTSD, bilateral shoulder strain, sclerotic change of the distal right femur, or left knee strain. 16. On 13 September 2012, the applicant’s CRSC was revised by adding PTSD at 50 percent for a total combat-related disability rating of 60 percent. The other diagnoses were also reconsidered; however, the applicant did not provide new evidence to support a change to his original CRSC decision 17. On 1 July 2014, the VA awarded the applicant a 100 percent combined disability rating due to his unemployability. This decision was retroactive to 1 January 2010. 18. The applicant provided a statement from a VA health clinic that states he is being treated for diabetes. 19. On 10 December 2015, the ABCMR denied the applicant’s request to add PTSD and COPD to his MEB and PEB proceedings. 20. The applicant provided a memorandum dated 5 May 2009, signed by the Deputy Commander of the USAPDA informing the presidents of physical evaluation boards that the VA Schedule for Rating Disabilities (VASRD) Diagnostic Code 6602 – Asthma provides a rating of 30 percent when the evidence indicates the Soldier used inhaled anti-inflammatories at least intermittently. When rating a Soldier for unfitting asthma, there is no requirement that the Soldier use inhaled anti-inflammatory medication daily or that a minimum amount be used on the days the Soldier uses the inhaled anti-inflammatory medication. (The applicant is not identified in this memorandum by name.) 21. In the processing of this case, an advisory opinion was obtained from the USPDA. Their legal advisor reviewed the applicant’s medical records and opined there was insufficient evidence to change his medical records. a. An initial MEB was completed on 23 June 2009 with emphysema being the single diagnosis that was found to not meet medical retention standards in accordance with chapter 3, Army Regulation (AR) 40-501 (Standards of Medical Fitness). The condition of anxiety disorder was found to meet retention standards and required no profile restrictions. The applicant non-concurred with the MEB findings on 29 June 2009. (This document is not available for the Board’s review with this case.) The applicant's appeal was in regard to a possible diagnosis of PTSD. The appeal contained no other issues related to any other potential conditions. The appeal was denied by the MEB because the 6 March 2009 psychiatric evaluation clearly supported a diagnosis of anxiety disorder only and there were no psychiatric exemptions for duty. It was noted that continued recruiter duty had the potential to make his anxiety disorder worse. b. On 11 August 2009, an informal PEB found the applicant unfit for his condition of emphysema with COPD rated at 0 percent and recommended separation with severance pay. The anxiety disorder was found to be fit for duty. The applicant non-concurred and requested a formal hearing. (This document is not available for the Board to review.) On 22 September 2009, the PEB returned the case to the MEB requesting additional review of the applicant's cervical complaints. c. On 8 October 2009, a new MEB was issued with the following conditions of emphysema (COPD), cervical pain, thoracic pain, and lumbar pain not meeting medical retention standards. The condition of anxiety disorder remained unchanged from the previous MEB findings. The physical profile did not list any psychiatric condition as requiring any duty restrictions/limits. There was no diagnosis of diabetes or PTSD. d. The PEB reconsidered their informal findings based upon the new MEB and found the applicant unfit for his cervical and thoracolumbar spine, 20 and 10 percent respectively, and continued to find the applicant's COPD as unfitting; but now with a 10 percent disability rating based upon his forced expiratory volume (FEV)-1 test results. The PEB recommended permanent disability retirement with a combined rating of 40 percent. The applicant concurred with the new PEB findings and waived his right to a formal hearing. e. The applicant appears to contend that because "he was receiving oral medications for his COPD, the 10 percent rating for that condition (and adding asthma) should be increased." The VA rating code criteria for COPD (VA Schedule for Rating Disabilities (VASRD) 6604) does not include the use of medications as one of the standards for determining the disability rating, only the findings of FEV-1. The applicant did not have a diagnosis of asthma. f. The applicant's sole evidence regarding his claim of diabetes is a 2015 statement from a physician that states he now has diabetes. Only conditions existing at the time of separation from the military, in 2009, which were found unfitting for military duty at that time can be compensable in the military disability system by law. There is no evidence that the applicant had diabetes in 2009 and that it precluded him from performing his duties at that time. g. The MEB considered his claim that he might have PTSD in 2009, but rejected that and affirmed the diagnosis of anxiety disorder. Even if the diagnosis had been changed to PTSD, the reported symptoms would have been the same and the same findings regarding fitness would have occurred. The applicant has not provided any evidence of error in the findings that would require any change to the applicant's military records. h. 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. 22. On 6 January 2016, the applicant resubmitted his 6 January 2015 letter. A new docket number was initially assigned and another medical advisory opinion was obtained from the Department of the Army, Office of the Surgeon General, Behavioral Health Division. On 25 May 2016, the advising official stated that his office was asked to determine if the applicant met the criteria for a medical retirement due to PTSD. The official reviewed the applicant’s Army medical records, applicant’s evidence and his DoD electronic medical record. a. The applicant was referred to Behavioral Health on 20 November 2008 by his commander who was concerned that stress might be interfering with the applicant’s job performance. He was diagnosed with acute reaction to stress with disturbance of emotion and cleared for duty. b. On 16 March 2009, the applicant underwent psychological testing which was deemed invalid as the results of two different tests suggested that the applicant may have been exaggerating his symptoms. c. On 18 March 2009, during a fitness for duty evaluation it was concluded the applicant did not have a psychiatric disorder that requires disposition through medical and administrative channels. His behavioral health diagnosis was anxiety disorder not otherwise specified. d. On 1 January 2010, the VA increased the applicant’s PTSD compensation to 100 percent on the grounds he was unemployable due to his service-connected disabilities. e. There is no evidence the applicant met the criteria for PTSD during or subsequent to his military service nor was he treated for this disorder while in the Armed Forces. He had only two encounters with behavioral health providers and both diagnosed him with an anxiety disorder which did not prohibit him from continuing his military service. 23. The applicant was mailed both advisory opinions to provide him an opportunity to comment or provide a rebuttal statement. He did not respond. In addition, his second docket number based on the duplicate request for reconsideration of his application was administratively closed. REFERENCES: 1. Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has an impairment rated at least 30 percent disabling or a combined rating of 30 percent or more. 2. Title 38, U.S. Code, sections 310 and 331, permit the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. 3. The VASRD is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or an incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. For the application of this schedule, accurate and fully descriptive medical examinations are required, with emphasis upon the limitation of activity imposed by the disabling condition. Over a period of many years, a veteran’s disability claim may require reratings in accordance with changes in laws, medical knowledge and his or her physical or mental condition. It is thus essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history. 4. The VASRD code 6604 (COPD) defines the percentage of disability (impairment) at 30 percent for a FEV-1 test of 56- to 70-percent predicted, or; Tiffeneau-Pinelli index (FEV-1/FVC) of 56 to 70 percent, or; diffusing capacity or transfer factor of the lung for carbon monoxide (DLCO (SB)) 56- to 65-percent predicted. A rating of 10 percent is assigned for an FEV-1 test of 71- to 80-percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; DLCO (SB) 66- to 80-percent predicted. 5. AR 40-501, chapter 3, as amended, provides the standards for medical fitness for retention and separation, including retirement. Chapter 3 provides 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 duty. A medical condition must significantly limit or interfere with the Soldier’s performance of duty. Possession of one or more of the conditions listed in the chapter does not mean automatic retirement or separation from the Service. Soldiers taking medication should not automatically be disqualified for any duty assignment. However, medications used for serious and/or complex medical conditions are not usually suitable for extended deployments. a. Endocrine and metabolic orders including diabetes insipidus requiring the use of medication for control and diabetes mellitus, unless hemoglobin A1c levels (average level of blood sugar) can be maintained at less than 7 percent using lifestyle modifications (diet and exercise). These two conditions are causes for referral to an MEB. b. Asthma including reactive airway disease, exercise-induced bronchospasms, asthmatic bronchospasm, or asthmatic bronchitis are causes for referral to an MEB provided specific diagnostic criteria are met. Asthma is a clinical syndrome characterized by cough, wheeze, or dyspnea and physiologic evidence persisting over a long period of time (generally 6 to 12 months). Soldiers who are diagnosed with asthma may be placed on a temporary profile for up to 12 months trial of duty. A permanent profile of P-3 or P-4 and referral to an MEB for chronic asthma based on repetitive hospitalizations, repetitive emergency room visits or excessive time lost from duty; requires repetitive use of oral corticosteroids to enable the Soldier to perform ALL military training and duties; and prevents the Soldier from wearing a protective mask. Notwithstanding these facts, chronic asthma can meet medical retention standards, but is a cause for a permanent P-2 profile. c. Pulmonary emphysema with dyspnea on mild exertion and demonstrable moderate reduction in pulmonary function is cause for referral to an MEB. d. A review of this regulation found no provisions for a “grandfather clause.” 6. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, establishes the Army Physical Disability Evaluation System (PDES) according to Title 10, U.S. Code, Chapter 61. The Secretary of the Army will provide regulations to carry out the provisions of the law. a. The PDES is comprised of the MEB, PEB and then case review by the USAPDA. It also provides that the mere presence of an 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. b. There are many conditions such as asthma and diabetes which may be improved sufficiently by treatment to prevent disability, or to significantly decrease it. If a Soldier unreasonably fails or refuses to submit to medical treatment or take prescribed medications, or to observe prescribed restrictions such as tobacco usage, that portion of the disability that results from such failure or refusal will not be rated. c. A review of this regulation found no provisions for a “grandfather clause.” DISCUSSION: 1. The applicant implies that his earlier request to correct his military records should be reviewed pertaining to his diagnosis of COPD and diabetes. This Board does not have jurisdiction to review his claim of PTSD as it was previously adjudicated under the DoD Physical Disability Board of Review (PDRB) Special Review Panel and the ABCMR. He was denied relief for PTSD as an unfitting medical condition at the time of his entrance into the PDES and upon separation. 2. The available evidence shows the applicant was permanently retired in January 2010 with a combined physical disability rating of 40 percent for the following conditions: degenerative arthritis of the cervical spine (20 percent), degenerative arthritis of the thoracolumbar spine (10 percent) and emphysema or COPD (10 percent). 3. In this particular application, the applicant states his COPD should have been rated at 30 percent disabling because he was taking inhaled steroids. He also argues he has a statement from a military medical doctor showing he should be rated 30 percent. In a medical advisory it was pointed out that the memorandum provided by the applicant pertains to VASRD 6602 – Asthma. The applicant was not referred into the PDES for asthma and he was not rated for asthma. He was rated for emphysema or COPD (VASRD 6604) at 10 percent because his FEV-1 test was greater than 71 percent. In fact, his FEV-1 test as shown on his PEB was 76 percent. The FEV-1 test measures the forced expiratory volume of the lungs. To receive a higher rating of 30 percent, the applicant’s FEV-1 test would have had to be between 56- to 70-percent. There is no evidence in the applicant’s military medical record showing his COPD FEV-1 test met the criteria for a rating of 30 percent. 4. The VA, under the jurisdiction of its own laws and regulations, awarded the applicant a 10 percent rating for asthma but did not rate him for COPD based on his use of tobacco products because this condition was determined not to be service connected. 5. Concerning his request to add diabetes to his PEB as an unfitting condition, the evidence of record shows he was permanently retired in 2010. In 2015, nearly 5 years after his medical retirement, he was diagnosed with diabetes by a VA physician. As this medical condition was not present during his last period of active military service, it could not be rated. While the applicant asked for this medical condition and his asthma to be “grandfathered” into his medical record and PEB, after a careful review of regulations and the law, there is no provision to “grandfather” a medical condition into a record once a Soldier is separated or retired. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001835 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001835 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2