BOARD DATE: 19 December 2017 DOCKET NUMBER: AR20160005359 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: 19 December 2017 DOCKET NUMBER: AR20160005359 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: 19 December 2017 DOCKET NUMBER: AR20160005359 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, correction of her military records to show she was retired due to physical disability. 2. The applicant states she wants her DA Form 199 (Physical Evaluation Board (PEB) Proceedings reviewed because her chronic asthma, which was under moderate control at the time of her discharge in 1997, has since gotten severely worse. The Department of Veterans Affairs (VA) originally rated her medical condition at 10 percent (%) disabling in accordance with her PEB. However, after several reviews, her disability rating has been increased from 10%, to 30%, to 60%, and to 100%. As of 13 July 2015, her asthmatic condition has remained at 100% disabling and is considered to be permanent with no future examinations. 3. The applicant provides: * DA Form 199 (first page only), dated 18 September 1996 * Letter from the PEB Board Recorder, dated 4 October 1996 (2 pages) * DD Form 214 (Certificate of Release or Discharge from Active Duty) ending on 18 April 1997 (Member Copy 4) * VA Rating Decision, dated 10 January 2008 (8 Pages) * Email communication from VA, Fayetteville, North Carolina, dated 30 April 2009 * VA Rating Decision, dated 30 November 2009 (5 Pages) * VA increase in service-connected compensation, dated 8 December 2009 (5 pages) * VA Rating Decision, dated 12 May 2010 (2 Pages) * VA decision regarding service-connected compensation, dated 13 May 2010 (2 pages) * VA Rating Decision, dated 6 May 2011 (4 pages) * VA Increase in service-connected compensation, dated 11 May 2011 (4 pages) * VA Letter announcing decision regarding benefit entitlements, dated 13 July 2015 (4 pages) 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. On 12 November 1993, the applicant enlisted in the Regular Army. She was trained as a motor transport operator. She attained the rank of specialist on 1 September 1995. 3. DA Form 199, first page only, reports that a PEB convened at Walter Reed Medical Center on 18 September 1996 to consider the applicant's physical condition. The PEB found the applicant unfit due to chronic asthma under moderate control. Her medical condition was rated at 10 percent disabling in accordance with VA Schedule for Rating Disabilities (VASRD) code 6602. The PEB recommended that the applicant be separated with severance pay, if otherwise qualified. The available evidence does not show if she was counseled regarding the PEB findings and determination or if she concurred or signed the form. The form was signed by the PEB president. 4. In a letter dated 4 October 1996, the PEB Recorder informed the applicant that she was scheduled for a formal PEB hearing on 6 February 1997. The letter indicates that she had requested regularly appointed military counsel and that the PEB Liaison Officer (PEBLO) would explain the board process and assist with making arrangements. 5. A memorandum from the U.S. Total Army Personnel Command (now known as the Human Resources Command (HRC), dated 18 February 1997, informed the applicant that her request to remain on active duty had been denied and that she was being processed for separation based on the decision of the U.S. Army Physical Disability Agency (USAPDA). 6. DD Form 214 for the period ending 18 April 1997 shows the applicant was discharged with an honorable characterization of service due to disability. The authority for her discharge was Army Regulation 635-40, paragraph 4-24B(3). 7. A VA Rating Decision, dated 10 January 2008, indicates the VA increased the applicant’s previous disability rating for service connected asthma from 10% to 30% disabling, effective the same day. She was granted a combined rating of 40% based on the following: * Lumbar spine strain was continued at 20% disabling * Service connection for diffuse headaches was denied * Service connection for right shoulder strain was denied * Service connection for left shoulder strain was denied * Service connection for heart condition was denied * Service connection for carpal tunnel syndrome of left upper extremity was denied * Service connection for carpal tunnel syndrome of right upper extremity was denied 8. A VA Rating Decision, dated 30 November 2009, indicates the VA increased the applicant’s previous disability rating for service connected asthma from 30% to 60% disabling, effective 26 February 2009. The following decisions were also made: * Lumbar spine strain was continued at 20% disabling * Service connection for anemia was denied * Entitlement to compensation for dental condition was deferred 9. A VA Rating Decision, dated 12 May 2010, indicates the VA denied service connection for residuals of a fractured tooth. 10. A VA Rating Decision, dated 6 May 2011, indicates the VA increased the applicant’s previous disability rating for service connected asthma from 60% to 100% disabling, effective 10 June 2010. 11. In the processing of this case, a staff medical advisory opinion was obtained wherein the Senior Medical Advisor opined the following: a. The applicant did not meet medical retention standards for asthma and was appropriately rated at 10% disabled which was consistent with the VA rating of 10% for the same condition. The VA did not increase the applicant’s disability rating until 2008 for post-service progression of symptoms. b. The applicant met medical retention standards for back pain and other physical, medical and/or behavioral conditions. c. The applicant’s medical conditions were duly considered during medical separation processing. d. No available documentation showed a medical disability or condition which would support a change to the character or reason for the applicant’s discharge in this case. 12. On 29 August 2017, a copy of the advisory opinion was sent to the applicant for her information and opportunity to respond. 13. On 15 September 2017, the applicant responded by sending a VA claim form wherein she requested that the VA send a copy of her service medical record. REFERENCES: 1. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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. Chapter 3 provides that 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 and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. To be found unfit by reason of physical disability, individuals must be unable to perform the duties of grade, rank, or rating. 2. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has an impairment rated at less than 30 percent disabling. It further provides at section 1201 for the physical disability retirement of a member who has an impairment rated at least 30 percent disabling. 3. Title 38, U.S. Code, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. a. 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. b. An award of a VA rating does not establish entitlement to medical retirement or separation from the Army. Operating under its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military duty, awards ratings because a medical condition is related to service ("service-connected") and affects the individual's civilian employability. Furthermore, 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 contends that her military records should be corrected by showing she was retired due to physical disability because her initial 10% disability rating has been increased over time by the VA. She is currently rated at 100% and considered to be permanently disabled. 2. The available evidence shows that the applicant was discharged due to a physical disability rated at 10% disabling. 3. 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. 4 The applicant's physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the recommendation of the PEB. The medical advisor in this case found no evidence that would support changing the reason for discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160005359 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160005359 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2