IN THE CASE OF: BOARD DATE: 28 July 2020 DOCKET NUMBER: AR20180008480 APPLICANT REQUESTS: in effect correction to her DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings) to show her medical condition asthma as unfitting with an assigned disability rating percentage of 30 percent and then adjustment to her combined disability rating. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs (VA) medical records consisting of laboratory reports and progress notes FACTS: 1. The applicant states, in effect, her asthma was not added to her informal PEB by the U.S. Army. At this time she would like a correction to her DA Form 199 to show her asthma was an unfitting medical condition. She was advised by an unknown source not to add her asthma to the list of medical conditions evaluated by medical personnel in the U.S. Army. The unknown source told her as the VA had rated it 30 percent disabling, Army medical personnel did not need to consider it during her informal PEB proceedings. Her VA medical evaluation was completed on 14 November 2017 at the White River Junction VA Medical Center in Vermont. 2. With service in Afghanistan as a member of the State of Vermont Army National Guard (VTARNG), the applicant in the rank and pay grade of staff sergeant (SSG)/E-6 entered the disability evaluation system. At the time she was serving in military occupational specialty (MOS) 92A (Automated Logistical Specialist). 3. The applicant’s medical evaluation board and its supporting documents are not available to the Board for review. The applicant did not provide copies of her VA compensation and pension examination results (narrative summaries) and their associated VA rating decisions. 4. Within her military personnel record is a copy of her DA Form 199 showing an informal PEB convened on 21 December 2017 at Joint Base San Antonio, Texas to review the applicant’s DA Form 3947 (Medical Evaluation Board Proceedings) including her medical evaluation board narrative summary, DA Form 3349 (Physical Profile), DA Form 7652 (Disability Evaluation System (DES) Commander’s Performance and Functional Statement), VA compensation and pension examination, VA rating decisions and DA Forms 2173 (Statement of Medical Examination and Duty Status). The medical evaluation board referred two medical conditions to the informal PEB: lumbosacral strain with mild L5-S1 discogenic changes (medical evaluation board diagnosis 1) and left ankle anterior talolibular ligament tear (medical evaluation board diagnosis 2). The informal PEB found her physically unfit with a recommended combined rating of 60 percent and her disposition placement on the permanent disability retired list (PDRL). a. VA Schedule for Rating Disabilities (VASRD) Code 5237 – lumbosacral strain with mild L5-S1 discogenic changes narrative summary shows the onset of this condition was on 14 July 2010 while performing a fireman’s carry during medical emergency training while deployed in Afghanistan. After reviewing the evidence, the board determined she could not perform various functional activities including wearing a helmet, body armor, and/or load bearing equipment without worsening her condition; she could not move 40 pounds up to 100 yards while wearing the usual protective gear; riding in a military vehicle with protective gear for an extended period of time without worsening conditions; or participate in live fire activities. Therefore, as she could not perform soldierly duties she was found unfit for this condition. The informal PEB rating was 40 percent. b. VASRD Codes 5010 – 5270 for left ankle anterior talolibular ligament tear with onset on 11 July 2009 while attending basic combat training. Her response to conservative treatment of anti-inflammatory drugs was poor. After reviewing the evidence, the board determined this medical condition was also unfitting for she could not perform multiple soldierly duties. (The informal PEB did identify the specific soldierly tasks she could not perform.) The informal PEB rating was 30 percent. c. The informal PEB found these medical conditions fitting as per the medical evaluation board: obstructive sleep apnea, right carpal tunnel syndrome, left carpal tunnel syndrome and asthma. The medical evaluation board determined these conditions met the physical retention requirements of Army Regulation 40-501 (Standard of Medical Fitness) because there was no evidence these conditions limited her functional activities or duty performance. d. Under Section VI (Instructions and Advisory Statements) of her DA Form 199, it provides the combined percentage disability calculations. It further states the applicant’s case was adjudicated as part of the Integrated Disability Evaluation System (IDES) and the VA determined the specific VASRD code(s) and the proposed ratings in accordance with applicable statues and regulations. e. On 17 January 2018, the applicant was counseled by a physical evaluation board liaison officer (PEBLO). In Section IX (Soldier’s Election) of her DA Form 199 she concurred with the findings of the informal PEB and waived a formal hearing of her case. Additionally, she reviewed her VA disability ratings for her conditions listed as unfitting and did not request reconsideration of the VA ratings. f. On 8 February 2018, a designee for the Secretary of the Army approved the findings and recommendations of the informal PEB. 5. On 30 January 2018 the U.S. Army Physical Disability Agency (USAPDA) issued Order Number D 030-01 releasing the applicant from assignment and duty because of physical disability incurred while entitled to basic pay and under conditions that permit her placement on the PDRL under the provisions of Title 10, U.S. Code, section 1204. Her date of placement on the PDRL was 6 March 2018 with a disability percentage of 60 percent. Her disability did result from a combat related injury as defined by Title 26, U.S. Code, section 104. This order was directed by the Secretary of the Army. 6. On 27 February 2018, the VTARNG issued Orders 058-004 honorably discharging the applicant from the ARNG effective 5 March 2018 and placing her on the PDRL per Department of the Army Orders D 030-01. 7. On 5 March 2018 the applicant was honorably discharged from the VTARNG. She was issued a National Guard Bureau (NGB) Form 22 (National Guard Report of Separation and Record of Service) documenting her ARNG service of 10 years, 6 months and 8 days. 8. The applicant through the assistance of the Army Review Boards Agency provided her VA laboratory results, medical prognosis notes and health summaries from on or about 9 February 2011 to on or about 20 May 2020 (estimate 352 pages). In reviewing these VA records, the following pertinent information is provided (ICD is the acronym for diagnosis codes used by medical professional for medical coding and reporting in health care settings established and maintained by the Centers for Medicare and Medicaid Services): * on 9 February 2011, asthma diagnosis (ICD code 493.50) started during deployment to Afghanistan and diagnosed after a positive Methacholine Challenge Test; she requires oral or parenteral corticosteroid medication; she does not require us of oral bronchodilators * on 25 March 2011, entry note stating her respiratory condition did impact her ability to work, but was controlled by medication * on 14 November 2013, applicant claimed service connection for her left ankle, back pain, left hip and hamstring pain, asthma and plantar fasciitis during VA compensation and pension examination * left hip strain at hamstring insertion, date of diagnosis 10 May 2008 * left ankle anterior talofibular ligament tear, date of diagnosis 11 July 2008 * left foot plantar fasciitis, date of diagnosis 2 June 2010 * back (thoracolumbar) sprain, date of diagnosis 14 July 2010 in Afghanistan * on 14 November 2017, she underwent another VA compensation and pension examination and the following conditions were added as service connected * obstructive sleep apnea (treatment started on or about 21 December 2015) * bilateral carpal tunnel syndrome * back L5-S1 discognenic changes 9. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant's records in iPERMS, the Armed Forces Health Longitudinal Technology Application (AHLTA), Health Artifacts Image Management Solutions (HAIMS) and the VA's Joint Legacy Viewer (JLV) and made the following findings and recommendations: The applicant is requesting an additional condition be added to her Army disability ratings. She asserts that asthma was not included in her MEB/PEB process. Based on section IV (Medical Conditions Determined Not To Be Unfitting) of her DA Form 199 asthma was considered to meet retention standards IAW AR 40-501, Chapter 3, by the MEB and did not prevent the applicant from performing any of the functional activities listed on her physical profile DA3349. Conditions that meet retention standards are not considered unfitting by the PEB, and are not rated. In addition to asthma, obstructive sleep apnea, right carpal tunnel syndrome, and left carpal tunnel syndrome were not determined to be unfitting. There is no evidence in the applicant’s medical records to indicate that the condition of asthma permanently interfered with her performance in the Army or should have been determined to not meet retention standards. There is no indication that the PEB erred in their determination of the applicant’s disability rating percentages. Therefore, based on the available information, it is the opinion of the Agency Medical Advisor that insufficient evidence exists to warrant a change in the applicant’s DA199 or her Army disability rating percentages. 10. Title 10, U.S. Code, section 1204 (Members on active duty for 30 days or less or on inactive0duty training: retirement) states upon a determination by the Secretary concerned a member of the armed forces is unfit to perform duties of his or her office, grade, rank, or rating because of physical disability, the Secretary may retire the member with retired pay computed under section 1401 of this title provided the disability was incurred while performing active duty or inactive-duty training before 24 September 1996. After 23 September 1996, the disability must have been the result of an injury, illness, or disease incurred or aggravated in the line of duty while performing active duty or inactive duty training. The disability must not be a result of the member’s intentional misconduct or willful neglect, and was not incurred during a period of unauthorized absence and the disability is as least 30 percent under the VASRD at the time of determination. 11. 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 may compensate the individual for loss of civilian employability. 12. 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 VA rating does not establish an error or injustice on the part of the Army. 13. Title 38, Code of Federal Regulations (CFR), Part IV is the VA’s schedule for rating disabilities. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge. 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. BOARD DISCUSSION: After review of the application and all evidence, including the Army Review Board Agency Medical Advisory opinion, the Board determined there is insufficient evidence to grant relief. The Board found insufficient evidence of a medical disability or condition that would support a CHANGE to the rated conditions, disability determinations or disability ratings in this case. The Board further found insufficient evidence to recommend a change in the PEB fitness determination for any of the contended conditions and so no additional disability ratings or changes to the applicant’s DA Form 199 are recommended. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 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. 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. REFERENCES: 1. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR under the provisions of Title 10, U.S. Code, section 1552. This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 2. Army Regulation 40-501 (Standards of Medical Fitness) states in paragraph 3-13b (Asthma) the causes for referral to the disability evaluation system (DES) includes reactive airway disease, exercise-induced bronchospasm, asthmatic bronchospasm or asthmatic bronchitis. The clinic record must indicate that an asthmatic condition exists by virtue of a positive test with clinically verified asthma. Chronic asthma that has a forced expiratory volume in 1 second (FEV1) less than or equal to 50 percent of predicted despite appropriate therapy is cause for a permanent profile rating of P3 or P4 and referral to the DES. If the asthma requires more than an inhaled agent or leukotriene inhibitors (oral steroid) and prevents the Soldier from performing military training and duties including the Army Physical Fitness Test (APFT), wearing a protective mask, or limitations in Soldier’s geographic assignment are potential referrals into the DES provided consultations with an internist, pulmonologist, or allergist are completed. (This list is not all inclusive. See regulation for more detailed information.) 3. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) published on 19 January 2017 prescribes the Army Disability Evaluation System 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 implements the requirements of Title 10, U.S. Code, chapter 61; Department of Defense Instructions (DoDI) 1332.18 (Disability Evaluation System (DES)); DoD Manuel 1332.18 (DES Volumes 1 through 3) and Army Directive 2012-22 (Changes to Integrated Disability Evaluation System Procedures) as modified by DoDI 1332.18. a. The objectives are to maintain an effective and fit military organization with maximum use of available manpower; provide benefits to eligible Soldiers whose military service is terminated because of a service-connected disability; provide prompt disability evaluation processing ensuring the rights and interests of the Government and Soldier are protected; and, establish the Military Occupational Specialty Administrative Retention Review (MAR2) as an Army pre-DES evaluation process for Soldiers who require a P3 or P4 (permanent profile) for a medical condition that meets the medical retention standards of Army Regulation 40-501. b. Public Law 110-181 defines the term, physical DES, as a system or process of the DoD for evaluating the nature and extent of disabilities affecting members of the Armed Forces that is operated by the Secretaries of the military departments and is composed of medical evaluation boards, physical evaluation boards, counseling of Soldiers, and mechanisms for the final disposition of disability evaluations by appropriate personnel. c. The DES begins for a Soldier when either of the events below occurs: (1) The Soldier is issued a permanent profile approved in accordance with the provisions of Army Regulation 40–501 and the profile contains a numerical designator of P3/P4 in any of the serial profile factors for a condition that appears not to meet medical retention standards in accordance with AR 40–501. Within (but not later than) 1 year of diagnosis, the Soldier must be assigned a P3/P4 profile to refer the Soldier to the DES. (2) The Soldier is referred to the DES as the outcome of MAR2 evaluation. d. A medical evaluation board is convened to determine whether a Soldier’s medical condition(s) meets medical retention standards per Army Regulation 40-501. This board may determine a Soldier’s condition(s) meet medical retention standards and recommend the Soldier be returned to duty. This board must not provide conclusions or recommendations regarding fitness determinations. e. The physical evaluation board (PEB) determines fitness for purposes of Soldiers’ retention, separation or retirement for disability under Title 10, U.S. Code, chapter 61, or separation for disability without entitlement to disability benefits under other than Title 10, U.S. Code, chapter 61. The physical evaluation board also makes certain administrative determinations that may benefit implications under other provisions of law. (1) All cases will be initially adjudicated by an informal PEB which conducts a documentary review of the case file without the presence of the Soldier to make an initial decision on the Soldier’s fitness for continued service. The informal PEB determines whether any medical conditions individually or collectively causes the Soldier to be unfit for continued military service. It determines if the medical condition(s) were incurred or aggravated in the line of duty. It determines if Soldier’s are placed on the temporary disability retired list or permanent disability retired list. (2) If the initial decision of the informal PEB is the Soldier is unfit, the PEB President will request preliminary VA ratings for each condition the PEB found to be unfitting. Once the PEB receives the VA disability rating percentages, it will apply them to the conditions determined compensable by the PEB, recommend a disposition, and generate the DA Form 199. (3) The Soldier has 10 days from receipt of the informal PEBs findings and recommendations to make their election. The following options are available to the Soldier. * accept the PEB decision, thereby waiving his or her right to a formal hearing * nonconcur with the PEB decision and demand or request, as applicable a formal hearing with or without a statement of appeal * nonconcur with the PEB decision without submitting a statement of appeal or demanding a formal hearing * accept or request reconsideration of the VA preliminary ratings; the VA will only reconsider when there is new medical evidence or sufficient justification of an error to warrant reconsideration f. Unless reserved for higher authority, the U.S. Army Physical Disability Agency approves disability cases for the Secretary of the Army and issues disposition instructions for Soldiers separated or retired for physical disability after a mandatory quality assurance review. 4. Title 10, U.S. Code, section 1204 (Members on active duty for 30 days or less or on inactive0duty training: retirement) states upon a determination by the Secretary concerned a member of the armed forces is unfit to perform duties of his or her office, grade, rank, or rating because of physical disability, the Secretary may retire the member with retired pay computed under section 1401 of this title provided the disability was incurred while performing active duty or inactive-duty training before 24 September 1996. After 23 September 1996, the disability must have been the result of an injury, illness, or disease incurred or aggravated in the line of duty while performing active duty or inactive duty training. The disability must not be a result of the member’s intentional misconduct or willful neglect, and was not incurred during a period of unauthorized absence and the disability is as least 30 percent under the VASRD at the time of determination. 5. Title 38, U.S. Code, section 1110 (General - Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 6. Title 38, U.S. Code, section 1131 (Peacetime Disability Compensation - Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180008480 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1