IN THE CASE OF: BOARD DATE: 10 November 2022 DOCKET NUMBER: AR20220003989 APPLICANT REQUESTS: * an increase in his disability rating * a medical retirement APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs (VA) Rating Decision dated 19 December 2019 FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states he is seeking correction of his disability rating percentage from 10% to 60% with the respective medical retirement. There was limited information available about the long term effects of his medical condition prior to his medical board. He is currently in treatment for long term medical care and the lasting effects of his condition warrant a change in his rating to 60%. 3. The applicant provides a rating decision from the VA, dated 19 December 2019, which notified the applicant his evaluation of wheat-dependent exercise induced anaphylaxis with chronic urticaria rated at 10% was increased to 60% effective 19 September 2019. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 15 June 2007. b. The service record includes the applicant’s medical evaluations for the purpose of enlistment which indicated he was generally in good health. The applicant was marked qualified for service. * DD Form 2807-1 (Report of Medical History) dated 5 June 2007 * DD Form 2808 (Report of Medical Examination) dated 5 June 2 c. His Enlisted Record Brief shows he served on two deployments to Afghanistan: * 2 January 2011 to 17 April 2011 (3 months) * 6 February 2014 to 20 September 2014 (8 months) d. A DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings) shows on 30 September 2016 an informal PEB convened and found the applicant physically unfit. The PEB recommended a rating of 10% and that the applicant’s disposition be separation with severance pay. His sole disabling condition was listed as wheat dependent exercise induced anaphylaxis (VASRD Code 7825). The onset of symptoms occurred in 2011 when the applicant developed hives while eating a snack and symptoms were exacerbated following exercises. The conditions of tinnitus, sleep apnea, and allergic rhinitis were determined to meet retention standards. The document only included the signature of the PEB Authenticator and noted in Section VI (Instructions and Advisory Statements): * administrative correction is made due to the VA Decision Review Officer Reconsideration, dated 19 September 2016 * DA Form 199, dated 22 July 2016, is hereby superseded and replaced by this DA Form 199 e. The service record was void of a prior DA Form 199 with the applicant’s elections. f. Orders 309-0601, dated 4 November 2016, discharged the applicant from active duty with an effective date of 3 January 2017 and a 10% disability rating. g. He was honorably discharged from active duty on 3 January 2017. His DD Form 214 shows he completed 9 years, 6 months, and 19 days of active service. He was assigned separation code JEB, and the narrative reason for separation listed as “Disability, Severance Pay, Non-Combat (Enhanced).” 5. By regulation (AR 40-501), the VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 6. By regulation (AR 635-40), the Army disability system 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 or her office, grade, rank, or rating. a. The regulation states 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 military service. b. Paragraph 4-30 (Grade on retirement or separation for physical disability) states, the grade at which a Soldier is retired will be the grade to which the Soldier would have been promoted had it not been for the physical disability for which the Soldier was determined unfit. In general, this provision pertains to Soldiers on a promotion list. 7. 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. 8. Title 38, United States 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. 9. Title 38, Code of Federal Regulations, 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/her 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. 10. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents, the Record of Proceedings (ROP), and the applicant's records in the electronic Physical Evaluation Board (ePEB), the Interactive Personnel Electronic Records Management System (iPERMS), the Armed Forces Health Longitudinal Technology Application (AHLTA), the Health Artifacts Image Management Solutions (HAIMS) and the VA's Joint Legacy Viewer (JLV). The applicant requests an increase in Army disability from 10% to 60%. He contends that the long- term effects of his condition warrant an increase in the Army disability rating. a. The applicant’s term of service was from 20070615 to 20170103. In the 05Jun2007 Report of Medical History (for enlistment), the applicant endorsed being in good health. The associated exam did not reveal any significant abnormalities. The physical profile was PULHES was 111111. b. The applicant developed hives (urticaria) on 04Nov2015 during a 12 mile ruck march. He fainted and was treated in the emergency room. He was released in about an hour: however, his hives lasted through the next day. c. 05Mar2016 VUMC Neurology service consult. The next episode occurred after 2.5 miles into his 5K run. He was taken to Gateway hospital and treated for hypotension and hypokalemia. He was unconscious for a few hours and was transferred to Vanderbilt University Med Center (VUMC) but then was released due to resolution of symptoms. It was noted In VUMC ER he had “good air movement.” d. The Wheat Dependent Exercise Induced Anaphylaxis diagnosis was established during the 17May2016 Allergy Clinic visit. The applicant had a negative exercise test in the morning. However, when the exercise test was repeated after eating bagels, he developed an anaphylactic reaction: Dizziness, decreased blood pressure, hives and conjunctival injection. He responded readily to Benadryl, steroid injection, Zantac, EpiPen and fluids. e. 01Jun2016 ACH Blanchfield-Campbell Allergy Clinic. The allergist determined that due to wheat being a common food and given the severity of his reaction, they recommended against future deployments. Therefore IAW AR 40-501, chapter 3-41 (e)(1) they recommended referral for a MEB. They recommended avoidance of wheat ingestion 4-6 hours prior to exercise and he was also advised to have EpiPen available. f. 02Jun2016 permanent L3 physical profile for Life Threatening Allergic Reaction (exercise/food) prohibited deployment and all APFT events. g. 13Jun2016 Sinus Rhinitis and other Conditions of the Nose, Throat, Larynx and Pharynx DBQ, the condition had not required PFTs or larynx or pharynx biopsy. h. The 22Jul2016 Informal PEB found sole condition Wheat Dependent Exercise Induced Anaphylaxis, unfitting for continued service. The PEB narrative indicated that the unfitness determination was based on the fact that, if exposed to wheat and then required to engage in physical activity, the Soldier could have severe anaphylaxis. The case was adjudicated as part of the Integrated Disability Evaluation System (IDES); and as such, a 0% rating for no compensable symptoms was applied under DC 6522-7806 as per the 16Jul2016 VA Rating Decision. The applicant concurred with the PEB finding of unfitness; however, he did request for the VA to review the rating. The VA initially did NOT service connect the condition. They reasoned that although there was a record of treatment for the condition while he was in service, there was no permanent residual or chronic disability attributable to the condition. i. 11Aug2016 ACH Blanchfield-Campbell Allergy Clinic. The applicant reported that he had experienced 2 more episodes of urticaria (without anaphylaxis): The applicant reported generalized hives while playing with his children 5 hours after eating wheat (on 09Jul2016), resolved with Benadryl; and he reported one episode of hives (2 days prior to the note), during physical training in the gym 12 hours after eating pasta— symptoms were mild. Neither episode required intervention by medical personnel. j. 30Aug2016 Allergy Clinic. The specialist summarized that applicant had intermittent hives since 2011 which usually happened during PT. Current treatment was antihistamines as needed. The applicant had experienced 2 episodes of developing hives with exercise accompanied by loss of consciousness (confirmed anaphylaxis). Between the episodes, he was asymptomatic: Exercising regularly running 3-4 miles daily without issue to include hives. k. On 31Aug2016, the applicant formally requested (through the PEB) for the VA to reconsider the 0% rating. Essentially, the applicant contended that he experienced chronic urticaria and that the VA used the incorrect code and that his condition should be rated higher at 40% under DC 7118 (Angioneurotic Edema) or 30% under DC 7825 (Urticaria). To support his argument, he quoted the VASRD rule for assigning the highest rating for the disability clinical picture (§4.7 Higher of two evaluations) after careful consideration; as well as when doubt exists, it should be resolved in favor of the claimant (§4.3 Resolution of reasonable doubt). Please see the applicable VASRD rating criteria below for the codes suggested by the applicant. 7118 Angioneurotic edema: Attacks without laryngeal involvement lasting one to seven days or longer and occurring more than eight times a year, or; attacks with laryngeal involvement of any duration occurring more than twice a year – 40 Attacks without laryngeal involvement lasting one to seven days and occurring five to eight times a year, or attacks with laryngeal involvement of any duration occurring once or twice a year – 20 Attacks without laryngeal involvement lasting one to seven days and occurring two to four times a year – 10 7825 Urticaria: Recurrent debilitating episodes occurring at least four times during the past 12- month period despite continuous immunosuppressive therapy – 60 Recurrent debilitating episodes occurring at least four times during the past 12- month period, and; requiring intermittent systemic immunosuppressive therapy for control – 30 Recurrent episodes occurring at least four times during the past 12-month period, and; responding to treatment with antihistamines or sympathomimetics – 10 l. A 31Aug2016 letter of support from the treating allergist affirmed that the applicant experienced chronic urticaria and allergic rhinitis, however, they noted that the applicant had also experienced anaphylaxis (twice) requiring medical intervention which was the reason for the MEB. His anaphylaxis symptoms in the past included: Significant hypotension and generalized urticaria requiring emergency therapy with intravenous fluid, vasopressors (EpiPen), and systemic corticosteroids. m. In the VA’s 19Sep2016 Decision Review Officer Reconsideration, a 10% rating under DC 7825 was applied for recurrent episodes occurring at least four times during the past 12-month period, responding to treatment with antihistamines or sympathomimetics (EpiPen for example). The VA rating authority wrote that a 30% rating was not warranted because “evidence does not show that your urticaria is debilitating”. n. The applicant was discharged from service 03Jan2017. o. Relevant medical records and related evidence after service. (1) 21Feb2017 Veterans Choice Note. The applicant was considering seeking allergy treatment services at the VA. The referral indicated that his diagnosis was Urticaria with symptoms no longer controlled on Zyrtec (oral antihistamine). (2) 04Mar2019 Primary Care Note. The note indicated the applicant had Chronic Urticaria, and that the current poc (plan of care) was Zyrtec 20mg (twice the usual 10mg dose) daily as needed. The provider wrote “Patient states current poc is effective”. The provider noted that since advising the applicant to take 20mg of Zyrtec, he had been without signs and symptoms. (3) 12Apr2019 Primary Care Note. The applicant described having had an allergic reaction with angioedema (swelling and puffiness in the face especially around the eyes and lips) for one week and a severe body rash. He was treated with oral Benadryl and Zantac and he improved after few hours without needing to go to the emergency room. A request was sent for an allergy consult. (4) 24Jun2019 lab results resulted in a Alpha Gal Sensitivity diagnosis. This was considered to be a separate and distinct diagnosis. (5) 30Sep2019 Skin Diseases DBQ with related Medical Opinion. During this exam, the applicant reported that he his hives came and went on a daily basis, especially if exposed to cold or ingesting certain foods. The condition responded to treatment within an hour. He reported constant or near constant use of oral steroids and antihistamines (Zyrtec, Benadryl); use of nasal spray (Flonase); and use of Montelukast and Pepcid. (6) The applicant applied for an increase in compensation from the VA. 19Dec2019 VA Rating Decision explained that based on treatment records from 13Sep2016 through 25Sep2019, as well as the VA Skin Diseases examination dated 30Sep2019 with clarification 04Nov2019; the VA increased the rating for the Wheat Dependent Exercise Induced Anaphylaxis from 10% to 60%. The 60% rating was for chronic refractory urticaria that required third line treatment for control due to ineffectiveness with first and second line treatments. The 60% rating was effective 19Sep2019, over two and a half years after discharge from service. p. The applicant was diagnosed with Alpha Gal Sensitivity two years after his discharge from service. Alpha Gal is found in certain animal meats and animal products. It is a newly recognized condition, and it is separate and distinct from his Wheat Dependent Exercise Induced Anaphylaxis condition and NOT the result of the condition. Since they both cause allergic type reactions, the symptoms can appear the same. It was not incurred while in service and was NOT service connected by the VA. q. After discharge from service, the applicant was treated by a private, outside allergist. The 2017 to 2019 outside treatment records were not available for this review. During service, there was no indication that the applicant had any symptoms to suggest respiratory or laryngeal involvement: There was no reported cough, shortness of breath, difficulty breathing, speaking or other symptom to suggest compromised airways. Thus, there was no evidence of bronchospasm or laryngospasm and therefore there was no advantage to rating under DC 7118 Angioneurotic edema. His in-service record revealed episodes that lasted less than 7 days. At the time of discharge, the condition did NOT meet rating criteria above the 10% level. The applicant had experienced only two episodes (November 2015 and March 2016) that required systemic immunosuppressive therapy for control. Systemic route of medication delivery includes oral and intravenous methods. For the 2 anaphylactic exacerbations he required oral or injected steroids, EpiPen, and fluids. At the time of discharge, he had experienced at least four episodes (November 2015, March 2016, 09Jul2016 and 09Aug2016) during the past 12-month period that responded to treatment with antihistamines or sympathomimetics. According to VA rating records, his 60% rating was effective 19Sep2019, two years after discharge from service; and of note, this was also having developed another sensitivity that can cause the exact symptoms and was not service connected. Recommend no change in the Informal PEB 10% rating. BOARD DISCUSSION: After a reviewing the application and all supporting documents, the Board determined relief was not warranted. Based upon the available documentation and the findings and recommendation of the medical advisor, the Board concluded there was insufficient evidence of an error or injustice warranting the change of the applicant’s disability rating and/or narrative reason for separation. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X 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. Title 10, United States 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 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. 2. 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 U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system 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 Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and 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 or not 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 either are 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. c. The mere presence of a 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. 3. Department of Defense (DoD) Directive-Type Memorandum (DTM) 11-015 (Disability Evaluation System) explains the Integrated Disability Evaluation System (IDES). The version in effect at the time defined the IDES process and procedures. The guidelines within the DTM were incorporated in the DoD Manual Number 1332.18 (DES Manual: General Information and Legacy DES Time Standards). a. The IDES is the joint DoD-VA process by which DoD determines whether wounded, ill, or injured Service members are fit for continued military service and by which the DOD and the VA determine appropriate benefits for Service members who are separated or retired for a Service-connected disability. The IDES features a single set of disability medical examinations appropriate for fitness determination by the Military Departments and a single set of disability ratings provided by the VA for appropriate use by both departments. Although the IDES includes medical examinations, IDES processes are administrative in nature and are independent of clinical care and treatment. b. Unless otherwise stated in this DTM, DOD will follow the existing policies and procedures promulgated in DOD Directive 1332.18 (Disability Evaluation System (DES)) and the Under Secretary of Defense for Personnel and Readiness Memoranda. All newly-initiated, duty-related physical disability cases from the Departments of the Army, Air Force, and Navy at operating IDES sites will be processed in accordance with this DTM and follow the process described in this DTM unless the Military Department concerned approves the exclusion of the Service member due to special circumstances. Service members whose cases were initiated under the legacy DES process will not enter the IDES. c. IDES medical examinations will include a general medical examination and any other applicable medical examinations performed to VA compensation and pension (C&P) standards. Collectively, the examinations will be sufficient to assess the member’s referred and claimed condition(s) and assist the VA in ratings determinations and assist military departments with unfit determinations. d. Within 15 days of receiving the proposed disability ratings from the Disability Rating Activity Site (D-RAS), the PEB will apply the raring using the diagnostic code(s) provided by the D-RAS to the Service Member’s unfitting conditions and publish the disposition recommendation. For example, if the PEB identifies a condition to the D-RAS as “schizophreniform disorder”, but the D-RAS rates the condition as “psychotic disorder NOS (VASRD 9210), the PEB will apply the rating as “schizophophreniform disorder rated as psychotic disorder NOS (VASRD 9210). e. Upon separation from military service for medical disability and consistent with Board for Corrections of Military Records (BCMR) procedures of the Military Department concerned, the former Service member (or his or her designated representative) may request correction of his or her military records through his or her respective Military Department BCMR if new information regarding his or her service or condition during service is made available that may result in a different disposition. For example, a veteran appeals the VA’s disability rating of an unfitting condition based on a portion of his or her service treatment record that was missing during the IDES process. If the VA changes the disability rating for the unfitting condition based on a portion of his or her service treatment record that was missing during the IDES process and the change to the disability rating may result in a different disposition, the Service member may request correction of his or her military records through his or her respective Military Department BCMR. 4. Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation) establishes 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. 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. a. 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 military service. b. Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. c. Chapter 4 states the USAPDA will review the PEB cases of General and Medical Corps officers found unfit. With respect to cases of General and Medical Corps officers determined unfit at career end, the disability findings must be approved by the Secretary of Defense or the designee. d. Paragraph 5-4 (Reasonable performance of duties) further noted determining whether a Soldier’s medical impairments preclude the Soldier from reasonably performing their duties will be determined by several factors to include the ability to deploy. The PEB considers whether the Soldier (Active Army and RC) is deployable individually or as part of a unit, with or without prior notification, to any location specified by the Army; however, this provision does not apply to General and Medical Corps officers. 5. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). The Department of Veterans Affairs Schedule for Rating Disabilities. VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 6. 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. 7. 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. 8. 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) AR20220003989 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1