IN THE CASE OF: BOARD DATE: 5 December 2022 DOCKET NUMBER: AR20220006248 APPLICANT REQUESTS: an increase in his disability rating. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 2648 (Pre-Separation/Transition Counseling) * DD Form 199 (Informal Physical Evaluation Board (PEB) Proceedings) * DD Form 199-1 (Formal PEB Proceedings), 17 July 2018 * PEB Appeal Response Memorandum, 7 August 2018 * Reconsideration of Rating Decision, 12 September 2018 * U.S. Army Physical Disability Agency (USAPDA) Letter, 16 November 2018 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Orders 036-1066, 5 February 2019 * Department of Veteran Affairs (VA) Medical Records (17 pages) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. 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 the Army rated him at a time when he was asymptomatic. A few weeks after the final decision was made, he became symptomatic. He was admitted to the hospital while he was still in the service for the same underlining medical condition that caused him to be separated. The rating of 0% was given at the time he was asymptomatic; however, he exhausted all appeal options and that is sufficient to warrant a rating change. Additionally, he was subsequently granted 10% at the time he was asymptomatic. 3. The applicant provides: a. The below listed documents to be referenced in the service record: * DD Form 199-1 dated 17 July 2018 * USAPDA Letter dated 16 November 2018 * DD Form 214 effective 27 January 2019 * Orders 036-1066 dated 5 February 2019 b. A DD Form 2648 shows the applicant anticipated separation on 31 December 2017 and completed all the transition requirements on 17 August 2017. c. A DA Form 199 shows on 18 May 2018 an informal PEB convened and found the applicant physically unfit. The PEB recommended a rating of 0% and that the applicant’s disposition be separation with severance pay. His sole unfitting condition was listed as bilateral pulmonary embolism (VASRD Code 6817). The condition manifested while the applicant was deployed to Kuwait in 2017. The PEB also considered the below listed conditions and indicated the applicant was found fit for the following conditions: * insomnia disorder * subjective tinnitus * myopia * astigmatism * urinary frequency without nocturia, undetermined etiology * gallstones * irritable bowel syndrome * tension headaches * chronic thoracolumbar strain * right shoulder tendonitis * pseudo folliculitis barbae * dermatitis * tines cruris, chronic * bilateral pes planus * shin splints d. A memorandum from the PEB Presiding Officer, dated 7 August 2018, noted receipt of the applicant’s election indicating non-concurrence with his formal PEB board. Within his letter of rebuttal, the applicant contended that the board should find him fit for duty. The board performed a de novo review of the entire case file as well as his sworn testimony. After a thorough review of the case file, the applicant’s testimony, and all written exhibits, the board reaffirmed the findings of the Formal PEB which found the Soldier unfit for further service due to Pulmonary Embolism, Bilateral (MEB Dx 1). The Board finds the condition presented a decided medical risk to this Soldier, interfered with duty performance, or imposed unreasonable requirements on the Army to maintain of protect the Soldier. e. A memorandum, dated 12 September 2018, shows the DVA Decision Review Officer determined a change was not warranted in his disability rating. As there is no change warranted, the DA Form 199-1 dated 17 July 2018 is still applicable which found him unfit with a total disability rating of 10 percent. f. His VA medical records (17 pages) for treatment received from approximately 25 September 2018 through 7 February 2022. 4. A review of the applicant’s service record shows: a. He enlisted in the New York Army National Guard (NYARNG) on 27 June 2008. b. The service record includes the applicant’s medical evaluations for the purposes of enlistment which indicated he was generally in good health with the exception of moderate, asymptomatic pes planus. The applicant was marked qualified for service. * DD Form 2807-1 (Report of Medical History) dated 27 June 2008 * DD Form 2807-2 (Medical Prescreen of Medical History Report) dated 24 June 2008 * DD Form 2808 (Report of Medical Examination) dated 27 June 2008 c. He entered active duty on 9 September 2008. He was honorably released from active duty training on 21 May 2009. His DD Form 214 shows he completed 8 months and 19 days of active service. He was assigned separation code MBK and the narrative reason for separation listed as “Completion of Required Active Service.” d. Orders 177-266, dated 29 June 2012, ordered the applicant to active duty with a report date of 16 August 2012. e. He served in Afghanistan from 13 September 2012 through 30 June 2013 (9 months and 18 days). f. Orders 178-0047, dated 27 June 2013, released the applicant from active duty, not by reason of physical disability, with an effective date of 13 August 2013. g. He was honorably released from active duty on 13 August 2013. His DD Form 214 shows he completed 11 months and 28 days of active service. He was assigned separation code MBK and the narrative reason for separation listed as “Completion of Required Active Service.” h. Orders 36-235-0020, dated 22 August 2016, ordered the applicant to active duty with a report date of 6 September 2016. i. A DA Form 2173 (Statement of Medical Examination and Duty Status) shows on approximately 21 May 2017 the applicant woke up in Camp Arifjan, Kuwait, with a sharp pain in his lower back. He ignored the pain since it followed his Army Physical Fitness Test (APFT); however, a peer noticed he had difficulty walking. The applicant was diagnosed with chronic pulmonary embolism, lung. j. A memorandum from the National Guard Bureau, dated 5 July 2017, indicated the bilateral lung chronic pulmonary embolism occurred during Operation Enduring Freedom (Spartan Shadow) and was approved “In Line of Duty.” k. A memorandum dated 13 July 2017, notified the applicant of possible entitlements and benefits resulting from his approved line of duty investigation. l. A DA Form 199-1 shows on 17 July 2018 a formal PEB convened and found the applicant physically unfit. The PEB recommended a rating of 0% and that the applicant’s disposition be separation with severance pay. His sole unfitting condition was listed as bilateral pulmonary embolism (VASRD Code 6817). The condition manifested while the applicant was deployed to Kuwait in 2017 and determined in line of duty. On 2 August 2018, the applicant indicated he did not concur with the findings, attached an appeal, and requested VA reconsider his disability ratings. The PEB also considered the below listed conditions and indicated the applicant was found fit for the following conditions: * insomnia disorder * subjective tinnitus * myopia * astigmatism * urinary frequency without nocturia, undetermined etiology * gallstones * irritable bowel syndrome * tension headaches * chronic thoracolumbar strain * right shoulder tendonitis * pseudo-folliculitis barbae * dermatitis * tines cruris, chronic * bilateral pes planus * shin splints m. A USAPDA letter, dated 16 November 2018, notified Soldier’s counsel the case was properly adjudicated by the PEB in accordance with the rules that govern the Physical Disability Evaluation System in making its determination. As a result, the PEB was required to find the applicant unfit as regulation prescribed retention for profiles preventing a Soldier's ability to live and perform in austere conditions. n. Orders 338-0008, dated 4 December 2018, discharged the applicant from active duty with a 0% disability rating and severance pay effective 27 January 2019. o. He was honorably discharged from active duty on 27 January 2019. His DD Form 214 shows he completed 2 years, 4 months, and 22 days of active service. He was assigned separation code JEB and the narrative reason for separation listed as “Disability, Severance Pay, Non-Combat Related (Enhanced). 5. 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. 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. 6. 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. 7. 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. 8. 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. 9. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and/or the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a. The applicant is applying to the ABCMR requesting an increase in his military disability rating with a subsequent change of his disability discharge disposition from separate with severance pay to permanent retirement for physical disability. He states: “The rating that was given by the Department of the Army was given while I was asymptomatic. A few weeks after the Department of the Army made their final decision, I became symptomatic and was admitted to the hospital while still in service for the same underlining medical condition that caused me to be medically separated from the Army. The rating of 0% the Army awarded me was at the time I was considered to be asymptomatic. Around that time, I already exhausted all of the options that I had in terms of appealing the decision. Due the fact that I was still in active status and that the status of my underlying medical separation condition changed from asymptomatic to symptomatic right after the final decision was made is sufficient enough to warrant a rating change. Especially due to the fact that the rating of 10% was granted only because of me being asymptomatic at the time.” b. The Record of Proceedings details the applicant’s service and the circumstances of the case. His DD 214 for the period of Service under consideration shows the former Guard Soldier entered active duty on 6 December 2016 and was separated with $31,158 of disability severance pay on 27 January 2019 under provisions provided in paragraph 4-24 of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (19 January 2017). c. A Soldier is referred to the Integrated Disability Evaluation System (IDES) when they have one or more conditions which appear to fail medical retention standards reflected on a duty liming permanent physical profile. At the start of their IDES processing, a physician lists the Soldiers referred medical conditions in section I the VA/DOD Joint Disability Evaluation Board Claim (VA Form 21-0819). The Soldier, with the assistance of the VA military service coordinator, lists all other conditions they believe to be service-connected disabilities in block 8 of section II of this form, or on a separate Application for Disability Compensation and Related Compensation Benefits (VA Form 21-526EZ). d. Soldiers then receive one set of VA C&P examinations covering all their referred and claimed conditions. These examinations, which are the examinations of record for the IDES, serve as the basis for both their military and VA disability processing. The medical evaluation board (MEB) uses these exams along with AHLTA encounters and other information to evaluate all conditions which could potentially fail retention standards and/or be unfitting for continued military service. Their findings are then sent to the physical evaluation board for adjudication. e. All conditions, both claimed and referred, are rated by the VA using the VA Schedule for Rating Disabilities (VASRD). The physical evaluation board (PEB), after adjudicating the case, applies the applicable ratings to the Soldier’s unfitting condition(s), thereby determining his or her final combined rating and disposition. Upon discharge, the Veteran immediately begins receiving the full disability benefits to which they are entitled from both their Service and the VA. f. On 12 June 2020, the applicant was referred to the IDES for “Pulmonary embolism with requirement for indefinite anti-coagulation.” The applicant claimed twenty-one additional conditions on a separate Application for Disability Compensation and Related Compensation Benefits (VA Form 21-526EZ). g. A medical evaluation board (MEB) determined his referred condition, now termed as “Pulmonary Embolism, bilateral,” failed the medical retention standards of AR 40- 501, Standards of Medical Fitness. Though his emboli had resolved, the applicant had been found to fail medical retention standards after being placed on life-long anticoagulant therapy due to his high risk of recurrence of thromboembolic disease. h. On 26 March 2018, the applicant non-concurred with the MEB’s decision but did not submit a written rebuttal and declined an independent medical review of his MEB. His case was subsequently forwarded to a physical evaluation board (PEB) for adjudication. i. On 18 May 2018, the applicant’s informal PEB found his “Bilateral Pulmonary Embolism” to be unfitting for continued military service as his anticoagulation therapy prevented the required ability of world-wide deployability. They found the fifteen remaining medical conditions not unfitting for continued service. The PEB applied the Veterans Benefits Administration (VBA) derived rating of 0%. From the 30 April 2018 VA proposed rating decision: “We have assigned a non-compensable evaluation for your bilateral pulmonary embolism (claimed as pulmonary emboli with requirement for indefinite anti- coagulation) based on: • Asymptomatic, following resolution of pulmonary thromboembolism Additionally, a higher evaluation of 10 percent is not warranted for chronic bronchitis unless the evidence shows: • Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) of 66 to 80 percent predicted; or, • FEV-1 to Forced Vital Capacity (FVC) (FEV-1/FVC) of 71 to 80 percent; or, • Forced Expiratory Volume in One Second (FEV-1) of 71 to 80 percent predicted. A higher evaluation of 30 percent is not warranted for pulmonary vascular disease unless the evidence shows: • Symptomatic Pulmonary Vascular Disease, following resolution of acute pulmonary embolism. j. Because his combined military disability rating was less than 30%, the PEB recommended the applicant be separated with disability severance pay. On 8 June 2018, after being counseled by his PEB Liaison Officer (PEBLO) on the PEB’s findings and recommendations, the applicant non-concurred with the PEB’s finding, demanded a formal hearing with regularly appointed counsel, and declined to request a VA reconsideration of his disability rating. k. The applicant was present for and represented by regularly appointed counsel at his 17 July 2018 formal PEB. The applicant requested the Board find him fit for duty, but the board maintained the informal PEB’s finding that this condition was unfitting for continued service: “At a formal hearing held on 17 July 2018, SPC {Applicant} requested the Board find him fit for duty despite his Pulmonary Embolism, Bilateral condition. Based on the Soldier’s testimony, further review by the PEB of medical evidence presented by the Soldier, and a complete review of the original case file, the Board determined that the preponderance of evidence does not support finding the Soldier fit for duty due to Pulmonary Embolism, Bilateral condition. The Board finds no changes to original decision. IAW AR 635-40, Chapter 5-4 (e)2, the PEB will find Soldiers unfit who are medically disqualified for worldwide deployment in a field or austere environment as noted on the Soldier's current DA Form 3349-SG {permanent physical profile}. Therefore, the Board finds that the Soldier is unfit for duty.” l. The applicant non-concurred with the formal PEB’s findings, submitted a written appeal, and requested a VA reconsideration of his disability rating. m. The VA confirmed their 0% rating on 5 September 2018 concluding: “The overall evidence supports the 0% evaluation assigned based on history of an unprovoked pulmonary embolism (PE) with no residual effect, that is asymptomatic following resolution of PE. Review of the treatment records show no evidence of recurrence or of a chronic PE that requires anticoagulant therapy. The mere fact that the SM is on lifelong anticoagulation therapy is not sufficient to warrant the 60% evaluation. This treatment is standard protocol for PE (not necessarily lifelong). However, due to the SM high risk of recurrence, lifelong treatment is recommended. There must be evidence of recurrence of PE or evidence of a current chronic PE. The evidence of record does not show this.” n. In their 16 November 2018 response to the applicant’s counsel, the United States Army Physical Disability Agency reaffirmed the applicant’s unfitness for continued military service: “While we note the prodigious attributes contained within your client's case file including your client's ambitious professional and personal desires to better him self in every available capacity, the current rules that govern the Disability Evaluation System (DES) generally and AR 635-40 Para 5-4(e)(2) specifically, proscribe retention for profiles preventing a Soldier's ability to live and perform in austere conditions. As a result, the PEB is required to find your client unfit. This has been deemed an acceptable policy modification by the highest tiers of Department of Defense and Army senior leadership irrespective of the claimed mistake in law.” o. Review of his PEB case file in ePEB along with his encounters in AHLTA revealed no substantial inaccuracies in or discrepancies. p. Submitted medical documentation from the Veterans Hospital Administration shows the applicant had a recurrence of pulmonary emboli in December 2020, and JLV shows the condition is currently rated at 60%. q. A disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service. The rating derived from the VA Schedule for Rating Disabilities reflects the disability at the point in time the VA exams were completed. The DES has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions incurred during or permanently aggravated by their military service. These roles and authorities are granted by Congress to the Department of Veterans Affairs and executed under a different set of laws. r. It is the opinion of the ARBA Medical Advisor that neither an increase in his military disability rating, a change of his disability discharge disposition, nor a referral of his case back to the DES is warranted. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, VA documents, a medical advisory opinion, and regulatory guidance were carefully considered. The Board concurred with the advisory official finding a higher rating was not warranted for pulmonary vascular disease. The Board concluded there was insufficient evidence of an error or injustice which would warrant a change to his disability rating. 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, 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 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. 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. 4. 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. 5. 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. 6. 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. 7. 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. 8. Section 1556 of Title 10, United States Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220006248 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1