IN THE CASE OF: BOARD DATE: 31 January 2023 DOCKET NUMBER: AR20220006704 APPLICANT REQUESTS: * physical disability retirement in lieu of physical disability separation with severance pay * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * three self-authored statements * two DA Forms 199 (Physical Evaluation Board (PEB) Proceedings), 14 May and 8 July 2002 * numerous medical documents dated from February 2003 – October 2003 * three DA Forms 2166-8 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)), from November 2003 – June 2005 * Medical Evaluation Board (MEB) Consult, 2 March 2005 * Memorial Hospital Sleep Disorders Center Sleep Study, 10 May 2005 * Evans U.S. Army Community Hospital (ACH) Operative Report, 16 August 2005 * MEB Consultation Addendum, 2 November 2005 * Standard Form 600 (Chronological Record of Medical Care), 9 December 2005 * Leave and Earnings Statement (LES), 31 December 2005 * Enlisted Record Brief (ERB), 24 January 2006 * DD Form 2808 (Report of Medical Examination), 25 January 2006 * DD Form 2807-1 (Report of Medical History), 30 January 2006 * partial Commander’s Performance Statement, 1 February 2006 * Evans ACH Asthma Test, 30 March 2006 * Standard Form 600, 17 April 2006 * MEB Narrative Summary (NARSUM), 26 April 2006 * DA Form 3349 (Physical Profile), 28 April 2006 * DA Form 3947 (MEB Proceedings), 28 April 2006 * DA Form 5889-R, 8 May 2006 * DA Form 199, 30 May 2006 * DA Form 5893-R (PEB Liaison Officer (PEBLO) Counseling Checklist/Statement), 1 June 2006 * DA Form 5892-R (PEBLO Estimated Disability Compensation Worksheet), undated * Army Review Boards Agency (ARBA) letter, 8 March 2022 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: a. He is requesting a review of his records pertaining to his PEB dated 8 May 2006. The assigned ratings for his asthma condition, sleep apnea, and right shoulder are incorrect. He was assigned a 10 percent rating for asthma due to his forced expiratory volume (FEV1) test result of 83 percent; however, the PEB failed to take into account that he required the use of an inhaler. He used the inhaler every day, 2 puffs by mouth 4 times per day for asthma and shortness of breath, with and without exercise. The Veterans Affairs Schedule for Rating Disabilities (VASARD) rates this at 30 percent. The medical records showing his use of an inhaler have been located and provided in the attached documents. b. The PEB also failed to account for his use of a continuous positive airway pressure (CPAP) machine. He was essentially not able to deploy to a combat zone due to the use of a CPAP machine. CPAP machines are not designed to be used in a tactical environment. Currently, his obstructive sleep apnea (OSA), rated at 10 percent, is controlled via a CPAP setting of 8 centimeters (cm), full face mask with heated humidity. He experiences short sleep latency with short rapid eye movement (REM) latency, considered narcolepsy with two apneic episodes and 17 hypopnea episodes during the REM phase of sleep. c. He underwent the following surgeries, which should all be considered in his disability rating: * removal of cyst from right testicle in September 1995 * thermal capsular on right shoulder in 2001 * arthroscopic Bankart Procedure of the right shoulder in 2003 * arthroscopic partial synovectomy of right shoulder in August 2003 * meniscus repair of the right knee in September 2010 * partial lateral meniscectomy chondroplasty of lateral femur and microfracture in March 2013 * arthroscopic surgery of the right shoulder in September 2015 d. He would greatly appreciate a full review of all his conditions to ensure that his rating is correct. In the pursuit of fair judgment, he has brought to light the inconsistencies due to his lack of knowledge at the time of his discharge. He is confident that his case will be reversed after careful review of all the discrepancies and that his status will be changed from 20 percent disability with severance pay to medical retirement. 3. The applicant enlisted in the Regular Army on 26 July 1996. 4. A DA Form 199 shows the following: a. A PEB convened on 14 May 2002, where the applicant was found physically unfit with a recommended rating of 10 percent and that his disposition be separation with severance pay for asthma (MEB diagnosis (Dx) 1). The applicant was reported to be using daily medications for his asthma; however, this was not supported by the electronic medical record. b. MEB Dx 2-3 were deemed medically acceptable. It is unclear from the available documentation what MEB Dx 2-3 are. c. On an unspecified date, the applicant signed the form indicating he was advised of the findings and recommendations of the PEB and did not concur, demanded a formal hearing with personal appearance and requested a regularly appointed counsel to represent him. 5. A second DA Form 199 shows the following: a. A Formal PEB convened on 8 July 2002, and based on a detailed review of the evidence of record, the PEB concluded the applicant did not have any functional impairment which prevented satisfactory performance of duty and found him fit for duty in his current grade and specialty. b. The applicant’s company first sergeant and battalion command sergeant major personally appeared at the hearing and testified to his ability to perform his duties satisfactorily. c. It appeared the applicant’s physical profile may have been overly restrictive when compared to his medical condition as depicted in the NARSUM of the MEB. The PEB recommended a review and update of the applicant’s physical profile and recommended his disposition be returned to duty as fit. c. On 8 July 2002, the applicant signed the form indicating he was advised of the findings and recommendations of the PEB and concurred. 6. The applicant provided multiple medical documents dated between February and October 2003, showing the following: a. The applicant was seen at the National Naval Medical Center, Otolaryngology Clinic on 18 February 2003, with the chief complains of snoring and apnea. He admitted drowsy driving and napping after work. OSA was to be ruled out. b. The applicant again was seen at the National Naval Medical Center, Otolaryngology Clinic on 8 July 2003, for a follow-up. His listed problem is OSA. The applicant indicated liking the CPAP; it was strange, but made him feel better. The sleep/CPAP study report was inconclusive. A diagnosis of OSA as well as the severity are questioned. The plan was for the applicant to pursue using the CPAP as recommended per the sleep lab and follow up if unsuccessful. c. A National Naval Medical Center Radiologic Examination Report, dated 9 July 2003, shows an overnight CPAP titration trial documented 354 minutes of total sleep time with a normal sleep onset latency of 5 minutes and a normal sleep efficiency of 97 percent. The applicant cycled smoothly through all stages of sleep with normal percentages of REM sleep and slow wave sleep. The REM latency was normal. Oxygen saturations were maintained above 91 percent. The applicant slept in the supine position for the entire study. No periodic limb movements were noted. The EKG was within normal limits. The applicant stated his overnight sleep was better than usual. The impression was OSA with a result code of minor abnormality. The recommendation was for the applicant to arrange for home CPAP and follow-up with referring provider in 4 -6 weeks to assess machine compliance and resolution of symptoms. d. On 31 July 2003, the applicant was seen at the Dewitt ACH, Family Practice Clinic for sleep apnea. He had a history of two “sleep studies” done at Bethesda and a prior permanent physical rating of 3 and PEB for exercise-induced asthma. He was evaluated by Pulmonology and Ear, Nose, and Throat (ENT) and has a follow up with END. The second sleep study is not in the system. The applicant was tolerating the CPAP well. In accordance with Army Regulation 40-501 (Standards of Medical Fitness), the applicant will need another MEB for probably Dx of OSA. e. On 27 September 2003, the applicant was seen at the Dewitt ACH, Family Practice Clinic for a sleep disorder. He had a previous evaluation at Bethesda, but stated that doctor could not write any statements for the Army. The applicant was concerned about how his sleep apnea could possibly affect his career as he used a CPAP. f. A Standard Form 600 shows the applicant was seen on 15 October 2003 for an initial Sleep Clinic visit to rule out OSA. The applicant was there to discuss a plan of care for OSA of unknown severity. He started a CPAP in July 2003. 7. The applicant’s NCOER covering the period from December 2002 through November 2003, shows the following: * his physical profile hindered his duty performance * he failed to meet body fat standards due to medical limitations * his Physical Fitness and Military bearing were rated as “Needs Improvement” 8. The applicant deployed to Kuwait from 16 February 2004 through 21 January 2005. 9. The applicant’s NCOER covering the period from December 2003 through November 2004 (during the period of his deployment to Kuwait) shows the following: * he passed his Army Physical Fitness Test (APFT) in October 2004 * he met the height/weight standards * he showed remarkable endurance and bearing while working long duty days in support of logistical operations * mentally and physically tough; projected all traits of a professional Soldier * his Physical Fitness and Military bearing were rated as “Success” 10. An MEB Consult, dated 2 March 2005, shows the following: a. The applicant’s chief complaint was not being able to lift and do his job. He had a long history of right shoulder instability and had a dislocation in 2000. He subsequently developed instability and received thermal capsular shrinkage in 2001 and in 2003 he received an arthroscopic Bankart procedure at DeWitt Community Hospital. He did well until the middle of last year while deployed in Kuwait. He began to have recurrence of his symptoms, especially with lifting supply boxes. He complained of subluxations, no frank dislocations, and pain in his shoulder with lifting. b. The orthopedics exam shows the applicant has no winging, no atrophy, he has full forward elevation, he has symmetric internal and external rotation while abducted. While adducted he has symmetric external rotation. He does have decreased internal rotation to the back compared to the unaffected side. He has a positive abduction external rotation test, positive Surprise test, positive relocation test. He has a 2+ anterior load/shift. c. X-ray studies of the shoulder appear normal. d. The applicant had a constant aching pain, worse with activities. He was unable to move with a fighting load, was unable to construct an individual fighting position, unable to complete the PFT push-ups or sit-ups, and was unable to do upper body weight training. e. The applicant’s Dx was right shoulder instability. It was recommended the applicant receive a medical discharge. Given the restrictions of his permanent physical profile, he was no longer deployable. The applicant was offered an open Bankart procedure but refused the procedure. 11. Memorial Hospital Sleep Disorders Center Sleep Study, dated 10 May 2005, shows the applicant underwent sleep analysis on 20 April 2005. a. His sleep onset latency was short at 3.5 minutes. REM latency was short at 53 minutes. Total sleep time was normal at 393 minutes. Sleep efficiency was good at 97 percent. b. Sleep staging was notable for a lack of slow wave sleep and a normal percentage of REM sleep. There were only two arousals due to rare hypopneas; 24 arousals due to spontaneous arousals. No periodic limb movements were detected. c. The impression was OSA, will controlled on current level of 8 cm of CPAP utilizing a Respironics full-face mask with heated humidity; short sleep latency with short REM latency; consider narcolepsy. d. If the applicant’s daytime sleepiness did not improve significantly on CPAP therapy, multiple sleep latency tests would be recommended in pursuit of a diagnosis of narcolepsy. 12. The applicant’s NCOER covering the period from December 2004 through June 2005 shows: * his physical profile did not hinder his ability to accomplish daily duties * he last passed his APFT in August 2004 * he was within the height/weight standards * his Physical Fitness and Military Bearing were rated as “Success” 13. Evans ACH Operative Report, dated 16 August 2005, shows the applicant underwent arthroscopic partial synovectomy, right shoulder on 11 August 2005. His preoperative diagnosis was unstable right shoulder and his postoperative diagnosis was synovitis (inflammation of a synovial membrane), right shoulder; stable shoulder. 14. An MEB Consultation Addendum, dated 2 November 2005, shows the following: a. This addendum was in addition to an original dictation from 2 March 2005. The chief complaint was right shoulder achiness. b. The applicant presented to the Orthopedic Clinic mid 2005 fore evaluation of shoulder instability. He underwent an arthroscopy with a finding of synovitis. Significantly, he had no labral lesion or instability while under anesthesia. Postoperative he has done well. He does have some achiness with certain activities and is unable to perform throwing activities or overhead activities comfortably. c. He was diagnosed with right shoulder synovitis, status post stabilization procedures. He was not qualified for worldwide duty. His physical profile was a permanent rating of “3” in the factor U (Upper extremities), with no overhead lifting, no lifting greater than 30 po0unds, no rucking, and no push-ups. This did not exist prior to service (EPTS). 15. A Standard Form 600, dated 9 December 2005, shows the applicant was seen at the Evans ACH, Otolaryngology Clinic. The applicant was underdoing an MEB for his shoulder and stated he was referred from the MEB for a reevaluation of his OSA. He was assessed with OSA, anomalies of the tongue macroglossia, and asthma, unspecified moderate. He was released without limitations and was to follow-up as needed in the Otolaryngology clinic. The applicant indicated he had a physical profile for his moderate OSA with CPAP that was lost and a new P3 physical profile was to be initiated. 16. A DD Form 2808, dated 25 January 2006, shows the applicant underwent medical examination for the purpose of an MEB on the date of the form. He was found not qualified for service with a physical profile rating of “3” in the factors P (Physical capacity or stamina) and U, with a rating of “1” in all other factors. His listed significant or disqualifying defects were as follows: * right shoulder * asthma * sleep apnea * back * knees 17. A DD Form 2807-1, dated 30 January 2006, completed in conjunction with the applicant’s medical examination for the MEB shows he listed the following among his history of medical conditions: * asthma * prescribed an inhaler * painful shoulder * recurrent back pain or back problems * swollen or painful joints * knee trouble * sleep apnea wit use of CPAP 18. A partial Commander’s Performance Statement, dated 1 February 2006, shows the following: a. The applicant fell on his shoulder while playing unit basketball on 14 June 1999 and has had recurring problems since then. He had shoulder surgery on 27 September 2001, 14 October 2003 and 5 August 2005. He was initially given a temporary profile with Motrin and rehabilitation for the injury. He received a P3 profile on 1 May 2004 for his recurring problems. He cannot fire his assigned weapon or lift items weighing over 10 pounds over his head. These activities cause temporary muscle loss and he may drop items or possible dislocate his shoulder if lifting heavy objects overhead. He has taken only two PT tests in the past 3 1/2 years and his physical fitness level has declined due to his medical condition. The applicant has participated in rehabilitation for his shoulder injury, for strength, and for his shoulder surgeries. b. The applicant was working in his primary Military Occupational Specialty (MOS) both prior to and since his injury. He is currently working in the 3rd Brigade Property Book office as a supply sergeant. He has sharp pains when lifting equipment. He can occasionally lift heavy equipment; however, he can't lift them over his head. He experiences difficulty moving or lifting heavy equipment. He has tremendous problems while climbing stairs while moving supplies or equipment. He can't participate in collective PT, but he can do limited PT at his own pace and distance. c. The applicant had been an exceptional Soldier with great potential for further service to the Army. His mental toughness and expertise in him MOS has increased, but his physical abilities have decreased. He cannot attend Primary Leadership Development Course (PLDC) due to his shoulder injury. 19. A Standard Form 600, dated 17 April 2006, shows the applicant was seen at the Evans ACH Allergy Clinic. The listed reason for the appointment was to determine if his asthma falls below retention standards. He was undergoing an MEB for an orthopedic problem and had been previously diagnosed with asthma. Please evaluate and provide some form of documentation regarding the assessment for fitness pertaining to asthma. The applicant was currently on Singular QD and this has reduced his Albuterol use. He uses a metered dose inhaler (MDI) twice per week; he is not running due to heel symptoms, but walks and has shortness of breath with stairs. He was diagnosed with exercise induced bronchospasm (EIB), mild, and advised that controlling nasal allergy and losing weight should control most, if not all, of the EIB. 20. An MEB NARSUM, dated 26 April 2006, shows the following: a. Dx 1, right shoulder instability, was incurred in 1999 while playing unit basketball and landing on his shoulder and aggravated in later years. The applicant underwent multiple right shoulder surgical procedures, in 2001, 2003, and 2005 along with physical therapy and was given a permanent physical profile rating of “3” for the shoulder in November 2005. b. Dx 2, OSA, was initially diagnosed as moderate sleep apnea in August 2002 and he was placed on a CPAP at that time, which he has used ever since. He was able to deploy to Kuwait from February 2004 to January 2005 and reported using his CPAP while in Kuwait; he was in a fixed building with a power supply. Upon his return from deployment he saw the ENT and had a follow-up sleep study in April 2005, which was read as OSA, will controlled on the CPAP, and he was not considered to have narcolepsy. He denies any current daytime drowsiness. c. Additional diagnoses, which do not cause the applicant to fall below retention standards are as follows: * Dx 3, mild exercise induced bronchospasm as assessed on his most recent visit with the allergist (previous MEB/PEB in 2002 found him fit/returned to duty) * Dx 4, hypertension * Dx 5, migraine headaches (well-controlled) * Dx 6, seasonal allergic rhinitis d. The applicant’s physical profile of P3 in factors P and U prevented him from all functional activities aside from wearing a protective mask and chemical defense equipment. No 2-mile run or push-ups. Alternative walk or bike test. Run at own pace and distance. No lifting over 20 pounds. Limit overhead activities with the right shoulder. He must us his CPAP machine and have access to a power source. e. The applicant was referred to the PEB for adjudication for fitness for duty. 21. A DA Form 3349 (Physical Profile), dated 28 April 2006, shows the applicant was given a permanent physical profile rating of “3” in the factors P and U for chronic right shoulder pain (status/post 3 surgical procedures and OSA requiring CPAP. All functional activities were limited aside from wearing protective mask and all chemical defense equipment. He was to limit over-the-head activities with the right arm. He must use CPAP machine and have access to a power source. MEB pending. 22. A DA Form 3947 shows the following: a. An MEB convened on 28 April 2006, where the following conditions were considered to cause the applicant to fall below retention standards: * Dx 1, right shoulder pain and status/post 3 surgical procedures * Dx 2, OSA requiring CPAP b. The following additional conditions did not cause him to fall below retention standards: * Dx 3, mild exercise inducted bronchospasm as assessed on his most recent visit with the allergist (previous MEB/PEB in 2002 found his fit, returned dot duty) * Dx 4, hypertension * Dx 5, migraine headaches (well-controlled) * Dx 6, season allergic rhinitis c. The applicant indicated he did not desire to continue on active duty and was referred to a PEB. d. On 8 May 2006, the applicant signed the form indicating he agreed with the board’s findings and recommendation. 23. A third DA Form 199 shows the following: a. A PEB convened on 30 May 2006, wherein the applicant was found physically unfit with a recommended combined rating of 0 percent and that his disposition be separation with severance pay. b. His unfitting condition is listed as chronic right (dominant) shoulder degenerative arthritis, with radiographic evidence. Soldier injured shoulder playing unit basketball in 1999, developed pain and recurrent sub luxation, treated with physical therapy, thermal shrinkage, and an arthroscopic Bankert procedure. Symptoms persisted; radiographs showed possible degenerative cysts in the humeral head and inferior glenoid. Referred for MEB in March 2005, but then in August 2005 underwent an arthroscopic partial synovectomy. Arthroscopic findings at that time confirmed osteoarthritis manifested by chondromalacia of the humeral head, but no SLAP tear and no instability. Examination disclosed near normal range of motion limited by pain, except for internal rotation of 30 degrees limited by mechanical block. Unable to do APFT push-ups, throw, fire rifle, or do the heavy lifting and overhead reaching required of his MOS . Rated for painful motion. (MEB Dx 1) c. The conditions listed as MEB Dx 2, 3, 4, and 5 were considered by the PEB and found to be not unfitting and therefore not ratable. Sleep apnea (MEB Dx 2) diagnosed in 2002; has been using CPAP since that time. Deployed to Kuwait with CPAP, where he was assigned to fixed building with power supply; able to perform all assigned duties without limitation from this condition. Soldier was adjudicated fit for asthma (MEB Dx 3) by PEB in 2002; condition has not changed in severity. The other conditions (MEB Dx 4 and 5) meet retention standards of Army Regulation 40-501. d. On 1 June 2006, the applicant signed the form indicated after having been advised of the findings and recommendations of the PEB and having received a full explanation of the results of the findings and recommendations, that he concurred and waived a formal hearing of his case. 24. A DA Form 5893-R, dated 1 June 2006, provides a checklist of physical disability evaluation topics the applicant was counseled on by the PEBLO, all of which were acknowledged and signed by the applicant as having been completed on 1 June 2006. 25. The applicant’s DD Form 214 shows he was honorably discharged due to disability (rated at 0 percent) with severance pay in the amount of $43,237.80 on 21 June 2006, after 9 years, 10 months, and 26 days of net active service. 26. 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. 27. Title 38, USC, 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. 28. Title 38, 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. 29. 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 has applied to the ABCMR requesting the they determine his sleep apnea and asthma were unfitting conditions for continued military service with a subsequent increase in his military disability rating; an increase in the military disability rating for his unfitting right shoulder condition; and a change in his disability discharge disposition from separated with disability severance pay to permanent retirement for physical disability. He states: “The assigned ratings for asthma condition, sleep apnea, and right shoulder are incorrect. I was assigned a 10% rating for asthma due to my FEV-1 {forced expiratory volume – 1 second} test result of 83%, however, the PEB failed to take in to account that I required the use of an inhaler. I used the inhaler every day; two (2) puffs by mouth four (4) times per day for asthma/ shortness of breath with/ without exercise. The PEB failed to account for my use of a CPAP {continuous positive airway pressure} machine. Essentially, I was not able to deploy to a combat zone due to the use of a CPAP machine. CPAP machines are not designed to be used in a tactical environment. Currently, my obstructive sleep apnea is controlled via CPAP settings: level of 8 cm / full face mask with heated humidity.” b. The Record of Proceedings and prior case detail the applicant’s military service and the circumstances of the case. The applicant’s DD 214 for the period of Service under consideration shows the former Unit Supply Specialist (92Y) entered the regular Army on 26 July 1996 and was separated with $43,237.80 of disability severance pay on 21 June 2006 under the authority in paragraph 4-24b(2) of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (8 February 2006). c. In the spring of 2006, the applicant was referred to a medical evaluation board (MEB) for right shoulder instability. His Physical Profile (DA 3349) lists “Chronic right shoulder pain (s/p three surgical procedures); obstructive sleep apnea requiring CPAP” as duty liming conditions. However, block 10 of the DA 3349 notes the only limitation / requirement for his sleep apnea was “Must use his CPAP machine and access to power source.” d. The MEB determined his right shoulder condition and obstructive sleep apnea failed the medial retention standard in AR 40-501, Standards of Medical Fitness. Four conditions were determined to meet medical retention standards: mild exercise induced bronchospasm, hypertension, well controlled migraine headaches, and season allergic rhinitis. e. From the narrative summary for his sleep apnea: “The Soldier reports that no surgical intervention was recommended, and he was doing well on his CPAP, and that Dr. B. informed him to continue with the CPAP. The Soldier member had a follow-up sleep study on 20 April 2005, which was read as obstructive sleep apnea well controlled on current level of 8 cm of CPAP. The respiratory events recorded an AHI {apnea-hypopnea index} of 0.8, showing good control of sleep apnea. (There was a mention of short sleep latency with short REM latency and consideration of narcolepsy. The Soldier member reports that this was reviewed with him by Dr. M., and he was not felt to have any narcolepsy.) The Soldier denies any current daytime drowsiness.” f. Paragraphs 3-41c of AR 40-501, Standards of Medical Fitness (29 August 2003), states “Obstructive sleep apnea or sleep-disordered breathing that causes daytime hypersomnolence or snoring that interferes with the sleep of others and that cannot be corrected with medical therapy, surgery, or oral prosthesis” fails medical retention standards. Because the applicant’s condition was well controlled with his CPAP and he denied daytime drowsiness, his sleep apnea did not fail medical retention standards. g. The narrative summary states for his mild exercise induced asthma: “Mild exercise induced bronchospasm as assessed on his most recent visit with the allergist. (Previous MEB/PEB in 2002: Fit, returned to duty.)” h. On 8 May 2006, the applicant concurred with the MEB’s findings and recommendation and his case was forwarded to a PEB for adjudication. i. On 30 May 2006, the applicant’s informal physical evaluation board (PEB) determined his right shoulder condition was the sole unfitting conditions for continued service. They determined the remaining conditions were not unfitting: “Conditions listed as medical board diagnoses #2, 3, 4, 5, were considered by the PEB and found to be not unfitting and therefore not ratable. Sleep apnea (MEB Diagnosis #2) diagnosed in 2002; has been using CPAP since that time. Deployed to Kuwait with CPAP, where he was assigned to fixed building with power supply; able to perform all assigned duties without limitation from this condition. Soldier was adjudicated fit for Asthma (MEB Diagnosis #3) by PEB in 2002; condition has not changed in severity. The other conditions (MEB Diagnoses 4 and 5) meet retention standards of AR 40-501. j. Using the VA Schedule for Rating Disabilities (VASRD), they derived and applied a 0% disability rating and recommended by be separated with disability severance pay. On 1 June 2006, after being counseled on the PEB’s findings and recommendation by her PEB Liaison Officer (PEBLO), he concurred with the PEB and waived his right to a formal hearing. k. It is the opinion of the ARBA Medical Advisor that neither a change in his combined military disability nor a referral of his case to the Disability Evaluation System 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, and regulatory guidance were carefully considered. The Board noted that an informal PEB determined the applicant right shoulder condition was the sole unfitting conditions for continued service. The PEB determined the remaining conditions were not unfitting: Sleep apnea, diagnosed in 2002 (has been using CPAP two since that time) and Asthma in 2002 (condition has not changed in severity). There were two other conditions that met retention standards of AR 40-501. The PEB used the VASRD to derive and apply a 0% disability rating and recommended by be separated with disability severance pay. The applicant was counseled and concurred. the Board reviewed and agreed with the advisory official’s finding that neither a change in his combined military disability nor a referral of the applicant’s case to the Disability Evaluation System is warranted. 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 a Medical Evaluation Board (MEB); when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an Military Occupational Specialty (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 Physical Evaluation Board (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 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. The percentage assigned to a medical defect or condition is the disability rating. A rating is not assigned until the PEB determines the Soldier is physically unfit for duty. Ratings are assigned from the Department of Veterans Affairs (VA) Schedule for Rating Disabilities (VASRD). The fact that a Soldier has a condition listed in the VASRD does not equate to a finding of physical unfitness. An unfitting, or ratable condition, is one which renders the Soldier unable to perform the duties of their office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of their employment on active duty. There is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying. 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. 4. 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. 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. 7. Title 10, U.S. Code, section 1556 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. 8. 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. Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220006704 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1