2.  In effect, the applicant requests physical disability retirement.  He states that the 10 percent rating he received when he was discharged for physical disability because of his asthmatic condition indicates mild asthma.  All doctors’ diagnoses state that he is a severe steroid dependent asthmatic with a very poor prognosis.  He should have received a higher rating.   

3.  The applicant entered the Army on 2 February 1984 and had served continuously until his discharge in 1994.

4.  On 17 September 1993 a medical evaluation board (MEB) determined that the applicant had bronchial asthma, exercise allergic component, steroid dependent, perennial allergic rhinitis, and migraine headache.  The MEB indicated that the severity and chronicity of his bronchial asthma made him unreliable for future needs for rapid deployment to a field or combat environment, and it was the opinion that he was medically unfit for further active duty military service.  The MEB recommended that he be referred to a physical evaluation board (PEB).  The applicant concurred.

5.  On 23 September 1993 a PEB determined that the applicant was unable to perform duty commensurate with his grade due to chronic bronchial asthma.  The board determined that he was physically unfit, recommended a disability rating of 10 percent, and separation with severance pay.  The applicant nonconcurred and requested a formal hearing.

6.  In a 22 October 1993 medical addendum to the PEB, the Chief of the Department of Medicine of the Fort Campbell, Kentucky Medical Department Activity stated that the applicant was well known to the hospital for steroid-dependent bronchial asthma, that his condition was moderately severe, and that his condition had progressively deteriorated and was not compatible with active service in the Army. 

7.  In a 28 October 1993 medical addendum to the PEB, a doctor in the pulmonary disease/critical care service 
department of Brooke Army Medical Center at Fort Sam Houston, Texas, stated that the applicant had severe asthma, that he was not currently steroid dependent, but appeared to be headed that way.

8.  On 27 October 1993 a formal PEB reevaluated the available medical records and sworn testimony by the applicant.  The findings and recommendations of the formal board remained unchanged from those of the 23 September 1993 board.  The applicant nonconcurred, and indicated that he would submit a statement of rebuttal.

9. In a 1 November 1993 memorandum to the PEB, the Clinical Head Nurse at the Intensive Care Unit at Fort Campbell attested to the applicant’s apparent decline in his respiratory status, and a slow but steady worsening of his asthma.

10.  A 4 November 1983 medical addendum to the PEB from the Chief of Internal Medicine and the Chief of Allergy Service at Fort Campbell stated that the applicant had moderately severe bronchial asthma and opined that his final rating by the PEB should be reconsidered.

11.  The applicant was discharged at Fort Campbell on 
7 January 1994 because of physical disability.  He received severance pay in the amount of $30,312.00.  He had 9 years, 11 months, and 6 days of service. 

12.  In a 12 January 1994 opinion from a pulmonologist at Clarksville, Tennessee, that official stated that the applicant had steroid dependent asthma that was quite severe.  A 2 May 1994 medical opinion from a doctor at Clarksville indicates that the applicant had severe bronchial asthma that was steroid dependent.

13.  On 9 May 1994, the doctor at the pulmonary disease/critical care service at Brooke Army Medical Center 
that provided a medical addendum to the PEB in October 1993 stated that the applicant’s asthma could be classified at least as moderate.

14.  The VA had awarded the applicant a 30 percent service connected disability rating for asthma, subsequently increased to 60 percent on 12 July 1994.

15.  On 8 August 1994 the applicant in a memorandum to this Board, stated that he disagreed with the PEB findings, citing the various diagnoses by both civilian and military medical personnel that described his asthma as either moderate or severe.

16.  In the processing of this case an advisory opinion (COPY ATTACHED) was obtained from the physical disability agency (USAPDA).  An official of that agency stated that the applicant’s disability rating of mild at 10 percent was too low, and that he should have been rated at the moderate level, 30 percent, based on the VA Schedule for Rating Disabilities (VASRD) code 6602.  That official recommended that the applicant’s rating be changed to 30 percent, that he be placed on the temporary disability retired list (TDRL) because his condition was not stable at that time for rating purposes, and that he receive a medical reevaluation as soon as possible.

17.  Army Regulation 635-40, paragraph 4-17, provides that physical evaluation boards (PEBs) are established to evaluate all cases of physical disability equitably for the soldier and the Army.  A PEB is responsible for evaluating the physical condition of the soldier against the physical requirements of the soldier's particular office, grade, rank or rating.

18.  Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has an impairment rated at less than 30 percent disabling.


19.  Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.

20.  Title 38, United States Code, sections 310 and 331, permits the VA to provide treatment and to award compensation for disabilities which were incurred in or aggravated by active military service.

21.  An award of a VA rating does not establish entitlement to medical retirement or separation.  The VA is not
required to find unfitness for duty.  Operating under
its own policies and regulations, the VA awards ratings
because a medical condition is related to service, i.e.,
service-connected.  Furthermore, the VA can evaluate a
veteran throughout his lifetime, adjusting the
percentage of disability based upon that agency's
examinations and findings.  The Army must find unfitness
for duty at the time of separation before a member may
be medically retired or separated.

22.  Title 10, United States Code, section 1202, provides for placing an individual in a TDRL (temporary disability retired list) status when the disability may be permanent.  TDRL status requires that the member meet the criteria of Title 10, United States Code, section 1201.

23.  Army Regulation 635-40, paragraph 7-2, provides that an individual may be placed in a TDRL status for a maximum period of 5 years when it is determined that the individual is qualified for disability retirement under Title 10, United States Code, section 1201, but for the fact that his or her disability is not stable and the individual may recover and be fit for duty, or the degree of severity may increase or decrease so as to warrant a change in the disability rating.

24.  Army Regulation 635-40, paragraph 2-4, Physical Evaluation for Retention, Retirement, or Separation, provides that the USAPDA is responsible for reviewing PEB 
proceedings to ensure that soldiers are given uniform and fair consideration under applicable laws, policies, and directives; for making the final decision whether a soldier is unfit because of physical disability; and for determining percentage ratings and disposition.

CONCLUSIONS:

1.  The applicant was unable to perform duty commensurate with his grade due to chronic bronchial asthma.  He was physically unfit and should have been awarded a disability rating of 30 percent under code 6602 of the VASRD. 

2.  Because his condition was not stable at the time, he should have been placed on the TDRL on 7 January 1994; therefore, his separation from the Army on that date should be voided.

3.  In view of the foregoing findings and conclusions, it would be appropriate to correct the applicant’s records as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected:

	a.  by showing that the action separating the individual concerned from active duty on 7 January 1994 is void and of no force or effect;

	b.  by showing that on 7 January 1994, he was physically unfit to perform the duties of his office, grade, rank or rating by reason of chronic bronchial asthma rated 30 percent disabling under Code 6602 of the VASRD; that the disability was incurred while he was entitled to receive basic pay as a member of the Regular Army; that it did not result from misconduct or willful neglect; that it was not incurred during a period of unauthorized absence; that it was not the direct result of armed conflict; and that it was not caused by an instrumentality of war; 

	c.  by showing that on 7 January 1994 he was relieved from active duty by reason of physical disability, rated    30 percent disabling in accordance with the VASRD; and that, effective 7 January 1994 he was placed on the TDRL with entitlement to retired pay of the highest grade satisfactorily held within the meaning of Title 10, United States Code, sections 1202 and 1372; and

     d.  by providing him the opportunity to undergo a TDRL evaluation as soon as possible.

BOARD VOTE:  

                       GRANT AS STATED IN RECOMMENDATION

                       GRANT FORMAL HEARING

                       DENY APPLICATION




		                           
		        CHAIRPERSON