RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  18 September 2007
	DOCKET NUMBER:  AR20070000892 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


Ms. Catherine C. Mitrano

Director

Ms. Wanda L. Waller

Analyst

The following members, a quorum, were present:


Mr. James Anderholm

Chairperson

Ms. LaVerne Berry

Member

Mr. Ronald Gant

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his disability rating be increased to 
50 percent. 

2.  The applicant states, in effect, that he was medically retired at 30-50 percent service connected.  He contends that after his retirement the Army arbitrarily reduced his 30-50 percent service connected to 10 percent without any change in his medical condition or any new documentation.  He also contends that none of his medical conditions (asthma, gout, high blood pressure, and sinusitis) changed, that his asthma and sinusitis are worse, and that all of his conditions were long term and evaluated and rated by Army regulation percentages.

3.  The applicant provides no additional evidence in support of his application.

CONSIDERATION OF EVIDENCE:

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 Army Board for Correction of Military Records (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.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was appointed a second lieutenant on 11 December 1981 and he entered active duty on 10 January 1982.  He was promoted to major on 
1 December 1993. 

3.  A DA Form 3349 (Physical Profile), dated 18 March 2002, shows the applicant was issued a permanent profile of 311111 for severe asthma.  

4.  On 12 August 2002, a Medical Evaluation Board (MEB) diagnosed the applicant with moderate intermittent asthma with an exercise component; chronic parenteral allergic rhinitis; recurrent sinusitis; essential hypertension; left shoulder strain; and hemorrhoids.  The MEB recommended referral to a Physical Evaluation Board (PEB).  On 5 September 2002, the applicant agreed with the findings and recommendations.  

5.  On 9 September 2002, an informal PEB found the applicant physically unfit due to asthma with normal spirometry; on daily inhalational therapy, VA Schedule for Rating Disabilities (VASRD) Code 6602.  The MEB diagnoses 2-6 were found not unfitting and were not rated.  The PEB recommended a combined rating of 30 percent and that the applicant be placed on the Temporary Disability Retired List (TDRL).  On 13 September 2002, the applicant concurred with the findings and recommendations and waived a formal hearing.

6.  On 18 December 2002, the applicant was released from active duty and placed on the TDRL the following day with a disability rating of 30 percent.

7.  The applicant appeared for a periodic physical examination on 9 December 2003.  The medical report, dated 2 April 2004, states, in pertinent part, that the applicant underwent spirometry, 3 sets were obtained by ATS criteria, all within 
5 percent of each other.  Forced vital capacity was 4.77, 109 percent predicted, forced expiratory volume (FEV) 1 was 3.62, 111 predicted.  The medical report stated that the applicant was unable to meet the current retention standards set by Army Regulation 40-501, chapter 3, paragraph 3-27a, that he was unable to wear a protective mask, and that he was unable to pass the Army Physical Fitness Test.  The medical report stated that asthma is a chronic condition with no known cure; however, with medications, patients can be symptomatically treated.  Due to the fact that it is a chronic illness and the patient is on the TDRL, it was recommended that the patient be finalized in his MEB status and medically retired from the military.       

8.  On 11 April 2004, the applicant agreed with the TDRL evaluation findings and recommendations.

9.  On 28 April 2004, the PEB found the applicant physically unfit due to asthma, with normal spirometry, on intermittent inhalational bronchodilator therapy.  The PEB recommended a 10 percent disability rating, that the applicant be removed from the TDRL, and that he be separated with severance pay.  The DA Form 199 (Physical Evaluation Board (PEB) Proceedings) stated that medical profiles show the applicant received 2 Advair inhalers on 25 February 2003 and no additional controller therapy until he received 1 Advair on 3 February 2004.  Based on review of the TDRL examination the PEB found that the applicant remained unfit to reasonably perform the duties required by previous grade and military specialty.  The applicant’s current condition is considered sufficiently stable for final adjudication.       

10.  On 30 April 2004, the DA Form 199 was delivered to the applicant’s address. This was confirmed by telephone contact on 23 June 2004. 
11.  The applicant did not submit his election/rebuttal/appeal within the given time frame. 

12.  On 14 July 2004, the USAPDA closed the applicant’s case and approved the PEB’s findings and recommendations.

13.  The applicant was removed from the TDRL and permanently retired with a 10 percent disability rating on 14 July 2004.

14.  On 16 August 2004, an undated letter of appeal arrived at the USPDA.  The applicant nonconcurred with the PEB findings, but waived a formal hearing.  The appeal claimed daily use of medications for his asthma, but no documentation was provided.  The applicant further claimed that other conditions, not found unfitting when he was placed on the TDRL, should now be compensated.  On
20 August 2004, the USAPDA found no new evidence upon which to change the PEB’s findings.

15.  In the processing of this case, an advisory opinion was obtained from the Deputy Commander, USAPDA.  The opinion recommended that the applicant’s military records remain unchanged.  The opinion points out that to obtain a rating of 30 percent for asthma there must be evidence of daily inhalational therapy or an FEV-1 of 50 to 70 percent.  The applicant’s FEV-1 was 111 percent and did not meet the criteria for a 30 percent rating.  A close review of the applicant’s medication information found in the case file clearly reveals that he did not fill/pick up enough medication from the fall of 2002 (when placed on the TDRL) to the spring of 2004 (TDRL re-evaluation) that could provide him with enough daily doses of inhalation medication to support a 30 percent rating for daily inhalational therapy.  The applicant has yet to provide any proof of the quantity of medications necessary during those approximate 18 months that would be required to provide a daily therapeutic dosage.  Accordingly, he was only authorized a 10 percent rating for intermittent inhalational therapy.

16.  The advisory opinion also states that the other conditions cited by the applicant were not found to be unfitting when he was placed on the TDRL and were not caused by the unfitting condition of asthma.  Accordingly, these other conditions were not unfitting while entitled to basic pay and not compensable upon removal from the TDRL.  The advisory opinion concluded that the applicant had not provided any evidence of errors in his military records and that the PEB’s findings that were supported by a preponderance of the evidence, were not arbitrary or capricious, and were not in violation of any regulation or statutory provisions. 

17.  On 23 July 2007, the advisory opinion was furnished to the applicant for his review and possible rebuttal.  He did not respond within the given time frame.

18.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  

19.  Army Regulation 635-40 states, in pertinent part, that the combined percentage rating approved at the time the Soldier was placed on the TDRL cannot be changed by the PEB throughout the period the Soldier is on the TDRL. Adjustment will be made at the time of removal from the TDRL to reflect the degree of severity of those conditions rated at the time of placement on the TDRL and any ratable conditions identified since placement on the TDRL.

20.  Army Regulation 635-40 also states that entries on the DA Form 199 will reflect the Soldier’s condition at the time of the most recent periodic examination. The DA Form 199 will include the reason for variation between the original action (findings, recommendations, or ratings) causing the Soldier’s placement on the TDRL and current action removing him or her from the list.  Explanations need not be lengthy, but must be understandable.

21.  The VASRD states, in pertinent part, that VASRD Code 6602 (asthma, bronchial) is rated at 10 percent when mild - paroxysms of asthmatic type breathing (high pitched expiratory wheezing and dyspnea) occurring several times a year with no clinical findings between attacks; and rated at 30 percent when moderate - asthmatic attacks rather frequent (separated by only 10-14 day intervals) with moderate dyspnea on exertion between attacks.  

22.  Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.  Section 1212 provides that a member separated under Section 1203 is entitled to disability severance pay.

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





DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant’s contention that he was medically retired at 30-50 percent service connected.  Evidence of record shows that he was found unfit for asthma and placed on the TDRL with a 
30 percent disability rating.   

2.  Although the applicant contends that the Army arbitrarily reduced his rating to 10 percent without any change in his medical condition or any new documentation, the advisory opinion points out that his FEV-1 was 111 percent and that his medication information clearly revealed that he did not fill/pick up enough medication from the fall of 2002 (when placed on the TDRL) to the spring of 2004 (TDRL re-evaluation) that could provide him with enough daily doses of inhalation medication to support a higher disability rating.   

3.  The other conditions cited by the applicant were not found to be unfitting when he was placed on the TDRL and were not caused by the unfitting condition of asthma.  Therefore, he could not receive a disability rating for those conditions even if they worsened while he was on the TDRL. 

4.  Although the applicant contends that gout is one of his medical conditions, no gout condition was noted by the original MEB in 2002 and the applicant agreed with the findings of the MEB.  Additionally, no gout condition was noted by his original PEB in 2002 and the applicant also concurred with its findings.  

5.  There is insufficient evidence to show the applicant’s asthma was improperly rated by the TDRL PEB or that his retirement with a 10 percent disability rating (because he had over 20 years of active Federal service) was not in compliance with law and regulation.  Therefore, there is insufficient evidence on which to increase his disability rating. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

JA______  _LB_____  __RG____  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




__James Anderholm_____
          CHAIRPERSON




INDEX

CASE ID
AR20070000892
SUFFIX

RECON

DATE BOARDED
20070918
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
108.0200
2.

3.

4.

5.

6.