IN THE CASE OF:	

		BOARD DATE:	9 September 2008  

		DOCKET NUMBER:  AR20080009013 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests reconsideration of the Board’s denial of his request to increase his disability rating.

2.  The applicant states he was told he should have a Medical Evaluation Board (MEBD) addendum for Reactive Airway Disease included in the MEBD reviewed by his Physical Evaluation Board (PEB).  However, he was told it was too late to include the addendum with his PEB and to take it up with the Department of Veterans Affairs (VA) after he was discharged.

3.  The applicant provides a chronological record of medical care which shows that a military physician stated that an addendum for Reactive Airway Disease should be sent to his MEBD; a physical profile for Reactive Airway Disease and Restrictive Lung Disease; an MEBD which shows Reactive Airway Disease and Restrictive Lung Disease; an MEBD which does not show Reactive Airway Disease and Restrictive Lung Disease; and an MEBD Addendum dated 27 February 2003 which shows that the applicant’s FEV-1 increased to 81 percent of predicted with medication; a letter from the Physical Evaluation Board Liaison Officer (PEBLO); and a memorandum from the applicant’s commander stating that the applicant’s asthma and back pain inhibited his ability to perform the basic functions of being a soldier, much less a tanker.  The applicant’s commander added that the applicant’s asthma would prevent him from ever serving in a deployment capacity, and would prohibit his physical conditioning and nuclear, biological and chemical warfare training which would be required for him to survive the rigors of combat.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20060013084, on 15 March 2007.

2.  The applicant’s military records do not contain his MEBD or PEB results.  However, the PEB results provided by the applicant shows that he was considered by the PEB on 27 January 2003.

3.  The Veterans Administration Schedule for Rating Disabilities (VASRD) shows for Restrictive Lung Disease:

General Rating Formula for Restrictive Lung Disease (diagnostic codes 6840 through 6845): 

FEV-1 less than 40 percent of predicted value, or; the ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) less than 40 percent, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) less than 40-percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or; cor pulmonale (right heart failure), or; right ventricular hypertrophy, or; pulmonary hypertension (shown by Echo or cardiac catheterization), or; episode(s) of acute respiratory failure, or; requires outpatient oxygen therapy: 100 percent rating

FEV-1 of 40 to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) of 40- to 55-percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardio respiratory limit): 60 percent rating

FEV-1 of 56 to 70-percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; DLCO (SB) 56- to 65-percent predicted 30 FEV-1 of 71 to 80-percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; DLCO (SB) 66 to 80-percent predicted: 10 percent rating.

4.  Army Regulation 635-40, paragraph 4–16, Rehospitalization of disabled Soldier, states that a Soldier who is rehospitalized while undergoing disability evaluation or awaiting final disposition must be evaluated to decide if his or her 

condition may change the findings or recommendations of the PEB.  If the Soldier’s condition may change the findings and recommendations, the Medical Treatment Facility (MTF) commander will notify the PEB president.  Further adjudicative and review action may be suspended pending resolution.  When the Soldier has received optimum hospital improvement for disposition purposes, the hospital commander will prepare an addendum to the original medical board.  The addendum will be forwarded to the PEB with any other pertinent records unless some other disposition is indicated.  The PEB must be notified if other disposition terminates disability processing.

DISCUSSION AND CONCLUSIONS:

1.  While the applicant has submitted an MEBD Addendum showing that he had Reactive Airway Disease, he also submits two MEBD’s; one with that condition, one without that condition.

2.  Without the applicant’s records, it is impossible to determine exactly what occurred in his case.  However, the applicant’s MEBD Addendum that shows Reactive Airway Disease is dated after the applicant’s PEB, and the applicant wasn’t discharged until 3 months after his PEB.  Based on the amount of time between the applicant’s PEB and his discharge, it would appear that the PEB delayed taking final action on the applicant’s case until it considered the applicant’s Restrictive Airway Disease and then either published a corrected DA Form 199, or responded to the applicant by letter.  These documents were simply not included in the documents provided to the Board by the applicant.  

3.  This assumption is supported by the fact that, since the applicant’s FEV-1 improved to 81 percent of predicted with medication, and a 10 percent disability rating required 80 percent or less of predicted, the applicant’s Reactive Airway Disease would not have been ratable.  As such, that condition would not have been determined physically unfitting.

BOARD VOTE:

________  ________  ________  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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20060013084, on 15 March 2007.



      _________x_____________
               CHAIRPERSON
      
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.

ABCMR Record of Proceedings (cont)                                         AR20080009013



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ABCMR Record of Proceedings (cont)                                         AR20080009013



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