IN THE CASE OF:	  

		BOARD DATE:	  3 December 2009

		DOCKET NUMBER:  AR20090015075 


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 an earlier request that he be restored to the Temporary Disability Retired List (TDRL) or medically retired. 

2.  The applicant states that he was granted a medical discharge in 2002 and was placed on the TDRL.  He contends that he was removed from the TDRL and given severance pay in 2004 based on an inadequate physical examination.  He indicates that his percent of disability was increased to 60 percent by the Department of Veterans Affairs (DVA) on 27 July 2009.

3.  The applicant provides DVA documentation, dated 27 July 2009; and a DVA Rating Decision, dated 15 July 2009, in support of his request for reconsideration. 

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 AR20080016839, on 1 July 2009.

2.  The applicant provides a DVA Rating Decision, dated 15 July 2009, which states, in pertinent part, that his entitlement to an earlier effective date for the 
10 percent evaluation for the status post-pneumothorax with reactive airway disease is established from 27 July 2006 and an increased evaluation of 
60 percent is warranted from 21 August 2007.  The DVA decision noted that "Since the condition is not considered permanent, the assigned evaluation is subject to a future review examination."  It also noted that the applicant "does not take medications."

3.  The DVA documentation is new evidence which will be considered by the Board.

4.  The applicant enlisted in the Regular Army (RA) on 24 February 1999 and trained as a fire support specialist. 

5.  While serving as an Army recruiter in Pennsylvania, he suffered three episodes of spontaneous pneumothoraces (collapsed lung) that required a lobectomy (removal of one lobe of the lung).

6.  The applicant's Medical Evaluation Board (MEB) is not available for review.

7.  On 24 September 2002, a Physical Evaluation Board (PEB) found the applicant physically unfit due to recurrent spontaneous pneumothoraces with a history of surgical bleb resection.  The PEB recommended a combined rating of 30 percent and that the applicant be placed on the TDRL with reexamination during May 2004.  On 2 October 2002, the applicant concurred with the PEB findings.

8.  On 24 October 2002, the applicant was released from active duty and placed on the TDRL the following day.  

9.  On 17 April 2003, the applicant applied for DVA disability benefits.  He was medically examined on 23 March 2004 and he was afforded a noncompensable disability rating of 0 percent for post-right inguinal hernia repair and a 0 percent rating for pneumothoraces.

10.  On 16 May 2004, the applicant underwent a TDRL re-evaluation.  He was reported to have had only a single episode of fibrillation occurring in December 2003 since his placement on the TDRL and he had no more pneumothoraces since his last evaluation.  He was diagnosed with intermittent asthma symptoms that were treated with medication.  However, he was taken off of inhaler therapy in 2003.  His pulmonary function tests (PFT) revealed an FEV-1 [forced expiratory volume] of 81 percent and an FVC [forced vital capacity] of 87 percent.  Among the findings noted on the TDRL review were "normal values on spirometry today" and "Forced vital capacity does not indicate any restrictive physiology following blebectomy or doxycycline pleurodesis."

11.  A review of the computerized files at the U.S. Army Physical Disability Agency (USAPDA) show the applicant was afforded a TDRL medical evaluation on 21 July 2004.  

12.  A TDRL election form, dated 22 July 2004, shows the applicant acknowledged that he read the TDRL evaluation on 6 August 2004 and he selected the response option that reads "I have read the TDRL evaluation and agree with the findings and recommendations."  This form states, in pertinent part, that "If you disagree with the evaluation, please attach a written rebuttal to this memorandum.  The rebuttal must include medical information relevant to the condition(s) [for which] you were placed on the TDRL."  

13.  The computerized files at the USAPDA show the TDRL medical evaluation was forwarded to the PEB on 17 August 2004.  

14.  On 19 August 2004, an informal PEB found the applicant physically unfit due to a history of bilateral pneumothoraces, treated.  When placed on the TDRL, the FEV-1 was 64.9 percent.  Present chest radiograph was unremarkable and there was no acute cardiopulmonary process.  The applicant's PFT showed an FEV-1 of 81 percent and an FVC of 87 percent, ratio was 78 percent.  There was no bronchodilator response.  No further treatment was recommended for the pnuemothoraces (already treated).  The PEB recommended a combined rating of 10 percent and that the applicant be removed from the TDRL and separated with severance pay.  On 31 August 2004, the applicant requested a formal hearing but subsequently withdrew that request.  

15.  On 30 September 2004, the USAPDA approved the PEB’s findings and recommendation.

16.  On 1 October 2004 the applicant was removed from the TDRL and discharged with a 10 percent disability rating and entitlement to severance pay.  

17.  Records show that on 19 December 2004 and 19 September 2006, the DVA reviewed the applicant's medical condition and continued its noncompensable disability rating of 0 percent.  A 21 August 2007 DVA disability decision afforded the applicant a 10 percent disability rating for post-pneumothorax with reactive airway disease.  A DVA Rating Decision, dated 26 March 2008, continued the applicant’s 10 percent disability rating.  

18.  On 1 September 2009, the U.S. Court of Federal Claims granted the applicant's motion to file a status report out of time.  The order states that in light of the applicant's status report informing the Court that the ABCMR had made a decision in this matter, and that the applicant had requested reconsideration of such decision, the Court continued the stay in this matter.  The case shall remain stayed until such time as the ABCMR makes a final decision on the motion for reconsideration presently before it.  The applicant shall inform the Court within  30 days from the date of the final order as to the entry of the final order.

19.  In the processing of this case, an advisory opinion was obtained from the USAPDA.  The opinion points out that the applicant was properly 
separated/removed from the TDRL on 1 October 2004.  At the time of his removal from the TDRL his PFTs revealed an FEV-1 of 81 percent and an     FVC of 87 percent.  The proper rating for his condition based upon those PFT results was 10 percent.  After consulting with his assigned legal counsel, on      23 September 2004, the applicant waived his right to a formal hearing and provided no rebuttal or appeal.  Accordingly, on 1 October 2004, the PEB findings were affirmed for the Secretary of the Army and the applicant was separated with severance pay.

20.  The opinion states that DVA records provided by the applicant revealed that the DVA rated the applicant's pulmonary condition initially at 10 percent and it was not until new DVA PFT results were obtained on 21 July 2007 that the DVA increased his DVA rating to 60 percent effective that date.  The ABCMR's 1 July 2009 findings did not reflect his new rating but it was immaterial to their findings as the DVA's change still did not occur until almost three years after the applicant's removal from the TDRL.  Subsequent changes to the applicant's condition are the proper responsibility of the DVA.  Since the Army no longer had jurisdiction or responsibility for the applicant's disability care or rating in 2007, any such subsequent increase in the DVA rating had no effect on the proper rating for the applicant's condition as it appeared in 2004.   

21.  The advisory opinion concluded that the applicant provided no evidence of PEB error in his removal from the TDRL.  The PEB's findings were supported by a preponderance of the evidence, they were in conformance with the Veterans Affairs Schedule for Rating Disabilities (VASRD) rating code, they were not arbitrary or capricious, and they were not in violation of any statute, directive, or regulation.  The opinion recommended no change to the applicant’s military records.   

22.  A copy of the advisory opinion was provided to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  On
19 October 2009, counsel responded to the advisory opinion.  In summary, he raises two issues/questions:  (1) Was the applicant removed from the TDRL contrary to Army Regulation 635-40 and (2) Is the applicant permanently disabled as a result of his three pneumothoraces and corrective surgery.

23.  Counsel states that the advisory opinion was premised on an incorrect assumption and that the writer argued that because the applicant could not have succeeded in proving that he was 30 percent disabled when he was arbitrarily removed from the TDRL, all other complaints about the way in which he was removed from the TDRL are of no importance.  Counsel states that the opinion does not respond to the applicant's argument that his reduction from 30 percent to 10 percent disability was arbitrary and unreasonable.  He states that the opinion ignores the substantial procedural unfairness to the applicant perpetrated by the persons responsible for giving him correct information and advice at the time he was under consideration for removal from the TDRL.  He points out that the applicant waged a five-year battle with the DVA to get a fair disability rating for the residuals of his pneumothoraces, that the applicant has had substantial pro bono legal help since 2007 to undo mistaken DVA ratings received in 2004 and 2006, and that the advisory opinion suggests that the applicant's 60 percent rating was the result of a major change of condition, and not due to DVA evaluative errors in its earlier decisions.    

24.  Counsel claims that there were major procedural errors committed in the applicant's case:  (1) opportunity to review the adverse examination; (2) failure to send the DA Form 199 (PEB Proceedings) to applicant; and (3) failure of the PEB Liaison Officer (PEBLO) to give the applicant the required counseling.  Counsel also states that the applicant's FEV test results on file in 2003, the last FEV tests done before he was taken off the TDRL, were too old to be the basis for an accurate medical opinion. 

25.  On 13 October 2009, the applicant responded to the advisory opinion.  In summary, he stated that he was never counseled on his TDRL medical evaluation, that he was encouraged not to pursue the hearing, that he was left feeling as though he had no option.  He was also told that the only chance he would have is to take a severance check and let the DVA see him if he wanted to get anything done to help his medical situation.   

26.  The VASRD is the standard under which percentage rating decisions are to be made for disabled military personnel.  The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  Unlike the DVA, the Army must first determine whether or not a Soldier is fit to reasonably perform the duties of his office, grade, rank or rating.  Once a Soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD.  These percentages are applied based on the severity of the condition. 

27.  The VASRD states, in pertinent part, that VASRD Code 6844 (post-surgical residual (lobectomy, pneumonectomy, etc.)) is rated at 10 percent with 
FEV-1/FVC of 71 to 80 percent. 

28.  Title 10, U.S. 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.

29.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has an impairment rated at least 30 percent disabling.

30.  Title 38, U.S. Code, sections 310 and 331, permit the DVA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The DVA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  The DVA has the authority to reevaluate a veteran's medical condition periodically and revaluate their disability evaluation percentage.

DISCUSSION AND CONCLUSIONS:

1.  Counsel's contentions that the applicant was not evaluated in 2004, that he was not evaluated by a pulmonologist, and that he was arbitrarily discharged with a 10 percent rating were carefully considered.

2.  Evidence of record shows the applicant underwent a pulmonary evaluation (by a pulmonologist) in May 2004.  He concurred with the findings at that time and on 6 August 2004 he signed and returned a statement acknowledging his receipt of the TDRL results.  He selected the response option that reads "I have read the TDRL evaluation and agree with the findings and recommendations."  He specifically did not choose the response that would indicate that he did not agree with the findings.  Among the findings noted on the TDRL review (with which the applicant concurred) were "normal values on spirometry today" and "Forced vital capacity does not indicate any restrictive physiology following blebectomy or doxycycline pleurodesis." 

3.  Counsel's argument that the serial evaluations by the DVA and the ultimate increase in rating percentage represent a righting of past wrongs, not a progression of disease was noted.  However, evidence of record shows the applicant underwent serial evaluations which included PFTs.  PFTs could not have underestimated the applicant's condition and as the years passed the PFTs gradually worsened, indicating either a gradual worsening of the applicant's condition or a less than maximum effort.  The change in DVA rating absolutely does not mean that previous PFTs were inaccurate to the applicant's detriment.

4.  The records show that the DVA initially rated the applicant's asthma (or post pneumo residuals) at 0 percent.  With serial evaluations, the applicant's PFTs continued to show stability and did not warrant an increase in rating until 2007 (to 10 percent).  In its most recent decision of 15 July 2009, the DVA awarded a 
60 percent disability rating for the applicant's reactive airway disease (asthma).  They made their determination retroactive to 21 August 2007.  The 2009 decision also changed the effective date of his 10 percent rating from 2007 to 2006.  The DVA decision noted that "Since the condition is not considered permanent, the assigned evaluation is subject to a future review examination."  It also noted that the applicant "does not take medications."

5.  After undergoing surgery for spontaneous pneumothoraces, the applicant had diminished pulmonary capacity and was appropriately placed on the TDRL until his condition stabilized.  As might be expected, his recovery from surgery was accompanied by improvement in his lung function.  This is documented by PFTs that improved significantly during his time on the TDRL.  His TDRL re-evaluation was timely and comprehensive, performed 3 months prior to his PEB.  The applicant acknowledged receiving his TDRL and chose to concur with the findings.  He specifically did not choose the available option to disagree with the findings or to submit a written appeal.  Based on his recent TDRL findings, his permanent disability rating was appropriately assessed at 10 percent.  His DVA rating that same year (and the year prior) was 0 percent.  His DVA rating remained at 0 percent for his pulmonary status until 2007 when it was changed to 10 percent.  In 2009, his DVA rating was changed to 60 percent, retroactive to 2007 and the previous 10 percent rating was made effective in 2006. 

6.  The VASRD rating for the applicant's condition and/or history is based on PFTs.  PFTs can underestimate a person's capacity but they cannot overestimate it.  They are dependent on the cooperation and effort of the patient.  The applicant's gradual worsening of his lung capacity (asthma) is based on decreased performance on PFTs, for whatever reason.  The change in DVA rating does not represent a previous injustice.  It is not possible that prior PFTs over rated the applicant's true condition.  The applicant was appropriately assessed while on the TDRL and concurred with the assessment.  Based on those findings he was appropriate rated at 10 percent.  If the applicant's condition five years later (2009) warranted a higher rating (even if retroactive to 2007) this is irrelevant as far as his TDRL evaluation and PEB findings in 2004.  The applicant was appropriately evaluated in 2004 and his PFTs gave him the benefit of any doubt.  

7.  There is insufficient evidence to show the applicant’s disability was improperly rated by the TDRL PEB or that his removal from the TDRL with a 10 percent disability rating was not in compliance with law and regulation.  Regrettably, there is no basis for granting the applicant’s requested relief.

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 AR20080016839, dated 1 July 2009.



      __________XXX____________
               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)                                         AR20090015075



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ABCMR Record of Proceedings (cont)                                         AR20090015075



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