BOARD DATE:	  17 June 2010

		DOCKET NUMBER:  AR20090017836 


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, in effect, correction of his Medical Evaluation Board (MEBD) and Physical Evaluation Board (PEB) to include a disability rating for asthma.  He also requests correction of his narrative reason for separation on his DD Form 214 (Certificate of Release or Discharge from Active Duty) to read "service-connected disability."

2.  The applicant states he was discharged from active duty for "disability, existed prior to service, PEB" after an MEBD and PEB was conducted.  He added that the MEBD/PEB failed to list his service-connected asthma condition which was diagnosed in June 2006.  The applicant offers that he was granted a 30 percent (%) disability rating percentage from the Department of Veterans Affairs (VA) for his asthma condition.

3.  The applicant provides a copy of his DD Form 214, documents from his health records, DA Form 3947 (MEBD Proceedings), DA Form 199 (PEB Proceedings), and VA Rating Decision.

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's records show he enlisted in the Regular Army on 1 April 2003. He was trained in and awarded military occupational specialty (MOS) 91W (Health Care Specialist).

3.  On 31 May 2006, an MEBD convened and found the applicant did not meet retention standards based on being diagnosed with aortic regurgitation and aneurismal aortic root.  However, the diagnosis of allergic rhinitis, deviated nasal septum, neck pain chronic non-surgical, and pes planus (flat feet) were found to meet retention standards.  The applicant was referred to a PEB.  On 7 June 2006, he concurred with the MEBD's findings and recommendation.

4.  On 6 June 2006, the applicant was seen at the Pulmonary Clinic, William Beaumont Army Medical Center (WBAMC), El Paso, Texas, for difficulty in breathing.  The doctor found that the applicant's symptoms were consistent with a diagnosis of asthma.

5.  On 15 June 2006, the applicant was seen at the Pulmonary Clinic for mild asthma.  The notes stated that the applicant was released without limitations.  The doctor stated the applicant should attend asthma class and follow-up with his primary care provider.

6.  On 21 July 2006, a PEB convened and considered the applicant's disability of aortic regurgitation and aortic root aneurysm from congenital bicuspid aortic valve discovered in 2004 with echo imaging and a bubble study.  The PEB stated that severe profile restrictions prevented effective duty in his primary MOS.  The present symptoms of fatigue and palpitations represent natural progression of the congenital condition with no duty history to suggest permanent service aggravation.  The PEB found that the applicant's unfitting condition was neither service-incurred nor permanently aggravated by military service.  The board stated that because the applicant's condition was not service incurred or permanently aggravated, he was ineligible for disability compensation; therefore, he was separated without disability benefits.

7.  On 21 September 2006, the applicant attended a two-hour multidisciplinary asthma education session at the Pulmonary Clinic.  The notes stated that there were no barriers to learning and the applicant expressed understanding of all instructions given.

8.  The applicant's DD Form 214 shows that he was credited with 3 years,
6 months, and 8 days of total active service at the time he was honorably discharged on 8 October 2006.  Item 28 (Narrative Reason for Separation) shows the entry "Disability, Existed Prior to Service, PEB."

9.  The VA rating decision shows the applicant was granted a 30% disability rating for asthma and a 20% disability rating for neck pain.

10.  In the processing of this case, on 9 March 2010, an advisory opinion was obtained from the U.S. Army Physical Disability Agency (USAPDA).  The advisory official stated that the applicant's condition of asthma should have been documented and considered in his MEBD and PEB prior to his separation from the military.  The advisory official offered that the only question was whether the applicant's asthma condition would have been found to be unfitting by a PEB.

11.  The applicant requested and received a referral to the Pulmonary Clinic.  During his appointment, the applicant complained of some weather-related asthma symptoms with nocturnal symptoms once in May 2006 and only intermittent symptoms of maybe two times per week.  The applicant was diagnosed with mild asthma and provided medication.  On 7 June 2006, the applicant concurred with his MEBD findings that did not contain a diagnosis of asthma.

12. The advisory official asserted that if the condition of asthma had been considered by the PEB, the performance evidence in the case file would not have resulted in the PEB finding the condition unfitting or compensable.  The advisory official offered that the applicant was a Health Care Specialist who was permanently assigned to the cardiology section at WBAMC since 2004.  The applicant's permanent profile and commander's statement did not mention asthma symptoms as any limiting factors in his duty performance.  The advisory official stated that based on the review of the available evidence, the PEB would not have found the condition of asthma to be unfitting.  As the result, the advisory official recommended no change to the applicant's military records.

13.  On 9 March 2010, the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) 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.  Physical evaluation boards are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.

15.  Paragraph 3-1 of the same regulation states that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.

16.  Army Regulation 635-40 states that 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 they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  

17.  Army Regulation 635-40 also states that the clinical severity of chronic obstructive pulmonary disease (COPD), emphysema and asthma is the most important basis for rating these conditions.  Response to therapy is extremely important and may permit a finding of fit or a rating worse than originally given. COPD and emphysema can usually be correlated with pulmonary function tests directly but may be complicated by bronchospastic disease.  As such, response to bronchodilators is important in interpreting pulmonary function tests, and, if they can be used for treatment, should be considered in the rating.  Therefore, asthma should be rated on the basis of a clinical impairment and response to treatment.

18.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows the applicant was diagnosed with mild asthma that was being treated with medications.  As stated by the USAPDA advisory official, his condition of asthma should have been documented and considered on his MEBD/PEB.  However, it does not appear that the condition of asthma had any real limiting effect upon the applicant's abilities to perform his assigned daily duties.  Therefore, even if the condition of asthma was considered by the MEBD/PEB, it would not have been found to be unfitting.

2.  The record further shows that the applicant concurred with the MEBD's findings and recommendation in the absence of any diagnosis of asthma which indicates that his condition was not severe enough to warrant his concern.  This is evidenced by the fact that he was a Health Care Specialist and as such was aware of the effects of asthma.  The fact that the applicant now states, 3 years later, that his MEBD/PEB failed to list his service-connected asthma condition is not sufficient evidence to justify adding asthma as an unfitting condition and subsequently changing the reason for separation to "service- connected disability."

3.  The applicant provides his 30% disability rating from VA in an effort to show that he should have been compensated by the military.  However, the VA is not required by law to determine medical unfitness for further military service.  The VA 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.  Consequently, the applicant's medical condition of asthma, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, was sufficient to qualify him for VA benefits based on an evaluation by that agency.

4.  An award of a VA rating does not establish entitlement to medical retirement or separation.  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.

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 for correction of the records of the individual concerned.



      __________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)                                         AR20090017836



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ABCMR Record of Proceedings (cont)                                         AR20090017836



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