IN THE CASE OF:	  

		BOARD DATE:	  4 August 2011

		DOCKET NUMBER:  AR20100020935 


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 correction of his disability rating of 10 percent to 30 percent and subsequently that he be granted a medical retirement.

2.  He states he was rated at 30-percent disabled on 15 July 1999 and placed on the Temporary Disability Retired List (TDRL).  However, when he was discharged on 25 March 2002, he was rated at 10 percent and received disability severance pay.  He opines that the physical evaluation board (PEB) failed to rate him correctly in accordance with the Department of Veterans Affairs (VA) Schedule for Rating Disabilities (VASRD).  He claims he should have been rated for asthma as well as the other conditions.  He offers that he received a 
50-percent disability rating from the VA.

3.  He provides the following:

* self-authored statements
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* VA Rating Decision
* DA Form 3947 (Medical Evaluation Board (MEB) Proceedings), dated 16 December 1998
* DA Form 199 (PEB Proceedings), dated 28 January 1999 and 7 March 2002
* memorandum, dated 27 February 2002, subject:  Transmittal of Periodic Examination(s)
* Orders D58-14, dated 25 March 2002
* Evans U.S. Army Community Hospital, Fort Carson, CO, Medical Board Consult, dated 17 December 2001, and admission documents, dated 7 December 2003

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 14 October 1986.  He was trained in and awarded military occupational specialty (MOS) 11H (Heavy Anti-Armor Weapons Infantryman).

3.  On 16 December 1998, an MEB convened and found the applicant did not meet retention standards based on being diagnosed with asthma; seasonal allergic rhinitis; degenerative joint disease; and sumpter triad of nasal polyposis, aspirin sensitivity and asthma.  He was referred to a PEB.

4.  On 28 January 1999, a PEB convened and considered his disability of asthma with requirement for inhaled bronchodilators and inhaled steroids.  The PEB stated that based on a review of the medical evidence of record, his condition prevented satisfactory performance of duty in his grade and primary MOS.  He was recommended for a disability separation with a disability rating of 30 percent. 
The PEB offered that his condition had not stabilized to the point that a permanent degree of severity could be determined.  The other conditions were determined not to be unfitting and, therefore, not rated.  Page 2 of the PEB Proceedings indicating his concurrence/nonconcurrence with the board proceedings was not included in his documentation to the Board and it was not included in his official military personnel file.  However, he was placed on the TDRL on 15 July 1999.

5.  The Evans U.S. Army Community Hospital Medical Board Consult, dated 17 December 2001, stated the applicant's asthma was much better controlled and less problematic since living in Canyon City, CO.  The Medical Board Consult further stated the applicant did not have to use an inhaler and he was able to run approximately one mile and ride a bike slowly without any breathing problems.  The impression was listed as minimal obstructive airway disease, peripheral airways.  He added that his asthma had improved at his current location in Colorado compared to North Carolina.  It was recommended that he continue on the TDRL and be reevaluated at the next appointment.

6.  On 27 February 2002, the Deputy Commander of Clinical Services for Medical Boards, U.S. Army Medical Department Activity, Fort Carson, CO, recommended that the applicant be retained on the TDRL.  The information was forwarded to the applicant for his concurrence; however, he had moved and did not leave a forwarding address or new telephone numbers.

7.  On 7 March 2002, a PEB convened and considered his disability of asthma.  The board noted the applicant was previously placed on the TDRL.  The PEB stated that upon the applicant's move from the east coast, his asthma significantly improved and he no longer required inhalant medications.  The pulmonary function tests revealed minimal peripheral airway disease.  The PEB stated his condition had not improved to the extent that he was fit for duty and recommended a 10-percent disability rating.

8.  On 18 March 2002, the applicant's family was contacted, but stated they had not heard from the applicant since he left the area and no current address or telephone number was available.  The applicant thereby waived his rights to an election.

9.  On 25 March 2002, he was removed from the TDRL and discharged with a 10-percent disability rating with entitlement to severance pay.

10.  On 7 December 2003, the applicant was admitted to the Evans U.S. Army Community Hospital.  His chief complaint was shortness of breath.

11.  The VA Rating Decision, dated 22 February 2006, shows the applicant received a combined disability rating of 50 percent for the following:

* asthma (6602) – 30 percent
* left knee chondromalacia (5099-5014) – 10 percent
* residuals of torn right knee ligament with limitation of flexion and pain (5260) – 10 percent
* chronic recurrent sinusitis, status post-endoscopic resection of polyps (6513) – 0 percent

12.  In the processing of this case, an advisory opinion was obtained from the U.S. Army Physical Disability Agency (USAPDA), dated 28 March 2011.  The advisory official reiterated the information contained in the applicant's MEB.  Additionally, the official stated the applicant's chief complaint was asthma.  The narrative summary of the physical examination revealed his back to be within normal limits with no tenderness.  Although there were some palpable crepitus in both knees, there was full range of motion and strength.  He also stated the applicant's commander's memorandum, dated 14 January 1999, indicated the applicant's listed condition of asthma was causing him problems performing his duties, but he could still function as a Soldier in a less physically-demanding MOS.  The applicant concurred and requested continuation on active duty, which he withdrew after the PEB findings.

	a.  The advisory official further stated that on 28 January 1999 the PEB found the applicant unfit for asthma and awarded him a 30-percent disability rating based on his use of inhaled bronchodilators and inhaled steroids.  He was placed on the TDRL.  The applicant nonconcurred with the PEB findings and indicated he would provide additional evidence, but after his 10 days had expired with no additional evidence provided, the PEB confirmed their previous findings and forwarded his case for final administrative processing.

	b.  On 17 December 2001, the applicant's TDRL reexamination was completed and revealed that his condition had improved.  He was no longer taking any medications for asthma, but he was still found unfit for his asthma with a reduced rating of 10 percent and separation with severance pay.  The PEB findings were sent to his last recorded address to no avail.  Accordingly, the applicant waived his right of election to the PEB findings.

	c.  The USAPDA advisory official stated the PEB's finding of 10 percent was incorrect and the applicant should have been retired with a 30-percent disability rating based on the criteria found in VASRD 6602.  He stated that any additional conditions the applicant had at the time he was placed on the TDRL were not unfitting and not compensable at the time.  He further stated that conditions not found to be unfitting at placement on the TDRL were not compensable at removal from the TDRL.

13.  On 28 April 2011, 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 and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of a physical disability to reasonably perform the duties of his office, grade, rank, or rating.  PEB's 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 a recommendation to establish the eligibility of a Soldier to be separated or retired because of physical disability.

15.  Paragraph 3-1 of Army Regulation 635-40 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 may reasonably be expected to perform because of his or her 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 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.  Since significant improvement or deterioration may occur with geographic and occupational changes, TDRL is often necessary.

18.  The VASRD shows a disability rating of 30 percent for the condition of rather frequent moderate asthmatic attacks (separated by only 10 to 14-day intervals) with moderate dyspnea on exertion between attacks.

19.  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.  The evidence of record confirms the applicant's medical condition which resulted in his inability to continue his military service was determined to be asthma.  His other conditions of seasonal allergic rhinitis and degenerative joint disease were not unfitting and, therefore, not rated.

2.  During his reevaluation on 17 December 2001, the Medical Board Consult stated the applicant's asthma was much better controlled and less problematic since living in Colorado, but recommended he continue on the TDRL and be reevaluated at the next appointment.  On 7 March 2002, the PEB also noted his asthma had significantly improved upon his move from the east coast and he no longer required inhalant medications.  However, the board stated his condition had not improved to the extent that he was fit for duty.  Therefore, the PEB recommended a 10-percent disability rating and separation with severance pay.

3.  The applicant could not be reached for his concurrence or nonconcurrence of the PEB findings and recommendations and, therefore, his unavailability was considered as a waiver of his right of election.

4.  Notwithstanding the findings and recommendation of the PEB, the USAPDA advisory official stated the PEB's finding of 10 percent was incorrect and the applicant should have been retired with a rating of 30 percent based on the criteria found in the VASRD.  Additionally, the VARSD indicates a rating of 30 percent is warranted for the condition of moderate, intermittent bronchial asthma attacks with moderate dyspnea on exertion.  Therefore, in the interest of equity, it is appropriate to show the applicant was medically retired with a 
30-percent disability rating.

5.  However, the applicant's claim that he should be rated for other conditions based on the fact that he was awarded a 50-percent disability rating by the VA is not supported by the evidence he provided.  The evidence of record shows the conditions of degenerative joint disease and seasonal allergic rhinitis were not unfitting and not rated.  The VA can evaluate a veteran throughout his/her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find unfitness for duty by reason of a medical condition at the time of separation before a member may be medically retired or separated.

6.  A Survivor Benefit Plan (SBP) election must be made prior to the effective date of retirement or the SBP will, by law, default to automatic SBP spouse coverage (if married).  This records correction may have an effect on the applicant's SBP status/coverage.  The applicant is advised to contact his nearest Retirement Services Officer (RSO) for information and assistance immediately.  A listing of RSO's by country, state, and installation is available on the Internet at website:  http://www.armyg1.army.mil/RSO/rso.asp.  The RSO can also assist with any TRICARE questions the applicant may have.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__X_____  ____X___  ____X__  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  amending the PEB Proceedings to show he was assigned a 30-percent disability rating for his condition of asthma and that the PEB recommended his retirement by reason of permanent disability;

	b.  voiding his 25 March 2002 disability discharge with severance pay and instead showing he was retired by reason of permanent disability on that same date and was placed on the Retired List the following day with all transportation and travel entitlements to which this correction would entitle him; and

	c.  providing him all back retired pay and allowances due as a result of the above changes minus the disability severance pay he received.

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so 

much of the application that pertains to rating his other conditions of degenerative joint disease and seasonal allergic rhinitis.



      _________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)                                         AR20100020935



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ABCMR Record of Proceedings (cont)                                         AR20100020935



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