IN THE CASE OF:	  

		BOARD DATE:  20 September 2012

		DOCKET NUMBER:  AR20120003395 


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 DA Form 3947 (Medical Evaluation Board (MEB) Proceedings) and DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated July and October 2011, respectively, by including asthma as one of his unfitting conditions.

2.  The applicant states, in effect, he uses Spiriva daily and Simbicort weekly for treatment of asthma.  Asthma has limited his daily activities and he is unable to run or walk short distances without breathing assistance.  After discovering a document concerning the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) code 6602 (for asthma), he believes the medical documentation contained in his records and use of inhalers conflicts with the MEB/PEB findings.

3.  The applicant provides a considerable number of documents from his service medical records and military personnel file.

CONSIDERATION OF EVIDENCE:

1.  Having prior service in the U.S. Naval Reserve, the applicant enlisted in the Indiana Army National Guard on 20 December 2001.  He was trained in, awarded, and served in military occupational specialty (MOS) 88M (Motor Transport Operator).  The highest rank/grade he attained was staff sergeant (SSG)/E-6.


2.  Evidence shows that on 15 June 2011 an MEB convened at Ireland Army Community Hospital, Fort Knox, KY and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed as having the medically-unacceptable conditions of:

* Post-traumatic stress disorder (PTSD)
* Panic disorder with agoraphobia
* Chronic low back pain
* Chronic bilateral knee pain, right greater than left

3.  The MEB found the applicant met the retention standards for:

* Asthma
* Sleep apnea
* Gastritis, mild Barrett’s esophagitis
* Chronic lateral epicondylitis

The MEB recommended his referral to a PEB.  On 6 July 2011, the findings and recommendation of the board were approved.  On 7 July 2011, the applicant was informed of and agreed with the findings and recommendations of the board and he authenticated the document with his signature. 

4.  On 24 October 2011, a PEB convened at Arlington, VA.  The PEB found the applicant's conditions prevented him from performing the duties required of his grade and specialty and determined that he was physically unfit due to:

* PTSD
* Degenerative arthritis of the spine (lumbar) listed as lower back pain
* Arthritis due to trauma (right knee) listed as chronic bilateral knee pain

5.  The PEB also found the MEB's diagnoses of left knee pain, asthma, sleep apnea, gastritis, and chronic lateral epicondylitis met medical retention standards.  These conditions did not impose unreasonable requirements on the military to maintain or protect the Soldier and were not independently or in combination with other conditions unfitting, nor did they represent a decided medical risk if the applicant were to remain on active duty.

6.  He was rated under the VASRD, assigned codes 9411, 5242, and 5010, and granted a combined 60% disability rating.  The PEB also recommended a permanent disability retirement.


7.  On 31 October 2011, having been advised of the findings and recommendations of the PEB, and having received a full explanation of the results of the findings, recommendations, and legal rights pertaining thereto, the applicant indicated he concurred with the PEB and authenticated the findings with his signature.

8.  On 23 December 2011, the applicant was released from assignment and duty because of physical disability incurred while entitled to basic pay and retired due to permanent physical disability in the rank/grade of SSG/E-6 with a 60% percentage of disability.

9.  The applicant provides a memorandum from the Deputy Commander, U.S. Army Physical Disability Agency (USAPDA) to the Presidents of U.S. Army PEBs, dated 5 May 2009, that states for the purposes of VASRD Diagnostic Code 6602, asthma, "inhalational anti-inflammatory medication" as set forth in the 30% rating is met when the evidence of record indicates the Soldier uses inhaled anti-inflammatories at least intermittently.  For the purposes of the VASRD, when rating a Soldier for unfitting asthma, there is no requirement the Soldier use inhaled anti-inflammatory medication daily or that a minimum amount be used on days the Soldier uses the inhaled anti-inflammatory medication.

10.  Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The USAPDA, under the operational control of the Commander, U.S. Army Human Resources Command, is responsible for operating the Physical Disability Evaluation System (PDES) and executes Secretary of the Army's decision-making authority as directed by Congress in Title 10, U.S. Code, chapter 61, and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

11.  Army Regulation 635-40 establishes the Army 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.  It states:

	a.  There is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  Only the unfitting conditions or defects and those which contribute 


to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.

	b.  Paragraph 4-10 provides that MEBs are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualification for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

	c.  Paragraph 4-17 provides that PEBs are established to evaluate all cases of physical disability equitably for the Soldier and the Army.  The PEB is not a statutory board.  Its findings and recommendations may be revised.  It is a fact-finding board for the following:

* investigating the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board
* evaluating the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating
* providing a full and fair hearing for the Soldier as required under Title 10, U.S. Code, section 1214
* making findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability

12.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made the PEB uses the VASRD to rate unfitting disabilities.  Department of Defense Instructions 1332.39 and Army Regulation 635-40, Appendix B, modify those provisions of the rating schedule inapplicable to the military and clarify rating guidance for specific conditions.  Ratings can range from 0 to 100%, rising in increments of 10%.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the disability rating for his MEB and PEB proceedings should be corrected by including asthma as one of his disabling conditions was carefully considered.

2.  Evidence shows the applicant was evaluated by an MEB and recommended for referral to an informal PEB.  The record shows the applicant concurred with the findings and recommendations of the MEB and he made no mention of any additional medical conditions that should have been considered by the MEB.

3.  The MEB noted the applicant had other conditions to include asthma.  However, those conditions met retention standards and were not necessarily unfitting.  In any case, 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.  The MEB, after consideration of clinical records, laboratory findings, and physical examinations, determined the applicant’s asthma met the standards for retention and therefore was not deemed unfitting.

4.  PEBs are established to evaluate all cases of physical disability equitably 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.

5.  Evidence shows a PEB determined the applicant to be physically unfit for retention in the Army and recommended that he be placed on the Retired List with a combined disability percentage rating of 60%.  The record shows the applicant concurred with the findings and recommendations of the PEB and he made no mention of any additional medical conditions that should have been considered by the PEB.

6.  Army Regulation 635-40 provides, in pertinent part, that the Army rates only conditions determined to be physically unfitting that were incurred or aggravated during the period of service.  Furthermore, it can rate a condition only to the extent that the condition limits the performance of duty.

7.  The record contains no evidence, and the applicant provides insufficient evidence, to show that the Army misapplied either the medical factors involved or the governing regulatory guidance concerning the applicant's disability processing.  He has not shown that either the MEB or the PEB proceedings were inaccurate or unjust at the time of preparation.

8.  In view of the foregoing, there is an insufficient evidentiary 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 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)                                         AR20120003395



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ABCMR Record of Proceedings (cont)                                         AR20120003395



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