BOARD DATE:	  5 May 2015

		DOCKET NUMBER:  AR20140014250 


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, an increase of his Army disability ratings for his pulmonary conditions (Sleep Apnea with Emphysema and Coronary Artery Disease) awarded by his Physical Evaluation Board (PEB).

2.  The applicant states the PEB Liaison Officer (PEBLO) refused to send the Cardiac surgery and the pulmonary records which showed he was placed on oxygen as an addendum to the PEB.  This resulted in his receiving a lower rating for these medical conditions.  This occurred while he was still on active duty in November 2012.  He was not retired until January 2013.

3.  The applicant provides copies of the following:

* 2011 DA Form 199 (PEB Proceedings)
* Positron Emission Tomography (PET) Scan Report
* four electrocardiograms
* Sanford Pulmonary and Sleep Medicine Diagnostic Protocol
* five Oximetry (a procedure that measures the amount of oxygen in the blood) Reports
* six cardiology medical visits and laboratory reports
* two Cardiac Catheterization reports
* Short Stay Summary 
* blood report
* DD Form 214 (Certificate of Release or Discharge from Active Duty) ending on 29 January 2013
* letter from the Department of Veterans Affairs (VA)
CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed to the U.S. Army Reserve, as a second lieutenant, on 11 December 1987, with prior enlisted service.  He held the Area of Concentration (AOC) 38A (civil affairs officer).  

2.  On 27 February 2005, he was assigned a permanent profile of 1, 1, 2, 3, 1, 1 for hearing loss; history of spine, pelvic, and right tibia fracture secondary to motor vehicle accident; and history of right peroneal neuropathy – no limitations.  The form noted the applicant was to wear a hearing aid while on active duty.

3.  On 27 February 2005, a Military Occupational Specialty (MOS)/Medical Retention Board convened and after review of all records, reports, Soldier's comments, and other pertinent information and found the applicant's right peroneal neuropathy due to herniated disc did not limit vigorous physical activity. The board noted the applicant's commander recommended retention as the applicant was not limited by the condition in his current MOS.  The board recommended the applicant's retention in his current AOC within the limits imposed by his permanent profile as his medical condition did not preclude satisfactory performance of his AOC physical requirements in a world-wide environment.  On 7 March 2005, the convening authority approved the board.

4.  He was promoted to lieutenant colonel on 1 January 2009.  He was ordered to and entered active duty on 2 October 2009 in support of Operation Enduring Freedom.  

5.  Orders Number A-05-014908, issued by the U.S. Army Human Resources Command (HRC) on 19 May 2010, retained him on active duty to participate in the Reserve Components Warriors in Transition Medical Retention Processing Program for completion of medical care and treatment.

6.  A Medical Evaluation Board (MEB) Narrative Summary, dated 15 December 2010, stated the following:

   a.  The applicant underwent his most recent cardiology evaluation on 20 July 2010 and the available documentation provided indicated the absence of an anatomic correlation between what had been essentially described an angiographically non-obstructive coronary artery diseases (via cardiac catheterization/coronary angiography – a "non-active lesion" with "no evidence of anterior ischemia on nuclear stress testing at a good workload") in the left anterior descending artery distribution, and findings suggestive of "a small area of basal to mid interoseptal ischemia" via nuclear myocardial perfusion imaging."

   b.  In the course of the aforementioned evaluation it also determined that the applicant had early onset emphysema.  The applicant had physical limitation which restricted all but the most sedentary activities.  He utilized a cane for ambulation.  He can't wear his protection gear such as Interceptor Body Armor (IBA), helmet, cannot carry even moderate loads, stand or sit for prolonged periods or walk for more than short distances.  

   c.  The applicant underwent a Department of Veterans Affairs (VA) Compensation and Pension examination on 25 October 2010 with a chief complaint of chronic neck and back pain, chest pain, dyspnea, and post-traumatic stress disorder (PTSD).  It was recommended he be referred to a PEB.

7.  On 11 February 2011, an MEB convened and after consideration of clinical records, laboratory findings, and physical examinations, the MEB diagnosed the applicant as suffering from the conditions below and referred him to a PEB. 

Diagnosis
Met Retention Standards
Did Not Meet Retention Standards
1.  Cervical Degenerative Disc Disease

X
2.  Thoracic Degenerative Disc Disease

X
3.  Lumbar Degenerative Disc Disease

X
4.  PTSD 

X
5.  Major Depressive Disorder 

          X
6.  Coronary Artery Disease 

          X
7.  Emphysema

          X
8.  Mild Traumatic Brain Injury 
X

9.  Hearing Loss
X

10.  Right Ulnar Nerve Neuropathy 
X

11.  Pulmonary Nodules
X

12.  Vitamin Deficiencies
X

13.  Osteoporosis
X

14.  Hyperlipidemia
X

15.  Right Renal Cyst
X

16.  Cubital Tunnel Syndrome
X

15.  Gastroesphageal Reflux
X

16.  Benign Prostatic Hypertrophy, Erectile                  Dysfunction
X

8.  His records contain and he provided a copy of a DA Form 199 which shows an informal PEB convened on 7 July 2011.  After consideration of clinical records, laboratory findings, x-rays, and physical examinations, found the applicant was diagnosed with the following conditions:  
   a.  Sleep apnea with hypoxernia to include emphysema, chronic obstructive pulmonary disease (COPD), subpleural fibrosis, and nodules on lung - (VA Schedule for Rating Disabilities (VASRD) 6603 and 6847 - rated at 50 percent (%) - The PEB found an evaluation revealed symptoms of the early onset of emphysema and a chest computed tomography demonstrated evidence of emphysema.  He continued to have shortness of breath with exertion.  The PEB found this condition unfitting as he could not carry and fire a weapon, evade fire, ride in a military vehicle 12 hours a day, wear IBA/load bearing equipment (LBE), wear protection mask, or move 40 pounds 100 yards while wearing usual protective gear.  

   b.  PTSD - rated at 50% - the PEB stated that he had witnessed a fatal injury of his gunner in an improvised explosive device (IED) attack in November 2008 and had survivor's guilt for his gunner's death.  The PEB found this condition was unfitting as he could not perform the duties of his AOC and he could not carry and fire his weapon.  The applicant would be reevaluated within 6 months of separation from service to determine if a change in the rating was warranted.

   c.  Coronary artery disease status post-acute myocardial infarction - VASRD 7705 - rated at 30% - the PEB stated he had developed chest pain in January 2010.  A July 2010 evaluation described angiographically non-obstructive coronary disease.  The PEB found this condition unfitting as the applicant could not carry and fire a weapon, evade fire, ride in a military vehicle 12 hours a day, wear IBA/LBE, wear protection mask, or move 40 pounds 100 yards while wearing usual protective gear.  

   d.  Degenerative disc disease of the cervical spine rated at 20% - the PEB found this condition unfitting as he could not carry and fire a weapon, evade fire, ride in a military vehicle 12 hours a day, wear IBA/LBE, wear protection mask, or move 40 pounds 100 yards while wearing usual protective gear.  

   e.  Lumbar degenerative disc disease rated at 20% - the PEB stated he was in a motor vehicle accident in 2002 and suffered multiple vertebral spinous process fractures.  He was injured again in 2008 in Iraq during deployment when in close proximity to an IED blast.  The PEB found this condition unfitting as he could not carry and fire a weapon, evade fire, ride in a military vehicle 12 hours a day, wear IBA/LBE, wear protection mask, or move 40 pounds 100 yards while wearing usual protective gear.  

   f.  Based on a review of the medical evidence of record, the PEB concluded that his medical conditions prevented his satisfactory performance of duty in his grade and primary specialty.
   g.  The PEB recommended his permanent disability retirement with a combined rating of 90%.  He concurred with the board's findings and recommendations and waived his right to a formal hearing and the PEB was approved.

9.  On 24 July 2012, the Commander, Warrior Transition Battalion, notified the PEBLO supervisor that the applicant was under investigation by the Army Criminal Investigation Command for an offense(s) chargeable under the Uniform Code of Military Justice (UCMJ) which could result in dismissal or punitive discharge.  The applicant could not be referred for, or continue, disability processing until that matter was fully adjudicated.  The applicant's DA Form 199 was processed erroneously and should be rescinded immediately.  

10.  On 27 February 2012, he was issued a General Officer Memorandum of Reprimand (GOMOR) for making false official statements in violation of Article 107, UCMJ.  The memorandum stated that he fabricated a story claiming that he sustained injuries in a convoy attack that resulted in a casualty of another Soldier.  He purposefully retold that story to his medical providers and chain of command in an attempt to be honored with a Purple Heart.  He was advised of his rights and he elected to submit a rebuttal.

11.  In his rebuttal, dated 12 March 2012, the applicant stated that he deeply regretted any disruption that his actions could have caused to the Warrior Transition Battalion, Womack Army Hospital, and the Army.  He accepted responsibility for his conduct and any and all of its effects.  He believed that it was never his intention to garner undeserved honors for himself.  

12.  On 19 March 2012, the convening authority directed the filing of the GOMOR in the applicant's official military personnel file.

13.  On 12 July 2012, an informal reconsideration PEB convened and after consideration of clinical records, laboratory findings, x-rays, and physical examinations, found the applicant was diagnosed with the following conditions:  

   a.  Sleep apnea (which was not unfitting and was not referred as unfitting to the VA) with hypoxernia to include emphysema, COPD, subpleural fibrosis, and nodules on lung - VASRD 6603 and 6847 - rated at 30% - The PEB rated him only for his emphysema and COPD.  The PEB determined the condition was unfitting as he could not carry and fire a weapon, evade fire, ride in a military vehicle 12 hours a day, wear IBA/LBE, wear protection mask, or move 40 pounds 100 yards while wearing usual protective gear.  The PEB also determined that the pulmonary modules while not independently unfitting are included in this rating due to combined effect.
   b.  Coronary artery disease status post-acute myocardial infarction - VASRD 7705 - rated at 30% - the PEB stated he had developed chest pain in January 2010.  A July 2010 evaluation described angiographically non-obstructive coronary disease.  The PEB found this condition unfitting as the applicant could not carry and fire a weapon, evade fire, ride in a military vehicle 12 hours a day, wear IBA/LBE, wear protection mask, or move 40 pounds 100 yards while wearing usual protective gear.  

   c.  Degenerative disc disease of the cervical spine rated at 20% - the PEB found this condition unfitting as he could not carry and fire a weapon, evade fire, ride in a military vehicle 12 hours a day, wear IBA/LBE, wear protection mask, or move 40 pounds 100 yards while wearing usual protective gear.  

   d.  Lumbar degenerative disc disease rated at 20% - the PEB stated he was in a motor vehicle accident in 2002 and suffered multiple vertebral spinous process fractures.  He was injured again in 2008 in Iraq during deployment when in close proximity to an IED blast.  The PEB found this condition unfitting as he could not carry and fire a weapon, evade fire, ride in a military vehicle 12 hours a day, wear IBA/LBE, wear protection mask, or move 40 pounds 100 yards while wearing usual protective gear.  

   f.  The PEB found his medical conditions following medical conditions met retention standards and were not listed in the physical profile:

   g.  The PEB recommended he be separated for permanent disability retirement with a combined rating of 70%.  He concurred with the board's findings and recommendations and waived his right to a formal hearing and the PEB was approved.

14.  He also provided copies of the following:

   a.  A PET Scan Report, dated 6 September 2012, which shows a PET Scan noted small nodules on his right lung in the right lower lobe and right middle lobe. No corresponding increased activity of the nodules, with particular attention to the dominate right lower lobe lung nodule. 

   b.  Five Oximetry Reports which show he underwent testing for oxygen in his blood on 24 September 2012.

   c.  A Sanford Pulmonary and Sleep Medicine Diagnostic Protocol which shows he underwent a sleep study on 25 September 2012.  Two puffs of Albuterol were given to him prior to post bedding.  An acceptable and reproducible good patient effort was found.
   d.  Three Pulmonary Lab reports, dated 25 September 2012, pertaining to his sleep study.

   e.  Six cardiology medical visits and consultation reports, dated between 29 August and 13 November 2012, which show he underwent several cardiology tests.  Workup showed evidence of COPD; however, hypoxia was felt to be out or proportion in his lung disease.  He was referred there to rule out cardiac disease.  Continuing with risk factor medications and medical therapy was recommended.  

   f.  Four electrocardiograms, dated 9 and 31 October and 1 November 2012.

   g.  Two Cardiac Catheterization reports, dated 31 October 2012, which show he was evaluated for progressive angina and coronary artery disease and underwent a left heart catheterization.  The result was successful primary stenting to the mid to distal left anterior descending using drug-eluting stent.  He was placed on aspirin indefinitely, Plavix for the next year, and continued risk factor modification and medical therapy.

   h.  Short Stay Summary which stated the following:

* he was admitted to the Carolinas Moore Regional Hospital on 31 October 2012
* he underwent a Cardiolite stress test in July 2012 at Womack hospital which was negative after hospitalization for chest discomfort
* he was evaluated in October 2012 with evidence of COPD; however, hypoxia and shortness of breath felt out of proportion for his lung disease and he was referred for further evaluation
* he underwent a cardiac catheterization which showed moderate to severe stenosis in the LAD; primary stenting with a drug-eluting stent was done with excellent result
* he was discharged on 1 November 2012
* discharge medications were same as admission including aspirin plus Plavix

   i.  Blood Report pertaining to his hospitalization in October 2012.

15.  Orders Number 356-0255, issued by the U.S. Army Installation Management Command, Fort Bragg, NC on 21 December 2012, honorably retired him effective 29 January 2013, by reason of disability.  

16.  He was honorably retired on 29 January 2013, under the provisions Army Regulation 635-40 (Personnel Separations, Physical Evaluation for Retention, Retirement, or Separation), chapter 4, by reason of permanent disability.  He was credited with completing a total of 13 years, 8 months, and 13 days of active service.  He was also credited with completing 22 years, 10 months, and 1 day of prior inactive service.

17.  He further provided a copy of a letter, dated 11 July 2014, wherein the VA advised him of the following:

   a.  Effective 19 July 2013, an increase from 50 to 70% service-connected disability rating for PTSD and major depressive disorder based on total occupational and social impairment.

   b.  Effective 19 July 2013, an increase from 30 to 60% service-connected disability rating for coronary artery disease status post-acute myocardial infarction based on workload of greater than 3 Metabolic Equivalents (METS), but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope additional symptom(s).  Continuous medication was required.  A higher evaluation of 100% was not warranted unless the evidence showed chronic congestive heart failure or left ventricular dysfunction with an ejection function of less than 30%.  

   c.  Effective 30 January 2013, an increase from 20 to 40% service-connected disability rating for lumbar degenerative disc disease based on the inclusion of osteoporosis in the spine and a compression fracture T7 and T9 stable.

   d.  Effective 30 January 2013, an increase from 50 to 100% service-connected disability rating for emphysema, COPD, subpleural fibrosis and nodules on lung with sleep apnea based on Forced Expiratory Volume (FEV) in one second less than 40% of predicted value (28%).  Outpatient oxygen therapy was required.

18.  Army Regulation 635-40 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 or her office, grade, rank, or rating.  Chapter 4 of the regulation states:

   a.  The  guidance on processing through the PDES, which includes the convening of an MEB to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  If the MEB determines a Soldier does not meet retention standards, the case will be referred to a PEB.  

   b.  The PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  The PEB investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  It also evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.  

19.  Army Regulation 635-40, appendix B, states 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.  Because of differences between Army and VA applications of rating policies, differences in ratings may result.  Unlike the VA, 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 at the time of separation.  

20.  The VASRD assigns code 6603 states for emphysema, pulmonary:

   a.  FEV-1 less than 40% of predicted value, or; the ratio of FEV 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% predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or; copulmonale (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 - rated at 100%.

   b.  FEV-1 of 40 to 55% predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) of 40- to 55% predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit) - rated at 60%.

   c.  FEV-1 of 56 to 70% predicted, or; FEV-1/FVC of 56 to 70%, or; DLCO (SB) 56 to 65% predicted - rated at 30%.

   d.  FEV-1 of 71 to 80% predicted, or; FEV-1/FVC of 71 to 80%, or; DLCO (SB) 66 to 80% predicted - rated at 10%.

21.  The VASRD assigns code 6847 states for sleep apnea syndromes (obstructive, central, mixed): 

   a.  Chronic respiratory failure with carbon dioxide retention or corpulmonale, or; requires tracheostomy - rated at 100%.
   
   b.  Requiring use of breathing assistance device such as continuous airway pressure (CPAP) machine - rated at 50%.

   c.  Persistent day-time hypersomnolence  - rated at 30%.

   d.  Asymptomatic but with documented sleep disorder breathing - rated at 10%.

22.  The VASRD assigns code 7005 states for arteriosclerotic (atherosclerotic) heart disease (coronary artery disease):

   a.  With documented coronary artery disease resulting in: chronic congestive heart failure, or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30% - rated at 100%.

   b.  More than one episode of acute congestive heart failure in the past year, or; workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50% - rated at 60%.

   c.  Workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray - rated at 30%.

   d.  Workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; continuous medication required - rated at 10%.

   e.  Note:  If nonservice-connected arteriosclerotic heart disease is superimposed on service-connected valvular or other non-arteriosclerotic heart disease, request a medical opinion as to which condition is causing the current signs and symptoms.
   
23.  Title 38, USC, sections 1110 and 1131, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish an error or injustice on the part of the Army.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of records clearly shows his 2012 informal reconsideration PEB considered all available clinical records, laboratory findings, x-rays, and physical examinations, and that he participated in his disability processing.  The PEB determined the following:

   a.  For sleep apnea – an evaluation and chest CT revealed symptoms of the early onset of emphysema and he continued to have shortness of breath with exertion.  

   b.  For Coronary Artery Disease Status Post-Acute Myocardial Infarction – he had developed chest pain in January 2010 and a July 2010 evaluation described angiographically non-obstructive coronary disease.  

   c.  The PEB found him unfit for both conditions because he could not carry and fire a weapon, evade fire, ride in a military vehicle 12 hours a day, wear IBA/LBE, wear protection mask, or move 40 pounds 100 yards while wearing usual protective gear.  

   d.  He concurred with the PEB's findings, recommendations, and ratings regarding these conditions and waived his right to a formal hearing.

2.  The VA increased his disability ratings from 30 to 60% for coronary artery disease for post-acute myocardial infarction (effective 30 January 2013) and from 50 to 100% for emphysema, COPD, subpleural fibrosis and nodules on lung with sleep apnea (effective 19 July 2013).  The evidence indicates that his symptoms of dyspnea, fatigue, angina, dizziness, or syncope additional symptoms, continuous medication, and outpatient oxygen therapy resulted in the increased ratings.

3.  A PEB does not compensate service members for anticipated future severity or potential complications of conditions.  It is a role that the VA assumes.  The PEB grades determination of fitness and disability based on the information at hand.  The fact that the VA awarded him an increased service-connected disability rating for these medical conditions is not evidence or any error in his military iintegrated disability evaluation system process.  

4.  The rating action by the VA does not necessarily demonstrate an error or injustice on the part of the Army.  Contrary to his contentions, the Army and the VA do not operate under the same policies and regulations.  The VA, operating under its own policies and regulation, assigns disability ratings as it sees fit.  The VA is not required by law to determine medical unfitness for further military service in awarding a disability rating, only that a medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved (i. e., the more stringent standard by which a Soldier is determined not to be medically fit for duty versus the standard by which a civilian would be determined to be socially or industrially impaired), an individual’s medical condition may be rated by the Army at one level and by the VA at another level. 

5.  It is acknowledged that being placed on oxygen would certainly impair his social adaptability.  However, the Army does not consider a Soldier’s social impairment in determining whether he is medically unfit for duty or at what disability rating percentage.   The fact is his pulmonary conditions made him unfit for military service because he could not function in a field environment.  

6.  There is no evidence of record and he provided none showing these two medical conditions were unjustly or erroneously rated by the PEB.  He also provided no evidence which shows his disability processing was in error or unjust or that these conditions were improperly evaluated such as to warrant higher ratings for these medical conditions.  

7.  An increased award of a VA rating does not establish entitlement to an increased Army rating.  Operating under its own policies and regulations, the VA awards a rating because a medical condition is related to service (service connected).  He was evaluated and is being granted greater compensation for these service-connected medical conditions by the VA.  

8.  In view of foregoing he is not entitled to the 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)                                         AR20140014250



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ABCMR Record of Proceedings (cont)                                         AR20140014250



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