IN THE CASE OF:	  

		BOARD DATE:	  12 May 2015

		DOCKET NUMBER:  AR20140014998 


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 he be given a 60 percent disability rating for his cholinergic urticaria with angioedema rated as analogus to angionuerotic edema conditions based on the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD). 

2.  The applicant states:

     a.  His DA Form 199 (Physical Evaluation Board (PEB) Proceedings) dated              4 December 2009 did not give him disability rating for his cholinergic urticaria with angioedema rated as analogus to angionuerotic edema condition.

      b. He should have received a 60 percent rating for the above condition in accordance with VASRD 4.20.

     c. He has the line of duty (LOD) investigations pertaining to the condition listed above.

3.  The applicant provides:

* DA Form 199
* two DA Forms 2173 (Statement of Medical Examination and Duty Status)
* DD Form 261 (Report of Investigation LOD and Misconduct Status)
* memorandum, subject:  Findings, LOD Investigating Officer, dated     12 April 2006 

* memorandum, subject:  Findings, Line of Duty Investigating Officer, dated
12 April 2006
* excerpt of VASRD
* DA Form 3349 (Physical Profile)

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 entered active duty on 5 September 2005 as a Reserve Soldier. 

3.  A DA Form 2173 dated 31 January 2006, states he was diagnosed with having asthma, anaphylaxis, angioedema, and urticaria possibly caused by exposure to a chemical environment.
 
4.  On 7 April 2006, he was retained on active duty for 179 days to participate in the Reserve Component Medical Holdover Retention Processing Program for the purpose of completing of medical care and treatment.  His end date was 
24 September 2006.  On 26 September 2006, his end date was amended to         22 March 2007.

5.  He was honorably retired from active duty on 17 January 2007 due to a temporary disability.   On 18 January 2007, he was placed on the Temporary Disability Retired List.

6.  On 4 December 2009, an informal reconsideration PEB convened, considered his case, and found his conditions prevented him from performing the duties required by his MOS.

   a. The PEB determined he was physically unfit due to asthma and post- traumatic stress disorder (PTSD). 

   b. He was given a 30 percent disability rating for asthma and a 30 percent disability rating for PTSD.

     c. The PEB noted that his conditions of cholingergic urtcaria with angioedema rated as analogous to angioneurotic edema were not ratable since they were not considered to be unfitting on his original PEB.  The original PEB was not available for review.

     d. The PEB recommended that he be permanently retired.

     e. The PEB recommended a combined disability rating of 50 percent. 

     f. On 4 December 2009, he concurred with the PEB's findings and recommendations and waived his right to a formal hearing of his case.

7.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System and sets forth the 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.  It states, in pertinent part, that after establishing the fact that a Solider is unfit because of a physical disability, and that the Soldier is entitled to benefits, the PEB must decide the percentage rating for each unfitting disability.  The VA Schedule for Rating Disabilities, as modified in the regulation, is used to establish this rating.

8.  Chapter 3 of Army Regulation 635-40 contains the policy and outlines the standards for determining unfitness because of physical disability.  It states, in pertinent part, 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 his or her office, grade, rank, or rating.  Paragraph 3-3b(1) states, in pertinent part, that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his/her office, grade, rank or rating

9.  Title 38, U.S. Code, sections 1110 and 1131, permits the Department of Veterans Affairs (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 in the Army rating.  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.  As a result, these two government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  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.

10.  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 VA, the Army must first determine whether or not a Soldier is fit to reasonably perform the duties of his office, rank, and grade.  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.
 
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the PEB did not give him a disability rating for his conditions of cholingergic urtcaria with angioedema rated as analogous to angioneurotic edema.

2.  An LOD investigation stated he was diagnosed with having asthma, anaphylaxis, angioedema, and urticaria possibly caused by exposure to a chemical environment.
 
3.  The PEB recommended a 30 percent disability rating for asthma.  The PEB noted that his conditions of cholingergic urtcaria with angioedema rated as analogous to angioneurotic edema were not ratable since they were not considered to be unfitting on his original PEB.  The mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  Therefore, the PEB did not find this condition unfitting and no disability rating was assigned.

4.  In view of the above, there is no basis on which to increase his disability percentage.

5.  Disabilities which occur or which worsen after a Solder is separated are treated by and compensated for by the VA.  The VA evaluates veterans throughout their lifetime, adjusting the percentage of disability based upon that Agency's examinations and findings.  Any changes in the severity of a disability should be referred to that Agency.

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)                                         AR20140014998



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ABCMR Record of Proceedings (cont)                                         AR20140014998



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