IN THE CASE OF: BOARD DATE: 9 November 2010 DOCKET NUMBER: AR20100013728 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 records to show he received a 100% disability rating for retinitis pigmentosa (a genetic eye condition) and that he was medically retired. 2. The applicant states his vision problem was misdiagnosed. 3. The applicant provides copies of various Veterans Administration/Department of Veterans Affairs (VA) ratings throughout the years. 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 18 October 1983 and he held military occupational specialty 76Y (Unit Supply Specialist). He served in Germany from 1 March 1984 to 24 August 1985 and attained the rank/grade of specialist four (SP4)/E-4. 3. On 14 May 1986, while at Fort Bliss, TX, he complained of headaches and transient episodes of bilateral visual loss associated with the headaches. He subsequently underwent a series of evaluations and/or examinations. His narrative summary noted the following: a. He was evaluated by the ophthalmologist whose findings were essentially normal. He offered a differential diagnosis to include factitious, retinitis pigmentosa (although he had normal appearing fundi), possible occipital lesions, optic atrophy secondary to long standing pipiliedema, toxic retinopathy secondary to medications (although he had a history of this). b. He was evaluated by a neurologist who recommended that he receive an Electroencephalogram (EEG) and a computed tomography (CT) scan which were essentially within normal limits. The neurologist, in reviewing the applicant's history, felt that due to the long standing nature of this problem, it most likely represented migraine-type headaches exacerbated at the time by underlying psychological disturbances. c. He was evaluated by a psychiatrist who felt the applicant's condition was a conversion disorder and recommended he continue workup to rule out organic causes. d. He was evaluated by a psychologist whose impression was that his condition was a probable conversion reaction and recommended short-term supportive therapy. However, the applicant refused follow-up by psychology and psychiatry. e. His final diagnosis was acephalgic migraines with transient loss of vision (in line of duty) and probable conversion reaction aggravating the first diagnosis (also in line of duty). He was determined to be unfit for active duty and recommended for entry into the physical disability evaluation system (PDES). 4. On 14 May 1986, a medical evaluation board (MEB) convened at Beaumont Army Medical Center, El Paso, TX, and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed as having the medically-unacceptable condition of acephalgic migraines with transient loss of vision (existed prior to service (EPTS)) and the medically-unacceptable condition of probable conversion reaction aggravating the first diagnosis. The MEB recommended he be referred to a physical evaluation board (PEB). He agreed with the MEB's findings and recommendation and indicated that he did not desire to continue on active duty. 5. On 10 June 1986, an informal PEB convened in San Francisco, CA. The PEB found the applicant's condition prevented him from performing the duties required of his grade and specialty and determined that he was physically unfit due to conversion reaction aggravating migraine headaches established prior to service, productive of social and industrial impairment. He was rated under the VA Schedule for Rating Disabilities (VASRD), assigned code 9402, and granted a 10% disability rating. The PEB recommended that the applicant be separated with entitlement to severance pay if otherwise qualified. The applicant concurred with the PEB's finding and recommendation and waived his right to a formal hearing on the same date. 6. He was honorably discharged on 26 August 1986 under the provisions of paragraph 4-24e of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of disability with entitlement to severance pay. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed 2 years, 10 months, and 9 days of active service. 7. He submitted various VA rating decisions as follows: a. On 3 December 1987, he was awarded a 10% rating for migraine headaches with transient loss of vision, effective 27 August 1986. b. On 30 September 1988, he was awarded an additional 10% rating for atypical anxiety disorder, with a combined rating of 20% also effective 27 August 1986. c. On 14 June 1993, he was denied compensation for a scar, left leg injury, boil in groin, stomach virus, scrotal cysts, and post-traumatic stress disorder. d. On 2 April 1996, he was denied service-connected compensation for retinitis pigmentosa. The condition was considered a congenital or developmental defect which was unrelated to military service. e. On 18 July 1986, he was awarded a 60% rating for retinitis pigmentosa from 17 March 1995 to increase to 70% on 29 June 1995. The rating decision noted that although this condition was hereditary, if it was first manifested during service; it is considered service-connected. f. On 23 October 1996, he was awarded a 100% rating for retinitis pigmentosa effective 12 August 1996 in addition to the 10% rating for migraine headaches and 10% rating for atypical anxiety disorder. g. On 19 October 1998, the rating noted the VA examination did not show any specific eye disease nor did it show any vision impairment from migraine headaches other than transient vision loss. h. On 9 January 2002 and 16 August 2004, he was awarded a 100% rating for retinitis pigmentosa effective 12 August 1996, 10% rating for migraine headaches, 10% rating for atypical anxiety disorder, and 0% for a scar. 8. Army Regulation 635-40 establishes the 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. It states, in pertinent part, that according to accepted medical principles, certain abnormalities and residual conditions exist that, when discovered, lead to the conclusion that they must have existed or have started before the individual entered the military service. Examples are congenital malformations and hereditary conditions or similar conditions in which medical authorities are in such consistent and universal agreement as to their cause and time of origin that no additional confirmation is needed to support the conclusion that they existed prior to military service. Likewise, manifestation of lesions or symptoms of chronic disease from date of entry on active military service (or so close to that date of entry that the disease could not have started in so short a period) will be accepted as proof that the disease existed prior to entrance into active military service. 9. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30%. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30%. 10. Title 38, U.S. Code, sections 1110 and 1131, permit 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 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. DISCUSSION AND CONCLUSIONS: 1. The applicant contends his records should be corrected to show he was rated 100% disabled and medically retired instead of being discharged due to a physical disability with severance pay. 2. The applicant complained of headaches. He was seen by various medical specialists and recommended for entry into the PDES. He underwent an MEB which recommended that he be considered by a PEB. The PEB found his conversion reaction prevented him from performing his duties and determined he was physically unfit for further military service. The PEB recommended separation with entitlement to severance pay. He agreed with the recommendation. 3. On 23 October 1996, the VA awarded him a 100 % disability rating for retinitis pigmentosa. He now believes he should have received a 100% disability rating for this condition. 4. Retinitis pigmentosa is a hereditary disease that progresses during the life of an individual. On examination, it is manifested by a pigment that encroaches from the periphery of the retina. Symptomatically, it is typified by tunnel vision and difficulty with night vision. The episodes that the applicant describes here as momentary complete loss of vision that after a few seconds or minutes returned to normal are not related to retinitis pigmentosa. 5. Although he appealed to the VA for disability compensation for service-connected for retinitis pigmentosa in December 1987, this was denied. He was awarded a rating and compensation in March 1995 when the diagnosis was made. The VA also acknowledged that the retinitis pigmentosa was hereditary but stated that he was authorized compensation if the symptoms began while on active duty. One of the VA examiners opined that the symptoms he experienced while on active duty were, in retrospect, an early manifestation of retinitis pigmentosa. In a contradictory fashion, however, the VA did not grant service connection back to the date of his discharge but 9 years later when he had the typical symptoms of retinitis pigmentosa. 6. The issue here is related to EPTS and fitness. The applicant had an inherited disease that existed prior to service. Although there is no consensus as to whether this disease became symptomatic while on active duty, it is a certainty it did not become unfitting during his military service. The momentary episodes of faintness or dizziness followed by complete blindness for which the applicant was found unfit had no resemblance to retinitis pigmentosa. The diagnoses of atypical migraine with an overlying psychiatric disorder - conversion reaction best describe his symptoms then and are still an accurate description of the condition for which he was found to be unfit. 7. A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES. The applicant was properly rated for his atypical migraine with an overlying psychiatric disorder (conversion reaction) condition. There is no evidence to support a higher rating or medical retirement. 8. The applicant's physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the PEB's recommendation. There is no error or injustice in this case. Therefore, in view of the foregoing evidence, 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) AR20100013728 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100013728 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1