MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:


         BOARD DATE: 05 NOVEMBER 2002
         DOCKET NUMBER: AR2002073942


         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Kenneth W. Aucock		Analyst

The following members, a quorum, were present:

Mr. Melvin H. Meyer		Chairperson
Mr. Eric N. Andersen		Member
Mr. John T. Meixell		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
                  records
         Exhibit B - Military Personnel Records (including
                  advisory opinion, if any)

APPLICANT REQUESTS: Reconsideration of his earlier appeal to correct his military records by increasing his disability rating from 30 percent to 100 percent because of his mental condition, and his leg condition. He also requests that his disability rating be increased because of his left hand condition.

APPLICANT STATES: In effect, that at the time of his earlier request he did not have medical documentation. He states that he is being treated by both the Army, at Walter Reed Army Medical Center, and by the VA. He submits VA medical records showing his treatment by that agency.

He states that he cannot use his left hand because of surgery performed when he was on active duty. Because he was unjustly discharged, he could not receive medical attention from the Army or the VA. His condition has worsened, even though he is now receiving treatment.

He was receiving treatment for a psychological disorder while on active duty, but no specific diagnosis had been determined. His condition remained untreated for nine years. His psychological disorder has not gone away, but worsened. Had he been properly discharged, he would have been afforded the opportunity of medical treatment, and his mental condition might be different. Medical attention over the last nine years may have helped.

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's previous consideration of the case (AR2001064944) on 5 March 2002.

The applicant’s contention concerning his left hand condition is a new argument that requires Board consideration. Furthermore, the applicant submits evidence in the form of VA medical documents.

Medical records show that he was evaluated on 31 October 2000 for intermittent cramping of his left hand and on 6 November 2000 for pain in his wrist. Occupational therapy was recommended, to include a left hand splint, strengthening exercises for his left upper extremities, and a home exercise program (HEP). On 6 November 2000 medical records show that he was again evaluated because of pain in his wrist when pressure was applied to his hand in various movement positions. The examining physician stated that the applicant could benefit from occupational therapy services for HEP instruction. He stated that while his gross grip strength was poor, his pinch strength was only mildly impaired and he exhibited fair gross grip strength and a normal pinch strength in his right hand. Long and short term goals were developed. The applicant agreed with the physician’s plans.

VA medical records in October 2000 show that the applicant’s medical history was reviewed, indicating a history of diabetes mellitus, depression, and anger management disorder. His only current physical complaints were pain in his left wrist – the site of his former injury and bone grafts, and pain in his left knee – the site of injury and surgery. A review of his systems indicated that the applicant stated that his mood was OK, that he denied depression or suicidal ideation, but that he was having trouble with anger management. His past medical history included diabetes mellitus, manic depression, fracture of left wrist with subsequent bone graft and fusion of left wrist joint, injury to his left knee (arthroscopic surgery), and seizures, but none in the last 10 years. A plan was developed to control his diabetes. With reference to his wrist, the records show that the applicant stated that he did not have the time to engage in his HEP. The physician stated that the applicant was not a good candidate for strengthening his hand. He had a 10 year history of trauma. He had a history on noncompliance with occupational therapy instructions; and that while he was now able to execute all self-care activities without pain or difficulty, he lacked the motivation to engage in any modalities that might strengthen his hand further. He had poor rehabilitation potential.

A 12 January 2001 medical record indicates that the applicant was seen for various problems, to include his diabetes, seizure disorder, tobacco use disorder, anger management, and depression. The examining physician stated that the applicant felt that his depression was getting worse, that he heard voices, that he felt like cutting his arm last week to hurt himself, that he had more anger, and that he slept poorly.

VA medical records in February 2001 show that the applicant was evaluated by various medical personnel. His condition was diagnosed as schizoaffective disorder, depressed; rule out schizoaffective, bipolar; a history of cocaine dependence in stable remission; medication non-compliance; diabetes mellitus; history of seizure disorder; borderline hypertension; and poor social support. His GAF (Global Assessment of Functioning) [scale] was 25.

Records show that he was admitted to the mental health clinic with complaints of depression, auditory hallucinations, and paranoid ideation. He was admitted to inpatient psychiatry with a recommendation to observe and evaluate him for behavior. He was closely observed. He remained depressed, but denied suicidal thoughts or intent. He was placed on strict ward restriction. A later evaluation report, that same date [9 February 2001] shows that the applicant continued to exhibit immediate risk of injury to himself due to actual or suspected psychiatric disease. He remained on close observation for unpredictable behavior. An 11 February 2001 medical record shows that the applicant exhibited continued deficit in his psychiatric condition, which significantly impaired activities of self-care, daily living and previously established roles and responsibilities.

A 26 April 2002 compensation and pension examination report shows that the applicant’s condition was diagnosed as schizoaffective disorder, bipolar type; diabetes mellitus; history of seizure disorder and hypertension; left knee and wrist injury. He was under moderate stress and his GAF was 45. He suffered from symptoms of depression and psychosis, affecting his social and personal life. He was not able to handle VA funds.

Army Regulation 15-185 sets forth the policy and procedures for the ABCMR. It provides that, if a request for a reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence (including but not limited to any facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration. The staff of the Board is authorized to determine whether or not such evidence has been submitted.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. The applicant’s leg condition and mental condition was considered by the Board on 5 March 2002 in rendering its decision to deny his request to increase his disability rating from 30 percent to 100 percent. The VA medical records that he submits with his current request, notwithstanding, this Board adheres to the determination made by the 5 March 2002 Board. The applicant has not provided any evidence to show that he was unfit to perform his duties because of a leg condition or because of any mental condition, when he was discharged in 1992.

2. At the time of his prior request to this Board in October 2001, the applicant made no request that his 30 percent disability rating be increased because of his left wrist condition, despite the evidence contained in the 2000 and 2001 VA medical documents indicating that he had problems with his left wrist and hand. In reviewing the 21 February 2001 decision made by this Board (AR1999028710), on 18 May 2001, the Deputy Assistant Secretary for Army Review Boards determined that the applicant’s left wrist condition was permanently disabled, warranting a 30 percent disability rating. He also stated that the applicant’s left dominant wrist was fused in a favorable condition, and that would not change. This Board notes that the applicant is being treated by the VA for his left wrist and hand condition, but according to the VA records, the applicant is not complying with occupational therapy instructions. In effect, he is refusing to help himself. Nonetheless, the applicant has not provided any evidence to show that his 30 percent disability rating for his left wrist condition was erroneous – that he should have received a higher rating for that condition.

3. The applicant's disability was properly rated in accordance with the VA Schedule for Rating Disabilities. Although there is no evidence that the VA has awarded the applicant a disability rating for his left wrist condition, the VA may well do so based on its examination and findings, and that rating may or may not be higher than the rating given by the Army. The VA operates under its own policies and regulations, and awards ratings because a medical condition is related to service, i.e., service-connected. Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

4. The applicant has submitted neither probative evidence nor a convincing argument in support of his request.

5. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy that requirement.

6. The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

7. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.


BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__MHM__ __ENA__ __JTM___ DENY APPLICATION



         Carl W. S. Chun

Director, Army Board for Correction
         of Military Records

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INDEX

CASE ID	AR2002073942
SUFFIX
RECON
DATE BOARDED	20021105
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	108.00
2.
3.
4.
5.
6.