RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            01 APRIL 2004
      DOCKET NUMBER:   AR2003093578


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

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Deborah L. Brantley           |     |Senior Analyst       |


  The following members, a quorum, were present:

|     |Mr. Fred N. Eichorn               |     |Chairperson          |
|     |Mr. Walter T. Morrison            |     |Member               |
|     |Mr. John T. Meixell               |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests disability retirement.

2.  The applicant states, in effect, that he received a 10 percent
disability rating for his shoulder condition and a 10 percent disability
rating for his eye condition from the Army.  However, he maintains that in
spite of a diagnosis of “Multi-directional instability with recurrent
rotator cuff tendonitis, and left shoulder with Multi-directional
instability” he was rated only for shoulder pain.  He states that two
different Sports Medicine Orthopedic Surgeons evaluated him and
independently rated his right shoulder at 30 percent and his left shoulder
at 20 percent.  The applicant states that both of these statements “were
discounted as not relevant.”  He states that he has “two specialist saying
my shoulders have this problem, and one, non-orthopedic physician on the
PEB [Physical Evaluation Board], disagrees.”  He maintains this decision is
keeping him “from getting a correct rating.”

3.  The applicant states that his shoulder condition has continued to get
worse and affects the kind of job he can apply for.  He states that he has
undergone an operation without relief.  He states that he had hoped to
retire from the United States Army but his shoulders and eyes prevented him
from being fit for any Army service.

4.  In a 13 October 2003 letter to the United States Army Physical
Disability Agency, which the applicant provided to the Board, he indicated
that he had received a 70 percent disability rating from the Department of
Veterans Affairs (VA).

5.  The applicant provides a copy of his Medical Evaluation Board (MEB)
Proceedings, copies of the statements rendered by the two Sports Medicine
Orthopedic Surgeons, an April 2002 record of a medical evaluation, and a
copy of his arthroscopy surgery report completed in April 2002.

CONSIDERATION OF EVIDENCE:

1.  Records available to the Board indicate that the applicant initially
entered military service as an enlisted member of the Army National Guard.
He received a commission in December 1988, eventually attaining the rank of
captain.  He continued to serve in various elements of the Reserve
Components and in November 1997 he was ordered to active duty as a warrant
officer (helicopter pilot) for a period of 4 years.

2.  In July 2000 a MEB concluded that the applicant suffered from “right
shoulder multi-directional instability with recurrent rotator cuff
tendonitis, status post failed shoulder surgery (medical board diagnosis
(MEBD DIAG) 1), left shoulder multi-directional instability (MEBD DIAG 2),
chronic squamous blepharitis in both eyes (MEBD DIAG 3), and chronic
meibomian gland dysfunction bilaterally, secondary to Accutane use (MEBD
DIAG 4).”

3.  His MEB summary notes that the applicant’s “chief complaint” was
chronic right shoulder pain.  The evaluating physician indicated that the
applicant began having symptoms in 1998 when he was stationed in Korea and
“began to have popping catching of the right shoulder.”  Upon being
assigned to Fort Knox, Kentucky the applicant underwent “right shoulder
arthroscopy with subacromial decompression in December 1999 as well as in
March 1999.”  The report noted that he underwent the second operation when
he failed to have relief after the first.  In spite of physical therapy,
the applicant continued to have pain in his right shoulder.  The evaluating
physician indicated that “due to the confusing picture” the applicant was
referred to an Orthopedic Sports Medicine physician who noted that the
applicant “had multidirectional instability as a physical finding which
more than likely led to the patient’s recurrent symptoms.”

4.  During the applicant’s MEB evaluation it noted that the physical
evaluation was limited to his right shoulder.  The evaluating physician
noted that the applicant’s:

      Range of motion was full passively; actively he could only get to
      approximately 90 degrees of forward flexion and abduction before he
      had pain which limited full motion, but he could get to approximately
      150 degrees in both forward flexion and abduction.  Internal ration
      was to the level of approximately T6 compared to T4 on the right.
      External rotation was symmetrical at approximately 45 degrees.
      Strength in his shoulder was 5/5 in all muscle groups C5 through T1,
      however he did have some pain referable to the deltoid origin on the
      lateral aspect of the acromion with resisted shoulder abduction.
      Additionally, he also had some mild tenderness with resisted external
      rotation, testing rotator cuff strength, but this strength was still
      5/5.  His pain rating by the AMA [American Medical Association] is
      moderate for intensity and frequent for frequency.

5.  An addendum to the MEB subsequently noted the applicant’s chronic
squamous blepharitis in both eyes and his chronic meibomian gland
dysfunction, bilaterally, secondary to Accutane use.

6.  The MEB recommended that the applicant be referred to a PEB.  The
applicant concurred with the findings and recommendation of the MEB.

7.  An informal PEB concluded that the applicant’s right shoulder pain with
multi-direction instability status post failed surgery “rated as
slight/frequent” (MEBD DIAG 1) prevented reasonable performance of duties
required by grade and military specialty.  A 10 percent disability rating
was assigned utilizing VASRD (Veterans Administration Schedule for Rating
Disabilities) codes 5299 5003.  The PEB noted that in accordance with a
Physical Disability Policy memorandum the applicant’s “intensity/severity
of soldier’s pain is more accurately described as slight, not moderate.”
MEBD DIAG 2, 3, and 4 were determined not to be unfitting and therefore
were not rated.  The PEB recommended that the applicant be discharged with
entitlement to disability severance pay.

8.  The applicant nonconcurred with the informal PEB and demanded a formal
hearing.

9.  A formal PEB convened on 22 August 2000.  Included as part of the
evidence presented to the formal PEB were the two statements from the
sports medicine physicians.  Both physicians noted that according to VASRD
rating code 5202 the applicant’s right shoulder warranted a 30 percent
rating while one physician also stated that the applicant’s left shoulder
could be rated at 20 percent under code 5202.  One physician indicated that
“in the right arm he has instability in all positions resulting in
spontaneous dislocations, especially posteriorly with any cross body
movement.”  The physician stated that since “this is a spontaneous event,
it occurs multiple times throughout the day with associated pain.”

10.  A statement was also provided from the chief, ophthalmology service at
Fort Knox, which noted that the applicant’s diagnosis of blepharitis and
meibomian gland dysfunction in both eyes resulted in irritation and blurred
visions preventing the applicant from safely operating an aircraft.

11.  The formal PEB ultimately concluded that no change was warranted in
the disability percentage (10 percent) assigned to MEBD DIAG 1 (right
shoulder pain), but did conclude that the applicant’s eye condition (MEBD
DIAG 3 and 4) also warranted a disability rating of 10 percent.  MEBD DIAG
2 (left shoulder condition) continued to be not unfitting and therefore not
rated.

12.  The applicant nonconcurred with the formal PEB and submitted a
rebuttal.  On 6 September 2000 the PEB found that no change to the original
findings was warranted.  It noted that the applicant’s rebuttal provided no
additional medical evidence or performance data to support an increased
disability rating.

13.  On 11 September 2000 the United States Army Physical Disability Agency
reviewed the applicant’s entire case file and concluded that the
applicant’s case was properly adjudicated by the PEB.  The memorandum noted
that the findings and recommendations of the PEB were supported by
substantial evidence and were therefore affirmed on behalf of the Secretary
of The Army.

14.  On 22 November 2000 the applicant was honorably discharged by reason
of physical disability and received more than $34,000.00 in disability
severance pay.
15.  According to documents provided by the applicant, in April 2002 he was
seen by medical personnel with a chief complaint of “bilateral shoulder
pain, right worse than left.”  The evaluation noted that the applicant had
undergone a procedure in January 2001 after which “he did very well…for six
months…with no incidence of subluxation.”  However, “three months ago he
started subluxing his right shoulder with popping in and out.”  On 15 April
2002 he underwent a right shoulder arthroscopy.  The operation report noted
that the applicant “tolerated the procedure well without complications and
was taken to the recovery room in stable condition.”

16.  There were no other medical records available to the Board, beyond the
medical documents associated with the applicant’s MEB/PEB and his April
2002 surgery.  There was no confirmation of the applicant’s Department of
Veterans Affairs disability rating, which he indicated in a letter to the
Physical Disability Agency, was 70 percent.

17.  Title 10, United States Code, section 1203, provides for the physical
disability separation of a member who has less than 20 years service and a
disability rated at less than 30 percent.

18.  Title 10, United States Code, section 1201, provides for the physical
disability retirement of a member who has at least 20 years of service or a
disability rated at least 30 percent.

19.  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.  Conditions that do not render a soldier unfit for military
service will not be considered in determining the compensable disability
rating unless they contribute to the finding of unfitness.  When an
unlisted condition is encountered, it is rated under a closely related
disease or injury in which not only the functional, but the anatomical
localization and symptomatology are closely analogous.  When an unlisted
disease, injury, or residual condition is encountered, requiring rating by
analogy, the diagnostic code number will be “built-up” using the first two
digits from the part of the scheduled most closely identifying the part, or
system, of the body involved.  The last two digits will be “99” for all
unlisted conditions.

20.  Army Regulation 635-40 states that often a soldier may be found unfit
for any variety of diagnosed conditions, which are rated essentially for
pain.  Inasmuch as there are no objective medical laboratory testing
procedures used to detect the existence of or measure the intensity of
subjective complaints of pain, a disability retirement cannot be awarded
solely on the basis of pain.

21.  The VASRD code, which the sports medicine physicians cited as the
basis for their disability rating was code 5202.  That code related “other
impairment [of the] humerus” and required “recurrent dislocation of/at
scapulohumeral joint with frequent episodes and guarding of all arm
movements” in order to warrant a rating of 30 percent.

22.  The Army Physical Disability Agency (USAPDA) has noted in advisory
opinions in similar cases that confusion frequently arises from the fact
that the Army and the DVA use different rating systems.  While both use the
Veterans Administration Schedule for rating Disabilities (VASRD), not all
of the general policy provisions set forth in the VASRD apply to the Army.
The Army rates only conditions determined to be physically unfitting,
because they adversely effect the individual’s ability to perform assigned
duties, thus compensating the individual for loss of a career.  The VA, on
the other hand, may rate any service-connected impairment, in order to
compensate the individual for loss of civilian employability or social
functioning.  The USAPDA has also pointed out that military disability
ratings are based upon the degree to which a medical condition effects the
ability to perform duty and not upon the diagnosis or name attached to the
condition.  By way of comparison, the VA can and does rate an individual
for pain in many instances.  The Army can only rate the same painful
condition if it impairs the soldier’s ability to perform assigned tasks.

DISCUSSION AND CONCLUSIONS:

1.  Throughout the applicant’s disability processing, and during his
medical consultations leading up to his disability processing, his chief
complaint was shoulder pain.  As such, the PEB was precluded from rendering
a rating high enough to warrant disability retirement.

2.  He has not presented any new evidence, which was not available to the
PEB at the time, which refutes the fact that his primary impairment stemmed
from his chronic shoulder pain.  Utilization of code 5202, as suggested by
the applicant’s sport medicine physicians, was not warranted in view of the
fact that the applicant’s chief complaint was pain, with no mention of
“recurrent dislocation of/at scapulohumeral joint with frequent episodes
and guarding of all arm movements” during his initial MEB evaluation.

3.  The fact that the VA may have subsequently granted a higher disability
rating is not evidence that the Army’s rating was in error or unjust.  The
VA, operating under its own policies and regulations, assigns disability
ratings as it sees fit.  Any rating action by the VA does not compel the
Army to modify its reason or authority for separation.
4.  The applicant’s contention that his PEB was flawed because the PEB
physician was not a sports medicine physician is without foundation.  The
PEB and each of the reviewing officials had access to the applicant’s
entire medical file and rendered their decision based on information
available from a variety of sources, including the applicant’s own
testimony during his formal PEB.

5.  In order to justify correction of a military record the applicant must
show, 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.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

__FNE __  __WTM _  __JTM___  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.





            ____Fred N. Eichorn______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003093578                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040401                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |108.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |