MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:


         BOARD DATE: 17 JULY 2003
         DOCKET NUMBER: AR2003085523

         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
Ms. Deborah L. Brantley		Senior Analyst

The following members, a quorum, were present:

Ms. Joann H. Langston		Chairperson
Ms. Regan K. Smith		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 her earlier request to have her Army disability rating increased in order to be medically retired from the Army.

APPLICANT STATES: In effect, that the Board’s original decision denied her petition because it concluded that she “was properly given a disability rating of 20% because [her] pain was not considered severe.” The applicant states that her pain should have been considered severe and submits additional medical documents noting various medical appointments for pain associated with her benign liver tumor. She notes that the pain was so severe that she required “narcotics for pain relief.” She also states that the Board concluded that she “did not have any complaints with digestion” when in fact she maintains that she did, and submits medical documents showing instances of elevated blood sugar and that she has diabetes. She also states that she received no rating for the “tumor which extends into [her] inferior vena cava” causing her “severe vascular problems and Bi Lateral leg problems secondary to the tumor.” She also states that the original Board did not address her three “altered lab reports.”

In support of her request, she submits extracts from her service medical records noting her treatment for pain between 1992 and 1994 and highlights the medications she was prescribed for her pain, including methadone, amitriptyline, ibuprofen, Tylenol, etc. She submits a copy of an August 1994 addendum to her Medical Evaluation Board which also notes that she was prescribed narcotics for pain relief. She also submits copies of medical documents from 1990 indicating that she experienced “blurred vision” in her right eye due to a head injury and ultimately developed “floaters” in her eye which, in 1998 were still present.

The applicant submits copies of three urinalysis tests, dated December 1992, January 1993, and May 1993, which she claims, were altered. She also submits copies of blood tests dated 7 December 1992 and 13 January 1993, the same dates as two of her urinalysis tests.

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of her case (AR2001062792) on 11 December 2001.

The documents submitted in support of the applicant’s request for reconsideration were extracted from her service medical records. While those exact extracts may not have been available to the Board which considered her original application in December 2001, they would have been available to the Physical Evaluation Board (PEB) which determined in September 1994 that the applicant’s pain, secondary to her benign liver tumor, warranted separation with a 20 percent disability rating.

The medical documents do reflect that the applicant was prescribed a variety of medications, including methadone, a narcotic, as a result of her pain. Her narrative summary, completed as part of her Medical Evaluation Board in June 1994, does note that the applicant was taking methadone at the time of the evaluation.

The August 1994 addendum to her Medical Evaluation Board (MEB) discussed the applicant’s decision not to undergo surgery for her tumor.

The applicant’s June 1994 MEB noted her chief complaint as abdominal pain. Her September 1994 PEB noted that the applicant was being “rated for pain….”

Army Regulation 635-40 states that often a soldier will 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.

The MEB also noted that applicant denied any “numbness, pain, or claudication in lower extremities.” In a February 2001 medical evaluation, completed at a “Physician Group” in Ogden, Utah, indicated the applicant reported that her liver tumor was “causing swelling in the lower extremities and chronic pain” and that she was suffering from diabetes and diabetic neuropathy. The February 2001 medical evaluation summary, which the applicant included with her request for reconsideration, was also included in her original application to the Board. Although the current copy is identical to the one submitted with her original application, the current copy does not reflect a date. The evaluating physician noted that he stressed that the applicant should “keep better control of her diabetes, and also should have her physicians keep a close eye on her blood pressure.” He also noted that while he could not “explain the pain that she has from her liver mass invading the inferior vena cava, she certainly does have documented pathology. This may be the cause of the pain in her thighs that she complains of.”

The medical documents submitted by the applicant in support of her request for reconsideration also included extracts from her service medical record which indicated that she had sustained a head injury on 3 November 1990 which resulted in blurred vision. On 5 November 1990 she was diagnosed with “vitreous floaters…due to blunt trauma.” She had follow-up visits on 8 and
19 November 1990, but no evidence of any additional problems. However, a 1998 evaluation, completed after her separation from active duty, notes in a hand written annotation “floters [sic] still present from eye injury in 1990.”

Although the applicant does not specify the error or injustice resulting from her “altered lab reports” she does note that her urine showed traces of “key tones” and fluctuation in her blood glucose level “which is a symptom of diabetes.” She notes “today [her] blood sugar ranges from 300-350.” The urine lab reports contain notations which lined through the printed “TR” (trace) and a handwritten notation indicating “neg” (negative) instead.

The United States National Library of Medicine and the National Institutes of Health note that ketones (beta-hydroxybutyric acid, acetoacetic acid, and acetone) are the end product of rapid or excessive fatty acid breakdown. As with glucose, ketones are present in the urine when the blood levels surpass a certain threshold. A negative test result is considered normal and the presence of acetone in in the urine is usually listed as small (less than 20 mg/dL), moderate (30-40 mg/dL) or large (more than 80 mg/dL).

Title 38, United States Code, sections 1110 and 1131, permit 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 error or injustice in the Army rating. An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service. The VA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s civilian employability. Furthermore, 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. The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability. A common misconception is that veterans can receive both a military retirement for physical unfitness and a VA disability pension. By law, a veteran can only be compensated once for a disability. If a veteran is receiving a VA disability pension and the ABCMR corrects the records to show that a veteran was retired for physical unfitness, the veteran would have to choose between the VA pension and military retirement.

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. While the original Board noted that the applicant’s disability, as rated under VASRD (VA Schedule for Rating Disabilities) Code 7313 did not warrant a higher disability rating because the applicant’s “pain” was not considered severe, in actuality the Board should have further clarified that statement by noting that Army Regulation 635-40 precluded disability retirement when an individual is being rated essentially for pain. The Board notes that the applicant’s chief complaint and PEB rating were both for pain. Hence a rating of 30 percent or higher, thus making the applicant eligible for disability retirement, was not permitted.

2. The Board notes that information concerning the applicant’s medication, which she submitted with her request for reconsideration, was available to the Board which considered her original application as evidenced by the information concerning her prescribed medication during her 1994 MEB.

3. The applicant’s contention that she should have received a higher disability rating because her liver tumor was “invading the inferior vena cava” and thus causing pain in her lower extremities is without foundation. The Board notes that in her 1994 MEB she denied “numbness, pain, or claudication in lower extremities” and it was not until after her discharge from the Army that she began to document the pain in her lower extremities. Nonetheless, even if she had been experiencing pain in her lower extremities at the time of her 1994 PEB the limitations of Army Regulation 635-40 would still have precluded a rating high enough to warrant disability retirement.

4. The applicant’s submission of documents noting that she had received treatment for vision problems in 1990 is not evidence that her eye condition should have been rated, nor serve as evidence of any error or injustice in her 1994 disability rating. Rather, the Board notes that the applicant, who concurred with the findings and recommendation of her MEB and ultimately waived her entitlement to a formal PEB, never raised the issue of her eye condition. Additionally, the applicant has presented no evidence that her 1990 eye condition impacted on her military duty performance and the Board notes that she continued to function in spite of the eye condition until 1992 when she began to experience pain associated with her liver tumor.

5. While it is unclear what the applicant believes the Board should conclude based on her belief that her lab reports were altered, the Board notes that the handwritten alternation, which notes “neg[ative” vice “tr[ace]” for ketones in her urine sample may have been the labs way of clarifying the results in view of the fact that the amounts were not significant enough, or a presence high enough, to warrant concern. The handwritten changes to the lab reports, which changed the trace finding to negative were not so significant as to indicate that they were being altered to hide significant medical findings. The fact that the applicant may now be suffering from diabetes or elevated blood sugar is not evidence that she should have received a disability rating for that condition.

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

__JHL __ __RKS __ __JTM__ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2003085523
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20031707
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.