MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 29 May 2003
         DOCKET NUMBER: AR2003086697

         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
Mrs. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Mr. Luther L. Santiful		Chairperson
Mr. Lester Echols		Member
Mr. Frank C. Jones		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)

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APPLICANT REQUESTS: That his separation for medical disability with severance pay be changed to a medical retirement.

APPLICANT STATES: That the physical evaluation board (PEB) did not consider or review all the conditions that existed. Those same conditions have been rated by the Department of Veterans Affairs (VA) at a 50 percent disability rate.

EVIDENCE OF RECORD: The applicant's military records show:

He enlisted in the Regular Army on 16 February 1994. He completed training in and was awarded military occupational specialty 88H (Cargo Specialist) in 1997.

The initial MEB Narrative Summary is not available. An Addendum to Report of Medical Board indicated the applicant was diagnosed with diabetes mellitus in November 1996. At that time, he was hospitalized for care of his acute onset diabetes mellitus. His diabetic management was brought under control and he was subsequently discharged on oral therapy. He was placed on several oral hypoglycemic agents without success. He was placed on regular insulin. He was diagnosed as a poorly controlled diabetic who could have severe diabetic complications in the future. He was advised that diet and exercise play a very integral role in the management of his diabetes.

Another Addendum to Report of Medical Board indicated the applicant was initially seen in October 1997 for severe allergic rhinitis (inflammation of the mucous membranes of the nose) and conjunctivitis (commonly known as pinkeye because of the inflamed tissues that are seen when the eyelid is pulled back, it is an inflammation of the conjunctiva and is either infectious (caused by bacteria or viruses), allergic (caused by an allergic reaction), irritant (caused by something in the eye), or chemical (caused by a chemical substance). The applicant's allergy symptoms were from spring to fall; triggers were primarily pollen. The physical examination showed marked conjunctiva bilaterally with cobblestoning. The turbinates (the inside wall of the nose) were boggy throughout. His throat showed a post-nasal drip. His lungs were clear. Skin tests showed him to be allergic to tree and grass pollen, weeds, cat and dog, several molds, and dust mites. Aggressive therapy including immunotherapy was required in the attempt to control his rhinitis.

Another Addendum to Report of Medical Board indicated the applicant was seen in the Ophthalmology Clinic in July 1999 for a severe case of bilateral vernal keratoconjunctivitis (inflammation of the cornea and conjunctiva). The only relief he got was seasonal relief that occurred over the cold winter months. Multiple regimens of eyedrops, including antihistamines and steroids, provided little or no relief. His care was altered and he was provided a mast cell stabilizer, cromolyn sodium, and an antihistamine in ophthalmic eyedrop form, which provided significant improvement but his prior problems still persisted. His command was advised to place him in an air-conditioned work environment. About a month later, the applicant's symptoms had all but abated while receiving the care and working in the air-conditioned spaces. However, when he was given duties in the hot humid environment, his symptoms recurred.

On 2 September 1999, a medical evaluation board (MEB) determined the applicant had insulin dependent diabetes, Type II, under fair control, which was medically unacceptable in accordance with Army Regulation 40-501, paragraph 3-11d; and severe allergic rhinitis, which was medically unacceptable in accordance with Army Regulation 40-501, paragraph 3-41a(1). The MEB referred the applicant to a PEB. On 28 September 1999, the applicant agreed with the MEB's findings and recommendation.

On 18 October 1999, an informal PEB found the applicant to be physically unfit under VA Schedule for Rating Disabilities (VASRD) code 7913 for his diagnosis of insulin dependent diabetes mellitus, Type II, under fair control, with a 20 percent disability rating. The informal PEB found his diagnosis of severe allergic rhinitis to be not unfitting and not ratable. The PEB recommended the applicant's separation with severance pay. On 2 November 1999, the applicant nonconcurred in the PEB's findings and recommendation and demanded a formal hearing.

On 3 December 1999, a formal PEB found the applicant to be physically unfit for his diagnosis of insulin dependent diabetes mellitus, Type II, under fair control with a 20 percent disability rating. The formal PEB found his diagnosis of severe allergic rhinitis to be not unfitting and not ratable. The PEB recommended the applicant's separation with severance pay. On 3 December 1999, the applicant nonconcurred in the PEB's findings and recommendation; however, he did not wish to submit a statement of rebuttal.

On 10 December 1999, the U. S. Army Physical Disability Agency noted the applicant's disagreement with the findings of the PEB and reviewed his entire case file. The Agency concluded that his case was properly adjudicated by the PEB and the PEB's findings and recommendations were affirmed.

On 14 February 2000, the applicant was separated for disability with severance pay. He had completed 5 years, 11 months, and 29 days of creditable active service.

The applicant provided numerous VA medical treatment documents, including one that shows he was hospitalized on 23 October 2000 for supraventricular tachycardia and underwent a radiofrequency catheter ablation procedure on 24 October 2000. He provided a document dated 12 June 2000 showing the VA was still processing his application for compensation. He did not provide his VA Rating Decision.

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability. The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty. It states that there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a soldier is found unfit because of another condition that is disqualifying. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.

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, 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. These percentages are applied based on the severity of the condition.

The VASRD gives code 7913, diabetes mellitus, a 10 percent rating when it is mild, controlled by restricted diet, without insulin, without impairment of health or vigor or limitation of activity; a 20 percent rating when it is moderate, with a moderate insulin or oral hypoglycemic agent dosage, and restricted (maintenance) diet, without impairment of health or vigor or limitation of activity; and a 40 percent rating when it is moderately severe, requiring a large insulin dosage, restricted diet, and careful regulation of activities. Ratings of 60 and 100 percent are given for even more severe levels of diabetes mellitus.

Army Regulation 40-501 governs medical fitness standards for enlistment, retention, and separation. Paragraph 3-11d states that diabetes mellitus, when proven to require hypoglycemic drugs in addition to restrictive diet for control, is a cause for referral to an MEB.

Army Regulation 40-501, paragraph 3-41a discusses allergic manifestations. Paragraph 3-41a(1), allergic rhinitis, refers to paragraphs 3-29d and 3-29e. Paragraph 3-29d states that atrophic rhinitis, characterized by bilateral atrophy of nasal mucous membrane with severe crusting, concomitant severe headaches, and foul, fetid odor is a cause for referral to an MEB. Paragraph 3-29e states that severe, chronic sinusitis which is suppurative, complicated by polyps, and which does not respond to treatment is a cause for referral to an MEB.
Title 38, U. S. Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.

Title 10, U. S. 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.

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. 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 this requirement.

2. The Board notes that the MEB found the applicant had two basic diagnoses – diabetes mellitus and severe allergic rhinitis.

3. The PEB found the applicant unfit due to having diabetes mellitus and rated his disability at 20 percent. There is no evidence to show he required a large insulin dosage or careful regulation of his activities, which could have warranted a 40 percent or higher disability rating for this condition.

4. The Board notes that the MEB found the applicant's severe allergic rhinitis to be medically unacceptable in accordance with Army Regulation 40-501, paragraph 3-41a(1). However, that paragraph refers back to paragraphs 3-29d and 3-29e. These two paragraphs describe the conditions under which a soldier may be referred to an MEB for rhinitis and for sinusitis. There was no evidence to show the applicant had atrophic rhinitis. There was no evidence to show he had severe, chronic sinusitis which was suppurative and complicated by polyps. The description of his severe rhinitis in the Addendums did not fit into any category listed in Army Regulation 40-501 that would result in his being referred to a PEB. Therefore, the PEB properly determined that this condition was not unfitting. Since it was not found to be unfitting, the PEB properly not rate it.

5. The applicant provides no VA Rating Decision so the Board does not know what conditions he has for which the VA has awarded him compensation. However, any rating action by the VA does not necessarily demonstrate an error or injustice in the Army rating. The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit. The VA is not required by law to determine medical unfitness for further military service in awarding a disability rating, only that a medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved (i.e., the more stringent standard by which a soldier is determined not to be medically fit for duty versus the standard by which a civilian would be determined to be socially or industrially impaired), an individual’s medical condition may be rated by the Army at one level and by the VA at another level. Also, the VA may rate one condition as disabling and the Army could determine that same condition did not render the soldier unfit for service.

6. In addition, the Board acknowledges that diabetes can worsen over time; however, the Army's rating is dependent on the severity of an unfitting condition at the time of separation. The VA has the responsibility and jurisdiction to recognize any changes in that condition over time by adjusting disability ratings.

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

__lls___ __le____ _fcj ____ DENY APPLICATION

                  Karl F. Schneider
                  Director, Army Review Boards Agency

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INDEX

CASE ID	AR2003086697
SUFFIX
RECON
DATE BOARDED	20030529
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Schneider
ISSUES 1.	108.02
2.
3.
4.
5.
6.