RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: FEBRUARY 10, 2004
         DOCKET NUMBER: AR2003090263


         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
Mr. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Ms. Linda M. Barker		Member
Mr. Richard T. Dunbar		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).


1. The applicant requests that his discharge by reason of physical disability with severance pay be changed to a medical retirement by reason of physical disability.

2. The applicant states, in effect, that at the time of his Physical Evaluation Board (PEB), he was told that there was no rating code for a total colectomy, so an analogy rating (large intestine resection) was used and he only received a 20% disability rating. He goes on to state that he filed a claim with the Department of Veterans Affairs (VA) and received a 40% disability rating retroactive to his separation date. He further states that he has talked to doctors from both Walter Reed Army Medical Center (WRAMC) and Tripler Army Medical Center (TAMC) who state that they believe he should have been medically retired.

3. The applicant provides copies of his medical records, PEB results, his VA Rating Decisions, his Medical Evaluation Board (MEB) results, his report of separation (DD Form 214) and a copy of a letter from a doctor at TAMC.

CONSIDERATION OF EVIDENCE:

1. He enlisted in the Regular Army on 16 July 1985 for a period of 3 years and served until he was honorably released from active duty in the pay grade of E-4 on 29 March 1988, under the Fiscal Year 1988 Early Transition Program. He was transferred to a United States Army Reserve (USAR) Troop Program Unit in New York.

2. He enlisted in the New York Army National Guard (NYARNG) on 9 December 1988 and served until he was honorably discharged on 26 September 1989, to enlist in the Regular Army.

3. He enlisted in the Regular Army on 27 September 1989 and continued to serve until he was honorably discharged on 26 January 1995. He again enlisted in the NYARNG on 27 November 1996 and served until he was honorably discharged on 8 September 1997.

4. He again enlisted in the Regular Army on 9 September 1997 and in 1998, while stationed in Korea for duty as an aircraft pneudraulics specialist, had a history of ulcerative colitis and he underwent a colonoscopy, which resulted in perforation of his large bowel and required emergency surgery that resulted in a subtotal colectomy with a Hartmann's Pouch. He subsequently developed complications and was transferred to TAMC in Hawaii for further treatment and stabilization of his condition.
5. On 5 February 2000, the applicant underwent a MEB examination and it was concluded that he had ulcerative colitis status post definitive therapy. The MEB recommended that he be referred to a PEB and the applicant concurred with the findings.

6. A formal PEB convened at Fort Lewis, Washington, on 18 January 2001, with the applicant present and represented by counsel, to determine if the applicant should be retained in the service, separated from the service with severance pay or retired by reason of physical disability. The PEB determined that the applicant suffered from status post total colectomy with iliorectal anastomosis. Original symptoms onset about 1997, at which time the large bowel was perforated during colonoscopy, following which an emergent subtotal colectomy with Hartsman's pouch was performed. Subsequently several surgeries have been required to complete the colectomy, close the ileostomy, treat an enterocutaneous fistula. He has since done well, currently is experiencing eight to nine movements on most days, sometimes more when under stress. He was rated as resection of large bowel with moderate symptoms under the Veterans Administration Schedule for Rating Disabilities (VASRD) Code 7329. The PEB found that the applicant was physically unfit and that he should be separated with severance pay at the rate of 20%.

7. The applicant did not concur with the findings and recommendations and elected not to submit a statement explaining his reasons for disagreement. The findings and recommendation of the PEB were forwarded to the United States Army Physical Disability Agency (USAPDA) for final adjudication and on 8 February 2001, the USAPDA notified the applicant that after considering the findings and recommendations of the PEB, the evidence in his case and his non-concurrence, the USAPDA had determined that his case had been properly adjudicated and was thereby affirmed.

8. Accordingly, he was honorably discharged in the pay grade of E-4 on 28 May 2001, under the provisions of Army Regulation 635-40, paragraph 4-24B (3), by reason of disability with severance pay. He had served 11 years, 9 months and 4 days of total active service.

9. The applicant filed a claim with the VA and on 23 September 2002, the VA granted the applicant a 40% disability rating for status post total colectomy with iliorectal anastomosis (VASRD Code 7329). He was given a combined disability rating of 70%.

10. On 20 September 2003, the VA granted the applicant's claim for secondary service connection for diabetes mellitus and depression and raised his disability rating to 90%.

11. The supporting statement submitted by the applicant with his application is authored by a military physician at TAMC which suggests that the applicant was improperly rated at the time of his separation because he has received a 40% disability rating from the VA and his symptoms are severe, lifestyle limiting and ongoing.

12. Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (APDES) according to the provisions of chapter 61, Title 10 of the United States Code (10 USC 61). Chapter 4, section IV contains guidance on physical disability processing by the PEB. It states, in pertinent part, that after establishing the fact that a solider is unfit because of a physical disability, and that the solider is entitled to benefits, the PEB must decide the percentage rating for each unfitting disability. The VASRD, as modified in the regulation, is used to establish this rating. The VASRD code (7329) assigned to the applicant allowed for disability percentages of 10% for slight symptoms, 20% for moderate symptoms and 40% for severe symptoms that are objectively supported by examination findings.

13. VASRD Code 7323 (Colitis, ulcerative) provides that a disability rating of 10% may be awarded for moderate symptoms with infrequent exacerbations, 30% for moderately severe, with frequent exacerbations, 60% for severe, with numerous attacks a year and malnutrition, with health only fair during remission, and 100% for pronounced symptoms resulting in marked malnutrition, anemia, and general debility, or with serious complications as liver abscess.

14. Dorland's Illustrated Medical Dictionary defines ulcerative colitis as a chronic, recurrent ulceration in the colon. Complications include hemorrhoids, abscesses, fistulas, perforation of the colon, pseudopolyps, and carcinoma.

15. Title 38, United States 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. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.

DISCUSSION AND CONCLUSIONS :

1. The Board notes the applicant’s contention that once the PEB determined he was medically unfit for further service, a combined disability rating should have been assigned to his diagnosed disabling conditions based on the VASRD codes assigned; and that he should have been granted retirement based on a permanent physical disability based on this disabling condition. However, it finds insufficient evidence to support these claims.

2. The evidence of record shows that the PEB determined that the applicant was medically unfit for further service based on his medically diagnosed conditions of “Resection of large bowel with moderate symptoms under VASRD Code 7329” and that it assigned a 20 percent disability rating. Based on these findings, the PEB recommended a disposition of disability separation with severance pay.

3. The Board finds that the PEB acted in accordance with applicable regulations in assigning the applicant a 20 percent disability rating based on the medical information and evidence it had before it at the time indicating that his symptoms were moderate. The applicant was afforded the opportunity to nonconcur with the findings and recommendations of the PEB and while he did nonconcur, he provided no basis for his nonconcurrence.

4. The evidence suggests that the applicant was properly evaluated in accordance with the applicable laws and regulations in effect at the time with no indication of any violations of any of the applicant's rights.

5. The Board notes and does not question the validity of the applicant’s claims in regard to his physical condition nor the validity of the disability rating granted him by the VA. However, the VA assigns disability ratings and awards compensation in accordance with its own policies and regulations solely on the basis that a medical condition exists and that the said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.

6. Consequently, the Board finds that the VA rating decision pertaining to the applicant does not impact the determination made by the PEB, which was accomplished in accordance with Army Regulations based on input from the applicant and the medical evidence and studies done on the applicant at the time.

7. The Board has noted the supporting statement from a physician at TAMC and while the Board does not question the physician's current assessment of the applicant, he has provided no evidence to show that the applicant was improperly evaluated and rated by the PEB at the time of his separation from the service. While the applicant's condition may have deteriorated since his discharge, his rating was based on his condition at the time he was evaluated by the PEB.

8. 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.
BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

rtd _____ jns _____ lmb _____ DENY APPLICATION


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.





                  ___John N. Slone ___
                  CHAIRPERSON

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INDEX

CASE ID	AR2003090263
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20040210
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. 179	108.0200/% DISABILITY
2.
3.
4.
5.
6.