RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           7 July 2005
      DOCKET NUMBER:  AR20040009773


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Mr. Eric N. Anderson              |     |Member               |
|     |Ms. Carol A. Kornhoff             |     |Member               |

      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 reconsideration of his earlier request that his
physical disability separation with severance pay be changed to a medical
retirement.

2.  The applicant states that he has new information and would like to
address some of the statements in the decision document.  He is providing
the Department of Veterans Affairs (DVA) Rating Decision and the latest
diagnosis of his shoulders.

3.  The applicant states that paragraph 22, under Consideration of
Evidence, states that an individual is compensated for the loss of a career
when physically unfitting conditions affect his or her ability to perform
assigned duties.  If this statement is correct, he should have been rated
at least 30 percent.  The Medical Evaluation Board (MEB) found him "unfit
for continued service."  This statement supports "compensating the
individual for the loss of career."  His DA Form 3349 (Physical Profile)
limited the duties he could perform, and he could not perform his duties as
a helicopter pilot.  Since the condition of his shoulders made it
impossible to continue in the military, he should be medically retired with
at least a 30 percent rating based on the statement "compensating the
individual for the loss of career."

4.  The applicant states that he does have pain, all orthopedic conditions
are painful.  His shoulders move around in the joint.  This is very
painful, but more than the pain, his shoulders are unstable.  Also, his
shoulders continue to deteriorate.  Because of this condition, he is unable
to live a normal productive life.

5.  The applicant provides, as new evidence, his DVA Rating Decision and a
    3-page medical history/assessment statement dated 12 July 2004.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were
summarized in the previous consideration of the applicant's case by the
Army Board for Correction of Military Records (ABCMR) in Docket Number
AR2003093578 on    1 April 2004.

2.  The evidence provided by the applicant is new evidence which will be
considered by the Board.

3.  After having had prior service, the applicant was ordered to active
duty for      4 years as a U. S. Army Reserve warrant officer (helicopter
pilot) on 1 November 1997.

4.  The applicant's MEB Narrative Summary noted that his chief complaint
was right shoulder chronic pain.  His symptoms began in 1998 when he began
to have popping and catching of the right shoulder.  At that time he
complained of pain with elevating his arm in both an abduction and forward
flexion position.  He underwent right shoulder arthroscopy twice.  He was
referred to an Orthopedic Sports Medicine physician who specialized in
shoulders.  That physician noted the applicant had multidirectional
instability as a physical finding which more than likely led to his
recurrent symptoms.  He was diagnosed with (1) right shoulder
multidirectional instability with recurrent rotator cuff tendonitis, status
post failed shoulder surgery and (2) left shoulder multidirectional
instability.  He had also been diagnosed with (3) chronic squamous
blephritis in both eyes and (4) chronic meibomian gland dysfunction
bilaterally, secondary to Accutane use.

5.  The MEB Narrative Summary noted that the applicant's range of motion in
 the right shoulder 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.

6.  The MEB Narrative Summary noted that the applicant complained of some
degree of pain at all times, worsening with any kind of use of his right
arm with regard to lifting or overhead work.  He was significantly
restricted with regard to the use of his right arm and he had been grounded
from any flying duties.  His pain rating by American Medical Association
guidelines was moderate for intensity and frequent for frequency.  Due to
his failed surgeries and the restrictions that the pain caused with regard
to his duties, the MEB recommended he be referred to a Physical Evaluation
Board (PEB).  The applicant concurred with the findings and recommendation
of the MEB.

7.  On 3 August 2000, an informal PEB found the applicant to be physically
unfit due to right shoulder pain with multi-directional instability status
post failed surgery, rated as slight/frequent.  It recommended he be
separated with severance pay and a 10 percent disability rating under VASRD
(Veterans Administration Schedule for Rating Disabilities) codes 5299 and
5003.  The other three diagnoses were found to be not unfitting.  The
applicant nonconcurred and demanded a formal hearing.

8.  On 22 August 2000, a formal PEB convened.  Statements from two sports
medicine physicians were provided.  Both physicians noted that VASRD rating
code 5202 could be used to rate the applicant's right shoulder at 30
percent. One physician also noted that VASRD rating code 5202 could be used
to rate his left shoulder at 20 percent.  One physician noted that the
applicant had spontaneous dislocations in the right arm occurring multiple
times throughout the day with associated pain.  Also provided to the formal
PEB was a statement from the chief, ophthalmology service which noted the
diagnosis of blepharitis and meibomian gland dysfunction in both eyes of
the applicant resulted in irritation ad blurred visions preventing him from
safely operating an aircraft.

9.  The formal PEB determined that no change was warranted in the 10
percent disability percentage assigned to diagnosis 1 but that diagnoses 3
and 4 warranted a disability rating of 10 percent.  Diagnosis 2 was still
found to be not unfitting and therefore not rated.

10.  The applicant nonconcurred with the findings of the formal PEB and
submitted a rebuttal. On 11 September 2000, the U. S. Army Physical
Disability Agency concluded that the findings and recommendations of the
PEB were supported by substantial evidence and were therefore affirmed.

11.  On 22 November 2000, the applicant was honorably discharged by reason
of physical disability and received more than $34,000 in disability
severance pay.

12.  The applicant provided a DVA Rating Decision dated 24 May 2004 which
indicates that his combined evaluation remains 70 percent disabling.  His
right shoulder condition, which was rated at 20 percent disabling, was
increased to   30 percent and his left shoulder condition remained at 20
percent disabling.

13.  The applicant provided a 3-page medical history/assessment statement
dated 12 July 2004.  The History section noted that the applicant had an
additional shoulder procedure in 2001 which was initially successful.
However, he had a recurrence of his symptoms and a revision procedure in
2002.  He continued to complain of recurrent instability, pain, and
"subluxing."  He felt he was always in constant pain.

14.  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.  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.

15.  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.
 In pertinent part, it states that the mere presence of an impairment does
not, of itself, justify a finding of unfitness because of physical
disability.  In each case, it is necessary to compare the nature and degree
of physical disability present with the requirements of the duties the
Soldier reasonably may be expected to perform because of his or her office,
grade, rank, or rating.

16.  Army Regulation 635-40, Appendix B, paragraph B-24, 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 to detect the existence of or measure the
intensity of subjective complaints of pain, a disability retirement cannot
be awarded only on the basis of pain.  Rating by analogy to degenerative
arthritis (VASRD code 5003) as an exception to analogous rating policies
may be assigned in unusual cases with a 20 percent ceiling, either for a
single diagnosed condition or for a combination of diagnosed conditions
each rated essentially for a pain value.

17.  U. S. Army Physical Disability Agency Policy/Guidance Memorandum
Number 13 provides that when the intensity of pain is slight and the
frequency is frequent, then the rating is 10 percent.  When the intensity
of pain is moderate and the frequency is frequent, then the rating is also
10 percent.

18.  Army Regulation 635-40, Appendix C, paragraph C-12 discusses
compensation and related benefits.  It describes when the member is
authorized severance pay and how it is computed and describes disability
retired pay and how it is computed.

19.  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.

20.  Department of Defense Instruction 1332.39 (Application of the Veterans
Administration Schedule for Rating Disabilities) notes that the VASRD
percentage ratings represent, as far as can practicably be determined, the
average impairment in civilian occupational earning capacity resulting from
certain diseases and injuries.  However, not all the general policy
provisions of the VASRD are applicable to the Military Departments.  Many
of the policies were written primarily for DVA rating boards and are
intended to provide guidance under laws and policies applicable only to the
DVA.  This Instruction replaces some sections of the VASRD.

21.  Department of Defense Instruction 1332.39 states, for VASRD codes 5200
through 5295 (Rating Involving Joint Motion), that in measuring joint
motion it is incumbent on the medial examiner to utilize the standardized
description portrayed in figures 2 and 3 (describing in pertinent part
shoulder flexion, abduction, and rotation).

22.  Title 38, U. S. Code, sections 1110 and 1131, permits the VA to award
compensation for a medical condition which was incurred in or aggravated by
active military service.

DISCUSSION AND CONCLUSIONS:

1.  The statement in paragraph 22, under Consideration of Evidence, in
ABCMR Docket Number AR2003093578 dated 1 April 2004, which states that an
individual is compensated for the loss of a career when physically
unfitting conditions affect his or her ability to perform assigned duties
is correct.  However, the applicant is under the misunderstanding that
"compensation" only means physical disability retired pay. Compensation
also includes severance pay, which he received.

2.  The applicant's current request concerns solely the ratings for his
shoulder conditions and he does not contend that he was awarded an
incorrect disability rating for his eye condition.

3.  It is noted that the DVA has awarded the applicant a combined
disability rating of 70 percent and it appears that 50 percent of that
rating is for his shoulder conditions.  However, the Army does not rate a
disability merely because it exists.  The Army must consider the nature and
degree of the physical disability with the requirements of the duties the
Soldier reasonably may be expected to perform.

4.  It is acknowledged that the applicant had a left shoulder condition;
however, there is insufficient evidence to show that his left shoulder
condition contributed to the loss of his military career.

5.  It is acknowledged that the applicant had a right shoulder condition
that included spontaneous dislocations occurring several times a day.
However, the evidence shows that there was no serious problem with his
range of motion in that shoulder other than the fact it caused him pain
when he tried to move it beyond a certain degree.  Therefore, the Army
could only rate that condition based on the resulting pain (VASRD code 5003
and not code 5202) and a disability retirement cannot be awarded only on
the basis of pain.

6.  It is noted that the MEB had rated the intensity of the applicant's
pain as moderate and the frequency as frequent whereas the PEB rated the
intensity only as slight and the frequency as frequent, and the applicant
had concurred with the findings of the MEB.  However, both degrees of
intensity combined with a frequency of frequent rated only a 10 percent
disability rating.

7.  The rating action by the DVA does not necessarily demonstrate an error
or injustice in the Army rating.  The DVA, 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.

8.  It appears from the evidence of record and the evidence provided by the
applicant that he was properly separated with a 20 percent disability
rating and severance pay.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__mhm___  __ena___  __cak___  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 to amend the decision of the ABCMR set forth in
Docket Number AR2003093578 dated 1 April 2004.




            __Melvin H. Meyer_____
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040009773                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050707                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |108.02                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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