RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        7 December 2006
      DOCKET NUMBER:  AR20060005113


      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. Dean L. Turnbull              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Richard T. Dunbar             |     |Chairperson          |
|     |Mr. Dale E. DeBruler              |     |Member               |
|     |Mr. Larry W. Racster              |     |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, through counsel, that her records be corrected
to show that she was retained on the Temporary Disability Retired List
(TDRL), rated no less than 30 percent disabled, or her records be corrected
to show that she was permanently retired, rated no less than 30 percent
disabled.

2.  The applicant states, through counsel, that she initially experienced
problems on 4 November 1992, when she went to a clinic complaining of
stomach pains after eating.  The applicant tells of how she was diagnosed
with Crohn’s Disease, of how her condition worsened, and of the medical
treatment she was provided while she was on active duty.

3.  In the applicant’s summary of events, she states that from January to
August 1998, she suffered from four “moderate” to “severe” flares, with
mild flares occurring monthly.  Based on the frequency of symptoms, she was
referred to a Medical Evaluation Board (MEBD), which referred her to a
Physical Evaluation Board (PEB).  The PEB found the applicant unfit due to
ulcerative colitis instead of Crohn’s Disease.  The applicant appealed the
PEB’s finding of ulcerative colitis and of the PEB’s failure to rate her
for degenerative joint disease, which she claimed was secondary to Crohn’s
Disease.  The applicant’s PEB was approved as written by the US Army
Physical Disability Agency (USAPDA) on 10 January 1999 and the applicant
was placed on the TDRL.

4.  While assigned to the TDRL, she was boarded by a formal PEB.  At that
time she had experienced flares two times during the preceding year.  Also,
a gastroenterologist had just prescribed a change of medications and stated
that the applicant’s symptoms were typical for individuals with Crohn’s
Disease.  The applicant contends that this scenario clearly indicated that
her condition was not under control at that time, contrary to the
gastroenterologist’s statement that she was clinically stable at the time.
 The gastroenterologist who dictated the final TDRL MEBD was not the
applicant’s regular physician and did not list the applicant’s full medical
history or all of the medications she was taking.  The absence of medical
records was questioned by the enlisted representative and the minority
representative of the formal PEB, and both individuals also noted the
documentation showing the applicant had frequent flares.  A split vote by
her formal PEB followed, two voting to decrease her rating, two voting to
continue the applicant’s 30 percent disability rating.

5.  Counsel argues that the formal PEB rated her for Ulcerative Colitis
which she does not have.  She has Crohn’s Disease and that the difference
between Ulcerative Colitis and Crohn’s Disease is that Ulcerative Colitis
involves the inner lining of the colon, while Crohn’s Disease involves all
layers of the intestine, and both can occur in the small intestine.
Crohn’s Disease is a chronic digestive disorder of the intestine and it's
an unpredictable illness.  Counsel adds that the formal PEB erroneously
rated the applicant as being stable because they did not understand Crohn’s
Disease.  They rated her as being stable based on the fact that she was not
experiencing a flare when the Board was being conducted

6.  The applicant provides excerpts of her medical records, her MEBDs, and
two of her PEBs.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 28 February 2003.  The application submitted in this case is
dated 29 March 2006.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file

3.  The applicant's military records show she entered active duty on 14
January 1992 and served in the U.S. Army continuously until she was
honorably retired and placed on the Temporary Disability Retirement List
(TDRL) on 3 March 1999. She had completed 7 years, 1 month, and 20 days of
active service.

4.  On 16 November 1998, a MEBD found the applicant to have Crohn’s Disease
with ileocolonic fistulization and referred the applicant to a PEB.

5.  On 25 November 1998, the applicant appealed the MEBD.  In the appeal
the applicant states that she completely agreed with the entire summary;
however, some vital information about Crohn’s Disease was left out because
she forgot to address it during her appointment with her Doctor.  She
stated that she would need the medication she was taking for the rest of
her life and that the Crohn’s Disease had taken a toll on her military
career.

6.  In the Narrative Summary (NARSUM) it was stated that the applicant was
diagnosed with 1) enterovesical fistula; 2) ileosigmoid fistula; 3)
inflammatory bowel disease (Crohn’s Disease versus visceral actinomycoses-
pathology pending); and 4) urinary tract infection.  The NARSUM stated that
she had a history of vague abdominal systems which had initially been
treated as Crohn’s Disease for which she received steroid treatment for a
period of time.  The symptoms had resolved after the treatment; however, in
October 1994, she had recurrent vague abdominal complaints which led to an
endoscopy with terminal ileal biopsies.  The NARSUM also stated she was
found to have actinomycoses and was treated for eight weeks with
intravenous penicillin followed by six months of oral penicillin with
apparent resolution of her symptoms.  In September 1995, she had recurrent
pelvic pain with particularly post-void discomforts and recurrent urinary
tract infections.  On November 1995, she received a cystoscopy which showed
an inflamed posterior bladder mucosa but a renal ultrasound was normal at
the time.

7.  On January 1996, an exploratory laparotomy was performed with the
finding of an inflamed terminal ileum with a fistula extending to the left
dome of the bladder and also a fistula from a different location in the
terminal ileum to the exterior sigmoid colon.  An ileocecectomy was
performed with a primary functional end-to-end anastamosis with resection
of the fistulas.  At the time of discharge from the hospital no
actinomycoses were identified pathologically or by culture.  The diagnosis
was favored to be Crohn’s Disease.

8.  On 10 December 1998, a PEB found the applicant physically unfit and
recommended a combined disability rating of 30 percent for Crohn’s Disease,
status post ileocolonic resection, with secondary degenerative joint
disease, with monthly exacerbations.  The PEB also found the applicant's
medical and physical impairment prevented reasonable performance of duties
required by grade and military specialty.  Also, the PEB found that the
applicant's condition was not sufficiently stable for final adjudication.
The PEB therefore recommended that the applicant be placed on the TDRL with
reexamination during January 2000.

9.  On 29 December 1998, the applicant acknowledged that she was advised of
the findings and recommendations of the PEB.  The applicant nonconcurred
with the findings but waived a formal hearing of her case.  On 29 December
1998, the applicant submitted an appeal to the PEB.  She stated in her
appeal that the PEB gave her a rating for ulcerative colitis and that
Crohn’s Disease and ulcerative colitis are very similar diseases of the
intestine and yet they are very different.  She stated that she was rated
for a disease that she was not diagnosed with.

10.  On 31 December 1998, the applicant’s PEB responded to the applicant’s
rebuttal.  In that response the PEB stated that since the applicant's
Crohn’s Disease was not specifically listed in the Veterans Administration
Schedule for Rating Disabilities (VASRD), it was rated by analogy to
ulcerative colitis.  Her
Crohn’s Disease was considered to be moderately active and "well
controlled with current management."  The applicant was placed on the
TDRL because her disease process may worsen with time, entitling her to a
higher rating, or improve greatly, permitting her to return to active
duty.

11.  On January 1999, the U.S. Army Physical Disability Agency (USAPDA)
affirmed the PEB's findings and recommendations.

12.  Her records show that she was retained on TDRL with reexamination
during the months of April 2001 and August 2002.

13.  On 28 February 2003, a periodic PEB found the applicant physically
unfit and that her condition was sufficiently stable for final
adjudication.  The PEB recommended that the applicant be discharged
with severance pay if otherwise qualified rated 10 percent disabled for
ileocolonic Crohn’s Disease with degenerative joint disease, with mild
to moderate disease currently without documented exacerbations.  On 4
March 2003, the applicant nonconcurred with the PEB's findings and
recommendation and requested a formal hearing with personal appearance.

14.  On 2 April 2003, the applicant was considered by a formal PEB.
The formal PEB hearing recommended disability percentage of 10 percent
for ileocolonic crohn's disease with degenerative joint disease, with
mild to moderate disease currently without documented exacerbations.
In the formal PEB's proceedings it was stated that two minority reports
were attached.

15.  On 11 April 2003, the PEB responded to a rebuttal submitted by the
applicant (that rebuttal was not provided by the applicant or her
counsel) stating that the disability rating of 10 percent and the
applicant's formal hearing did not provide documentation of disease
exacerbations which required a physician evaluation and modification of
therapy.

16.  On 18 April 2003, the USAPDA concluded that the applicant's case
was properly adjudicated by the Physical Disability Evaluation System
(PDES).  The USAPDA continued by stating the findings and
recommendations of the PEB were supported by substantial evidence and
are therefore affirmed.

17.  On 29 April 2003, USAPDA responded to the applicant's elected
representative.  In that response the USAPDA noted that the applicant's
additional evidence did provide information that her condition did
bother her and that her condition affected her ability to work
occasionally; however, her condition did not deteriorate to a point
where additional intervening medical care, treatment, and
hospitalization were required.  As such, the PEB did not find
sufficient evidence to support a higher rating.  The U.S. Army Physical
Disability Agency found that the applicant received a full and fair
hearing and was correctly adjudicated at 10 percent separation with
severance pay.
18.  On 29 April 2003, the applicant was removed from the TDRL and was
discharged from the service with severance pay because of permanent
physical disability.

19.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement,
or Separation) states, in pertinent part, that a Soldier placed on the TDRL
must undergo a periodic medical examination and PEB evaluation at least
once every 18 months to decide whether a change has occurred in the
disability for which the Soldier was temporarily retired.

20.  The VASRD, Section 4.20, states that when an unlisted condition is
encountered it will be permissible to rate under a closely related disease
or injury in which not only the functions affected, but the anatomical
localization and symptomatolgy are closely analogous.

21.  The VASRD shows code 7323 as colitis, ulcerative.  When rated under
this code, a Soldier will be rated as 10 percent disabled when the
condition is moderate, with infrequent exacerbations, and as 30 percent
disabled when the condition is moderately severe with frequent
exacerbations.

22.  Webster’s II New Riverside University Dictionary defines “exacerbate”
as to increase the severity of:  aggravate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant served on active duty for over 6 years with Crohn’s
Disease.  It was only when she experienced four “moderate” to “severe”
flares, with mild flares occurring monthly in the span of 8 months that she
was referred to disability processing.  As such, the applicant’s history
demonstrates she was able to perform military duties with Crohn’s Disease.

2.  The applicant was determined physically unfit due to ulcerative colitis
instead of Crohn’s Disease since the VASRD does not have a code for Crohn’s
Disease.  The use of analogous ratings is common when using the VASRD since
not all medical conditions are contained in that schedule.

3.  While the applicant has submitted numerous documents describing the
effects of Crohn’s Disease, she has not submitted anything to show her
Crohn’s Disease was increasing in severity, the definition of exacerbate.

4.  By the applicant’s own admission, when she was boarded by her formal
PEB while on the TDRL, she experienced flares two times during the
preceding year.  This was a considerable improvement over the four
“moderate” to “severe” flares, with mild flares occurring monthly, which
she experienced in the 8 months prior to placement on the TDRL.  The
applicant was rated 30 percent disabled when she was placed on the TDRL.
Her Crohn’s Disease was obviously under much better control when she was
considered by the formal PEB and assigned a rating of 10 percent disabled
which would appear to be proper and reasonable.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 28 February 2003; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on  
27 February 2006.  The applicant did not file within the 3-year statute of
limitations and has not provided a compelling explanation or evidence to
show that it would be in the interest of justice to excuse failure to
timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___lwr___  ___ded__  ___rtd___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.
2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  ______Richard T. Dunbar________
                                            CHAIRPERSON


INDEX

|CASE ID                 |AR20060005113                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061207                                |
|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.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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