RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        22 August 2006
      DOCKET NUMBER:  AR20060005394


      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:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Jerome L. Pionk               |     |Member               |

      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, in effect, reconsideration of his earlier
request to increase his zero percent disability rating.

2.  The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant be found to be rated at more than a
       30 percent disability rating and that the applicant be placed on the
Temporary or the Permanent Disability Retired List (TDRL/PDRL).

2.  Counsel states that new and material evidence shows the applicant’s
post-operative condition, severe post-gastric syndrome, renders him
deserving of a disability rating of 40 percent.  Additionally, the Social
Security Administration ruled that the applicant was 100 percent disabled
and unfit to hold substantial gainful employment.  The Army’s zero percent
rating and the Social Security Administration’s rating are highly
inconsistent.  Moreover, the Board’s prior decision, and the Physical
Evaluation Board’s (PEB’s) findings, was contrary to the applicable law and
regulations in several ways.  The Department of Veterans Affairs Schedule
for Rating Disabilities (VASRD) requires that post-gastrectomy syndrome be
rated as secondary to the removal of the cancerous organ.

3.  Counsel states that, at the time of the PEB evaluation, the applicant
presented multiple reports of the existence of his severe post-gastric
syndrome.  As such, the PEB’s determination, which found that the applicant
had no evidence of a ratable residual of his cancer, was erroneous.
Finally, the Board failed to take into consideration the failure of the PEB
liaison officer (PEBLO) to counsel the applicant that his severance pay
would be offset against the VA disability compensation he might receive.

4.  Counsel provides an undated Medical Evaluation Report Form from doctor
David S___; the applicant’s Social Security Administration benefits award
paperwork (with related PEB paperwork); an 18-page brief in support of
reopening the applicant’s case; and the applicant’s VA claim file.

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
AR20040011503 on 10 November 2005.
2.  The applicant was born on 23 June 1960.  After having had 16 years of
prior service in the Regular Army, he enlisted in the Army National Guard
on 20 July 1994.  He was ordered to active duty in support of Operation
Enduring Freedom on 9 August 2002.

3.  On 10 August 2002, a routine medical examination and stool sample
turned up occult blood.  On 22 October 2002, he underwent a gastrectomy.
He was     at Walter Reed Army Medical Center following surgery and
chemotherapy        for stomach cancer until early 2003.  In June 2003, an
EGD (esophagogastroduodenoscopy) resulted in a finding of no cancerous
lesions.    In August 2003, a radiological report showed no recurrence of
stomach cancer.  Effective 13 October 2003, he entered extended active duty
for medical treatment.

4.  A colon consult dated 23 August 2003 revealed that the applicant was
experiencing secondary difficulties from his surgery.  His appetite was
intermittent.  He had difficulty swallowing with regurgitation and nausea
after eating.  He had cramps and abdominal pain after eating. He had 6 to 8
bowel movements per day.  He was referred to a Medical Evaluation Board
(MEB).

5.  On 22 January 2004, an MEB referred the applicant to a PEB for a
diagnosis of gastric cancer.  An MEB addendum had noted that the applicant
suffered intermittent and very bothersome symptoms such as nausea,
vomiting, the inability to tolerate regular oral intake of foods, and
severe diarrhea.

6.  On 1 April 2004, an informal PEB found the applicant to be physically
unfit based on his diagnosed condition of gastric cancer (VASRD code 7343).
 The PEB noted the applicant’s condition had been treated with chemotherapy
and radiation and that there was no evidence of recurrent cancer.  The
informal PEB recommended the applicant be separated with a zero percent
disability rating.  The PEB informed the applicant that it appeared he was
qualified for a Reserve retirement at age 60.  He therefore had the option
of accepting disability severance pay and forfeiting his Reserve retirement
or being placed in an inactive Reserve status and receive Reserve retired
pay at age 60.

7.  On 12 April 2004, the applicant nonconcurred with the findings of the
informal PEB and requested a formal hearing.  On 2 June 2004, a formal PEB
upheld the findings of the informal PEB and again determined that he should
be rated at zero percent based on the medical evidence.  The applicant
rebutted the findings of the formal PEB.  On 5 August 2004, the U. S. Army
Physical Disability Agency found that the findings and recommendations of
the formal PEB were supported by substantial evidence and were therefore
affirmed.

8.  The applicant’s DA Form 5893-R (PEBLO Counseling Checklist/Statement)
is not available.  Section III (Counseling), subsection V
(Benefits/Programs) would have indicated that the PEBLO explained to the
applicant VA compensation and its impact on military disability retired
pay.  The form does not list a specific requirement to explain to a member
about VA compensation and its impact on disability severance pay.

9.  On 10 September 2004, the applicant elected to receive disability
severance pay upon separation and acknowledged that he would not receive
Reserve retired pay at age 60.  On 15 October 2004, he was honorably
separated by reason of physical disability with severance pay.  He had
completed a total of    18 years, 2 months, and 8 days of creditable active
service and a total of           26 years, 5 months, and 5 days of service
for pay.  He was discharged from the Army National Guard and as a Reserve
of the Army the same date.

10.  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.  In pertinent part, it states that an individual may
be placed in a TDRL status for a maximum period of 5 years when it is
determined that the individual is qualified for disability retirement under
Title 10, U.S. Code, section 1201, but for the fact that his or her
disability is not stable and the individual may recover and be fit for duty
or the degree of severity may increase or decrease so as to warrant a
change in the disability rating.  (Individuals in TDRL status are entitled
to one half of their basic pay regardless of the disability rating).

11.  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.
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.

12.  The VASRD gives code 7343 (new growths, malignant, exclusive of skin
growth) only one rating – 100 percent.  It also states that the rating
under diagnostic code 7343 will be continued for 1 year following the
cessation of surgical, X-ray, antineoplastic chemotherapy, or other
therapeutic procedures.  At this point, if there has been no local
recurrence or metastases, the rating will be made on residuals.

13.  The VASRD also states that there are various postgastrectomy symptoms
which may occur following anastomotic operations of the stomach.  VASRD
code 7308 (postgastrectomy syndromes) gives a rating of 60 percent when the
symptoms are severe and associated with nausea, sweating, circulatory
disturbance after meals, diarrhea, hypoglycemic symptoms, and weight loss
with malnutrition and anemia.  A 40 percent rating is given when the
symptoms are moderate with less frequent episodes of epigastric disorders
with characteristic mild circulatory symptoms after meals but with diarrhea
and weight loss.

14.  In the processing of this case, an advisory opinion was obtained from
the     U. S. Army Physical Disability Agency.  That Agency opined that the
applicant would have been better rated at 40 percent for postgastrectomy
syndrome, moderate, VASRD code 7308, with weight loss, diarrhea, and
circulatory symptoms.  He should have been placed on the TDRL in October
2004, and he should be scheduled for an immediate TDRL re-evaluation.

15.  A copy of the advisory opinion was provided to the applicant for
comment.  On 7 July 2006, he concurred with the advisory opinion.

DISCUSSION AND CONCLUSIONS:

1.  In light of the applicant’s verified residual symptoms after his
gastrectomy, and in accordance with the advisory opinion, it would be
appropriate to correct the applicant’s records to show that he was found
unfit under VASRD code 7308 for postgastrectomy syndrome, moderate, with
weight loss, diarrhea, and circulatory symptoms and was placed on the TDRL
effective 16 October 2004 with a 40 percent disability rating.  He should
be afforded the opportunity to undergo an immediate TDRL re-evaluation.

2.  Counsel’s contention that the original Board failed to take into
consideration the failure of the PEBLO to counsel the applicant that his
severance pay would be offset against the VA disability compensation he
might receive has been considered.

3.  The applicant’s DA Form 5893-R is not available, and the form does not
specifically require the PEBLO to explain to a member about VA compensation
and its impact on disability severance pay.  In any case, neither the
applicant nor his counsel explains how such a failure to counsel the
applicant worked to his detriment.  Had he been so counseled and elected to
receive Reserve retired pay in lieu of severance pay, he still would have
received only VA disability compensation.

BOARD VOTE:

__lds___  __jtm___  __jlp___     GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
amendment of the ABCMR’s decision in Docket Number AR20040011503 dated 10
November 2005.  As a result, the Board recommends that the State Army
National Guard records and all Department of the Army records of the
individual concerned be corrected by:

     a.  showing that he was found unfit by the 2 June 2004 formal PEB by
reason of postgastrectomy symptoms, moderate, with weight loss, diarrhea,
and circulatory symptoms, under VASRD code 7308 with a 40 percent
disability rating with the recommendation that he be placed on the TDRL;

     b.  voiding his 15 October 2004 separation from active duty and his
           15 October 2004 discharge from the Army National Guard and as a
Reserve of the Army;

     c.  placing him on the TDRL effective 16 October 2004; and

     d.  affording him the opportunity to undergo a TDRL medical evaluation
as soon as possible.




                                  __Linda D. Simmons____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060005394                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060822                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |108.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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