RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  24 May 2007
	DOCKET NUMBER:  AR20060009624 


	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. Gerard W. Schwartz

Acting Director

Ms. Wanda L. Waller

Analyst


The following members, a quorum, were present:


Mr. Ronald Weaver

Chairperson

Mr. Jeffrey Redmann

Member

Mr. David Tucker

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, in effect, that his disability rating be increased. 

2.  The applicant states, in effect, that based on the evidence of record and severity of his condition a higher disability rating is warranted.  He contends that he was made to understand that based on his medication refill record he was not entitled to a higher disability percentage and that the Physical Evaluation Board (PEB) refused to understand that he had a residual of medication left over because he was unable to take medication for several days due to sickness.  

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty); discharge orders; a copy of his Medical Evaluation Board (MEB) Proceedings; service medical records; a copy of his PEB Proceedings; and a letter, dated 13 January 2006, from Patient Affairs (Medical Boards) at Walter Reed Army Medical Center.  

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

The Disabled American Veterans, as counsel for the applicant, was notified of the applicant's pending review by the Board; however, no brief was submitted. 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 19 January 2000 and trained in military occupational specialty 25L (cable system installation/maintenance).  

2.  On 26 October 2005, a MEB diagnosed the applicant with Crohn’s disease (regional ileitis); degenerative disk disease, lumbar spine; and hemorrhoids (medically acceptable).  The MEB recommended referral to a PEB.  On 
13 December 2005, the applicant agreed with the findings and recommendations. 

3.  The applicant’s informal PEB packet is not available; however, an advisory opinion obtained in this case noted that on 30 December 2005, an informal PEB found the applicant physically unfit due to Crohn’s disease, VA Schedule for Rating Disabilities (VASRD) Code 7323.  Diagnosis number 2 was found to be not unfitting and not rated.  Diagnosis number 3 was found to be medically acceptable.  The PEB recommended a rating of zero percent and that the applicant be separated with severance pay.  The PEB found insufficient evidence in the case file to support proper medication levels and based the zero percent rating on that factor.  

4.  The advisory opinion noted that on 13 January 2006, the applicant’s physician provided a memorandum indicating that the applicant was still on proper doses of medication and that he had been compliant with his medical treatment.

5.  The advisory opinion noted that on 17 January 2006, the applicant nonconcurred with the informal PEB findings and demanded a formal hearing.

6.  The advisory opinion noted that on 7 February 2006, based upon the 
13 January 2006 memorandum, the informal PEB reconsidered its findings, found the applicant had been compliant with his medical treatment, and rated the applicant at 10 percent for infrequent exacerbations of his Crohn’s disease.  On 22 February 2006, the applicant nonconcurred and demanded a formal hearing.

7.  On 17 March 2006, a formal PEB found the applicant physically unfit due to Crohn’s disease, VASRD Code 7323.  The PEB noted that the applicant reported loose stools 2 to 3 times a day and flare ups once or twice a month, lasting 1 to 2 days.  The disability description states, in pertinent part, “The NARSUM supplied pharmacy record indicates Soldier has not received any Crohn’s specific medication in over 4 months.  Addendum indicates Soldier had some periods of non-use due to being switched to steroids. Currently Soldier is using left over medications at least 10 out of 14 doses per week.”  The PEB recommended a combined rating of 10 percent and that the applicant be separated with severance pay.  

8.  On 17 March 2006, the applicant signed a Formal Election Statement of Understanding wherein he acknowledged that he was authorized 10 days to file an election and a written rebuttal.  He also acknowledged that he understood if the PEB did not receive the election and rebuttal by 31 March 2006 that it would be assumed that he concurred with the findings of the formal board and that his case would be forwarded for final processing.

9.  The advisory opinion noted that on 26 April 2006, the U.S. Army Physical Disability Agency (USAPDA) approved the PEB’s findings and recommendations.

10.  On 30 June 2006, the applicant was honorably discharged by reason of physical disability with severance pay (10 percent) with entitlement to $31,831.70.  He had completed 6 years, 5 months, and 12 days of creditable active service. 

11.  In the processing of this case, an advisory opinion was obtained from the Deputy Commander, USAPDA.  The opinion points out that the applicant’s main complaint was his Crohn’s disease which began in 2001 while in Korea.  He was evacuated to Walter Reed Army Medical Center in late 2002 and on 27 January 2004 he underwent an ileocecectomy and resection of the terminal ileum and fistula.  Since that operation “his condition has been more or less stable, and he has not required steroids.”  He continued to have “clinical symptoms of Crohn’s disease, with daily loose stools 2 to 3 times a day, and flare ups once or twice a month, lasting 1 or 2 days.”  Flare ups resulted in some diarrhea and occasional requirement for some pain medications.  There were no other physical findings related to his Crohn’s disease and his weight of 190 for 68 inches of height was good.  The applicant continued to take his required maintenance doses of Mesalamine, an anti-inflammatory medication used to treat inflammation of the digestive tract, but his condition had not changed to the extent that it required use of steroids.  He continued to work at Bolling Air Force Base while assigned to Medical Hold at Walter Reed Army Medical Center.   

12.  The advisory opinion states that the applicant’s Crohn’s disease was rated under an analogous code of 7399-7323, ulcerative colitis.  This code was required by Policy Memorandum 12, dated 28 February 2005, which conformed to a Department of Defense agreed upon analogous code use among all services.  Crohn’s is rated at 10 percent for “moderate; with infrequent exacerbations.”  To receive 30 percent the condition must be “moderately severe; with frequent exacerbations.”  The PEB found that a preponderance of evidence supported that the applicant had little or no real exacerbations since his surgery; his weight was very good; his bowel movements were appropriately controlled; he had no re-hospitalizations; and he required no increase in his routine maintenance medications.  The applicant provided no medical evidence to support his contentions. 

13.  The advisory opinion concluded that the PEB properly determined that the applicant had infrequent exacerbations of his Crohn’s disease, that the condition was relatively stable and well controlled without the need for steroid medications, and that the PEB’s findings were supported by a preponderance of the evidence, were not arbitrary or capricious, and were not in violation of any statutes or regulations.  The opinion recommended that the applicant’s military records should remain unchanged.    

14.  On 21 March 2007, the advisory opinion was furnished to the applicant for his review and possible rebuttal.  He did not respond within the given time frame.

15.  The VASRD states, in pertinent part, that VASRD Code 7323 (Colitis, ulcerative) is rated at 10 percent when moderate, with infrequent exacerbations; rated at 30 percent when moderately severe, with frequent exacerbations; rated at 60 percent when severe, with numerous attacks a year and malnutrition, the health only fair during remissions; and rated at 100 percent when pronounced, resulting in marked malnutrition, anemia, and general debility, or with serious complications such as liver abscess.  

16.  Title 10, United States 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 1212 provides that a member separated under Section 1203 is entitled to disability severance pay.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant contends that the severity of his condition warrants a higher disability rating, the advisory opinion pointed out that to receive 30 percent the condition must be “moderately severe; with frequent exacerbations.”  The PEB found that a preponderance of evidence supported that the applicant had little or no real exacerbations since his surgery; his weight was very good; his bowel movements were appropriately controlled; he had no re-hospitalizations; and he required no increase in his routine maintenance medications.  The applicant provided no medical evidence to support his contentions. 

2.  For a 30 percent rating, the VASRD requires the condition to be moderately severe with frequent exacerbations.  Although the “frequent” is not definitively specified, it does not appear that flare ups once or twice a month meets the requirement of “frequent.” 

3.  There is insufficient evidence to show the applicant’s disability was improperly rated by the formal PEB or that his separation with severance pay was not in compliance with law and regulation.  Therefore, there is insufficient evidence on which to increase his disability rating. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

RW____  _JR_____  _DT_____  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 for correction of the records of the individual concerned.

__Ronald Weaver___________
          CHAIRPERSON




INDEX

CASE ID
AR20060009624
SUFFIX

RECON

DATE BOARDED
20070524
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
108.0200
2.

3.

4.

5.

6.