RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 January 2008
	DOCKET NUMBER:  AR20070007986 


	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.


Ms. Catherine C. Mitrano

Director

Mrs. Nancy L. Amos

Analyst

The following members, a quorum, were present:


Mr. Hubert O. Fry

Chairperson

Mr. John T. Meixell

Member

Mr. Rowland C. Heflin

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 separation for physical disability with severance pay be changed to a medical retirement.

2.  The applicant states that he had a medical board, and was awarded a          20 percent disability rating, in which he was diagnosed with a uric acid level increase in his body which caused gout attacks.  The medical board should have rated him for gout and granted him a retirement.  He had major surgery.  His gallbladder was removed as well as 120 gallstones due to inflammation of gout flare up in his upper stomach.  

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States); a statement, dated        1 April 1997; a DD Form 2161 (Referral for Civilian Medical Care), dated             8 August 1996; a DA Form 5181-R (Screening Note of Acute Medical Care), dated 3 August 1996; a DA Form 3349 (Physical Profile), dated 21 August 1995; Progress Notes, dated 30 March 2007; a statement, dated 5 April 2007; and his DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 30 November 1983.  

3.  On 15 March 1994, a Medical Evaluation Board (MEB) referred the applicant to a Physical Evaluation Board (PEB) for several conditions, not including gout.  On 30 March 1994, an informal PEB found the applicant to be fit for duty.  The applicant concurred and waived a formal hearing of his case.

4.  On 21 August 1995, the applicant was given a temporary physical profile for “r/o (rule out?) acute gouty arthritis R foot.”
5.  On 5 August 1995, the applicant was treated for a complaint of gout.  He stated his foot was very tender and painful to stand on.  The DA Form 5181-R indicated he had recurrent gout and his last attack was 14 months previously.

6.  A DD Form 2161, dated 8 August 1996, indicated the applicant had only had two episodes of gout attack in one year.  Both episodes were treated successfully.

7.  The applicant’s MEB/PEB documentation is not available.  Records at the     U. S. Army Physical Disability Agency (USAPDA) show that the applicant was found to be unfit by a PEB for diagnoses of arthritis due to trauma and asthma.  A statement, dated 10 April 1997, indicates that the applicant, after further consideration of his case, wished to accept the informal (PEB) findings of          30 percent and placement on the Temporary Disability Retired List (TDRL) and desired to withdraw his nonconcurrence and his request for a formal board.

8.  On 10 June 1998, the applicant was released from active duty after completing 14 years, 6 months, and 11 days of creditable active service and placed on the TDRL the following day.

9.  The advisory opinion obtained in this case indicates that an informal PEB found, on 3 September 2002, that the applicant’s conditions for which he was placed on the TDRL had improved and recommended his separation with severance pay.  The applicant did not concur but waived his right to a formal hearing.  In October 2002, he was removed from the TDRL with severance pay.

10.  In March 2007, the applicant underwent surgery to remove his gallbladder.

11.  In the processing of this case, an advisory opinion was obtained from the    USAPDA.  The advisory opinion stated that Agency computer records indicated that the applicant was placed on the TDRL at a 30 percent disability rating.  Gout was not one of the conditions that was considered unfitting.  The Agency stated that would not be unusual considering the 1995 and 1996 documents the applicant provided indicated that his gout flares were not significant, not numerous, and were successfully treated. 

12.  A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  He rebutted that he had numerous gout attacks and was not able to walk due to the swelling of his toes and ankles.  He disagreed with the advisory opinion’s contention that his gout was under control.  He is on permanent, daily medication for his gout.  He waived his formal hearing because he just got tired of fighting for something he knew was right.

13.  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 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.  

14.  Army Regulation 635-40 also states there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.

15.  The Department of Veterans Affairs Schedule for Rating Disabilities (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.

16.  The VASRD states that code 5017, gout, will be rated on limitation of motion of the affected parts, under diagnostic 5002, rheumatoid arthritis.  

17.  Department of Defense Instruction (DODI) 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 VA rating boards and are intended to provide guidance under laws and policies applicable only to the VA.  This Instruction replaces some sections of the VASRD.

18.  DODI 1332.39 states that VASRD code 5017 is rated according to VASRD code 5003, degenerative and hypertrophic arthritis and pain conditions rated by analogy to degenerative arthritis.

19.  DODI 1332.39 gives VASRD code 5003 a 10 percent rating for each major joint (or grouping of minor joints) with objective limitation of motion plus radiographic evidence.  It gives VASRD code 5003 a 20 percent rating for radiographic evidence of two or more major joints or groups of minor joints, when accompanied by occasional exacerbations of incapacitating symptoms.  

20.  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.  

21.  Until certain provisions of the law were changed in fiscal year 2004, a common misconception was that veterans could receive both a military retirement for physical unfitness and a VA disability pension.  Under the law prior to 2004, a veteran could only be compensated once for a disability.  If a veteran was receiving a VA disability pension and the Board corrected the records to show the veteran was retired for physical unfitness, the veteran would have had to have chosen between the VA pension and military retirement.  The new law does not apply to disability retirees with less than 20 years of service and retirees who have combined their military time and civil service time to qualify for a civil service retirement.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s MEB/PEB documentation is not available.  It cannot even be determined what medical conditions were found to be unfitting.  

2.  Even if the applicant had had numerous attacks of gout while in the Army, and it is understood that his gout was painful, he could only have been found unfit for that condition if he had met the criteria outlined in DODI 1332.39.  Specifically, there must have been radiographic evidence of joint involvement confirming objective limitation of motion.

3.  The VA 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/or has worsened since separation from the military) and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual’s medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

4.  The applicant provided insufficient evidence that would warrant granting the relief requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__hof___  __jtm___  __rch___  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.




__Hubert O. Fry_______
          CHAIRPERSON




INDEX

CASE ID
AR20070007986
SUFFIX

RECON

DATE BOARDED
20080117
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
108.00
2.

3.

4.

5.

6.