IN THE CASE OF:	  

		BOARD DATE:	        09 DECEMBER 2008

		DOCKET NUMBER:  AR20080005850 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant makes his request through counsel.

2.  The applicant makes his statements through counsel.

3.  The applicant provides records through counsel in support of this application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the applicant's discharge on 10 February 2006 with disability severance pay be changed to a retirement due to permanent physical disability with at least a 40 percent disability rating for narcolepsy.

2.  Counsel essentially states that beginning in March 2005, the applicant began suffering from multiple diagnoses relating to sleep apnea and narcolepsy, and that by May 2005, the applicant complained to his attending physician that he was falling asleep at stop lights and falling asleep while driving.  He also states that on 2 August 2005, the applicant went before a Medical Evaluation Board (MEB) and was diagnosed with chronic left shoulder instability and pain and narcolepsy, which did not exist prior to service and was permanently aggravated by service.  He further states, in pertinent part, that the applicant's narcolepsy was diagnosed as medically disqualifying.  Additionally, he states that the applicant went before a formal Physical Evaluation Board (PEB) on 23 August 2005 [he actually went before an informal PEB on this date], which rated the applicant's narcolepsy at zero percent, but that the Department of Veterans Affairs (DVA) awarded him a 40 percent disability rating for his combination of narcolepsy and catalepsy [a trance-like state marked by loss of voluntary motion in which the limbs remain in whatever position they are placed].  

3.  Counsel also essentially states that Army Regulation 635-40 (Physical Evaluation for Retention, Retirement or Separation) provides, in pertinent part, that:

	a.  the overall effect of all disabilities present in a Soldier whose physical fitness is under evaluation must be considered;

	b.  all relevant evidence must be considered in evaluating the fitness of a Soldier;

	c.  PEBs are established to evaluate all cases of physical disability equitably for the Soldier and the Army;

	d.  PEBs are charged with the responsibility of "providing a full and fair hearing for the Soldier as required by section 1214, Title 10, United States Code;" and
 
	e.  the PEB must be based on a preponderance of the evidence.

4.  Counsel also states that Department of Defense Instruction (DODI) 1332.39 (Application of the Veterans Administration Schedule for Rating Disabilities) provides, in pertinent part, that:

	a.  when, after careful consideration of all reasonably procurable and assembled data, there remains a reasonable doubt as to which rating should be applied, such doubt will be resolved in favor of the member;

	b.  when an unlisted condition is encountered, it is permissible to rate it by analogy to a closely related disease or injury.  The unlisted and analogous condition should reflect adverse impact upon reasonably similar functions, anatomical structures, or be symptomatically similar; and 

	c.  enclosure 1 (Definitions) of this DODI defines "preponderance of the evidence" as "that evidence that tends to prove one side of a disputed fact by outweighing the evidence on the other side (that is, more than 50 percent… preponderance means a superiority of evidence on one side or the other of a disputed fact.


5.  Additionally, counsel essentially states that paragraph 3-30 of Army Regulation 40-501 (Standards of Medical Fitness) provides that narcolepsy is a neurological disorder which is medically disqualifying, and paragraph E2.A1.4.1.5 of DODI 1332.39 provides the rating criterion for narcolepsy, depending on the degree of impairment of industrial adaptability, with the following rating criteria:

	a.  profound industrial impairment:  80 percent;

	b.  severe industrial impairment:  60 percent;

	c.  considerable industrial impairment:  40 percent;

	d.  definite industrial impairment:  20 percent; and

	e.  mild industrial impairment:  10 percent.

6.  Counsel also essentially states that prior to the applicant's medical separation from active duty, he suffered from severe narcolepsy.  

7.  Counsel provides a petition for correction of military records, dated 6 March 2008, and evidence which is indexed in a list on enclosures in support of this application.  He also provided an additional letter, dated 14 November 2008, along with a physician's note from the Sleep Center of Cape Fear Valley Health System.

CONSIDERATION OF EVIDENCE:

1.  The applicant's official military records do not contain any evidence of his disability processing.  The case is primarily being considered using evidence provided by the applicant and his counsel.

2.  The applicant's military records show that he enlisted in the Regular Army on 
18 June 1999.  He completed initial entry training and was awarded military occupational specialty (MOS) 31F (Network Switching Systems Operator/ Maintainer), which was later converted into MOS 25F with the same duty title.  

3.  On 2 August 2005, an MEB diagnosed the applicant with chronic left shoulder instability and pain and narcolepsy, and referred the applicant to a PEB.  On 
10 August 2005, the applicant concurred with the MEB's findings and recommendation.  The MEB noted that a doctor at the Sleep Center, Cape Fear Valley Health Systems, who will be referred to as Dr. Fleishman throughout the remainder of these proceedings, diagnosed the applicant with severe excessive daytime sleepiness and narcolepsy, and that a doctor from the Behavioral Medicine Clinic, Womack Army Medical Center, Fort Bragg, North Carolina concurred with this diagnosis.  

4.  On 23 August 2005, an informal PEB found the applicant physically unfit due to narcolepsy and chronic left shoulder pain and instability with a combined rating of zero percent, and recommended that he be separated with severance pay if otherwise qualified.  Regarding his narcolepsy, the informal PEB stated that the applicant was taking Provigil with improvement of his symptoms.  On 
15 September 2005, the applicant non-concurred with the informal PEB findings and recommendations and demanded a formal hearing with personal appearance.  He also requested a regularly appointed counsel to represent him.  

5.  Although the applicant did not provide a copy of his formal PEB proceedings, his military records contained orders, dated 6 December 2003, showing that the applicant was discharged from the Regular Army on 10 February 2006 with a 
20 percent disability rating.  Item 18 (Remarks) of his DD Form 214 also shows, in pertinent part, that he was paid $28,257.60 in disability severance pay.

6.  The applicant provided a letter, dated 28 July 2006, from the DVA which essentially shows that he was awarded a combined disability rating of 
70 percent, with an individual disability rating for narcolepsy-cataplexy of 
40 percent.  He also provided a letter, dated 4 January 2008, from Dr. Fleishman who essentially stated that the applicant has severe narcolepsy with cataplexy, and that he continues to suffer from excessive sleepiness despite efforts to place him on wake-promoting agents.  Dr. Fleishman also stated, in pertinent part, that the applicant is not able to maintain gainful employment and is medically disabled, and will be disabled on a chronic basis.  Additionally, he provided statements from his mother, son-in-law, a friend who thinks of the applicant as a son-in-law, and a family friend which essentially stated that they have witnessed several episodes of fatigue and apparent loss of situational awareness from the applicant , and of the applicant sitting at a house and falling asleep, with too many episodes to count prior to 10 February 2006.  The applicant's counsel also provided an additional physician's note from Dr. Fleishman which essentially stated that the applicant continued to have severe sleepiness and cataplexy, and that he is not capable of working at this time.  It was noted that this physician's note was altered, and it is not known if Dr. Fleishman or someone else altered this document.  

7.  During the processing of this case, an advisory opinion was obtained from the United States Army Physical Disability Agency.  That agency essentially stated that during the applicant's MEB, he was diagnosed with two conditions that did not meet medical retention standards, namely, chronic left shoulder instability and pain, and narcolepsy.  That agency also stated that the MEB contained 
Dr. Fleishman's 7 June 2005 medical opinion that the applicant's narcolepsy was severe.  However, that agency stated that the applicant's MEB also contained a psychiatric consult, dated 20 July 2005, on his narcolepsy diagnosis which related that as long as the applicant took his prescribed medications, he could work effectively and "adequately perform his job."  That agency further stated that the applicant's MEB also contained a 29 April 2005 memorandum from the applicant's commander who indicated that the only condition that interfered with the applicant's duty performance was his left shoulder problems.  Additionally, that agency stated that on 30 September 2005, a formal PEB found the applicant unfit for narcolepsy and chronic left shoulder pain, and rated him at 10 percent for each condition, with his narcolepsy being described as having a mild industrial impact in accordance with paragraph E2.A1.4.1.5 of DODI 1332.39.  The applicant non-concurred with his narcolepsy rating and indicated that he was having trouble staying awake, and that the effect on his industrial adaptability was more than mild, but offered no additional medical evidence or performance data from any supervisor to support his contentions.  That agency also stated that the formal PEB considered the applicant's testimony and rebuttal, but found the preponderance of the evidence supported a mild rating.  

8.  This advisory opinion also stated that in his application to the Army Board for Correction of Military Records, he included comments from some friends and family members attesting to their observations of the effects of his narcolepsy and a 4 January 2008 letter from Dr. Fleishman which stated that, in his opinion, the applicant's narcolepsy was still considered to be severe, but that the applicant was not able to receive all of his required medications at that point.  

9.  The advisory opinion also stated, in pertinent part, that the military disability system is a performance-based system that closely observes how the applicant is capable of performing his assigned duties, and that one of the major differences between the military and DVA disability systems is that the military has the capability to closely monitor and report specific work-related accomplishments, where the DVA is only able to rely on a claimant's statements and physicians' opinions, the latter of which are largely based on reported symptoms from their patients.  It also stated that in the applicant's case, the PEB had first-hand objective information from the applicant's commander that the only problem hindering his duty performance was his shoulder, which was confirmed 
by the applicant's own statements to a physician on 20 July 2005, in which he clearly related that he could perform his military duties if he took his medications. It further stated that there may have been some instances in which the applicant may have appeared sleepy or had some problems off duty, but the evidence provided by the PEB was certainly sufficient to support their findings.  Additionally, the applicant did finally relate at his formal PEB hearing that perhaps his ability to perform his duties was harder than originally stated in July 2005, but that the PEB considered all of the evidence, weighed any conflicting portions, and found that the preponderance of the evidence in the summer and fall of 2005 was that when the applicant properly took his prescribed medications for narcolepsy, the condition was considered to have a mild effect upon his ability to work.  It also opined that the PEB findings were supported by a preponderance of the evidence, were not arbitrary or capricious, and were not in violation of any statute, directive, or regulation, and recommended that the applicant's military records not be changed.

10.  A copy of this advisory opinion was sent to the applicant and his counsel for comment and/or rebuttal.  In a letter, dated 25 September 2008, the applicant's counsel essentially stated that the applicant non-concurred with the advisory opinion, and that the applicant has demonstrated in the body of his original appeal why it is in the interest of equity and justice that his military records be corrected to reflect that the rating for his diagnosed condition of narcolepsy should be at least 40 percent, and that it is their position that nothing in the advisory opinion changes this contention.  

11.  Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement) of Army Regulation 40-501 essentially provides, in pertinent part, that Soldiers with conditions listed in this chapter will be referred for disability processing.

12.  Title 38, United States Code, sections 1110 and 1131, permit the DVA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a DVA rating does not establish error or injustice in whether or not an Army rating is given, or in an Army rating that is given.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The DVA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s civilian employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at different positions.  Furthermore, unlike the Army, the DVA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the DVA may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

13.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  It is clear that the applicant and his counsel contend that the applicant's discharge on 10 February 2006 with disability severance pay should be changed to a retirement due to permanent physical disability with at least a 40 percent disability rating for narcolepsy.  However, in order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  The evidence provided in support of this application, which included portions of the applicants' military disability processing, evidence from the DVA which shows that he was awarded an individual disability rating of 40 percent for narcolepsy and cataplexy, as well as statements from friends and family, was 
carefully considered.  However, as the advisory opinion in this case mentioned, the applicant's MEB contained a psychiatric consult, dated 20 July 2005, on his narcolepsy diagnosis which related that as long as the applicant took his prescribed medications, he could work effectively and "adequately perform his job," and also contained a 29 April 2005 memorandum from the applicant's commander who indicated that the only condition that interfered with the applicant's duty performance was his left shoulder problems.  By the applicant's own admission, in a statement to a physician on 20 July 2005, he clearly related that he could perform his military duties if he took his medications.  As a result, it appears that his narcolepsy was properly assigned a disability rating of 
10 percent for narcolepsy by his formal PEB.  

3.  While it is clear that the applicant suffers from narcolepsy and that he was awarded a higher disability rating for this condition by the DVA, the fact that the DVA subsequently awarded him higher compensation for narcolepsy does not establish an error or injustice in the disability rating rendered by the Army.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The DVA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s civilian employability.  

4.  Although the applicant's complete Army disability processing is not available for review, it appears that competent medical authority determined at the time of his formal PEB that he did not meet medical retention standards, and rated him at 20 percent disabled, with a 10 percent disability rating each for his chronic left shoulder instability and pain, and for narcolepsy.  As the applicant or his counsel did not provide any evidence which shows that any requirements of law and regulation were not met, or that his rights were not fully protected throughout his disability processing, regularity must be presumed in this case.

5.  In view of the foregoing, there is no basis for granting relief to the applicant in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  ____X____  ___X_____  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.




      _______ _XXX   _______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20080005850



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ABCMR Record of Proceedings (cont)                                         AR20080005850



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