IN THE CASE OF:	

		BOARD DATE:	  21 APRIL 2009

		DOCKET NUMBER:  AR20080017589 


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 requests that his records be corrected to show that he was permanently retired for physical unfitness rated as 100-percent disabled instead of 30-percent disabled.

2.  The applicant states that the seriousness and progression of his disease over time was not anticipated.  His condition, hepatitis C, was not understood at the time and it was not known that it would become the major reason for liver transplantation.  Secondly, his splenomegaly and its complications of dypersplenism and thrombocytopenia should have been rated.  At the time of his separation, an enlargement of his spleen wasn't detected.  

3.  The applicant adds that since the Department of Veterans Affairs (VA) has rated him 100-percent disabled, the Army's rating should be increased to match the VA rating.

4.  The applicant provides his VA rating decision and civilian medical records.

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's military records show that he entered active duty in a commissioned status on 25 June 1970 and was honorably released from active duty in the rank of major on 29 June 1972 due to expiration of active duty commitment.

3.  In July 1973, the VA rated the applicant for a diagnosis of chronic hepatitis      (10 percent).

4.  On 8 May 1974, this Board corrected the applicant's records to show that he was transferred to the Temporary Disability Retired List (TDRL) on 29 June 1972 due to physical unfitness.

5.  On 7 March 1977, a periodic physical evaluation board (PEB) determined that the applicant was physically unfit due to chronic, persistent hepatitis with evidence of portal hypertension manifested by hepatosplenomegaly and recommended that he be placed on the Retired List for physical unfitness, rated 30-percent disabled.  The applicant concurred and waived a formal hearing.

6.  The VA rating decision submitted by the applicant shows that he was awarded a 100-percent disability rating for hepatitis C with cirrhosis, portal hypertension and mild ascites based on an application filed by the applicant on 31 January 2008.  This was based on a liver biopsy taken on 10 March 2006 which showed hepatitis C.

7.  The civilian medical records submitted by the applicant are dated from 2 January 2008 to 19 August 2008.

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that those members who do not meet medical retention standards will be referred to a physical evaluation board to determine whether they are physically unfit to perform their duties and, if found unfit, to determine 

the percentage of disability to be awarded.  This regulation also provides that only 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.  A rating by the Army is based on a Soldier's medical condition at the time the Soldier is being medically boarded.  That rating cannot be changed once approved.

9.  Title 38, U.S. Code, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has not submitted any evidence to show that he was not properly rated for his medical conditions in March 1977 when he was placed on the Retired List for physical unfitness.

2.  In July 1973, the VA itself awarded the applicant a disability rating of only     10 percent for a diagnosis of chronic hepatitis.

3.  The applicant was diagnosed with hepatitis C based on a liver biopsy taken on 10 March 2006, almost 34 years after he was placed on the TDRL, and 29 years after his placement on the Retired List.

4.  The applicant has not submitted any evidence that he had splenomegaly and its complications of dypersplenism and thrombocytopenia while he was on active duty or that those conditions were physically unfitting while he was on active duty.  As such, there is insufficient evidence in which to correct the applicant's records to rate him for those conditions.

5.  The responsibility to compensate the applicant for service-related medical conditions which worsen lies with the VA in accordance with Title 38, U.S. Code, not the Army.

6.  While the applicant believes that he should have been given a higher disability rating because of hepatitis C's long term effects, the Army must rate a Soldier based on his physical condition at the time of the medical board.  The applicant was placed on the TDRL to allow for his medical condition to stabilize as much as possible prior to him being given a permanent rating.  As such, the Army afforded the applicant all possible opportunities to insure he was given a proper rating when he was placed on the Retired List.

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.



      __________X_______________
                 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)                                         AR20080017589



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ABCMR Record of Proceedings (cont)                                         AR20080017589



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