IN THE CASE OF:	  

		BOARD DATE:	        22 SEPTEMBER 2009

		DOCKET NUMBER:  AR20090012279 


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, in effect, that his Physical Evaluation Board (PEB) disability rating be changed to match his Department of Veterans Affairs (VA) rating.

2.  The applicant states, in effect, that on 5 January 2009, while on military leave pending retirement from active duty he experienced difficulty and pain in his right arm and shoulder and contacted the Central Arkansas Veterans Hospital for an appointment.  He goes on to state that he met with a physician on 25 January 2009 and on 17 March 2009, he had orthopedic surgery to remove a baseball size malignant tumor and repair a broken right humerous.  He continues by stating that his right arm was shortened by three inches and he lost the use of his hand and arm function.  Additionally, he is awaiting testing for treatment of a large malignant mass to his left lung.  He further states that he was retired by reason of permanent physical disability with a 30% rating on 16 February 2009; however, the PEB did not assign a disability rating for his cancer.  Accordingly, he would like to have his disability rating re-evaluated because it occurred before he was retired by reason of physical disability and should have been considered.  He also states that he is presently receiving a 100% disability rating from the VA.

3.  The applicant provides a brief medical summary, a copy of his retirement orders, a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), a copy of a request for a review of his PEB ratings, a copy of his PEB Proceedings and his Medical Evaluation Board (MEB) Proceedings, copies of Pathology Reports dated in March 2009, and a copy of his VA Rating Decision with related documents. 
CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Arkansas Army National Guard (ARARNG) on 11 March 1972 and served in the ARARNG until he was honorably discharged on 10 March 1978.

2.  On 15 January 1983, he was commissioned as a United States Army Reserve (USAR) second lieutenant with a concurrent call to active duty.  He remained on active duty as a military intelligence officer and was promoted to the rank of captain on 1 January 1987.

3.  On 31 August 1992, he was honorably released from active duty (REFRAD) under the Fiscal Year 1992 Officer Voluntary Early Transition Program and the Special Separation Benefit (SSB) Program.  He had served 10 years, 2 months and 9 days of total active service and was paid $60,186.25 in SSB benefits.  He was transferred to the USAR Control Group (Reinforcement) and on 
31 December 1993, he was promoted to the rank of major.  He was issued his 20-year letter on 29 September 1999 and was subsequently promoted to the rank of lieutenant colonel (LTC) on 22 May 2000.

4.  On 4 August 2007, he was ordered to active duty in support of Operation Enduring Freedom for 365 days and deployed to Afghanistan on 1 September 2007.  He departed Afghanistan on 20 January 2008 and was transferred to Fort Benning, Georgia.  It appears that the applicant filed a claim for disability compensation with the VA on 13 March 2008.

5.  On 7 October 2008, an MEB was completed at Fort Benning which evaluated/diagnosed the applicant for Left Knee Pain, Plantar Fascitis with Pes Planus, bilateral, Osteoarthritis of ankle/foot, Obstructive Sleep Apnea, Lumbar degenerative disc disease, chronic fatigue, renal cell carcinoma, post-traumatic stress disorder (PTSD), left shoulder impingement syndrome, diabetes mellitus, Type II Controlled/no medication, Gastroesophageal reflux disease, hypertension and hyperlipidemia.  The MEB found that he was unable to perform his duties and recommended that he be referred to a PEB.

6.  On 28 October 2008, a PEB was convened at Fort Sam Houston, Texas which determined that the applicant should be granted a 20% disability rating for the limitation of his left knee extension and a 10% disability rating for degenerative arthritis of the lumbar region for a total of 30%.  The PEB recommended that he be retired by reason of physical disability with a combined 30% disability rating.  The applicant concurred with the findings and recommendations of the PEB and waived a formal hearing of his case.

7.  On 16 February 2009, the applicant was retired by reason of permanent disability under the provisions of Army Regulation 635-40, paragraph 4-24B (1).  He had served 1 year, 6 months and 13 days of active service during his current deployment for a total of 15 years, 2 months and 14 days of active duty.

8.  Meanwhile, it appears based on the documents submitted by the applicant that while he was on leave prior to retirement, the applicant was diagnosed with cancer in his left arm and subsequently in his lungs.  However, there is insufficient evidence in the available records to determine if he reported the diagnosis to Army medical officials prior to his retirement.

9.  However, the documents submitted by the applicant indicate that the applicant filed a claim with the VA on 13 March 2008 and on 25 June 2009, he was granted a 100% disability rating for lung cancer associated with S/P left nephrectomy secondary to renal cell carcinoma (claimed as renal neoplasm and removal of left kidney) effective 2 March 2009.  He was also granted a 50% disability rating for PTSD effective 17 February 2009, the date he was placed on the Retired List.

10.  In the processing of this case a staff advisory opinion was obtained from the Department of the Army Physical Disability Agency (PDA) which opines that because the applicant's right arm condition was discovered before his retirement date, the medical treatment facility that was responsible for the applicant's MEB should have been contacted and arranged to have the applicant's retirement authorization withdrawn and the applicant should have continued on active duty pending completion of treatment and a new MEB.  Officials at the PDA opined that the applicant's disability retirement should be voided and he be returned to active duty for an examination arranged by the Office of the Surgeon General at the medical treatment facility and a new MEB and PEB be conducted in his case.

11.  The advisory opinion was provided to the applicant for comment and the applicant's spouse who responded to the effect that the applicant cannot return to active duty due to his present health condition and that he simply wants the Board to acknowledge that he had cancer in his arm prior to retirement and match the VA Disability rating because he will lose his life over it and does not have a year in which to wait for a decision.

12.  Army Regulation 635-40, in pertinent part, provides that when a member is being separated by reasons other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring prior to or coincident with separation, rendered the member unfit.
13.  There is a difference between the VA and the Army disability systems.  While both the VA and the Army use the VA Schedule for Rating Disabilities (VASRD) to determine percentage ratings, not all of the general policies set forth in the VASRD apply to the Army; thus there are sometimes differences in ratings. The Army's determination of a soldier's fitness or unfitness is a factual finding based on the individual's ability to perform the duties of his grade, rank, or rating. If the soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature.  The Army system requires that the soldier only be rated as the condition(s) exist(s) at the time of the physical evaluation board hearing.  The VA may find a soldier unfit by reason of service connected disability and may even initially assign a higher rating.  The VA's ratings are based on an individual's ability to gain employment as a civilian and may fluctuate within a period of time depending upon the changes in the disability.

14.  DOD Directive 1332.18 (Separation or Retirement for Physical Disability, provides, in pertinent part, that a member shall be placed on the TDRL (Temporary Disability Retired List) when the member meets the requirements for permanent physical disability retirement, except that the member’s disability is not determined to be stable.  A disability shall be determined to be stable when the preponderance of medical evidence indicates the severity of the condition will probably not change within the next 5 years so as to warrant an increase or decrease in the disability rating percentage.

15.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  Paragraph 7-20b provides, in pertinent part, regarding changes in diagnosis while a Soldier is on the TDRL, that a determination should be made by the adjudicating PEB whether a new diagnosis listed on an internal evaluation represents the natural progression of a prior diagnosis, correction of an error in the original diagnosis or development of a new condition separate from the original diagnosis.  If the record is clear as to what the change in diagnosis represents, a comment to that effect should be entered on the DA Form 199.  If the issue is not clear, the case should be returned to the medical treatment facility (MTF).

DISCUSSION AND CONCLUSIONS:

1.  While it is clear that the applicant was diagnosed with cancer prior to his placement on the Retired List and that he apparently had a kidney removed shortly after his retirement, there is no evidence in the available records to show that he informed the servicing MTF of his condition prior to his retirement in order to stop his retirement and receive additional treatment and a reevaluation by a MEB and PEB.  There is also insufficient evidence available to the Board for a medical determination to be made regarding his ratable medical condition.

2.  However, there is sufficient evidence to establish that the applicant should not have been discharged until his medical condition had been properly evaluated and treated to the extent possible before being permanently retired.

3.  Accordingly, it would be in the interest of justice at this time to void his retirement of 16 February 2009 and place him on the TDRL until his medical condition can be properly evaluated by the appropriate medical personnel and an informed determination be made as to his disability rating under the Physical Disability Evaluation System (PDES).  This evaluation should be conducted within 1 year or sooner if arrangements can be properly coordinated but no later than 18 months from the date of his original retirement date. 

4.  By placing the applicant on the TDRL, the applicant will be required to undergo a medical evaluation as directed by the U.S. Army Human Resources Command - Alexandria through the use of appropriate invitational travel orders to accomplish the physical evaluation and if necessary, the MEB and PEB.  Additionally, all required reviews and approvals will be made subsequent to completion of the PDES process.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X_____  ____X____  ____X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected:

	a.  by voiding his retirement of 16 February 2009 and placing him on the TDRL until his medical condition can be properly evaluated by the appropriate medical personnel and an informed determination be made as to his disability rating under the Physical Disability Evaluation System (PDES).  This evaluation should be conducted soonest, but at least within 1 year or sooner if arrangements can be properly coordinated, but no later than 18 months from the date of his original retirement date.

	b.  by placing the applicant on the TDRL, the applicant will be required to undergo a medical evaluation as directed by the U.S. Army Human Resources Command - Alexandria through the use of appropriate invitational travel orders to accomplish the physical evaluation and if necessary, the MEB and PEB.  Additionally, all required reviews and approvals will be made subsequent to completion of the PDES process.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to granting him a 100% disability rating at this time.  

3.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Global War on Terrorism.  The applicant and all Americans should be justifiably proud of his service in arms.





      _______ _   __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)                                         AR20090012279



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ABCMR Record of Proceedings (cont)                                         AR20090012279



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