IN THE CASE OF:	  

		BOARD DATE:	  26 August 2010

		DOCKET NUMBER:  AR20100000239 


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 his discharge with severance pay be converted to a permanent disability retirement. 

2.  The applicant states the Physical Evaluation Board (PEB) failed to evaluate all of his medical conditions; therefore, he was denied a physical disability retirement.  In addition to a higher rating for his wrist condition he believes he should have been evaluated for multiple medical conditions and granted a rating comparable to his Department of Veterans Affairs (VA) rating.  

3.  The applicant does not specifically state what medical conditions he believes should have been considered.  However, based on the applicant's request and his inclusion of the VA Rating Decision, it appears that, in addition to granting him a higher rating for his left wrist condition, he is requesting consideration for residuals of an otoplasty, a hydrocele, residuals of glass fragments in his eye, bilateral chronic pansinusitis with otitis media, a hiatal hernia, Tietze's Syndrome with a subsequent xiphoid process removal, reoccurring ear infections, and residuals of a laceration to his palm. 

4.  The applicant provides copies of a September 1989 Physical Profile; a November 1989 annual physical examination; a 20 November 1989 PEB; a 6 November 1989 Medical Evaluation Board (MEB); 74 pages of service medical records, divided into sections by medical issues; a 28 February 2006 VA disability rating decision; and two DD Forms 214 (Report of Separation from Active Duty). 

CONSIDERATION OF EVIDENCE:

1.  Title 10, United States Code (USC), 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 15 May 1975 and served continuously until he was honorably discharged due to a physical disability with severance pay in the rank of sergeant/E-5 on 21 December 1989.

3.  Definitions included in the text of this document were obtained from the U.S. National Library of Medicine, National Institutes of Health on-line medical dictionary.

4.  The available medical records for the applicant's ear surgery (otoplasty) show:

	a.  Otoplasty is a plastic surgery procedure of the external ear to bring the ears closer to the head, reducing the size of very big ears, or the reshaping of various bends in the cartilage.

	b.  In 1978 the applicant experienced difficulty wearing his helmet due to the size and shape of his ears and he underwent a bilateral otoplasty on 7 September 1978.  The available medical records do not show any complications following the surgery or any subsequent ear infections related to the surgery. 

	c.  The VA did not evaluate the applicant for the otoplasty.

5.  The available medical records pertaining to the applicant's left wrist condition show:

	a.  In 1985, he experienced pain in his left wrist after doing pushups.  The problem worsened and manifested pain following other activities involving pressure and stress on the wrist.  He underwent conservative treatment including a 3-month period of immobilization for the condition which had limited to no success.  

	b.  On 25 October 1989 he underwent a left wrist arthrodesis resulting in the fusing of several bones in his wrist.  

	c.  Arthrodesis is the artificial induction of joint ossification (the process of laying down new bone material) between two bones via surgery.  At the completion of surgery and healing, which takes place over a period of several weeks or over a year, the two adjoining bones are fused and no motion takes place between them.

	d.  During a 6 November 1989 MEB the range of motion of his wrist was found to be 60 degrees of dorsiflexion, 35 degrees of flexion, 5 degrees of radial deviation (towards the thumb) and 15 degrees of ulnar deviation (towards the little finger).  Tenderness on palpation was noted.  Based on the fusion of the wrist with its decreased range of motion and continued pain the MEB recommended that the applicant's case be referred to a PEB with the recommendation that the applicant be found unfit for active duty.  

	e.  The 1989 PEB determined the applicant's wrist fusion and continued pain rendered him unfit for duty and he was afforded a 20 percent disability rating for the wrist.

	f.  The 2006 VA disability rating continued the 1989 disability rating for his wrist fusion at 20 percent.  

	g.  A December 2009 private medical evaluation found the applicant's wrist to be firmly fused with neutral to slight palmar flexion and no ulnar and radial deviation.  The private medical consultant opined that the position of fusion met the VA criteria of an unfavorable position.

6.  The available medical records for the applicant's testicular pain shows: 

	a.  In 1982 the applicant was experiencing pain in his groin that radiated to his abdomen.  He was diagnosed as suffering from a hydrocele.  

	b.   A hydrocele is the collection of fluid, especially in the membrane covering the front and sides of the testis and epididymis of the testis or along the spermatic cord.  

	c.  Other than the limited treatment in 1982 there are no records of continued complaints for this condition and the VA did not evaluate the applicant for this condition.

7.  There is one medical record available that shows that, in 1985, the applicant believed that some glass had gotten in his eye as a result of his broken eye glasses.  His eye was flushed and examined with no abnormalities other then redness and irritation.  The VA did not evaluate the applicant for this condition.

8.  The available medical records for the applicant's Tietze syndrome and xiphoid process surgery show:

	a.  In March 1988 the applicant reported experiencing pain in his chest in the region of his xiphoid process.  It was originally believed to be either costochondritis or Tietze syndrome.  

	b.  The xiphoid process is the smallest and lowest division of the human sternum that is cartilaginous early in life but becomes more or less ossified (solid) during adulthood.

	c.  Costochondritis is an inflammation and associated tenderness of the cartilage (i.e., the costochondral joints) that attaches the front of the ribs to the breastbone.

	d.  Tietze syndrome is a benign inflammation of one or more of the costal (rib) cartilages.  The primary presentation of the syndrome is significant, acute pain in the chest, along with tenderness and some swelling of the cartilages affected, which is commonly palpable on examination.  Although many times it can be extremely painful, to the point of being debilitating.

	e.  The problem continued and further evaluations were done and it was determined that there was a malformation of his xiphoid process.  In September 1988, he underwent surgical removal of the xiphoid process without complications. 

	f.  The 2006 VA rating decision continued the 1989 non-compensable rating for the residuals of this condition.

9.  The available medical records for the applicant's ear infections, upper respiratory problems and sinusitis show: 

	a.  The applicant suffered from and was treated for these conditions periodically from as early as 1980 with the majority of his complaints coming in the months of October and March of each year.  

	b.  He was afforded a diagnosis of acute sinusitis while serving in Germany with other occurrences being diagnosed as flu, head colds (virus), sinusitis and otitis media.  

	c.  Otitis media is an infection of the middle ear space, behind the eardrum (tympanic membrane).  It is characterized by pain, dizziness, and partial loss of hearing.

	d.  The available medical records show that each occurrence was treated and resolved without sequel. 

	e.  The VA originally granted the applicant a non-compensable rating for otitis media in 1989.

	f.  The 2006 VA Rating Decision, based on a 2005 examination, incorporated all of these conditions into a diagnosis of bilateral chronic pansinusitis with otitis media and granted the applicant a 50 percent disability rating. 

10.  The available medical records show the applicant had a history of treatment for a hiatal hernia dating back to 1977:

	a.  A hiatal hernia is a hernia in which an anatomical part of the stomach protrudes through the esophageal hiatus of the diaphragm.

	b.  In 1982 the applicant had a significant flair up of his hiatal hernia for which he received medication and was advised to change his diet.  He was referred for possible surgical intervention on two occasions.  The last recorded episode is reported in March 1987. 

	c.  The 2006 VA disability rating increased its 1989 non-compensable rating to a 10 percent disability rating.

11.  The available medical records for the applicant's laceration (cut) to his palm shows that on 22 May 1977 the applicant had a superficial cut to his palm that did not require stitches.  The only other reference to this injury was a follow-up visit two weeks after the injury.

12.  Title 10, USC, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), provides the following at:

	a.  paragraph 3-1, that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability; and

	b.  paragraph 3-4, that under the laws governing the Army Physical Disability Evaluation System, Soldiers who sustain or aggravate physically unfitting disabilities must meet the following line of duty criteria to be eligible to receive retirement and severance pay benefits.  The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training.  

14.  Title 38, USC, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, 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 that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned and may adjust that rating as the condition changes.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered physically unfit 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.  Further the VA is authorized to adjust the level of disability based on changes in a former service member's condition. 

15.  The Army Physical Disability Agency (USAPDA) has noted, in advisory opinions in similar cases, that confusion frequently arises from the fact that the Army and the DVA use different rating systems.  While both use the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD), not all of the general policy provisions set forth in the VASRD apply to the Army.  The Army rates only conditions determined to adversely affect the individual’s ability to perform assigned duties.  Physical disability separation pay or retirement compensates the individual for loss of a career.  The VA, on the other hand, may rate any service-connected impairment, in order to compensate the individual for loss of civilian employability or social functioning.  The USAPDA has also pointed out that military disability ratings are based upon the degree to which a medical condition affects the ability to perform duty and not upon the diagnosis or name attached to the condition.  By way of comparison, the VA can and does rate an individual simply for the existence of a diagnosis or condition and has the authority to change that rating, up or down, based on changes in the condition. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant states the PEB did not evaluate all of his medical conditions; therefore, he did not receive a physical disability retirement.  He believes he should have been granted a higher rating for his wrist condition and evaluated for the multiple medical conditions that were evaluated by the VA and he should have been granted a rating comparable with his VA rating for multiple conditions. 

2.  The applicant has not provided any evidence that shows his wrist was not accurately rated.  The VA also afforded the applicant a 20 percent disability rating in 1989 for his wrist condition.  The differences in the range of motion described in the 1989 MEB and those found in the 2009 evaluation are not contradictory.  They show the applicant's wrist has continued to deteriorate. Therefore, the PEB and discharge proceedings are shown to have been conducted in accordance with law and regulations applicable at the time and no relief is warranted.  

3.  The available records do not contain any evidence and the applicant has not provided any evidence that shows the plastic surgery to his ears caused a permanent residual condition that prevented him from performing his duties.  In fact the surgery improved his ability to wear proper protective head gear; hence, to better perform his duties.  Furthermore, there is no medical evidence linking the applicant's corrective external ear surgery to his otitis medial or sinus problems.

4.  The applicant underwent a xiphoid process removal surgery to relieve a pain in his chest.  The service medical records do not show any residual defects or complications from this surgical intervention that impacted his ability to serve.  This finding is further supported by the fact the VA did not grant the applicant a compensable rating for this condition.

5.  The available service medical records show the applicant had a history of reoccurring upper respiratory infections, ear infections, and sinusitis.  However, the records do not show any of these conditions were so severe or frequent as to negatively impact his ability to serve.

6.  The applicant was diagnosed as suffering from a hiatal hernia which required control through medication and dietary restrictions.  However, at the time of his 
discharge there had been no recorded episodes of this condition for a significant period of time.  Further, the VA did not grant the applicant a compensable rating for this condition until 2005. 

7.  In 1982, the applicant was diagnosed as suffering from a hydrocele.  However, there is no evidence of continued complaints of this condition after 1982 and the VA did not evaluate the applicant for this condition.

8.  The award of a VA rating does not mandate change of, nor demonstrate an inequity in a military disability rating.  The VA, operating under its own policies and regulations and the VA may make a determination that a medical condition warrants compensation.  The VA is not required to determine fitness for duty at the time of separation.  The Army must find an individual physically unfit before the individual can be medically retired or separated.  Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

9.  The fact that the VA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.  It does not, in of itself, establish physical unfitness for Department of the Army purposes.

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)                                         AR20100000239



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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