IN THE CASE OF:	  

		BOARD DATE:	  15 September 2011

		DOCKET NUMBER:  AR20110017300 


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, through his Member of Congress, reconsideration of his earlier request to correct his DD Form 214 (Certificate of Release or Discharge from Active Duty):

* Items 4a (Grade, Rate, or Rank) and 4b (Pay Grade) to show his rank/grade as sergeant first class (SFC)/E-7 instead of staff sergeant (SSG)/E-6
* Item 28 (Narrative Reason for Separation) changed from "Disability, Temporary" to "Disability, Permanent - Caused by an Instrumentality of War and Incurred in Line of Duty (LOD) During a War Period as Defined by Law"

2.  As a new issue, the applicant requests an increase in his disability rating from 30% to 75%.

3.  The applicant states:

* He is a former Special Forces (SF) Soldier and he was previously assigned to a high altitude low opening (HALO) parachute team
* In 1996, he was involved in a parachute accident during a free fall causing him to spin and tumble violently
* The spinning prevented him from deploying his parachute at the required altitude, a safety feature activated, and upon landing he was disoriented and experienced diplopia (double vision)

* He continued to experience double vision but did not seek medical treatment thinking it would eventually resolve itself
* The double vision worsened in 1997 and he ultimately underwent a medical evaluation board (MEB) which did not list his accident because he failed to inform the medical officer of his parachute accident
* In 1998, a physical evaluation board (PEB) placed him on the temporary disability retired list (TDRL) with a 30% disability rating
* He accepted the rating at the time because his condition only affected his ocular muscles, Ocular Myasthenia Gravis
* In December 1998, the Army promoted him to E7 while on the TDRL and in September 2001, he was removed from the TDRL and permanently retired with a 30% disability rating
* After retirement, in late 2002, his condition progressed to his entire musculoskeletal system and now it is severe enough to require surgical intervention (it requires thymos gland removal)
* The Army removed him from the TDRL prematurely; he should have stayed on the TDRL the entire 5 years
* While on active duty he was removed from parachute duty due to back and knee injuries from a parachute landing
* His battalion surgeon certified his incapacitation
* He was a SF Soldier, when he could no longer jump due to back and knee injuries he could no longer perform his duties to full capacity
* His back and knee injuries were not documented on his DA Form 199 (PEB Proceedings)

4.  The applicant provides:

* 1994 Orders 37-10 (HALO)
* Diagram of a HALO jump in combat gear
* 1998 certification of incapacitation memorandum
* 1998 MEB Narrative Summary (NARSUM)
* 1998 Orders 317-0019 (TDRL Retirement Order)
* 1998 DA Form 3947 (MEB Proceedings)
* 1998 DD Form 214
* 2001 Orders D186-1 (Removal from TDRL)
* 2010 Department of Veterans Affairs (VA) Rating Decision
* 2010 Statement from a VA medical doctor
* 2010 Statement from a former unit member




CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100006948, on 5 August 2010.

2.  The previous consideration of his case considered the issue of his rank/grade:

	a.  The applicant held the rank/grade of SSG/E-6 on 16 November 1998, the date he was placed on the TDRL.  He did not provide any new evidence to show he was promoted to SFC/E-7 prior to placement on the TDRL/retirement.  Nevertheless, Title 10, U.S. Code, section 1372, states any member of an armed force whose name is placed on the TDRL is entitled to the permanent Regular or Reserve grade to which he would have been promoted had it not been for the physical disability for which he is retired and which was found to exist as a result of a physical examination.  

	b.  The applicant was selected for promotion by the Fiscal Year 1998 SFC/
E-7 Selection Board.  As such, he was entitled, as an operation of law, to be placed on the TDRL and the Retired List in pay grade E-7.  Accordingly, on 4 February 2011, Orders Number D186-1, dated 24 September 2001, were amended retiring him in the rank/grade of SFC/E-7.  The issue of his rank and grade will therefore not be discussed further in this Record of Proceedings.

3.  With respect to the narrative reason for separation being changed to permanent disability caused by an instrumentality of war and incurred in LOD during a war period as defined by law:

	a.  Army Regulation 15-185 sets forth procedures for processing requests for correction of military records.  Paragraph 2-15a governs requests for reconsideration.  This provision of regulation allows an applicant to request reconsideration of an earlier decision of the ABCMR if the request is received within one year of the original decision and it has not previously been reconsidered.  Such requests must provide new evidence or argument that was not considered at the time of the ABCMR's prior consideration.

	b.  The staff of the ABCMR reviewed his request for reconsideration, examined the original ABCMR decision, and reviewed the evidence which he submitted in support of his previous application.  From that review, it was determined that, although his request was received within 1 year of the ABCMR's original decision, he did not provide new evidence and/or argument with this request.  As a result, this issue will not be discussed further in this Record of Proceedings.  The ABCMR will not consider any future requests for reconsideration of this matter.  However, the applicant has the option to seek relief in a court of appropriate jurisdiction.  

4.  Having had prior service as an infantry Soldier in the Regular Army (RA) from June 1985 through October 1988 and the Army National Guard from October 1988 through May 1991, the applicant enlisted in the RA on 3 May 1991.  He held military occupational specialty 18E (SF Communications Noncommissioned Officer).  

5.  He served through a 6-year reenlistment in a variety of stateside or overseas assignments, including assignment with the 1st Battalion, 1st SF Group (Airborne), Okinawa, Japan, and he attained the rank/grade of SSG/E-6 on 1 January 1995. 

6.  On 20 March 1998, he was diagnosed as having ocular myasthenia gravis by a U.S. Navy neurologist in Okinawa, Japan, and he was referred to Tripler Army Medical Center, Hawaii, for duty disposition.  His NARSUM shows:

	a.  He developed ptosis of the right eyelid in November 1997 and the left eyelid in February 1998.  Binocular diplopia had been occurring since November 1997.  Examinations by ophthalmologists and neurologists noted variable degrees of ptosis and disconjugateness of eye movement.  He denied difficulty with chewing, swallowing, phonation, breathing, neck control, or weakness of limbs.  However, he noticed his physical endurance for playing hockey had lessened over the past few months.  He felt he was a liability to his unit and its mission due to his diplopia.  

	b.  The attending physician diagnosed him with myasthenia gravis, currently purely ocular.  His functional status was limited by the diplopia.  He could not run, jump, drive a vehicle, or use a ladder.  His condition rendered him unfit for continued service.  Even if his manifestation remained purely ocular, his double vision could place him at risk for injury from activities required by military duty.  He was referred to the Army Physical Disability Evaluation System (PDES).

7.  On 14 May 1998, an MEB convened at Tripler Army Medical Center, Hawaii, and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed as having the medically-unacceptable condition of myasthenia gravis, currently purely ocular.  He was not diagnosed with any other medically unacceptable condition nor was any listed on his MEB.  The MEB recommended that he be referred to a PEB.  He was counseled and informed of the approved findings and recommendations and he agreed with the MEB's findings and recommendation and indicated he did not desire to continue on active duty.

8.  On 6 July 1998, an informal PEB convened at Fort Lewis, WA.  The PEB found the applicant's condition prevented him from performing the duties required of his grade and specialty and determined that he was physically unfit due to myasthenia gravis, currently purely ocular, manifested by disconjugateness of eye movement with reduced abduction of the left eye and reduced downward gaze of the right eye and intermittent ptosis.  

	a.  The PEB noted that the binocular diplopia had been present since November 1997 which is helped but not corrected with Mestinon.  There was no evidence of thymoma.  He was rated under the VA Schedule for Rating Disabilities (VASRD) code 8025 and granted a 30% disability rating.  

	b.  The PEB noted that his impairment was such that a permanent evaluation was not possible.  The PEB recommended that the applicant be placed on the TDRL with reexamination in July 1999. 

9.  On 6 August 1998, the applicant was counseled by a PEB Liaison Officer regarding his medical condition, the findings of the MEB, the PEB process, and his rights under the law.  Subsequent to this counseling, the applicant concurred with the PEB's finding and recommendation and waived his right to a formal hearing.

10.  He was honorably retired on 16 November 1998 and placed on the TDRL on 17 November 1998 by reason of temporary disability under the provisions of paragraph 4-24b(2) of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  The DD Form 214 he was issued shows he completed a total of 10 years, 10 months, and 14 days of active service.

11.  He underwent a medical examination in January 2000.  On examination, his visual acuity was 20/30 correctable to 20/20 in the right and left eye.  He was doing well on Mestinon, three times per day.  His final diagnosis was that of stable ocular myasthenia gravis, which continued to be disqualifying for active duty.  He was advised to establish medical care where he lived and to follow-up at least within a year.  

12.  He also underwent a medical examination in July 2001.  His NARSUM shows he had been diagnosed with myasthenia gravis in 1997.  His initial presentation included intermittent ptosis of the right eye and then he later had involvement of the left eye.  He had no ocular surgical history.  Currently, he had no ocular complaints or feelings of lethargy, tiredness, or shortness of the breath. His last episode of diplopia was in March 2001 but it was relieved with the Mestinon medication.  No afferent papillary defect was noted and his vision was 20/20 in both eyes with correction.  The diagnosis of ocular myasthenia gravis was well controlled by Mestinon and his condition continued to be disqualifying for active duty.

13.  On 15 August 2001, a TDRL PEB convened at Fort Sam Houston, TX.  Based on review of his TDRL examination, the PEB found the applicant remained unfit to reasonably perform the duties required by his grade and military specialty.  His condition - ocular myasthenia gravis, requiring intermittent Mestinon therapy - was considered sufficiently stable for final adjudication.  The PEB determined that he remained unfit, awarded him a 30% disability rating, and recommended permanent retirement.  

14.  On 22 August 2001, the applicant elected not to concur with the TDRL PEB's findings and recommendations and submitted a written appeal.  In his appeal he stated:  

* While on the TDRL prior to the first medical evaluation, the intermittent period of his ocular myasthenia gravis duration was between 3 and 
5 month intervals
* From the first to the second medical evaluations, the recurrent period was between 8 and 11 months
* The remission period had increased about 6 months which was markedly improved in his opinion
* He requested to remain on the TDRL until the next medical evaluation or the end of the allowable time

15.  On 23 August 2001, by memorandum, the PEB President notified the applicant that after careful consideration, the PEB found that no change to the original findings was warranted.  His rebuttal contained no objective medical information which would have warranted a change in the TDRL PEB's findings.  The neurologist who performed the TDRL evaluation on 10 August 2001 found the myasthenia gravis to be very stable.  Retention on the TDRL would have required the condition to be unstable.    

16.  On 24 September 2001, the U.S. Army Physical Disability Agency published Orders D186-1 removing him from the TDRL effective 24 September 2001 and permanently retiring him on 25 September 2001 by reason of permanent disability. 


17.  He submitted a VA rating decision, dated 15 September 2010, which shows he was awarded service-connected disability compensation for various conditions effective as indicated below:

* degenerative arthritis of lumbar spine, 40%, 28 May 2010
* myasthenia gravis with upper and lower extremity with ptosis right eye and diplopia, 30%, continued
* tinnitus, 10%, effective 28 May 2010

18.  Army Regulation 635-40 establishes the Army PDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It 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.  

19.  Army Regulation 635-40, paragraph 7-2, provides that an individual may be placed on the TDRL (for the maximum period of 5 years which is allowed by Title 10, U.S. Code, section 1210) when it is determined that the individual's physical disability is not stable and he or she may recover and be fit for duty or the individual's disability is not stable and the degree of severity may change within the next 5 years so as to change the disability rating.

20.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD.  Ratings can range from 0 percent to 100 percent, rising in increments of 10 percent.

21.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish an error or injustice in the Army rating.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  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 contends that his combined disability rating should be increased from 30% to 75% and that his back and knee injuries should be retroactively added to his PEB and be determined unfitting.

2.  The applicant sustained an eye condition and subsequently underwent an MEB which recommended he be considered by a PEB.  He agreed with this recommendation.  The PEB found his eye condition prevented him from performing his duties and determined that he was physically unfit for performance of military duty by reason of physical disability but his condition had not sufficiently stabilized at the time to permit an accurate assessment of a permanent degree of disability.  Therefore, the PEB recommended placing him on the TDRL by reason of temporary disability.  The applicant concurred.

3.  Upon reevaluation, a TDRL PEB determined the applicant’s medical condition continued to preclude him from reasonable fulfillment of the purpose of his employment in the Army and that he remained unfit and recommended permanent retirement.  The applicant did not concur and submitted a rebuttal.  

4.  After a careful review of the medical records and his rebuttal, the PEB adhered to its original conclusion that the applicant’s condition precluded him from reasonable fulfillment of the purpose of employment in the Army.  Again, the recommendation was permanent retirement.  

5.  Subsequent to retirement, the VA awarded him a 30% service-connected disability rating for his eye condition, the same rating the Army gave him.  It also awarded him a 40% disability rating for degenerative arthritis of lumbar spine and a 10% disability rating for tinnitus, effective 28 May 2010.  

6.  Nowhere in his medical records does it show he was diagnosed with an unacceptable medical condition related to his knees or back while he was in an active duty status.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation from active duty and can only be accomplished through the PDES. 




7.  An award of a different rating by another agency does not establish error in the rating assigned by the Army's PDES.  Operating under different laws and their own policies the VA does not have the authority or the responsibility for determining medical unfitness for military service.  The VA may award ratings because of a medical condition related to service (service-connected) and affects the individual's civilian employability.  For example, the VA awarded him a disability rating for tinnitus.  However, there is no evidence to show his hearing rendered him unable to perform his duties.

8.  By law and regulation, an individual may be placed on the TDRL for the maximum period of 5 years which is allowed when it is determined that the individual's physical disability is not stable and he or she may recover and be fit for duty or the individual's disability is not stable and the degree of severity may change within the next 5 years so as to change the disability rating. 

9.  In the applicant's case, he could not have stayed on the TDRL any longer because during his TDRL examination the neurologist found his eye condition had stabilized.  His eye condition was considered sufficiently stable for final adjudication.  The PEB determined that he remained unfit, awarded him a 30% disability rating, and recommended permanent retirement.  

10.  The PEB is tasked to assess the degree of disability at the time of discharge. The PEB did so and rated him at 30% for his eye condition.  There is no evidence that he should have been awarded a higher rating or he was unfit due to any other conditions.  

11.  The applicant's physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the recommendation of the PEB.  There does not appear to be an error or an injustice in his case.  He has not submitted substantiating evidence or an argument that would show an error or injustice occurred in his case.  In view of the circumstances in this case, he is not entitled to the requested relief.

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)                                         AR20110017300



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ABCMR Record of Proceedings (cont)                                         AR20110017300



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