BOARD DATE:	  7 August 2012

		DOCKET NUMBER:  AR20120001448 


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 consideration by a Medical Evaluation Board (MEB) and/or Physical Evaluation Board (PEB) for an increase of his disability rating.

2.  The applicant states:

	a.  He requests a review of his diabetes mellitus type II insulin dependent disability.  He believes it should have been considered in his previous PEB for minimum of a 10 percent (%) disability rating.  He has contacted the Physical Disability Board of Review (PDBR) and they advised him to apply to this Board.

	b.  He had a diagnosis and this disability was not considered.  He was injecting himself with needles every day.  The PDBR reviewed his knees only.  They could not legally review his diabetes condition as they did not have the authority to render a decision on that issue.

	c.  In addition, by signing the DD Form 294 (Application for a Review by the PDBR of the Rating Awarded Accompanying a Medical Separation from the Armed Forces of the United States) he agrees that he gave up his right under Title 10, U.S. Code, section 1552 to petition the Army Board for Correction of Military Review (ABCMR) for issues previously reviewed by the PDBR.  

	d.  However, it does not say that by signing the form, he waived his right to petition the ABCMR for issues NOT previously reviewed by the PDBR.  This is 

what he is doing.  He is running out of options here.  He thinks the Board is wrong.  He is requesting multiple reviews even with a supervisor or ombudsman. He had contacted a member of congress because now he has no other options.

3.  The applicant provides:

* DA Form 3349 (Physical Profile)
* Standard Form (SF) 600 (Health Record - Chronological Record of Medical Care) (11 pages)
* MEB and PEB
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Department of Veterans Affairs (VA) Rating Decision
* PDBR Record of Proceedings with enclosures
* Army Review Boards Agency (ARBA) denial letter and DD Form 149 (Application for Correction of Military Record)
* Response to first denial with filing with both the PDBR and BCMR/BCNR (Board of Correction of Military Records/Board for Correction of Naval Records) information paper
* Second ARBA denied letter
* Email correspondence from the PDBR

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 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 North Carolina Army National Guard (NCARNG) on 29 June 1999.  He completed training and he was awarded military occupational specialty (MOS) 91B (Medical Specialist).  He was honorably discharged from the NCARNG on 30 August 2000.

3.  He enlisted in the Regular Army on 31 August 2000.  He completed training and he was awarded military occupational specialty 68W (Health Care Specialist).

4.  An MEB narrative summary, dated 21 December 2007, noted the applicant's primary care manager initiated an MEB.  The summary noted the applicant stated he initially noticed bilateral knee pain in approximately February 2003 when he was getting ready for Warrior Leader Training.  He was eventually seen by Orthopedics and diagnosed with patellofemoral syndrome and given a profile with no running.  He was eventually given a P3 physical profile.  The summary also noted his past medical history of migraine headaches, Gastroesophageal reflux disease (GERD), and exercised-induced asthma.

5.  On 24 January 2008, an MEB convened and considered the applicant's conditions, under the provisions of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, of bilateral knee tendonitis (medically unacceptable) and migraines (medically acceptable).  The MEB recommended the applicant's referral to a PEB.  The findings and recommendation of the MEB were approved on 9 February 2008.  There is no indication he agreed with the findings and recommendation of the MEB.

6.  The MEB cited his past medical history of migraine headaches as per Neurology, bilateral patellofemoral syndrome, GERD (meets retention standards), and exercised-induced asthma (meets retention standards).

7.  On 8 February 2008, an informal PEB convened and considered the applicant's condition of bilateral patellofemoral pain syndrome.  The PEB found his conditions of migraines, GERD, and exercise induced asthma were not unfitting and not rated.  The PEB determined the applicant was unfit for military duty in his rank and MOS by virtue of his condition.  The PEB found the applicant unfit for bilateral patellofemoral pain syndrome, rated at 20%, and recommended separation with severance pay.

8.  On 3 March 2008, he concurred with the findings and recommendation of the PEB and waived his right to a formal hearing.

9.  He provides copies of 11 SFs 600, dated between 21 and 24 March 2008, that indicate his diagnosis of diabetes mellitus and use of injectable insulin to control his blood sugar.   They show he was seen at a clinic for a diabetic check. His fasting glucose was found to be out of the normal range and he was started on insulin.  Between 21 and 24 March 2008, he was seen in the diabetic clinic for teaching and management and he had his insulin adjusted a couple of times.

10.  On 21 March 2008, he was given a permanent physical profile with a PULHES profile of 311111 for diabetes mellitus.  The profile did not indicate he did not meet retention standards and needed an MEB/PEB or that he could not perform the duties of his MOS.  

11.  On 17 June 2008, he was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), for disability, with severance pay, in pay grade E-5.  He completed 7 years, 9 months, and 17 days of net active service this period.  His DD Form 214 contains the entry, "EXTENSION OF SERVICE WAS AT THE REQUEST AND FOR THE CONVENIENCE OF THE GOVERNMENT."

12.  He provides a copy of his VA Rating Decision that shows on 30 June 2008, he was granted service-connected disability for:

* asthma, 30%
* lumbosacral strain, 20%
* diabetes mellitus, 20%
* reflux disease, 10%
* migraine headaches, 10%
* Patellofemoral syndrome of the both knees, 10% for each knee
* Pseudofollicuitis barbae, 10%
* Purging bulimia nervosa, 10%
* Rhinitis, 0%
* Sinusitis, 0%

13.  The VA denied service-connection for lenticular astigmatism, sleep disturbances, deviated septum, and bilateral pes planus.  The VA noted the applicant contended his diabetes began in service.  Service treatment records indicated a treatment with injectable insulin for diabetes was diagnosed in March 2008.  The VA examination, dated 25 March 2008, noted a diagnosis of diabetes and continued use of insulin to control blood sugar.

14.  On 1 March 2011, a PDBR convened and considered the applicant's unfitting and non-unfitting medical conditions to include diabetes.  The PDBR found:

	a.  The newly-diagnosed diabetes mellitus, temporarily on insulin, and deviated septum were noted in the VA rating decision prior to separation but were not documented in the Disability Evaluation System (DES) file.  In fact, the fasting blood sugar done for the MEB was normal.  There was one episode in the service treatment record of polydipsia and polyuria 2 1/2 years before separation, 

but the blood glucose was normal and no diagnosis of diabetes mellitus was made.

	b.  The PDBR did not have the authority under Department of Defense (DOD) Instruction 6040-44 (Lead DoD Component for the PDBR) to render fitness or rating recommendations for any conditions not considered by the DES.  The board, therefore, has no reasonable basis for recommending any additional unfitting condition for a separation rating.

15.  On 24 March 2011, the PDBR advised the applicant that his application was denied.  He was also advised that his recourse within the DOD was exhausted; however, he had the option to seek relief by filing suit in a court of appropriate jurisdiction.

16.  On 27 June 2011, ARBA advised the applicant that based on his application to the PDBR he had closed his avenue to apply to the ABCMR for the same issues.  In an undated letter, the applicant replied:

	a.  When he applied to the PDBR, the website stated that they would only review the issues which were found unfitting to see if he was entitled to a higher evaluation.  The PDBR denied those issues.

	b.  The website stated that he could not ask the ABCMR to review that same issue; however, he could have his other issues reviewed.  When he filed with the ABCMR, he mainly was requesting a review of his diagnosis of diabetes mellitus (insulin dependent).  He was pushed out of the Army so they would not review it. He believes he should have been rated for that condition as well.

	c.  He was requesting a review by the ABCMR for his service-connected diabetes mellitus.  He believed at minimum he should have received a 10% evaluation.  He believed his request was not being thoroughly reviewed by the appropriate people, but being construed as an easy denial letter.

17.  On 18 October 2011, ARBA advised the applicant that by signing the DD Form 294 he waived his right under Title 10, U.S. Code, section 1552, to petition the ABCMR for issues previously reviewed by the PDBR.  His next option for relief would be in a federal court of appropriate jurisdiction.

18.  He also provides an information paper pertaining to filing with both the PDBR and BCMR/BCNR.

19.  Email correspondence from the PDBR to the applicant and his VA Service Representative, dated 15 November 2011, state that after review of the applicant's case, his diabetes mellitus remained eligible for the BCMR's consideration because the PDBR did not adjudicate that medical condition.  It was recommended he submit an appeal to the BCMR.

20.  On 30 July 2012, the U.S. Army Physical Disability Agency verified there was no evidence the applicant waived further disability processing in order to expedite his discharge.

21.  Army Regulation 635-40, paragraph 4-24b(4), provides for the separation of a Soldier for physical disability without severance pay based upon the final decision of the U.S. Army Physical Disability Agency or the Army Physical Disability Appeal Board.

22.  Army Regulation 635-40 also specifies PEBs are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish the eligibility of a Soldier to be separated or retired because of physical disability.

23.  Army Regulation 40-501, chapter 3, provides that for the separation of an individual found to be unfit by reason of physical disability, he/she must be unable to perform the duties of his office, grade, rank or rating.  Members with conditions, as listed in this chapter, are considered medically unfit for retention on active duty and are referred for disability processing.  

24.  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 error or injustice in the Army rating.  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 VA, which has neither the authority, nor the responsibility for determining physical fitness for the 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.  


DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that on 8 February 2008 an informal PEB found the applicant medically unfit for bilateral patellofemoral pain syndrome, rated at 20%. The PEB recommended his separation with severance pay.  He concurred with the PEB on 3 March 2008.  After his PEB on 21 March 2008, he was diagnosed with diabetes mellitus.  The available evidences do not show he was known to have diabetes at the time of his January 2008 MEB or February 2008 PEB.  

2.  With the exception of the SFs 600 he provides, his medical records, including VA records, are not available for review.  The SFs 600 show he was seen at a clinic for a diabetic check.  His fasting glucose was found to be out of the normal range and he was appropriately started on insulin.  Between 21 and 24 March 2008, he was seen in the diabetic clinic for teaching and management and he had his insulin adjusted a couple of times.  There is no available evidence of when he was first seen for glucose management.

3.  His contentions have been noted and found to be without merit.  It seems unlikely the PEB knew anything about his diabetes as the condition that required insulin or an oral pill for control necessitates a referral to an MEB.  Although each decision is individualized according to MOS and other considerations, it can be noted that most people who are insulin dependent are found by a PEB to be unfit and the vast majority who are managed adequately with a pill are found to be fit.  

4.  He was seen in the diabetic clinic and the available evidence shows he received 3-4 days of treatment. It is reasonable to believe that his diabetes was eventually controlled with oral medication.  His DA Form 3349 does not show that he could not perform the duties of his MOS.

5.  A new diagnosis of a potential unfitting condition that is discovered after the PEB would require additional time to stabilize the Soldier on a treatment regimen in order to make a disability determination.  The applicant was under the care of individuals who knew the regulations concerning diabetes and he was not discharged for almost 4 months after his PEB.  It is unclear why he was not expeditiously discharged after his PEB.  The DD Form 214 he was issued at the time indicates he was extended at the request and for the good of the Government.

6.  The PDBR stated that his glucose was normal at the time of his MEB.  The PDRB also stated he was on insulin temporarily.  Without evidence, such as 

complete medical records (Army and VA), there is no evidence to show he was on insulin up to the day of his discharge.  There is also no evidence he waived further disability processing in order to expedite his discharge.  Further, there is no evidence to show that he could not perform his duties as a result of being a diabetic.

7.  An informal PEB adjudicated his unfitting condition, rated at 20%; he concurred and made no appeals; and he was medically separated on 17 June 2008.  There is neither an error nor an injustice as his disability processing appears to have been conducted in accordance with laws and regulations in effect at the time. 

8.  He has failed to show through the evidence submitted and there is also an absence of medical documentation to support his statement that his diabetes mellitus should have been considered and rated by a PEB.  There appears to be no evidence of an error or injustice in his physical evaluation process for his medical conditions, in the PEB's findings, or the disposition of his case.  There is also no evidence he was precluded from offering any relevant material evidence in his case.

10.  The VA rating decision provided by the applicant with his application was also carefully considered.  However, the award of a VA rating does not establish entitlement to an Army disability rating or medical discharge and/or medical retirement.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected. In this case, the applicant was properly evaluated and is being compensated for his service-connected medical conditions by the VA.

11.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20120001448



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ABCMR Record of Proceedings (cont)                                         AR20120001448



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