IN THE CASE OF: 

		BOARD DATE:	    20 November 2012

		DOCKET NUMBER:  AR20120008149 


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 correction of his records to show he was permanently retired instead of being placed on the temporary disability retired list (TDRL).  

2.  The applicant states his condition was permanent, not temporary.  

3.  The applicant provides:

* Department of Veterans Affairs (VA) progress notes, discharge summaries, and other medical forms
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Letters of retirement and retired gross pay verification from the Defense Finance and Accounting Service (DFAS)
* Dependent travel orders
* DA Form 199-1 (Election to Formal Physical Evaluation Board (PEB) Proceedings)
* Pre-Hearing Statement - Formal PEB
* DA Form 199 (PEB Proceedings) (TDRL)
* Orders D037-08 (removal from TDRL)
* Chronological Record of Medical Care
* Orders 034-02 (transition and retirement orders)
* Medical Release/Physician's Statement




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 records show he enlisted in the Regular Army on 24 June 1998 and he held military occupational specialty (MOS) 92G (Cook).  He reenlisted on 7 August 2000.  He held the rank/grade of private first class (PFC)/E-3. 

3.  His narrative summary is not available for review with this case.  However, he provides a medical statement dated 25 July 2003 that shows he complained of diarrhea, unspecified ulcerative colitis, and inflammatory bowel disease.  It appears a medical examination determined his condition did not meet retention standards in accordance with chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness) and recommended him for entry into the physical disability evaluation system (PDES).

4.  On 1 November 2004, a medical evaluation board (MEB) convened 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 Crohn's Disease.  Crohn's disease is an inflammatory bowel disease; it causes inflammation of the digestive tract; it usually occurs in the small intestine (the ileum) and the large intestine (the colon), but it can happen anywhere in the digestive tract.  The MEB recommended he be referred to a PEB.  He agreed with the MEB's findings and recommendation and indicated that he did not desire to continue on active duty.

5.  On 5 November 2004, an informal PEB convened and found the applicant's condition prevented him from performing the duties required of his grade and military specialty and determined he was physically unfit due to Crohn's disease with symptoms since 1999 and diagnosed by colonoscopy in December 2001.

	a.  He had multiple exacerbations with some bouts progressing to severe anemia.  Symptoms of abdominal pain and frequent diarrhea prevented effective performance in his MOS and a physical profile limited physical conditioning.  The PEB rated him moderately severe with frequent exacerbation.  

	b.  He was rated under the VA Schedule for Rating Disabilities (VASRD), assigned codes 7399 and 7323, and granted a 30-percent (30%) disability rating. The PEB noted his impairments were such that a permanent evaluation was not yet possible.  The PEB recommended he be placed on the TDRL with reexamination in November 2005. 

	c.  Although not available for review, it appears the applicant did not concur with the PEB's finding and recommendation and demanded a formal hearing.

6.  On 12 January 2005, a formal PEB convened and found his condition prevented him from performing the duties required of his grade and military specialty and determined he was physically unfit due to Crohn's disease diagnosed by colonoscopy.

	a.  He had multiple exacerbations with some bouts progressing to severe anemia.  Symptoms of abdominal pain and frequent diarrhea prevented effective performance in his MOS and a physical profile limited physical conditioning.  The PEB rated him moderately severe with frequent exacerbation.  

	b.  He was rated under the VASRD, assigned codes 7399 and 7323, and granted a 30% disability rating.  The PEB noted his impairments were such that a permanent evaluation was not yet possible.  The PEB recommended he be placed on the TDRL with reexamination in November 2005.

7.  On 24 January 2005, he elected not to concur with the formal PEB's findings and recommendation and submitted a statement wherein he stated:

* The PEB should consider his disease permanent
* The physical, mental, and emotional stress were very hard to deal with
* Most of the time he had to deal with weight loss, up to 30 pounds or more
* He frequently goes to the hospital for weeks at a time; he was told by his doctors he would have this disease for the rest of his life
* When he had attacks, they caused his body not to function for long periods of time
* He had a family to support and he had taken all kinds of medication to control the disease but that did not help

8.  On 27 January 2005, an official at the U.S. Army Physical Evaluation Agency (USAPDA) reviewed his rebuttal statement but did not overturn the previous decision.  Accordingly, a USAPDA official approved the formal PEB's findings and recommendation on behalf of the Secretary of the Army. 

9.  He was honorably retired on 29 April 2005 under the provisions of paragraph 4-24B(2) of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of temporary disability.  The DD Form 214 he was issued shows he completed 6 years, 10 months, and 6 days of active service.  

10.  On 3 August 2008, an informal TDRL PEB convened at Fort Sam Houston, TX.  The PEB stated the applicant's current subjective and objective findings were consistent with Crohn's disease controlled with medications.  The TDRL PEB noted that:

	a.  His abnormal pain was reportedly constant on a scale of 1 to 10 but his examination did not support this with objective findings (normal vital signs).  He had 3 to 4 stools a day.  His imaging studies and colonoscopy with biopsies did not diagnose Crohn's but supported healed disease.

	b.  His orthopaedic complaints were not consistent with manifestations of Crohn's.  He was rated as moderate, with infrequent exacerbations even though the gastroenterologist felt this met retention standards.  The need to frequent the bathroom 3 to 4 times per day was not compatible with service as a 92G  

	c.  Based on review of the TDRL examination, the TDRL PEB found that the applicant remained unfit to reasonable perform the duties required by his previous grade and military specialty.  His condition, however, was considered sufficiently stable for final adjudication.  

	d.  He was rated under the VASRD, assigned codes 7399 and 7323, and granted a 10% disability rating.  The TDRL PEB recommended he be separated with entitlement to severance pay, if otherwise qualified.

11.  The applicant was informed of the TDRL PEB's findings and recommendations.  He appears to have elected not to concur and demanded a formal hearing and appointment of counsel to represent him.

12.  On 3 December 2008, a formal TDRL PEB convened and stated the applicant's current subjective and objective findings were consistent with Crohn's controlled with medications.  During formal proceedings, the PEB reevaluated all available medical records and sworn testimony by the applicant.  The TDRL PEB noted that:

	a.  His abnormal pain was reportedly constant on a scale of 1 to 10 but his examination did not support this with objective findings (normal vital signs).  He had 3 to 4 stools a day.  His imaging studies and colonoscopy with biopsies did not diagnose Crohn's but supported healed disease.

	b.  His orthopaedic complaints were not consistent with manifestations of Crohn's.  He was rated as moderate, with infrequent exacerbations even though the gastroenterologist felt this met retention standards.  The need to or frequent the bathroom 3 to 4 times per day was not compatible with service as a 92G  

	c.  The TDRL PEB also addressed the applicant's counsel's contentions and stated:

		(1)  Despite the applicant's testimony, the evidence of record, including exhibits presented at his formal hearing, does not support frequent exacerbations.  The applicant's emergency room visits were in August 2006, September 2007, and May 2008.  His hematocrit was 41.8 in February 2008 at the VA and 40.6 in July 2008 at the TDRL evaluation. 

		(2)  His November 2007 colonoscopy showed no colitis or inflammation, only a small superficial ulcer in the terminal ileum.  He had an upper gastrointestinal series which showed possible duodenitis (unrelated to Crohn's disease).  

		(3)  His weight at discharge from the service was 145 pounds.  In his VA records, his weight is shown consistently in the 168 pound range, most recently in October 2008.  His two emergency room visits in the past year constituted infrequent exacerbations (his March 2006 urgent care visit was for a head injury, not a Crohn's exacerbation). 

	d.  Based on review of the TDRL examination, the TDRL PEB found that the applicant remained unfit to reasonably perform the duties required by his previous grade and military specialty.  His condition, however, was considered sufficiently stable for final adjudication.  He was rated under the VASRD, assigned codes 7399 and 7323, and granted a 10% disability rating.  The TDRL PEB recommended he be separated with entitlement to severance pay, if otherwise qualified.

13.  On 2 February 2009, a USAPDA official approved the formal TDRL PEB's findings and recommendation on behalf of the Secretary of the Army.
14.  On 6 February 2009, the USAPDA published Order D037-08 removing him from the TDRL effective 6 February 2009 and discharging him with entitlement to severance pay, with a 10% rating.

15.  He submits:

	a.  VA progress note, dated 14 March 2012, with the sentence "with history of severe Crohn's disease here today to begin loading with Infliximab" highlighted in yellow.  

	b.  Multiple correspondence from DFAS confirming he was in receipt of retired pay (while he was on the TDRL) and the amount of retired pay he was receiving.

	c.  An official order, dated 14 February 2002, authorizing his dependent to travel to Camp Zama, Japan, for medical treatment. 

	d.  Several other VA progress notes also referring to his Crohn's disease and the medication he was taking.

16.  Army Regulation 635-40 establishes the 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 or her office, grade, rank, or rating.  

17.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30%.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30%.

18.  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.

19.  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.  As a result, these two government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  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 sustained a disease, Crohn's disease.  He appears to have undergone several medical examinations and/or was seen by various medical specialists and recommended for entry into the PDES.  He underwent an MEB which recommended that he be considered by a PEB.  The informal PEB found his condition prevented him from performing his military duties and determined he was physically unfit for further military service.  The PEB recommended placing him on the TDRL.  He did not agree.  

2.  The PEB noted that he had multiple exacerbations with some bouts progressing to severe anemia.  Symptoms of abdominal pain and frequent diarrhea prevented effective performance in his MOS and a physical profile limited physical conditioning.  The PEB rated him moderately severe with frequent exacerbation.  He was rated under the VASRD and granted a 30% disability rating.  The PEB noted his impairments were such that a permanent evaluation was not yet possible.  Because his condition was not sufficiently stable for final adjudication, the PEB recommended he be placed on the TDRL with reexamination in November 2005. 

3.  When a formal TDRL PEB ultimately convened, it determined the subjective and objective findings were consistent with Crohn's controlled with medications.  It reevaluated all available medical records and sworn testimony by the applicant and noted that: 

	a.  His abnormal pain was reportedly constant on a scale of 1 to 10 but his examination did not support this with objective findings (normal vital signs).  He had 3 to 4 stools a day.  His imaging studies and colonoscopy with biopsies did not diagnose Crohn's but supported healed disease.

	b.  His orthopaedic complaints were not consistent with manifestations of Crohn's.  He was rated as moderate, with infrequent exacerbations even though the gastroenterologist felt this met retention standards.  The need to frequent the bathroom 3 to 4 times per day was not compatible with service as a 92G  

	c.  The TDRL PEB also addressed the applicant's counsel's contentions and stated:

		(1)  Despite the applicant's testimony, the evidence of record, including exhibits presented at his formal hearing, does not support frequent exacerbations.  The applicant's emergency room visits were in August 2006, September 2007, and May 2008.  His hematocrit was 41.8 in February 2008 at the VA and 40.6 in July 2008 at the TDRL evaluation. 

		(2)  His November 2007 colonoscopy showed no colitis or inflammation, only a small superficial ulcer in the terminal ileum.  He had an upper gastrointestinal series which showed possible duodenitis (unrelated to Crohn's disease).  

		(3)  His weight at discharge from the service was 145 pounds.  In his VA records, his weight is shown consistently in the 168 pound range, most recently in October 2008.  His two emergency room visits in the past year constituted infrequent exacerbations (his March 2006 urgent care visit was for a head injury, not a Crohn's exacerbation). 

	d.  Based on review of the TDRL examination, the TDRL PEB found that the applicant remained unfit to reasonably perform the duties required by his previous grade and military specialty.  His condition, however, was considered sufficiently stable for final adjudication.  He was rated under the VASRD, assigned codes 7399 and 7323, and granted a 10% disability rating.  The TDRL PEB recommended he be separated with entitlement to severance pay, if otherwise qualified.

4.  He provides some VA medical records that show he was seen and/or evaluated for Crohn's disease in 2012.  However, he does not provide any evidence to overturn the decisions reached by the original informal and formal PEBs or the TDRL informal and formal PEB's.  

5.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES.  The applicant was properly rated for his condition at the time.  There is no evidence to support a different rating.

6.  The applicant's physical disability evaluation was conducted in accordance with law and regulations.  There is no error or injustice in this case.  Therefore, in view of the foregoing evidence, 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)                                         AR20120008149



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ABCMR Record of Proceedings (cont)                                         AR20120008149



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