BOARD DATE: 29 January 2013
DOCKET NUMBER: AR20120010236
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 her military records to show she was retired due to physical disability.
2. The applicant states she has undergone multiple surgeries and has ongoing service-connected medical issues. She was separated due to disability rated at 10 percent and received severance pay. She is now rated by the Department of the Veterans Affairs (VA) at 100 percent permanently disabled. She is faced with medical complications brought on by her medical history while serving on active duty. Each year she is faced with the challenges of trying to live a normal life. Her disability takes her out of work for several weeks or months at a time. She contends that she served her country well and would really appreciate the Board granting her a medical retirement.
3. The applicant provides copies of:
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Photocopy of her service medical records
* Letter from the VA, undated
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. On 6 July 1983, the applicant enlisted in the Regular Army. She completed her initial training and was awarded military occupational specialty 94B (Food Service Specialist).
3. On 22 January 1992, a formal physical evaluation board (PEB) convened to consider the applicant's medical conditions. The PEB found the applicant unfit due to chronic abdominal pain following multiple abdominal procedures including hysterectomy and bilateral salpingo-oophorectomy. Her medical condition was rated at 10 percent disabling and considered to be permanent in accordance with VA Schedule for Rating Disabilities (VSARD) code 7301. The PEB recommended that the applicant be separated with severance pay, if otherwise qualified.
4. On 10 March 1992, the applicant was discharged due to physical disability, with severance pay. She had attained the rank of sergeant, pay grade E-5, and she had completed a total of 9 years and 15 days of creditable active service.
5. The undated VA letter provided by the applicant states she had severe atonic bowel which required reconstructive surgery with rerouting of her intestines in July 2011 and in June 2012. She also had gallbladder surgery in September 2012. She has ongoing, severe, cramping, abdominal pain associated with chronic intractable diarrhea and incontinence with bowel movements every 5 to 15 minutes after eating or drinking. This has not improved and will lead to medical complications including malabsorption and malnutrition and its associated medical complications. Her declining health, weight loss, ongoing diarrhea with pain makes realistic ongoing successful employment impossible. Her chronic back pain has been exacerbated by frequent trips to the bathroom. The pain medication required for pain control would impair her mental capabilities. Based on this information, the author feels that the applicant is totally and permanently disabled and no realistic accommodation modifications of the work site could allow her to perform satisfactory duties.
6. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has an impairment rated at less than
30-percent disabling. It further provides at section 1201 for the physical disability retirement of a member who has an impairment rated at least 30-percent disabling.
7. Title 38, U.S. Code, sections 310 and 331, permit 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. 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.
8. Title 38, U.S. Code, section 4.114 (Schedule of Ratings) states that VASRD code 7301for adhesions of the peritoneum with moderate pulling pain on attempting to work or aggravated by movements of the body, or occasional episodes of colic pain, nausea, constipation alternating with diarrhea or abdominal distension, is rated at 10 percent disabling.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends her military records should be corrected to show she was retired due to physical disability because she has undergone multiple surgeries and has ongoing service connected medical issues.
2. The available evidence shows the applicant was evaluated by a PEB while on active duty and found unfit for duty due to a medical condition rated at 10 percent disabling. She was subsequently discharged with severance pay.
3. The VA letter provided by the applicant clearly indicates that her medical condition has worsened over the years. Her medical condition is such that she is now unable to work.
4. An award of a VA rating does not establish entitlement to medical retirement or separation from the Army. Operating under its own policies and regulations, the VA has neither the authority nor the responsibility for determining medical unfitness for military duty, awards ratings because a medical condition is related to service (service connected) and affects the individual's civilian employability and/or social functioning. Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.
5. In view of the above, the applicant's request should be denied.
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) AR20120010236
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20120010236
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
AF | PDBR | CY2009 | PD2009-00293
The informal PEB (IPEB) adjudicated the mood disorder (major depression, without psychotic features) due to multiple medical conditions as the single unfitting condition, rated 10%; with application of the SECNAVINST 1850.4E and DoDI 1332.39. The Veterans’ Affairs (VA), however, can rate and compensate all service connected conditions without regard to their impact on performance of military duties, including conditions developing after separation that are direct complications of a service...
AF | PDBR | CY2012 | PD2012-00634
The PEB adjudicated the chronic abdominal and pelvic pain secondary to endometriosis as unfitting, rated 10%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). (2) is limited to those conditions which were determined by the PEB to be specifically unfitting for continued military service; or, when requested by the CI, those condition(s) “identified but not determined to be unfitting by the PEB.” The ratings for unfitting conditions will be reviewed in all...
AF | PDBR | CY2014 | PD-2014-01545
A 10% rating requires the symptoms to be “mild” and a higher rating of 30%, requires the condition to be “severe”.The Board unanimously agreed that well-established medical principles documents that the upper abdominal pain with diarrhea and episodic elevation of liver enzymes is a known consequence of cholecystectomy and that this may occur acutely or at distant interval after surgery unrelated to known stimuli.The Board unanimously agreed that, based on acceptable medical practice, the...
AF | PDBR | CY2012 | PD-2012-00461
The MEB forwarded no other conditions for Physical Evaluation Board (PEB) adjudication. The PEB adjudicated the Crohn’s disease as unfitting, rated 10%, with application of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD). Crohn’s Disease.
AF | PDBR | CY2012 | PD2012-01029
After due deliberation, considering all of the evidence and mindful of VASRD §4.7 (higher of two evaluations), the Board recommends a disability rating of 10% for the IBS with chronic abdominal pain and diarrhea condition. Any abdominal disability from this condition was appropriately considered as a comprehensive abdominal condition under the CI’s unfitting 7319 abdominal condition discussed above. After due deliberation in consideration of the preponderance of the evidence, the Board...
AF | PDBR | CY2012 | PD2012-00495
The Board also considered the residual effects of gastroesophageal surgery claimed as memory loss and any mental condition for which the VA assigned a 10% rating based on an evaluation in 2011, and which the CI contends warrants additional disability rating. In the matter of the residual effects of gastroesophageal surgery claimed as memory loss and any mental condition, the Board unanimously agrees that it cannot recommend a finding of unfit for additional rating at separation. Service...
AF | PDBR | CY2014 | PD-2014-00387
The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of theVASRDstandards to the unfitting medical condition at the time of separation. She reported GI symptoms 8 months out of the year. XXXXXXXXXXXXXXXPresidentDoD Physical Disability Board of Review
AF | PDBR | CY2012 | PD 2012 01293
She was then medically separated with a 10% disability rating. Prior to Separation) Effective 19990304 Condition Code Rating Condition Code Rating Exam 20030429 TDRL Sep. Ileocolonic Crohns Disease w/ DJD 7399-7323 30% 10% Crohns Disease s/p ileocolonic resection 7323 30% 19990106 Inflammatory Arthritis Secondary to Crohns 5009-5002 20%* 19990106 and 20050301 .No Additional MEB/PEB Entries. The VA GI exam, approximately 9 months prior to separation, noted that the CIs...
AF | PDBR | CY2013 | PD-2013-01789
The MEB examiner described the CI’s current functional status as “required to miss fairly frequent work duties due to the migraine headaches.”The MEB examiner provided a pain rating of slight/intermittent.The commander’s statement noted that “at various times” the CI had to “leave work due to migraines or abdominal pains that incapacitates her to work.”The VA C&P exam on 25 February 2005, performed 2 monthsafter separation, did not address the migraine condition, but listed 12 conditions...
AF | PDBR | CY2012 | PD2012 01047
The IPEBadjudicated the abdominal conditionas unfitting, rated 10%, referencing the Department of Defense Instruction (DoDI) 1332.39 and the Veterans Affairs Schedule for Rating Disabilities (VASRD).The remaining condition was determined to be Category II, conditions that can be unfitting, but are not currently compensable or ratable.The CI appealed to the Formal PEB (FPEB), which affirmed the IPEB findings and rating, and the CI was medically separatedwith a 10% disability rating. ...