MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            17 June 1999  
	DOCKET NUMBER:    AR1999023177

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Ms. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater 		Chairperson	
	Mr. Thomas A. Pagan		Member	
	Mr. Ernest W. Lutz, Jr.		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, that his military records be corrected to reflect a higher percentage of disability to qualify him for a physical disability retirement.

APPLICANT STATES:  In effect, that he is still suffering with cervical osteoarthritis difficulties in his neck, back and hip bones.  He contends that these difficulties were originally noted in September 1993 by the Rheumatology Department at the National Naval Medical Center (NNMC).  However, he states that they were not addressed properly as a disability and are symptoms of Crohn’s disease which he also feels was not addressed properly.  He goes on to state that his treating physician at NNMC, stated that studies have not shown how Crohn’s disease originates, but that it is an incurable disease and he highly recommended that a soldier of 16 ½ years with an incurable disease be medically retired with benefits for future treatments and or hospitalization.  He contends that his civilian physician states that he will need clinical tests for the remainder of his life to rule out cancer (that could result from having Crohn’s disease).  When he was first diagnosed with Crohn’s disease, he was placed on the Temporary Disability Retired List (TDRL) for approximately 2 years and received 30% disability and benefits.  On his last several visits to NNMC it was noted that the disease had spread to both his small and large intestines, although this was documented in his records, his disability rate was decreased to 10%.  He also contends that during his earlier visits to NNMC he informed the Rheumatology Department that he was suffering with pains and spasms in his neck which he thought stimulated from a mass of tissue that was located on the back of his neck.  He claims he received numerous x-rays and was told that it was nothing to be concerned about and to continue to treat it by massaging the affected area.  In 1996, it was diagnosed as a tumor and removed.  He believes that this issue should have been taken care of when he originally brought it to the physician’s attention at NNMC.  Once again, he feels like this too was overlooked.  He states that when he entered the Army in 1975 he did not have any physical handicaps and that all the medical difficulties he suffers with now originated while he was serving in the United States military.  After extensive research and discussion with the proper authorities, he realizes that he should be recommended and entitled to full benefits from the United States military.             

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant enlisted on 25 June 1975 and remained on active duty through continuous reenlistments. 

On 19 December 1990 the applicant was diagnosed by a medical evaluation board (MEB) with Crohn’s ileocolitis, sacriliitis, chronic posterior urethritis and cervical osteoarthritis.  The MEB recommended referral to a physical evaluation board (PEB).  The MEB also recommended that the Orthopedics Department prepare an addendum to the MEB upon completion of their evaluation of the applicant’s cervical osteoarthritis.  The Orthopedic Addendum, dated 11 January 1991, diagnosed the applicant with degenerative disk disease, C-Spine at C4-C5; and postural neck pain.

On 7 February, 1991 a PEB found the applicant physically unfit due to Crohn’s ileocolitis and sacroiliitis, VA Schedule for Rating Disabilities (VASRD) Codes 7326 and 7323.  The PEB recommended a combined rating of 30 percent and  that the applicant be placed on the TDRL.  The other diagnoses were found not ratable.  On 19 February 1991, the applicant concurred with the findings and waived a formal hearing.  

The applicant appeared for a periodic physical examination on 2 June 1992.  A PEB was held on 14 August 1992 and the applicant was continued on the TDRL. Crohn’s ileocolitis was the rated TDRL diagnosis.   

The applicant appeared for a periodic physical examination on 11 May 1993.  On 17 August 1993 a PEB found the applicant physically unfit due to Crohn’s ileocolitis, VASRD codes 7326 and 7323.  The PEB recommended a combined rating of 10 percent and separation with severance pay.  The PEB stated “The present PEB rating of 10% more accurately reflects the current degree of severity of your condition.  The PEB considers your condition to have improved so as to be ratable at less than 30%.”  The applicant did not concur with the board’s decision and demanded a formal hearing with personal appearance on 
23 August 1993.  On 16 September 1993, the applicant withdrew his request for a formal hearing.  He was removed from the TDRL effective 28 September 1993.

In the processing of this case, a staff advisory opinion (COPY ATTACHED) was obtained from the Department of the Army Review Boards Agency Medical Advisor.  In his opinion, after careful review of all available medical records and pertinent regulations, to include the VASRD, the findings of the PEB of 17 August 1993 are correct.  The medical advisor contends that the applicant has not submitted any new evidence to substantiate his claim and he can find no medical evidence that would change the applicant’s discharge status.

In the processing of this case, a staff advisory opinion (COPY ATTACHED) was obtained from the Department of the U.S. Army Physical Disability Agency (USAPDA).  The opinion points out that the applicant’s second TDRL examination on 11 May 1993 summarized his condition as follows:  “He has frequently, nearly daily, right lower quadrant abdominal cramping discomfort which he is able to tolerate fairly well.  He has missed some work in the last six months, but in general, he is able to function very well at his current job.  The patient is limited in that he has some trouble with continuous physical exertion because of his right hip pain.”   The USAPDA states that the record does not support any basis for a higher disability rating, that the criteria for a 30 percent rating under the VASRD is “[m]oderately severe; with frequent exacerbations.”, and that the applicant’s condition does not fit such criteria in light of his most recent examination.  The USAPDA states that there is no merit to the applicant’s request that he receive a disability rating for problems with his neck.  The applicant’s neck problems were never rated in the first place as unfitting and he has presented no evidence that his condition was ever unfitting.  In conclusion, the USAPDA points out that the applicant’s 10% rating for Crohn’s Ileocolitis is supported by the record, that no rating for the applicant’s cervical osteoarthritis is warranted and that the record reflects no error or injustice.  

On 3 March 1999 the advisory opinions were furnished to the applicant for his review and possible rebuttal (30 day suspense from date of letter).  The applicant requested a 10-day extension for submission of his rebuttal on 1 April 1999.  The applicant requested an additional 15-day extension on 13 April 1999.  However, as of 16 June 1999 there has been no rebuttal submitted to the Board.  

Title 10, United States Code, 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.

Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.

Army Regulation 635-40, Physical Evaluation for Retention, Retirement, or Separation, Appendix B, paragraph B-71, diseases of the digestive system refers to the VASRD.  The VASRD code 7326 is enterocolitis, chronic and shows “Rate as for irritable colon syndrome.”  The VASRD code 7319 is irritable colon syndrome (spastic colitis, mucous colitis, etc.) and shows ratings from 0 percent to 30 percent.  The rating of 0 percent shows “Mild, disturbances of bowel function with occasional episodes of abdominal distress”; 10 percent shows “Moderate; frequent episodes of bowel disturbance with abdominal distress”;
30 percent shows “Severe; diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress”.  The VASRD code 7323 is colitis, ulcerative and shows ratings from 10 percent to 100 percent.  The rating of 
10 percent shows “Moderate; with infrequent exacerbations”; 30 percent shows “Moderately severe; with frequent exacerbations”; 60 percent shows “Severe; with numerous attacks a year and malnutrition, the health only fair during remissions”; 100 percent shows “Pronounced; resulting in marked malnutrition, anemia, and general debility, or with serious complication as liver abscess”.  

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  The Board noted the applicant’s contention that he is still suffering with cervical osteoarthritis difficulties in his neck, back and hip bones and that this condition was not addressed properly as a disability.  The evidence of record shows the applicant was diagnosed with cervical osteoarthritis by the MEB and the condition was found not unfitting and not ratable by the VASRD.   

2.  The Board also notes that the Orthopedic Addendum, dated 11 January 1991, diagnosed the applicant with postural neck pain and this condition was also found not ratable by the VASRD.    

3.  The applicant’s disability was properly rated in accordance with the VASRD.  His separation with severance pay was in compliance with law and regulation.

4.  The foregoing is supported by the opinions from the Army Review Boards Agency Medical Advisor and the Physical Disability Agency.

5.  The applicant’s contentions do not demonstrate error or injustice in the disability rating assigned by the Army, nor error or injustice in the disposition of his case by his separation from the service. 

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

JLP_____  TAP____  EWL_____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999023177	
SUFFIX		
RECON		
DATE BOARDED	19990617	
TYPE OF DISCHARGE	(HD)	
DATE OF DISCHARGE	19911114	
DISCHARGE AUTHORITY	TITLE 10 USC SECTION 1202	
DISCHARGE REASON	TDRL	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	145	
2.		
3.		
4.		
5.		
6.