MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:           24 October 2000                   
	DOCKET NUMBER:   AR2000040367

	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. Carl W. S. Chun		Director	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson 		Chairperson	
	Mr. Edwin S. Castle 		Member	
	Mr. John T. Meixell 		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, the applicant requests that his disability rating for insulin dependent diabetes mellitus be increased from 20 percent to   40 percent.     

APPLICANT STATES:  That according to the VA Schedule for Rating Disabilities (VASRD), VA code 7913, his condition should have been rated as 40 percent disabling.  In accordance with that code, a rating of 20 percent involves use of insulin and restricted diet, or oral hypoglycemic agent and restricted diet.  However, he is able to moderately control his diabetes by multiple daily insulin injections, restricted diet, and by an additional component, “regulation of activities,” which constitutes a rating of 40 percent.  The applicant submits two medical statements from the assistant chief of endocrinology at Brooke Army Medical Center, Fort Sam Houston, Texas; a copy of his physical profile, dated   2 September 1999; and a copy of a 25 September 1998 medical evaluation board (MEB) summary.    

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

In a 9 September 1998 letter to the Commander of Brooke Army Medical Center at Fort Sam Houston, the applicant’s commanding officer recommended that the applicant be considered medically unfit for reasonable performance of his duties as a surgical nurse.  That officer stated that the applicant was insulin dependent. He stated that the applicant’s condition did not preclude him from doing his basic nursing duties while he was assigned as a nurse in a fixed facility.  He stated that the applicant’s workload was relatively easy physically, the environment did not change, and insulin was readily available.  He stated that the applicant would not be able to serve in an isolated area where there was no Army medical center.  He also stated that the numerous limitations that have been imposed by his profile would not allow him to do some basic things that all soldiers should be able to do.  He stated that at that time the applicant was unable to take any form of a physical training test, and was unable to perform in a field environment.  

A 20 September 1998 MEB summary shows that the applicant was a second lieutenant active duty registered nurse who first entered military service in November 1986.  He was diagnosed with diabetes on 9 March 1998.  That summary provided a history of his present illness, and stated that his past medical history was remarkable only for a previous right ankle injury.  

The summary indicated that the applicant’s current condition was stable, but that he required a very restricted diet and very careful regulation of his physical activities.  That summary indicated that Type I diabetes was a serious metabolic disease that called for significant restrictions and limitations on a person’s daily activities.  It also stated that a patient had to consume at least three meals per day with mid-afternoon and bedtime snacks, and that none of those meals should be significantly delayed beyond 30 to 60 minutes.  That summary also stated, among other things, that the applicant was especially prone to diabetic ketoacidosis in a battlefield situation, and that Type I diabetes could cause problems like delayed wound healing and an increased risk for infection.  Therefore, the applicant should always be within 30 minutes of a medical treatment facility that was capable of managing diabetic complications.  

That summary went on to say that the applicant should be capable of performing the civilian equivalent of his registered nurse position.  Chronic, lifelong treatment with insulin and diet would be required for his Type I diabetes.  That summary indicated that the applicant could develop various complications of Type I diabetes, to include blindness, the need for kidney dialysis or kidney transplantation, and serious foot ulcers and infections that could lead to amputation.  His risk for myocardial infarction and stroke and other diseases would be increased threefold compared to nondiabetic personnel. 
The summary concluded by saying that the applicant did not meet retention standards because of the numerous restrictions and limitations on his activity and employment status.  He was neither combat fit nor world wide deployable.  His condition was diagnosed as Type I diabetes; post-traumatic degenerative joint disease of the right ankle; and Gilbert’s disease.

A 9 April 1999 PEB determined that the applicant was physically unfit because of insulin dependent diabetes mellitus (20 percent) and posttraumatic degenerative joint disease, right ankle (10 percent), and recommended that he be permanently retired for disability with a 30 percent disability rating.  The applicant non- concurred, but waived a formal hearing of his case.  

He did, however, appeal the findings and recommendation.  He stated that his treatment required a strict regimen with relatively large dosages of two types of insulin and could not be controlled by oral agents.  Adherence required a carefully restricted and calculated diet.  Those two facts alone caused him great concern and did not correlate with the rating received.  However, one final area, the limitation of activity associated with his diabetes, had to be addressed.  He stated that the rating he received suggested that his condition warranted no limitation of activity; however, many sources of information stated the opposite. The insulin dependent person had to regulate and/or limit activity so that the rate of energy expenditure balanced the amount and type of insulin and food intake.  Strenuous or vigorous activity had to be planned and often times avoided.  If not, hypoglycemia could result leading to complications, such as headache, weakness, lack of motor coordination, and coma.  In addition, he stated that drivers with Type I diabetes face a multitude of state and federal regulations on motor vehicle licensing and certification, sometimes limiting the employment and economic opportunities of the individual with diabetes.  He stated that the rating he receives should reflect the severity of the diabetes – large insulin dosages, a calculated and restricted diet, and precise regulation and limitation of activities.  All areas were consistent with a rating of moderately severe and not that of moderate.
   
In a 15 April 1999 medical statement, the doctor at the Endocrine Clinic at Brooke Army Medical Center, writing on behalf of the applicant, indicated that he agreed with the applicant in that his diabetes should be rated as moderately severe (40 percent) instead of moderate (20 percent).  He stated that the applicant’s diabetes required careful regulation of activities, i.e., avoidance of strenuous occupational and recreational activities.  He also stated that he felt strongly that the applicant’s diabetes did impair his health and vigor and limited his activity.  He stated that strenuous physical exercise could result in unpredictable falling of the blood sugar that could sometimes be severe.  Consequently, most patients with diabetes avoid strenuous recreational and occupational activities rather than risk severe insulin reactions/hypoglycemia.  That avoidance of exercise could further complicate their overall health.  He requested that the applicant’s diabetes rating be reconsidered.

In a 29 April 1999 memorandum to the applicant, the PEB reviewed the applicant’s rebuttal and stated that no change to the original findings was warranted.  The memorandum indicated that the PEB believed his condition met the criteria of a 20 percent rating, that dosage level was not a good indicator of severity, and that, although he had to be aware of his activity level, he was not sufficiently restricted to warrant an increased rating.  It stated that the MEB summary indicated that the applicant should be capable of performing as a registered nurse in a civilian environment.  Additionally, his physical profile allowed the alternate physical training test, along with many other activities.  The memorandum also stated that although his diabetes mellitus could cause future medical problems, that could not be the basis for his current disability rating.

A 9 July 1999 revised PEB proceeding shows that the PDA modified the findings and his disposition, concluding that he did not have any functional impairments which would prevent satisfactory performance of his duty.  That proceeding indicated that his diabetes and ankle condition did not significantly interfere or impair his ability to perform his nursing duties; and his physical profile did not prohibit him from performing an alternate physical fitness test nor performing his daily military duties.  He was found fit to perform his duties as a nurse.  The proceeding indicated that he should be returned to duty as fit. 

In a 2 September 1999 statement, that same doctor at the Endocrine Clinic at Brooke Army Medical Center, stated that the applicant’s condition was moderate to severe, requiring strict adherence to a diet and insulin injection regiment and that he should work only 8-hour shifts.

A 2 September 1999 physical profile shows that the applicant had a permanent physical profile serial of 3 1 3 1 1 1, because of Type I diabetes and right ankle talar dome lesion.  Assignment limitations indicated that he had to be allowed to take three meals and all medications on time; and that he should not be assigned to isolated areas where definitive medical care was not readily available.  That profile limited his activities somewhat; however, did not prevent him from running or bicycling at his own pace and distance, unlimited walking, wearing a helmet, carrying and firing a rifle, mowing grass, lifting up to 40 pounds, or participating in the physical fitness test (except for the two mile run).

A 20 September 1999 revised physical evaluation board proceeding indicated that the Army Physical Disability Agency (PDA) had modified his findings and disposition, agreeing with the original PEB findings of 30 percent permanent retirement.  That revision superseded the DA Form 199 (PEB Proceedings) pertaining to his 19 July 1999 PDA modification.  The 20 September 1999 PEB found the applicant physically unfit because of his insulin dependent diabetes mellitus (20 percent disabling), and his post traumatic degenerative joint disease, right ankle (10 percent disabling), and recommended that the applicant be permanently retired for disability with a 30 percent disability rating.

There is no DD Form 214 or any evidence to indicate that the applicant was in fact permanently retired from the Army; however, the applicant, in his request to this Board, indicated that he was released from active duty on 26 January 2000.

Army Regulation 635-40 establishes the Army physical disability evaluation system 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 provides for medical evaluation boards, which are convened to document a soldier’s medical status and duty limitations insofar as duty is affected by the soldier’s status.  A decision is made as to the soldier’s medical qualifications for retention based on the criteria in AR 40-501, chapter 3.  If the MEB determines the soldier does not meet retention standards, the board will recommend referral of the soldier to a PEB.

Physical evaluation boards 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 eligibility of a soldier to be separated or retired because of physical disability.

Army Regulation 635-40, Appendix B, paragraph B-1, provides that Congress established the VASRD as the standard under which percentage rating decisions are to be made for disabled military personnel.  Such decisions are to be made according to title IV of the Career Compensation Act of 1949 (title IV is now mainly codified in title 10, United States Code, section 61).

The VASRD is primarily a guide in the evaluation of disability resulting from all types of disease and injuries encountered as a result of or incident to military service.  The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations.  Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.  For the application of this schedule, accurate and fully descriptive medical examinations are required, with emphasis upon the limitation of activity imposed by the disabling condition.  Over a period of many years, a veteran’s disability claim may require reratings in accordance with changes in laws, medical knowledge and his or her physical or mental condition.  It is thus essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history.

The VASRD for diabetes mellitus, code 7913, provides for five disability ratings – one of which is a 20 percent rating for an individual requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet.  Another, a 40 percent rating, for an individual requiring insulin, restricted diet, and regulation of activities.

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 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.

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

1.  The PEB, in its rebuttal to the applicant’s appeal of his 20 percent disability rating for diabetes mellitus, noted that the MEB had indicated that the applicant should be capable of performing as a registered nurse in a civilian environment.  That board determined that the applicant was not sufficiently restricted to warrant an increased rating.  Despite the applicant’s contentions, he has not shown to the satisfaction of this Board that the PEB determination is incorrect.  The Board also notes that his 2 September 1999 physical profile, while limiting some activities, did not prevent him from running or walking at his own pace and distance, or participating in the physical fitness test (except for the two mile run).
  
2.  While both the Army and the VA use the VASRD, not all of the general policy provisions set forth in the VASRD apply to the Army.  The Army rates only conditions which are determined to be physically unfitting for further military service thereby compensating the individual for the loss of his or her military career.  The medical evidence of record supports the determination that the applicant's unfitting condition was properly diagnosed and rated at the time of his discharge.

3.  The applicant's disability was properly rated in accordance with the VA Schedule for Rating Disabilities.  His contentions do not demonstrate error or injustice in the disability rating assigned by the Army.

4.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

5.  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 that requirement.

6.  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

___mkp__  ___jtm___  ___esc__  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000040367	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001024	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  177	108.00	
2.		
3.		
4.		
5.		
6.