MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            23 January 2001                  
	DOCKET NUMBER:   AR2000040550

	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:

	Mr. Luther L. Santiful 		Chairperson	
	Mr. Walter T. Morrison 		Member	
	Mr. Thomas E. O’Shaughnessy 		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, physical disability retirement.  

APPLICANT STATES:  That she should be retired with a disability rating of       40 percent.  Her mental and physical health was poor at the time of the Physical Evaluation Board (PEB) and has since worsened.  She has spent the last two years on Prozac and in therapy and still can’t handle the pain and anxiety.  She encloses a copy of a medical record rewritten by a doctor because the formal board personnel stated that they could not read the original note, and that note was not included in the first board addendum.  There were things missed during the board proceedings which she addressed in a 1998 statement (which she encloses).  She feels that her physical condition would justify a 30 percent disability rating.  She did not want to disclose her mental condition.  The staff psychiatrist attempted to include an addendum to the board.  Although the Army uses the same rating guidelines as the VA, there is a 50 percent difference between the Army rating and the VA rating for the same medical conditions. 

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

The applicant entered on active duty on 15 April 1983 and remained on continuous active duty until her discharge.  She was trained as a practical nurse, and completed various military schools and courses, to include a 10 week medical specialist course, a 52 week practical nurse course, a 7 week basic NCO course in 1996, a one week ostomy care course in 1995, and a 3 week aseptic and surgical technique certification program in 1992.  She was assigned in numerous locations throughout the world, including Fort Jackson, South Carolina, Fort Sam Houston, Texas, Presidio of San Francisco, Hawaii, Colorado, and Fort Hood, Texas.  She received numerous awards, including two awards of the Army Commendation Medal, four awards of the Army Good Conduct Medal, and two awards of the NCO Professional Development Ribbon.

The applicant was promoted to Sergeant on 1 April 1990.  Her NCO evaluation reports from that date show that she was a fully capable NCO.  She did have a profile in February 1991, but her rater on her NCO evaluation report indicated that it did not affect her duty performance.  Her NCO reports thereafter show that she passed her physical fitness tests.  She was physically and mentally able to work long hours (report ending in May 1992), She worked well under stressful situations (report ending in May 1993).  She had the stamina to go the distance, performed well under external stress and pressure, and was ready for increased responsibility (March 1994).  She accepted additional responsibilities in a positive manner (July 1994).  She had a high degree of commitment to qualified patient care and displayed the potential to perform duties as a Staff Sergeant (May 1995).  She should be promoted ahead of her peers and placed in positions of 

greater responsibility (June 1996).  She completed the NCO basic course in August 1996.  Her evaluation report for the 11 month period ending in April 1997 shows that she displayed superior administrative and managerial abilities, that her work ethics inspired all those she came in contact with, that she was 100 percent dedicated to mission accomplishment, and that she completed all tasks, among other comments.  That report, however, did show that she had a profile which precluded her ability to perform her clinical and field duties of her specialty.

The applicant was referred to the Army disability system based on the recommendation made by a 17 December 1996 MOS/Medical Retention Board (MMRB). 

A 31 January 1997 physical profile report indicates that the applicant could not take any portion of the Army physical fitness test, and that she was prohibited from standing for more than 15 minutes per hour.  Her profile serial                 was 1 1 3 1 1 1.

An 18 February 1997 medical report shows that the applicant had Graves’ disease and bone problems, and that she was being boarded out.  That report indicates that she continued with angioedema of eyes and face with no itching.  She did sneeze with the swelling.  

On 28 May 1997 a Medical Evaluation Board (MEB) diagnosed the applicant’s medical condition as severe bilateral patellofemoral; profound bilateral tibial stress reactions; moderate bilateral bunion (hallux valgus) deformity, first metatarsal phalangeal joint; moderate metatarsal stress reactions; diffuse bursitis and tendonitis secondary to a prior history of thyroid disease, lower extremity; metatarsalgia; and Freiberg’s metatarsal head infraction, mild.  The board indicated that the applicant could not run, jump, crawl, tolerate boot wear or MOPP gear wear, negotiate stairs, climb more than 8” into a vehicle without knee and foot pain, tolerate tight shoe wear or boot wear because of the metatarsal and great toe pain, run, or climb repetitive.  She could not lift objects greater than 10 pounds and carry it more than 25 meters because of foot and leg pain.  The board stated that the applicant did not meet the criteria for retention on active duty and recommended that she be referred to a PEB.  The findings and recommendation of the MEB were approved.  The applicant concurred.

Addenda to the MEB show that the applicant’s medical condition was also diagnosed as having a second MTP joint stress syndrome/synovitis secondary to hallux abducto valgus deformity left foot and an asymptomatic hallux abducto valgus right foot; irritable bowel syndrome, mild symptoms related to irritable 

bowel, mostly stress related; GERD, a mild disease with normal upper ehdoscopy and symptoms which were controlled with medication; history of peptic ulcer disease – a history of duodenal ulcer with, however, a very low risk for ulcer recurrence because she had the H pylori eradicated; and mild Graves’ proptomopathy with some symptoms of acute Graves’ disease.  The applicant acknowledged receipt of the addenda and agreed with the findings and recommendations.

A 27 August 1997 report of medical examination indicates that the applicant had a permanent profile because of problems with both her knees and her left foot.   Her physical profile serial was 1 1 3 1 1 1.  In the report of medical history she furnished for that examination she indicated that she was in poor health, was in constant pain, and was taking various medications.  Among her ailments, she listed wrist pain, bilateral knee pain and swelling, left foot pain and swelling, Freiberg’s infraction, Graves’ ophthalmology, gum disease, sinusitis, low blood pressure, thyroid trouble, shortness of breath, palpitation or pounding heart, cramps in legs, frequent indigestion, stomach, liver or intestinal trouble, GERD, irritable bowel, left wrist problem, stress, and excessive worry.

In a 22 September 1997 memorandum to the PEB, the applicant’s commanding officer stated that whereas the applicant was highly motivated and showed a genuine interest in the mission of the unit, her profile limited her duty performance.  She was unable to adequately perform the duties normally expected of an individual of her rank and specialty.

On 5 November 1997 a PEB determined that the applicant was physically unfit because of chronic pain in both knees, legs, and feet, and recommended a disability rating of 20 percent, and that she be separated with severance pay.  The PEB determined that her medical condition of diffuse bursitis and tendonitis secondary to a prior history of thyroid disease, lower extremity; and all her conditions in the addenda to the MEB, except her foot problems; were not unfitting and therefore not rated.  The applicant did not concur with the findings and recommendation and demanded a formal board.

A 30 January 1998 formal PEB corroborated the findings and recommendation of the informal PEB.  

The applicant did not concur and submitted a rebuttal to the effect that she questioned the meaning of certain phrases in her diagnoses, stated that Graves’ disease causes muscle weakness and increases pains.  She mentioned the need for follow up thyroid levels.  She took exception to the diagnosis that she had 

only mild irritable bowel, and stated that she did not understand another diagnosis.  She stated that physicians were pressured to complete addenda before all the medical facts were considered.  She stated that it took six months to gather facts about her medical condition, but it took less than two days for her medical conditions to be reviewed and rated.  She stated that she was appealing the rating because her prognosis as dictated by one doctor was dismal, her foot injury prevented her from standing without pain or swelling, and her medical conditions were all service related.

On 9 February 1998 the applicant’s attorney appealed the findings and recommendation of the formal PEB.  He contended that the applicant should be rated as 40 percent disabled and placed on the temporary disabled retired list (TDRL).  Counsel stated that her left knee condition should be rated at              20 percent, as should her left foot condition.  He stated that her Graves’ disease should be rated at 10 percent.  Counsel also requested an extension in order to submit matters to the PEB because the applicant was scheduled for eye surgery on that day (9 February 1998), the success or failure of which should be presented to the PEB; and because she was under the care of a psychiatrist, and was hospitalized for anxiety and depression in the fall of 1997.  He stated that no information was provided the PEB concerning her mental condition.

On 10 February 1998 the PEB notified the applicant that it had reviewed her rebuttal to the PEB and the appeal prepared by her attorney.  The PEB indicated that no change to the original findings was warranted, in that her rebuttal contained no new objective medical evidence or arguments that were not entertained during her formal PEB.  Her request for delay because of scheduled eye surgery and to obtain a psychiatric evaluation/diagnosis was denied.  The surgery was considered minor and inconsequential and her attending physician deemed it not necessary to recall her case for this reason.  A review of her medical records indicated no psychiatric diagnosis, nor was there any indication of an unfitting psychiatric condition.

A 23 February 1998 medical record indicates that the applicant had problems with her eyes as a result of Graves’ disease, but she was being stabilized.  The doctor indicated that she receive eye surgery nine months after everything was stable. 

On 24 February 1998 the Physical Disability Agency notified the applicant that her rebuttal to the findings of the formal PEB had been reviewed along with the entire case file, and that the findings and recommendations of the PEB were supported by substantial evidence and were therefore affirmed.

In a 16 March 1998 MEB addendum, a staff psychiatrist provided a history of the applicant’s illness, stating that the applicant stated that she initially sought mental health assistance in 1991 because of symptoms of acute anxiety, including insomnia, excessive worry and episodes of shaking and crying.  She was told that she was under too much stress and given a week of convalescent leave.  She stated that this did not do much to help her causing her to believe that there was little that could be done.  She did not seek further treatment though the symptoms continued to bother her.  She continued her marginal level of coping until August 1997 when she began having what she described as full blown panic attacks.  She sought assistance at the mental health system at Fort Hood and was diagnosed with panic disorder.  Because her son had a severe seizure disorder and was mentally disabled and required treatment, she could not initiate ongoing treatment for herself at Fort Hood.  She eventually received treatment and was placed on medication.  Taken off the medication, she began to have a recurrence of her panic symptoms.  She was seen while in the middle of a severe panic attack and was almost unable to control herself.  She was provided a prescription for medication, and when seen two weeks later she stated her panic symptoms were under good control. 

The staff psychiatrist diagnosed her condition as panic disorder without agoraphobia, treated and improved, involving symptoms of unpredictable and acute shaking, tearfulness, intense and irrational fear, perspiration, with rapid heart rate and respirations.  Stressors were moderate.  He stated that she was a single parent with a severely handicapped child and had two failed marriages.  Her impairment for military duty was marked, due to the inability in both field and garrison environments to properly and reliably work with equipment and personnel relevant to her specialty and her status as an NCO.  She was unable to handle a weapon while having panic symptoms and was probably not deployable.  Her degree of psychiatric social and industrial impairment was definite due to unpredictability and severity of panic symptoms which  caused social embarrassment and rendered her unreliable for work in a civilian hospital as a practical nurse, due to tremulousness, rapid heart rate and respirations, visible shaking and perspiration, and irrational feeling of impending doom.  He recommended that her case with this addendum be presented to the PEB.

On 24 March 1998 the PEB liaison officer (PEBLO) requested that the addendum by the staff psychiatrist be considered by the MEB/PEB.

The applicant was discharged in the rank of Sergeant E-5 on 4 May 1998 at Fort Hood.  She had 15 years and 20 days of service and received $42,717.60 in disability severance pay. 

In a 30 April 1999 rating decision, the VA granted the applicant a 30 percent disability rating for panic disorder, 10 percent for pes planus, 10 percent for bilateral proptosis and keratoconjuntivitis, 10 percent for iron deficiency anemia, 10 percent for irritable bowel syndrome, peptic ulcer, hiatal hernia, and gastroesophageal reflux disease, 10 percent for left knee condition, 10 percent for right knee condition, 10 percent for Graves’ disease, and 10 percent for left wrist condition.  Her combined disability evaluation was 70 percent. 

In a 9 August 2000 advisory opinion, the Army Review Boards Agency staff medical advisor recommended that the PEB reconsider the applicant’s case based on the information provided in the psychiatric addendum.  The applicant’s case and a copy of the advisory opinion was furnished the Army Physical Disability Agency for their review and comment.

In an 18 October 2000 advisory opinion, the Army Physical Disability Agency noted that her 27 August 1997 reports of medical examination and medical history were completed by the physician and the applicant, and that the applicant noted that she had frequent trouble sleeping and depression or excessive worry. These were described as stress related and excessive worry about family members and her pending medical condition.  She indicated that she had undergone some stress management that month, but did not indicate any nervous trouble of any sort.  The physician opined that there was nothing psychologically/mentally wrong with her that would warrant any further review. Her physical profile for her mental condition was listed as a 1. 
The Physical Disability Agency indicated that a second rebuttal was provided to the agency on 6 March 1998 and that rebuttal did not mention any psychiatric diagnosis or impairment.

The agency stated that the psychiatric addendum was received on                    24 March 1998, the addendum reviewed and the applicant’s entire case reconsidered.  The review indicated that the panic disorder was controlled by medications.  The agency stated that although the psychiatric addendum described full blown attacks in August 1997, her medical documents completed by the applicant at the same time did not mention any significant psychiatric or work related problems.  The psychiatric problems did not appear to have been a long standing interference with her work or health as they were never mentioned during 10 months of MEB/PEB proceedings.  There were never any command comments or evidence that psychiatric problems were significantly affecting her work performance, and there was no change in her physical profile classification. Consequently, the agency affirmed the prior PEB findings and determined that the psychiatric addendum would not have changed the PEB findings.  The agency stated that there was insufficient evidence to support a finding of unfit for 

the psychiatric diagnosis and that the mere presence of an impairment did not, of itself, justify a finding of unfitness.  It stated that the agency considered all aspects of the applicant’s case, and that subsequent VA ratings, not based on any requirement for a finding of unfitness, were not relevant to the correctness of the PEB findings.

In a rebuttal to the advisory opinion, the applicant stated that because a condition [mental] was not mentioned, does not mean that it does not exist.  She questions whether or not the Physical Disability Agency reviewed her mental health records, and whether or not an addendum by a psychologist was seen during the medical board.  There was no mention of her mental health records being reviewed by the board.  She stated that her service connected disability ratings, other than panic disorder, were rated as 50 percent disabling by the VA, but only 20 percent by the Army.  She implied that the fact that she was given a desk job and was off her assigned duty for more than one year warrants a rating higher than 20 percent.  She stated her rating was improper, she needed medical benefits for foot surgery and eye surgery, and a 30 percent rating would allow her to be treated by surgeons she knows.

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 MEBD 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.

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.

Title 10, United States Code, section 1202, provides for the placement of a member on the Temporary Disability Retired List when the disability may be permanent.  Placement on the Temporary Disability Retired List requires that the member meet the criteria of Title 10, United States Code, section 1201.

Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has an impairment rated at less than 30 percent disabling.

Title 38, United States Code, sections 310 and 331, permits 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 medically unfitting 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.

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 medical evidence of record supports the determination that the applicant's unfitting condition was properly diagnosed and rated at the time of her discharge.  Placement on the Temporary Disability  Retired List was precluded since the applicant had completed less than 20 years of service and received a disability rating of less than 30 percent.  Therefore, her separation with severance pay was in compliance with law and regulation.

2.  The applicant’s records clearly show that she was fit and able to perform her duties until at least August of 1996 as evidenced by her evaluation reports and her record of attendance at Army schools.  In fact until 1997, and beginning in 1992, she was able to pass the Army physical fitness test, and was considered fully capable, physically and mentally, of performing her duties.  She may have 

had some problems with stress, but those difficulties were not noticeable in her job performance.  Her commanding officer stated in a September 1997 memorandum to the PEB that she was highly motivated, but could not perform her duties because of her physical limitations.  No mention was made of any mental or psychiatric problems.   

3.  The Board notes that the applicant’s medical condition underwent numerous reviews - by a PEB, a formal PEB, a review of her rebuttal and appeal to the formal PEB findings, a review by the Physical Disability Agency, and another review by that agency, in which both of those reviews considered the applicant’s psychiatric addendum.  The Board accepts the findings of those reviews.    

4.  An award of a 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 military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's employability.  Furthermore, the VA can evaluate a veteran throughout her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.

5.  The VA 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, the applicant's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify her for VA benefits based on an evaluation by that agency.

6.  The fact that the VA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish physical unfitness for Department of the Army purposes.  The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit.  Any rating action by the VA does not compel the Army to modify its rating.

7.  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 her case by her separation from the service.

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

9.  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.

10.  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

___wtm__  ___lls___  ___teo___  DENY APPLICATION

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

INDEX

CASE ID	AR2000040550	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010123	
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.