MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:            07 AUGUST 2001
	DOCKET NUMBER:   AR2001053972

	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. Thomas B. Redfern III		Member	
	Ms. Regan K. Smith		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.  She requests that she receive a proper medical examination.  

APPLICANT STATES:  That she was improperly removed from the Temporary Disability Retired List (TDRL), had a loss of pay while on the TDRL, and failed to receive an adequate medical examination.  

COUNSEL CONTENDS:  In a 16 January 2001 memorandum counsel states that the 4 January 2001 formal physical evaluation board (PEB) committed a mistake of law in the adjudication of the applicant’s case by accepting and relying upon an incomplete and inaccurate TDRL medical examination.  The TDRL examination did not offer an estimate on whether the applicant’s condition had changed since her January 1999 TDRL examination.  The TDRL examination did not clearly show the etiology of defects found during the examination so a decision could be made as to whether they relate to a condition that existed or was incurred while the applicant was on active duty, or was incurred while she was on the TDRL.  The applicant was not only undergoing a second surgery on her jaw, but was also suffering from arthritis and fatigue; however, the examination offered no determination of etiology or discussion as to whether those conditions related to lupus.  The TDRL examination made no mention as to whether the applicant’s numerous medical conditions had stabilized.  Also, the PEB committed a mistake of law by failing to rate her residuals of lupus.  She should have been rated by the numerous residual medical conditions brought on by lupus.  Counsel states that the applicant’s only request is to remain on the TDRL to undergo an accurate and complete TDRL medical examination in accordance with Army Regulation 635-40. 

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

On 18 February 1997 the applicant received a permanent profile serial of 
3 1 1 1 1 1 because of systemic lupus erythematosus (SLE) with lupus nephritis. 

SLE is a chronic, remitting, relapsing, inflammatory, and often febrile (flushed, feverish) multisystemic disorder of connective tissue, acute or insidious in onset, characterized principally by involvement of the skin, joints, kidneys, and serosal membranes.  It is of unknown etiology, but it is thought to represent a failure of the regulatory mechanisms of the autoimmune system that sustained self-tolerance and prevent the body from attacking its own cells, cell constituents, and proteins.  The disorder is marked by a wide variety of abnormalities, including arthritis and arthralgias (pain in a joint), nephritis (inflammation of the kidney), central nervous system manifestations, pleurisy, pericarditis, leukopenia (reduction in the amount of leukocytes (white blood cells or corpuscles) in the blood) or thrombocytopenia (decrease in the number of blood platelets (dark shaped structures found in the blood of all mammals and chiefly known for its 
role in blood coagulation)), hemolytic anemia (disruption of the integrity of the red cell membrane), elevated erythrocyte sedimentation rate, and positive LE-cell preparations.  Lupus nephritis is associated with SLE and is marked either by a fulminating course, with uremia and death in a few weeks, or by a chronic progressive course; hypertension is rare until late in the course of the disease.   

On 7 March 1997 the applicant underwent an examination by a medical evaluation board (MEB).  The MEB summary indicates that she was evaluated in autumn 1996 for fatigue, joint  pain and a high titer ANA (Antinuclear Antibody).  She was felt to have systemic lupus erythematosus.  In October 1996 she developed edema and was referred to Tripler Army Medical Center in early December 1996.  At that time, she was found to have nephrotic syndrome.  The plan was for an elective renal biopsy on 19 December 1966, but on 17 December she developed increasing abdominal distention and abdominal pain.  She was taken to the operating room for an exploratory laparotomy and found to have spontaneous bacterial peritonitis.  Surgery showed that there was no perforation and the pelvic organs were normal.  She had postoperative problems and was treated with high dose pulse steroids for stress as well as for thrombocytopenia.  She had a hemolytic anemia with an acute drop in hematocrit.  She attempted to diurese her edema before proceeding with the renal biopsy  but without much success.  Urinalysis showed many granular casts which were consistent with acute tubular necrosis as well as cellular inclusion casts, red cells and white cells.  Her acute renal failure was felt to be primarily due to acute tubular necrosis (the sum of the morphological changes indicative of cell death, which may effect groups of cells or part of a structure or an organ) related to her sepsis syndrome with an underlying lupus nephritis and nephrosis.  The possibility of renal vein thrombosis was also considered and a renal ultrasound revealed a right renal vein thrombosis.  She was also found to have a positive anticardiolipin antibody with a high IgG level.  She was anticoagulated and maintained on Coumadin.  On 23 December 1996 she underwent a percutaneous renal biopsy of the right kidney.  The renal biopsy returned consistent with diffuse proliferative lupus nephritis as well as acute tubular necrosis and polymorphonuclear cells within the capillary loops consistent with renal vein thrombosis (the development or presence of thrombus, which is an aggregation of blood factors, frequently causing vascular obstruction at the point of its formation).  On 3 January 1997 she began Cytoxan therapy for diffuse proliferative lupus.  She tolerated the therapy well; however, she developed a fever three days after therapy and was found to have a urinary tract infection with Escherichia coli, which was treated with oral antibiotics.      

That summary indicated that the applicant had SLE with involvement of the kidneys with diffuse proliferative lupus nephritis and would require Cytoxan intravenously for six months monthly followed by every three months for a consolidation period of at least 18 months.  The summary indicated that was a chemotherapeutic procedure.  It was hoped that her nephrotic syndrome would resolve and her renal function remain intact; however, it was unclear, as lupus was a chronic disease with many flares and remissions and the applicant would require close follow-up over time with both a rheumatologist and a nephrologist.  Her condition was fair and stable but unclear as to the ultimate prognosis.

She was diagnosed as having (1) lupus erythematosus disseminated, chronic with hemolysis, thrombocytopenia, renal involvement and arthritis;                     (2) glomerulonephritis (a variety of nephritis characterized by inflammation of the capillary loops in the glomeruli of the kidney) secondary to lupus erythematosus diffuse proliferative type with acute renal failure and hypertension; (3) nephrotic syndrome secondary to diffuse proliferative lupus nephritis; and                            (4) thromoboembolic disease secondary to nephrotic syndrome in the presence of anticardiolipin antibodies associated with lupus erythematosis with right renal vein thrombosis requiring systemic anticoagulation.  Additional diagnoses were acute renal failure with spontaneous bacterial peritonitis, resolved; and status post exploratory laparotomy December 1996, resolved. 

The MEB recommended that the applicant be referred to the PEB, and stated that the applicant was not worldwide deployable and would require close follow-up at a tertiary care medical center with dialysis support by both a rheumatologist and a nephrologist.  The summary was prepared by a Doctor “Y” of the Walter Reed Army Medical Center Nephrology Service.

On 17 March 1997 the MEB referred the applicant to the PEB.  The applicant concurred. 

On 28 March 1997 the PEB concluded that her medical condition as reflected in the MEB diagnoses prevented her satisfactory performance of duty in her grade and specialty; but stated that her condition had not stabilized to the point that a permanent degree of severity could be determined.  The PEB found the applicant physically unfit and recommended that she be placed on the TDRL with a disability rating of 60 percent.  The applicant concurred.

On 15 September 1998 a TDRL Evaluation Board, indicated that this was the first examination since the applicant was placed on the TDRL, and that the reason for her placement on the TDRL was to determine stability of underlying renal dysfunction associated with lupus.  The board indicated that the applicant lived at home and worked as a real estate agent 20 hours a week, could not work more because of mild baseline fatigue which was rate limiting, and had generalized mild arthralgias which was not significantly limiting.  She had no other systemic manifestation of disease.  She did not desire to return to active duty status.  Physical examination, laboratory and radiographic data, and formal ophthalmology consultation were considered in the diagnosis and in the recommendations.  Her condition was diagnosed as SLE manifested primarily by low grade fatigue and mild arthralgias.  There was no evidence of systemic involvement at that time.  Most importantly, there was no evidence of ongoing kidney dysfunction and no evidence of active lupus nephritis.  The examining physician stated that the applicant’s social and industrial impairment was mild to moderate mainly manifested by arthralgias and fatigue which was rate limiting allowing her to work approximately 20 hours per week.  She was very compliant with her prescribed medical therapy and had no significant change in the last year.  The physician stated that she was not able to perform duty secondary to underlying mild symptoms of lupus.  There had been a good response to systemic chemotherapy for her lupus nephritis, and she should be monitored every 6-12 months over the next few years to determine stability of her renal function.  Additionally, she would require the continued use of Plaquenil, and if her fatigue and arthralgias worsened, recommended adding an immunosuppressent agent.  The physician recommended that she be continued on the TDRL until her kidney function could be followed sufficiently to determine stability.   

On 2 December 1998 a PEB considered the applicant’s condition as indicated by the TDRL examination and determined that she was physically unfit,  recommended a 10 percent disability rating and that she be separated with severance pay.  The applicant nonconcurred, demanded a formal hearing, and submitted a statement of disagreement with the informal PEB.

The applicant stated that her condition was much more serious than anyone could imagine, in that she had to live with not knowing whether a cold could escalate into pneumonia, had to take medication because her white blood count has been and is consistently below normal, had to deal with the possibility of not being able to bear children due to having lupus, and had to deal with the fact that she would have no medical coverage, because no organization would cover a person with renal failure.  She stated that she had to deal with not being able to work a full time job because of fatigue due to lupus.  She had to deal with the stress of living and paying her bills.  Stress activated lupus.  She did not just have skin lupus, but systematic lupus which affected any organ or system of her body.  She suffered from renal failure.  She stated that she proudly served in the Army for six years, did not ask to be released, but was medically discharged and suffered physically because of it.  She was healthy when she took the oath, and now her country would not help her.  She stated that if she only receives           10 percent, she would not even be entitled to medical care.  She questioned what would happen to her in the future – what if she had a relapse; what about her medication needs.  She stated that she was attempting to be normal but her body did not always agree with her efforts.  She was currently under the care of a VA medical center and was still on medication.  The 10 percent rating meant that she would have nothing.  She stated that she deserved more than the 10 percent rating. 

In response to her statement the PEB informed her on 28 December 1998 that her rebuttal did not provide information as to any new diagnosis or changes in her currently rated disability, and affirmed the decision of the informal PEB that found her unfit with a disability rating of 10 percent.

A 7 January 1999 TDRL evaluation summary provided a history of the applicant’s illness, provided information concerning her physical examination, the medications that she was taking, and the laboratory data.  Her systems were remarkable for complaints of continued fatigue, marked arthralgias particularly in her hands and feet and a history of a facial rash, and a malar rash consistent with probable lupus rash flaring.  Her opthalmologic exam, done because of Plaquenil toxicity, had been normal in October 1998.

The TDRL summary indicated that the applicant continued to have SLE.  Her renal disease was in remission, however, she had received inadequate therapy due to the continued low white blood cell count which was probably secondary to some systemic activity of lupus.  She could not receive the medication required (Cytoxan) after the initial 6 months of receiving that medication; however, she remained stable off therapy.  Nonetheless, that did not ensure that she would not relapse or redevelop her renal disease over the next five to ten years.  Her disease continued to be active, although not severely so.  She was likely to relapse in the future, and would need to be followed carefully by a rheumatologist and a nephrologist.

The summary indicates that her prognosis was uncertain in that SLE especially with involvement of the kidneys with diffuse proliferative disease that could reoccur at any time and required careful follow-up.  The examining physician stated that although she was in remission at that time, it was unlikely that she would remain continuously in remission and she was likely to flare and remit over time in a chronic fashion.  She would require close follow-up with a rheumatologist and nephrologist for the rest of her life.

Her condition was diagnosed as (1) lupus erythematosus, chronic, with history of hemolysis, leukopenia present, low components present and positive ANA, positive arthralgias, myalgias (pain in a muscle or muscles) and a continued intermittent lupus rash with arthritis.  She also had a history of renal involvement which was presently in remission; (2) glomerulonephritis secondary to lupus erythematosus, diffuse proliferative type with acute renal failure and hypertension, in remission, presently resolved; (3) nephrotic syndrome secondary to diffuse proliferative lupus nephritis, resolved; and (4) thromboembolic disease secondary to nephrotic syndrome in the presence of anticardiolipin antibodies associated with lupus erythematosus with right renal vein thrombosis, requiring systemic anticoagulation.  Her nephrotic syndrome has been resolved and she no longer required systemic anticoagulation; however, she continued to have anticardiolipin antibodies and might develop coagulopathy or thrombotic disease in the future.  The examining physician, the same Doctor “Y” who completed the original MEB summary, recommended that the applicant be referred to the PEB.

On 4 February 1999 a formal PEB considered the applicant’s condition and recommended that she be retained on the TDRL.  The applicant concurred.

Sometime in the summer of 2000 the applicant received another TDRL evaluation.  That evaluation indicates that the applicant had SLE and associated nephritis and who stated that she had continued morning stiffness of 30 minutes duration each morning, stated that she had daily arthritis of ankles, knees, and shoulders, and reported fatigue and a transient malar eruption approximately one week prior to evaluation.  It indicated that the applicant stated she was having photosensitivity and usually worked at night to avoid sun exposure; she had daily headaches and intermittent night sweats, and had a history of intermittent painless oral ulcers.  She underwent surgery for her arthritis in May 2000 with noted improvement in jaw pain.  Evaluations by Doctor “Y” noted remission of her lupus nephritis.  She had received eight cycles of Cytoxan for SLE nephritis before therapy was discontinued due to leukopenia.  

That evaluation indicated that a physical examination indicated that she was a fatigued-appearing female in no acute distress, but was not ill-appearing.  Head and neck examination was notable for a normal funduscopic examination, no oral ulcerations, no lymphadenopathy, and no rashes.  Her cardiovascular and pulmonary examinations and extremities were normal.  Abdominal examination was also unremarkable.  Laboratory data indicated her renal function was normal.  Double-stranded DNA 1:160.  Vitamin B12 and folate levels were normal.  ANA was 1:1280.  Urinalysis showed no blood, protein 30 mg/dl.  The examining physician diagnosed her condition as SLE.  He stated that there was subjective evidence of continued arthritis, oral ulcerations, malaise, malar rash, with objective evidence of a low C4 level and leukopenia.  He stated that although there was no evidence of current inflammation, he did not feel that the applicant would ever be fit for return to active duty.  She had a chronic systemic inflammatory disease which interfered with successful performance of duty and required geographic assignment limitations, and medication for control that required frequent monitoring by a physician.

The report of the TDRL examination was forwarded to the applicant for her review.  On 3 August 2000 the applicant stated that she had read the report and concurred with its recommendations.

On 1 September 2000 a PEB considered her condition as reflected in the TDRL examination.  The PEB described her disability (VA Code 6350) as SLE with chronic fatigue, daily joint stiffness with low C4 level and leukopenia without evidence of current inflammation.  The ESR and CRP were normal.  There was no synovitis on examination.  The lupus nephritis was in remission.  The PEB found the applicant physically unfit and recommended that she be separated with a disability rating of 10 percent.  The applicant nonconcurred and demanded a formal hearing.  She submitted a statement disagreeing with the informal PEB.

In her 14 September 2000 statement to the PEB the applicant stated that this was her second hearing and both evaluations were conducted by doctors who she had no contact with.  Not once was her current physician, Doctor “Y” contacted for additionally comments or amendments.  She was present at her last hearing and her documentation was vital in the decision that she receive a 60 percent disability rating.  She stated that she had been seen continuously by Doctor “Y” and she trusted her and respected her concern for her (the applicant) condition.  Doctor “Y” was also consulted prior to her oral surgery in May 2000 when she had surgery on her left temporomandibular joint (TMJ).  She stated that she could not understand how there was such a difference in evaluation reports between the PEB and the VA.  Her Antinuclear Antibody (ANA) still tested positive meaning her SLE was still active, and that if having lupus today was a reflection of her condition, then she was not okay.  She stated that she felt that her condition was not properly evaluated.  She stated that she knew that she was in remission, but experienced chronic fatigue, consistent white blood counts, thrush in her mouth, joint pains, morning stiffness, and headaches as well as many other symptoms.  She stated that her VA evaluation was more extensive than that of the Army because they were doing their best to get her off the books.  She stated that with her current rating, she would not be authorized use of military medical facilities, and stated that she was concerned about the future of her medical benefits.  She stated that she was perfectly fine when she entered the military, but now was being discarded like someone with a bad knee.  She stated that she had recently been seen by the eye clinic and was informed that he might have to discontinue her current medication, Plaquenil, because evidence of deposits were found in her eyes, causing blurred vision.  She stated that no eye examination was performed by the evaluation board and she informed them of all her medications.  She stated that she was asking that her evaluation include a recommendation from Doctor “Y.”  The VA awarded her a 100 percent disability rating, but the PEB only recommended 10 percent.  She stated that she could provide for herself, but medically she needed assistance. 

On 14 November 2000 the PEB informed her that her rebuttal did not provide information as to an new diagnosis or changes in her currently rated disability, and affirmed the decision of the informal PEB that found her unfit with a disability rating of 10 percent.

On 3 January 2001 Doctor “Y” provided a description of the applicant’s medical condition.  She provided a short history of the applicant’s disease, stated that she had SLE, has been treated with high dose of corticosteroids and Cytoxan, but was unable to receive further Cytoxan due to low white blood cell counts, but continued on prednisone until late 1998.  She sustained a remission of the renal manifestations of her lupus and was presently maintained on Plaquenil alone for her disease activity and was being followed by a local rheumatologist.  She continued to have symptoms and signs consistent with disease activity.  She continued to have leukopenia, anemia, and intermittent thrombocytopenia.  She has a high titer ANA and anti-double stranded DNA.  Her complement levels remained low.  She has recurrent fatigue, arthralgias and myalgias, which was in part exacerbated by weight gained while on steroid treatment.  She has developed bilateral TMJ syndrome with a left condylectomy done in mid-2000, and surgery on the right contemplated for 2001.  Notably, she has questionable retinal deterioration on her last opthalmologic examination, which might be due to Plaquenil.  Doctor “Y” stated that when last seen by her in November 2000 the applicant complained of fatigue and joint aches as well as increasing “popping and locking” of her right TMJ.  On physical exam, there was no rash.  She was unable to completely open her mouth.  There were no palpable nodes, no swollen or tender joints, her lungs were clear, and there was no edema.  Outstanding issues included further evaluation of the microscopic hematuria, and if still present, would require bladder cystoscopy and kidney ultrasound, as Cytoxan exposure could be associated with the development of bladder cancer.  She continued to have ongoing disease activity and would have lupus the rest of her life.  She was a high risk for future systemic relapses.  The doctor assessed her condition as disseminated lupus erythematosis, chronic with persistent leukopenia, anemia; low complements, double-stranded DNA, and a continued intermittent rash, arthralgias, myalgias, and fatigue.  There was also associated evidence of complications associated with necessary treatment – including weight gain due to steroid treatment possible early retinal degeneration due to Plaquenil.  She also had an associated bilateral TMJ syndrome, which was being treated in a staged fashion, but has resulted in her not being able to fully open her mouth. 

On 4 January 2001 a formal PEB considered the information provided in the TDRL examination and the 3 January 2001 nephrology update by Doctor “Y”.  The PEB described the applicant’s disability as per the disability description in the 1 September 2000 informal PEB.  The formal PEB found the applicant physically unfit and recommended that she be separated with severance pay with a disability rating of 10 percent.

On 12 January 2001 the applicant provided a rebuttal to the PEB decision, defining SLE, and providing what she stated was the criteria for diagnosing SLE. She stated that she was providing information to support the unstableness of her condition.  She stated that based on an eye examination, it was possible that her sight was being affected by Plaquenil that she was currently taking.  She questioned what would happen were she to be taken off Plaquenil.  She stated that the prednisone had been used to reduce edema in the past, but prolonged use also had side effects.  She stated that she had TMJ surgery on the left jaw in May 2000 and was scheduled to have the right side conducted after nine months; and said that the possible effect of having arthritis in the jaw was not a familiar system with SLE, but could not be ruled out.  The TMJ joint was identified to be severely damaged which causes her much pain.  She stated that she understood that the board’s responsibility was to evaluate her present condition, but requests that all her residuals be included in the evaluation.  She stated the VA has evaluated her condition as 100 percent disabling.  She stated that her condition would not allow her to operate totally in the business sector and having SLE puts her at risk with seeking any medical benefits.  She stated that she would never agree that her rating was comparable to ratings of soldiers suffering from flat feet, back problems, knee injuries, etc.  She stated that her service was cut short because someone did not do their job.  She requested that her illness be evaluated with a rheumatologist who is familiar with SLE.       

On 2 February 2001 the Army Physical Disability Agency (USAPDA) notified the applicant that it had reviewed her 12 January 2001 nonconcurrence and her attorney’s 16 January 2001 rebuttal.  The USAPDA stated that the testimony of Doctor “Y” at her formal hearing on 4 January 2001 clearly established that her condition had no exacerbations during the past two years, that her condition was stable, and the medications had worked well to keep her condition under control. That agency stated that her disease did cause her problems while on the TDRL, but the medical evidence support the PEB decision of a 10 percent rating.  The USAPDA stated that there was no evidence to support her assertions that lupus caused her TMJ problems and there was presently no evidence establishing that her vision had been affected to such a level that it would be considered independently unfitting.  The USAPDA stated that a review of all the evidence considered by the PEB supports their findings and conclusions that the medical evidence provided was sufficient to satisfy the requirements of Army Regulation 635-40, paragraph 7-18.

In the processing of this case an advisory opinion was obtained from the Medical Advisor to the Army Review Boards Agency.  That official stated that a review of all available medical documentation offered no evidence that the applicant was suffering from an exacerbation of her SLE, and stated that the PDA could only assign disability ratings as they were present at the time of evaluation.  The Medical Advisor stated that the applicant was properly rated at the time and there was no medical reason to increase the disability percentage.

The applicant was provided a copy of the advisory opinion for her information and possible rebuttal on 1 June 2001.  She failed to respond.

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.

The TDRL is used in the nature of a “pending list.”  It provides a safeguard for the government against permanently retiring a soldier who can later fully recover, or nearly recover, from the disability causing her to be unfit.  Conversely, the TDRL safeguards the soldier from being permanently retired with a condition that may reasonably be expected to develop into a more serious permanent disability.

Paragraph 4-19 states in pertinent part that based on accepted medical principles, a disability is “permanent,” and a soldier who is otherwise qualified will be permanently retired, if the defect has become stable so that, with reasonable expectation, the compensable percentage rating will remain unchanged during the following 5-year period.  A soldier is placed on the TDRL if fully qualified for permanent retirement except that the disability "may be permanent.”  The soldier may not be placed on the TDRL for any other reason.  Based on accepted medical principles, a disability will be considered as “may be permanent” if it has not stabilized, and one of the following occurs: (a) the soldier may recover so as to be fit for duty; (b) the defect is expected to change in severity within the next   5 years so as to change the compensable percentage rating.  

Paragraph 7-7 provides for the prompt removal from the TDRL and states that medical examiners and adjudicative bodies will carefully evaluate each case.  They will recommend removal of the soldier’s name from the TDRL as soon as the soldier’s condition permits.  Placement on the TDRL confers no inherent right to remain on the list for the entire 5-year period.

Paragraph 7-11 states in pertinent part that a soldier will be removed from the TDRL and separated with severance pay if the soldier is unfit because of the disability for which the soldier was placed on the TDRL; and either the disability has stabilized at less than 30 percent; or the disability, although not stabilized, has improved so as to be ratable at less than 30 percent.
Paragraph 7-17 states in pertinent part that the purpose of the TDRL periodic medical examination is to (1) determine the soldier’s condition at the time of the examination; (2) decide if a change has occurred in the disability for which the soldier was placed on the TDRL; (3) decide if the disability has become stable enough to permit removal from the TDRL; and (4) identify any new disabilities while the soldier has been on the TDRL.

Paragraph 7-18 states in pertinent part that the report of periodic medical examination will provide (1) an estimate of change since the previous examination; (2) a medical appraisal of all defects incurred, or discovered, after the soldier was placed on the TDRL.  The report must clearly show the etiology of defects found during the examination so a decision can be made as to whether they relate to a condition that existed or was incurred while the soldier was on active duty, or was incurred while the soldier was on the TDRL; and (3) an opinion on whether the conditions have become stable.  
 
Paragraph 3-5 of Army Regulation 635-40 pertains to the use of the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD), and states in pertinent part that the percentage assigned to a medical defect or condition is the disability rating.  A rating is not assigned until the PEB determines the soldier is physically unfit for duty.  These ratings are assigned from the VASRD. 

The VASRD provides three disability ratings for SLE, Code 6350, and states that the condition would be evaluated either by combining the evaluations for residuals under the appropriate system, or by evaluating Code 6350, whichever method results in a higher evaluation.  The three ratings are 100 percent for acute SLE with frequent exacerbations, producing severe impairment of health; 60 percent for exacerbations lasting a week or more, 2 or 3 times a year; and    10 percent for exacerbations once or twice a year or symptomatic during the past 2 years.  

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 applicant has undergone medical examinations and evaluations by a MEB, has been evaluated by a PEB, both formal and informal, on five occasions, and underwent physical examinations on three occasions while on the TDRL, since the discovery of her disease in early 1997.  She has been afforded the advice and testimony of Doctor “Y” before the 4 January 2001 formal PEB.  The physician for the TDRL examination conducted in the summer of 2000 diagnosed the applicant’s condition as SLE, with evidence of a low C4 level and leukopenia, but with no evidence of current inflammation.  He did state that that there was subjective evidence of continued arthritis, oral ulcerations, malaise, and malar rash.  Doctor “Y” stated that in November of 2000 the applicant had complained of fatigue and joint aches as well as “popping and locking” of her right TMJ.  She stated that the applicant was a high risk for future systemic relapses, and assessed her condition as disseminated lupus erythematosis, chronic with persistent leukopenia, anemia; low complements, double-stranded DNA, and a continued intermittent rash, arthralgias, myalgias, and fatigue.  She stated that there was also associated evidence of complications associated with the applicant’s treatment, including weight gain, possible retinal degeneration, and bilateral TMJ syndrome.  Nonetheless, the applicant’s condition, lupus, had stabilized.      

2.  As noted above, the PEB considered the information provided in the TDRL examination and the information provided by Doctor “Y” and found that the applicant physically unfit with a 10 percent disability rating.  The USAPDA considered the applicant’s rebuttal and the medical evidence, indicating that the applicant had no exacerbations during the past two years, and that her condition was stable.  The USAPDA also stated that there was no evidence to support her assertions that the lupus had caused her TMJ and vision problems.  The Medical Advisor to the Army Review Boards Agency agreed with this assessment. 

3.  Despite counsel’s contentions, the TDRL examinations in 1999 and 2000 provided a diagnosis of the applicant’s condition at the time of the examination.  A review of the summary of each diagnosis provides information concerning her changing condition.  Her defects, TMJ and vision problems, that apparently surfaced while on the TDRL, were noted by the USAPDA.  That agency stated that there was no medical evidence to show that her condition (SLE) had caused those problems.  Despite the applicant’s contentions there is no evidence that her TMJ and vision problems were caused by her lupus.  Although not indicated in so many words, the 2000 TDRL examination indicated that her condition had stabilized.  The applicant stated that she agreed with the assessment of that TDRL examination. 

4.  The applicant's disability was properly rated in accordance with the VA Schedule for Rating Disabilities.  She had no exacerbations during the past two years as noted by the USAPDA.  Her condition had stabilized.  She has provided neither evidence nor a convincing argument that the decision reached in her case was erroneous.  The physician conducting the TDRL examination, the PEB, the USAPDA, and the Medical Advisor to the Army Review Boards Agency all agree, in effect, that her condition had stabilized.  There is no reason to offer the applicant another medical examination as she has requested.  In the absence of clear and convincing evidence that the decision erroneously overlooked clearly disabling medical conditions, applicant’s seeking of a revision of the disability determination based on subsequent degenerative changes, is not an acceptable substitute for relief through the VA system, which she has apparently sought and gained.    
          
5.  However, the rating action by the VA does not necessarily demonstrate any error or injustice in the Army rating.  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.

6.  The award of VA compensation does not mandate disability retirement or separation from the Army.  The VA, operating under its own policies and regulations, may make a determination that a medical condition warrants compensation.  The VA is not required to determine fitness for duty at the time of separation.  The Army must find a member physically unfit before he or she can be medically retired or separated.

7.  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 him or her for VA benefits based on an evaluation by that agency.

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

__MP ___  __TBR __  __RKS  _  DENY APPLICATION

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

INDEX

CASE ID	AR2001053972	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010807	
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.	108.00	
2.	177	
3.		
4.		
5.		
6.