MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            21 NOVEMBER 2002                   
	DOCKET NUMBER:   AR2001061062

	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. Fred N. Eichorn		Chairperson	
	Mr. Lester Echols		Member	
	Mr. Thomas Lanyi		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:  Physical disability retirement.  

APPLICANT STATES:  That his condition at the time of his separation warranted a 30 percent disability rating according to the Veterans Administration Schedule for Rating Disabilities (VASRD), that the actions of the U. S. Army Physical Disability Agency (USAPDA) were contrary to policy changes regarding the rating for HIV infection, and that the USAPDA violated statutory and procedural requirements for reviewing TDRL (Temporary Disability Retirement List) cases and by failing to forward his case for review by the Army Physical Disability Appeal Board (APDAB).

The applicant states that he was placed on the TDRL on 27 May 1995 due to his infection with HIV with the then-current policy of providing a minimum rating of   30 percent, since superseded in 1996 by Department of Defense Instruction because of changes in the VASRD.  The VA consolidated VASRD rating codes used for HIV and AIDS-related illness into a single VASRD code 6351, providing rating schedules from 100 percent to 0 percent, thus doing away with the minimum rating for those illnesses.  Nonetheless, the Army continued to apply the minimum rating of 30 percent while he was on the TDRL as indicated on the Physical Evaluation Board (PEB) proceedings (DA Form 199) in 1996 and 1998. The PEB made no reference to constitutional symptoms, e.g., symptoms such as weakness, fatigue, nausea, shortness of breath, etc., but simply restated the CD4 counts revealed in his medical examinations.

In 1999 an informal PEB recommended that he be removed from the TDRL, stating that there was no evidence of any constitutional symptoms or any history of opportunistic infections (infections that occur as a result of lowered natural defenses), in his medical evaluation.  The PEB finding was plainly in error, as medical evaluations demonstrate that he has suffered from such constitutional symptoms as episodes of bronchitis, a history of perirectal abscess, hyperlipidemia (a general term for elevated concentrations of any or all of the lipids in the plasma, including hypercholesterolemia), and elevated cholesterol, all related to his HIV infection and the highly toxic drug regimens used to treat HIV. 

The applicant states that a USAPDA memorandum of 13 May 1997 grand fathered the 30 percent minimum rating for “all PEB cases with narrative dictation dates prior to 15 May 1997”, and since the initial narrative summary dictation date for his PEB case was 10 January 1995, the minimum rating of 30 percent continues to apply to his disability rating, and the PEB had no discretion to alter that rating.  He also states that the actions of the USAPDA were contrary to policy changes that were under review at the DOD during the processing of his 

case – a review with regard to preclude individuals with HIV from being denied disability retirement benefits.  The review resulted in a formal request to the VA that they alter the VASRD requirements for a 30 percent rating.  Consequently, the VA issued interpretative guidance for rating HIV infection under VASRD code 6351, which did not change the requirement for a 30 percent rating, but did explain the proper interpretation of the existing requirements – recurrent constitutional symptoms, even if the symptoms have responded to appropriate treatment.  The VA stated that treatment can modify the CD4 count and bring it to normal or near normal levels, while at the same time resulting in disabling effects itself.  The applicant states that the USAPDA failed to find that his HIV illness satisfied the VA guidance in his case, and that the USAPDA conclusion had no basis in fact.  Not only did his medical evaluation demonstrate a history of constitutional symptoms prior to the issuance of the VA guidance, but his medical history satisfied the new interpretation of the 30 percent rating schedule contained in the VA guidance.          

He states that the Army issued a policy memorandum in November 2000 restating the conclusion of the VA guidance, i.e., soldiers with the unfitting diagnosis of HIV are, as a general rule, to be rated at least 30 percent if the soldier has had recurrent constitutional symptoms, even if they have responded to appropriate treatment.  He states that the Army has granted permanent disability retirement benefits to a number of HIV-positive soldiers in cases like his, and that it would be unfair to deny him retirement benefits, particularly since the VA guidance was issued prior to his separation date. 

He states that the USAPDA violated statues by not completing its review of his TDRL case within five years after he was placed on the TDRL; and that the USAPDA violated the Army’s procedural requirements for reviewing TDRL cases, in that Army Regulation 635-40, paragraph 4-22, requires the USAPDA to give service members the opportunity to rebut the USAPDA’s findings and also requires further review by the Army Physical Disability Appeal Board for any disputed USAPDA disposition.  The USAPDA failed to provide him this opportunity.  

COUNSEL CONTENDS:  Counsel made no additional statement.

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

The applicant entered on active duty on 29 September 1981 and was released from active duty on 28 September 1984 in the grade of E-4.  He was in the Army Reserve Control Group until 1985 when he enlisted in the Maryland Army National Guard on 6 February of that year.  In June 1985 he was ordered to active duty in an Active Guard/Reserve (AGR) status, and except for a brief period of time with the California Army National Guard, he has been a member of the Maryland Army National Guard in an AGR status until his temporary disability retirement in 1995.

On 11 July 1992 the applicant received a physical profile serial of P2 1 1 1 1 1 because of a retrovirus infection.  He was restricted to assignment in the United States only.

A Medical Evaluation Board (MEB) narrative summary shows that the applicant was first diagnosed as HIV positive in January 1988, at which time staging evaluation revealed a Walter Reed Stage I with a T-cell count of 617, with the rest of his laboratory studies being normal.  Since 1988 he has progressed in his disease, his T cell count falling to 284 in December 1994.  He continued to maintain an active lifestyle and did not have chronic health problems or recurrent sinusitis, bronchitis, fatigue, or weight loss.  The MEB stated that the applicant was currently in his sixth year since diagnosis of HIV infection and has shown a progressive decline in CD4 count from 500 down to 200, placing him at high risk for developing an opportunistic infection with an 80 percent survival of less than five years.  His prognosis was poor because of a lack of cure for the disease.

On 31 January 1995 the MEB diagnosed the applicant’s condition as infection with HIV, significant loss of CD4 cell count because of his HIV, Walter Reed stage III, and hypersensitivity reaction to sulfa drugs.  The MEB recommended that he be referred to a PEB.  The applicant concurred.   

On 21 February 1995 a PEB found the applicant unfit and recommended that he be placed on the TDRL with a disability rating of 30 percent.  The applicant concurred.  The recommendation was approved and the applicant was placed on the TDRL on 27 May 1995.

The applicant underwent a TDRL examination in February 1996.  The examination revealed that he had done well without significant medical complaints, and follow-up T-cell counts revealed a stabilization of his cell counts with a T cell count of 314 in June 1995 and 310 in February 1996.  The examining physician stated that he was asymptomatic with his HIV, but it had a natural history of steady progression of loss of the immune system which would eventually result in death.  He was referred to a PEB.  On 10 April 1996 a PEB stated that his condition has not stabilized to the point that a permanent degree of severity could be determined.  The PEB recommended that he be retained on the TDRL with a reexamination in April 1997.

An April 1997 TDRL examination showed that the applicant had done well without significant complaints.  He was enrolled in a medical study comparing an antiretroviral therapy known as DMT-266 along with the AZT 3TC and indinavir that he was taking.  He was tolerating the medications well.  He had no 

opportunistic infections, and his CD4 count was 319, an improvement from the 310 count in February 1996.  The examining physician stated that the applicant remained asymptomatic with his HIV with stabilization of his T-cell count.  He had a good response to antiretroviral therapy with a viral load going from 78,000 to undetectable.  The natural history of HIV infection with strong antiretroviral therapy was unknown, and his natural history could not be predicted.  He was referred to a PEB.  On 2 June 1997 the applicant was notified that a PEB had reevaluated his physical condition and recommended that he be retained on the TDRL with a reexamination in June 1998.  He was notified that his disability rating would remain unchanged. 

The applicant underwent a TDRL examination in March 1998 which revealed that he had done well over the last year except for occasional episodes of bronchitis.  It revealed that he also complained of a lump in his perirectal area, which had been present for two weeks.  He continued to be enrolled in an investigational new drug study and was doing well.  He had tolerated his treatment well and had no opportunistic infections since his last visit.  A rectal examination was positive for external hemorrhoid, nonthrombosed.  His CD4 count was 579.  The examining physician stated that the applicant remained asymptomatic for his HIV infection and that the CD4 count had risen on his antiretroviral therapy; however, the long term effect of the improvement was unknown.  The physician stated that the applicant continued to have infection with HIV, but had a very encouraging response to antiretroviral therapy.  His condition was diagnosed as HIV Walter Reed stage III with a current CD4 count of 579, and external hemorrhoid, nonthrombosed.  He was referred to a PEB.  The PEB recommended that the applicant be retained on the TDRL.

A 2 April 1999 TDRL examination shows that the applicant had done well since his last examination except for occasional episodes of bronchitis as well as a small perirectal abscess developed in July 1998.  He was asymptomatic with his HIV and had a good response in his CD4 count.  On medication, his CD4 count rose from a low of 222 to a high of 668 in August 1998.  His current CD4 count was 648.  He had no opportunistic infections from his HIV infection.  He had developed hyperlipidemia probably in association with his protease-inhibitor therapy.  A review of his medication history revealed that it would be unsafe to stop his protease-inhibitor at that time.  His hyperlipidemia would be managed with diet and exercise.  His condition was diagnosed as HIV, Walter Reed     stage III, CDC state A1 with a current CD4 count of 648 (23 percent); history of small perirectal abscess, treated; hypercholesterolemia (secondary to protease-inhibitor); and episodes of occasional bronchitis.  The examining physician stated that the applicant continued to have infection with HIV; however, had a very encouraging response to highly active antiretroviral therapy.  He stated that it was not known how long the therapy would continue to hold his virus in check; however, recent reports suggested that 60 percent of patients would have continued long-term suppression of their virus.  He was referred to a PEB. 
On 2 June 1999 a PEB found the applicant physically unfit because of his HIV infection Walter Reed stage III, and CDC A1 with a current CD4 count of 648 (VA Code 6351).  The PEB indicated that there was no evidence of any constitutional symptoms or any history of opportunistic infections.  The remaining diagnoses rendered by the MEB were not rated.  The PEB recommended that the applicant be separated with a 10 percent disability rating.

In response to the PEB recommendation, on 7 July 1999, the applicant stated that the USAPDA Policy Memorandum #9, dated 6 June 1995 required a rating of 30 percent and continued placement on the TDRL.  He stated that the memorandum implemented a minimum rating of 30 percent for HIV cases involving clinical manifestation.  Although the DOD Directive 1332.18 was revised to exclude the 30 percent minimum rating for soldiers living with HIV, an implementation memorandum regarding that directive dated 13 May 1997 grand- fathered the 30 percent minimum rating for all MEB cases with narrative dictation dates prior to 15 May 1997.  Since the initial narrative summary dictation date for his PEB cases was 10 January 1995, he should have a minimum rating of         30 percent.  The USAPDA did not have the discretion to alter his rating.  He went on to say that the policy memorandum #9 continued to apply after a soldier’s removal from the TDRL even though the soldier’s condition may have improved so as to meet the 0 or 10 percent rating.  The policy memorandum clearly indicated that the 0 or 10 percent (VASRD) ratings do not apply to military HIV cases.

He stated that although the DOD Directive was revised in November 1996 to remove the 30 percent rating for HIV, the 13 May 1997 implementation memorandum grand-fathered the application of the minimum 30 percent rating [as indicated above].  Accordingly, the PEB had no discretion but to apply the previous DOD Directive 1332.18 and policy memorandum #9, including the minimum 30 percent rating therein, in his case.    

The applicant stated that his HIV condition was not stable and policy memorandum #9 states that soldiers who improve on the TDRL will be continued until stable.  The USAPDA noted that improvement achieved with the administration of antiretroviral drugs or with vaccines might not represent a true restoration of normal immune function and that improvement alone was insufficient to permit removal of soldiers living with HIV from the TDRL.  He stated that his CD4 count had increased somewhat due to treatment; however, his disability had not stabilized and he remained constantly at risk for relapse.  The drugs that he used to combat his HIV infection had produced side effects, to include elevated cholesterol levels and central fat redistribution.  He also suffered from HIV-related bronchitis and perirectal abscess.  Consequently, policy memorandum #9 required his continuation on the TDRL until his condition became stable.  He stated that the PEB had misapplied the standards adopted by the USAPDA.
On 20 July 1999 the PEB replied to the applicant’s appeal, informing him that the disability rating and compensation were based on an assessment of a soldier’s current medical condition in accordance with DOD Instruction 1332.39, Army Regulation 635-40, and the VASRD; and that the 31 March 1999 TDRL evaluation summary provided the information relative to his current medical condition.  He was informed that his current disability evaluation and rating were based upon the most recent medical information furnished the PEB, not the initial 31 January 1995 medical board which resulted in his placement on the TDRL.  The 13 May 1997 memorandum clearly indicated that TDRL examinations dictated after 15 May 1997 will be processed in accordance with the new DOD directive and instructions contained in Army Regulation 635-40.  The provision applied in his case.  Members on the TDRL are rated under the current VASRD criteria in effect at the time of their final reevaluation.  A change to the VASRD criteria, effective 25 August 1996, eliminated the minimum 30 percent rating for HIV cases.  He was found unfit for duty based on his HIV infection.  His              10 percent rating was considered appropriate.  He was informed that the board considered his history of perirectal abscess and episodes of bronchitis.  He was told that his case, including his appeal, would be held for his formal hearing.    

On 16 August 1999 a formal board met.  That board came to the same finding and recommendation as that of the 2 June 1999 informal board.

In his 30 August 1999 rebuttal to the recommendation made by the formal board, the applicant made many of the same arguments that he had put forth in his appeal to the 2 June 1999 informal board.  He did state, however, that he disagreed with the interpretation of the grand-fathering provision advanced by the PEB in its 20 July 1999 reply to his appeal.  He stated that the interpretation of that provision by the PEB would mean that no class of soldiers would benefit from the grand-fathering provision, because medical evaluations are conducted annually for those on the TDRL; consequently, there would be no soldiers processed under the old regulation since a soldier’s new summary dictation date would trigger application of the new DOD directive.  He stated that the Army could not interpret its own regulations to make them devoid of meaning.  He stated that the USAPDA ordered that existing TDRL cases be processed according to the directive and policies effective at the time those soldiers were placed on the TDRL.  The very existence of the grand-fathering provision indicated that the USAPDA intended to protect soldiers already on the TDRL from the significant impact that changes in the DOD directive would cause.  The applicant also advanced the argument that he made in his appeal to the               2 June 1999 informal board – that his disability had not stabilized and he should not have been removed from the TDRL.

On 22 September 1999 the PEB notified him that it affirmed the decision of the formal PEB that found him unfit with a disability rating of 10 percent.

On 31 July 2000 the USAPDA informed the applicant that it had noted his disagreement with the findings of the PEB, and that it had reviewed his entire case file.  It informed him that his case was properly adjudicated, and that the PEB’s findings and recommendations were supported by substantial evidence and were therefore affirmed. 

In a 3 August 2000 letter to the applicant, in response to his request to the Assistant Secretary of the Army to reconsider his case, the USAPDA informed him that it had again reviewed his case, and had considered the new                 10 May 2000 VA guidance which he provided.  He was informed that guidance did not result in any changes to the PEB’s finding, and that in order to obtain a    30 percent rating he had to have either recurrent constitutional symptoms or intermittent diarrhea subsequent to establishment of an approved medication regimen, minimum rating with T4 cell count less than 200, hairy cell leukoplakia, or oral candidiasis; and that fortunately for him, his symptoms did not fit any of the above four listed criteria.  

On 3 August 2000 the applicant was removed from the TDRL and discharged from the service with a disability rating of 10 percent. 

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 states in pertinent part that an individual may be placed in a TDRL status for a maximum period of 5 years when it is determined that the individual is qualified for disability retirement under Title 10, United States Code, section 1201, but for the fact that his or her disability is not stable and the individual may recover and be fit for duty, or the degree of severity may increase or decrease so as to warrant a change in the disability rating.  For those soldiers who first entered active duty after 7 September 1980, the minimum payment is 50 percent of the monthly retired pay base.  No changes will be made in the disability percentage rating while the soldier is retained on the TDRL even if the disability becomes materially better or worse.  A soldier will be removed from the TDRL on the fifth anniversary of the date the soldier’s name was placed on the list, or sooner on the approved recommendation of a PEB.  The soldier will be permanently retired for physical disability and entitled to receive disability retired pay or separated with severance pay.  The soldier may be reenlisted in the soldier’s component (RA, USAR, or ARNGUS), or may request voluntary retirement [if eligible] if found fit for duty. 

That regulation also states in pertinent part that the USAPDA has the authority to review PEB cases to ensure that the soldier received a full and fair hearing; that the proceedings of the MEB and the PEB were conducted according to governing regulations; that the findings and recommendations of the MEB and the PEB were just, equitable, consistent with the facts, and in keeping with the provisions of law and regulations; that due consideration was given the facts and requests contained in any rebuttal to the PEB findings and recommendations submitted by, or for, the soldier being evaluated; and that the records of the case are accurate and complete.  The USAPDA may concur with the findings and recommendation of the PEB; return the case to the PEB for reconsideration, clarification, investigation, or other action; issue revised findings; or refer the case to the APDAB.   Paragraph 4-22d states in pertinent part that the USAPDA may issue revised findings providing for a change in disposition of the soldier or change in the soldier’s disability rating.  In such cases, the USAPDA will furnish the soldier a copy of the revision, and if the soldier submits a rebuttal to the revised findings and the USAPDA adheres to its revised findings, then the case will be forwarded to the APDAB. 

USAPDA Policy Memorandum #9, dated 6 June 1995, provided rating guidance for HIV infection, and referred to the rating schedule published by the VA in March 1992 and DOD Directive 1332.18 then in effect.  It stated that in accordance with DOD guidance, soldiers who do not meet medical retention standards for HIV will be found physically unfit and rated at no less than 30 percent.  The minimum rating of 30 percent applied upon soldier’s removal from the TDRL, even though the soldier’s condition might have improved so as to meet the 0 or 10 percent rating.  It indicated that 0 percent and 10 percent ratings did not apply to military HIV cases.  

DOD Directive 1332.18, dated 4 November 1996, provides policy and responsibilities for separation or retirement for physical disability and states in pertinent part that the assignment of disability ratings shall be based on the VASRD as implemented by DOD Instruction 1332.38 and 1332.39.

DOD Instruction 1332.38, dated 14 November 1996 (effective 15 May 1997),  implements policy, assigns responsibilities, and prescribes procedures for retiring or separating service members because of physical disability and making administrative determinations for service members with service-incurred or service aggravated conditions.  That instruction states that when a disability is established as compensable, the disability shall be rated according to the VASRD, as implemented by DOD Instruction 1332.39 and federal law.

Congress established the VA Schedule for Rating Disabilities (VASRD) as the standard under which percentage rating decisions are to be made for disabled military personnel.  Percentage ratings in the VASRD represent the average loss in earning capacity resulting from diseases and injuries.  The ratings also represent the residual effects of these health impairments on civilian occupations.  

DOD Instruction 1332.39, dated 14 November 1996, implements policy, assigns responsibilities, and prescribes procedures for rating disabilities of service members determined to be physically unfit and who are eligible for disability separation or retirement.  It states that the VASRD is the standard for assigning percentage ratings; however, not all the general policy provisions of the VASRD are applicable to military departments.  Consequently, the DOD instruction replaces certain sections of the VASRD.  It also states in pertinent part that members on the TDRL shall be rated under the VASRD criteria in effect at the time of their final reevaluation.  Enclosure 2 to that instruction supplements the VASRD and states in pertinent part that members found unfit for HIV and/or AIDS will be rated according to the 6351 code and the rating scheme in the VASRD.  The minimum rating of 30 percent, which existed prior to the establishment of the VASRD code 6351, is no longer in effect.    

On 12 May 1997 the USAPDA provided guidance to PEB presidents on the implementation of DOD Directive 1332.18 and its instructions.  As part of that guidance the USAPDA indicated that there was no longer a 30 percent minimum rating for HIV, and that policy memorandum 9 was rescinded for all new cases.
In a rating for an unfitting disability, when the MEB was dictated on or after         15 May 1997, the PEB must refer to the VASRD, the new DOD Instruction [DOD Instruction 1332.39] relating to the application of the VASRD, Appendix B to Army Regulation 635-40, and any other agency guidance regarding the condition. 

In a 13 May 1997 memorandum to PEB presidents, the USAPDA provided implementing instructions to the DOD Directive 1332.18, and DOD Instruction 1332.38 and 1332.39.  The USAPDA stated in effect that MEBs and TDRL examinations with a narrative summary dictation date prior to 15 May 1997 were to be processed according to the 1986 DOD directive and the current Army Regulation 635-40.  The MEBs and TDRL examinations with a narrative summary dictation date on or after 15 May 1997 will be processed according to the new DOD directive and instructions and those provisions of the current Army Regulation 635-40 that did not conflict with the DOD policy and procedures.  The USAPDA stated in effect that for all PEB cases with narrative dictation dates after 15 May 1997, only policy memorandums #3, #7, #11, and #’s 13 through 22 remained in effect.

On 14 February 2000 the Office of the Secretary of Defense (OSD) requested that the VA correct an outdated provision in the VASRD denying eligibility for disability retirement for a significant number of military members with advanced HIV disease, stating that because of some changes in their conditions brought about by HAART (Highly Active Anti-Retroviral Therapy), many members would 
not qualify for permanent disability retirement and would be separated without retirement benefits – because the VASRD standard for a 30 percent rating for HIV-related illness relied most heavily on the patient suffering a drop in T4 cell count below 200.  However, many members on the TDRL experienced improvements in the T4 cell count because of HAART, but remained very sick, with continuing immune system impairment, high vulnerability to opportunistic infections, heavy reliance on toxic and complex drug regimens, and dependence upon ongoing expert medical follow-up.  The OSD requested that the VASRD standard be revised for HIV-related illness to reflect a 30 percent rating for recurrent constitutional symptoms, intermittent diarrhea, and on approved medication(s), or minimum rating with T4 cell count at any time less that 200, or hairy cell leukoplakia, or oral candidiasis.  

On 12 December 2000 the Under Secretary of Defense provided clarification to service secretaries regarding the standards for evaluating fitness and degree of disability for HIV-infected members coming off the TDRL, particularly those who had responded well to aggressive new drug therapies.  That official referred to the VASRD guidelines for rating HIV infections issued by the VA on                   10 May 2000, and stated that under those guidelines, each case should be resolved on its own specific facts.  As a general rule, however, if a member has had or currently has “recurrent constitutional symptoms, even if they have responded to appropriate treatment, the minimum rating is 30 percent.”  That rule applies whenever such a symptom occurs or has occurred more than once.  Examples included weakness, fatigue, nausea, shortness of breath, loss of appetite, etc. 

The VASRD guidelines for rating HIV infection states in pertinent part that, “The initial HIV infection with non-specific flu-like symptoms and/or lymphadenopathy, will probably warrant a 0-10 percent evaluation, UNLESS treatment has been initiated early.  In that case, evaluation may be higher, based on the particular complications of drug therapy.  It also states, “While CD4 counts are part of the rating schedule criteria, as always, you should rate the disability.  If the CD4 count is above the level for a certain evaluation, but the disabling signs and symptoms would call for a higher evaluation, evaluation should be based on the disabling effects rather than on the laboratory finding.”  It stated that treatment can modify the CD4 count and bring it to normal or near normal levels, while at the same time it results in disabling effects itself.  It went on to say, “On HAART, a number of side effects and complications are likely, and it will be the unusual case where less than a 30 percent level of disability evaluation will be warranted.”  However, it did state, “Of those on treatment who will be rated below 30 percent, most will probably be veterans treated soon after HIV has been diagnosed, when they are asymptomatic, and who also develop few or no side effects or complications from treatment.”  Finally, it stated, in effect, that if there had been recurrent constitutional symptoms, even if they have responded to appropriate treatment, the minimum rating was 30 percent; and once an opportunistic infection or neoplasm appeared, the rating would be 60 percent or above.  

On 9 January 2001 the USAPDA provided the above policy guidance to PEB presidents.  

The VASRD for HIV-related illness, VA code 6351, provides disability percentage ratings from 0 percent to 100 percent.  The ratings for 30, 10, and 0 percent are as follows:

•	30 percent - Recurrent constitutional symptoms, intermittent diarrhea, and on approved medication(s), or; minimum rating with T4 cell count less than 200, or Hairy Cell Leukoplakia, or Oral Candidiasis
•	10 percent - Following development of definite medical symptoms,        T4 cell of 200 or more and less than 500, and on approved medication(s), or; with evidence of depression or memory loss with employment limitations
•	0 percent - Asymptomatic, following initial diagnosis of HIV infection, with or without lymphadenopathy or decreased T4 cell count 

A symptom, according to a medical dictionary, is any subjective evidence of disease that can only be appreciated by the patient.  As opposed to a sign which is objective, like blood coming out a nostril, it is apparent to doctor, patient, or anyone.  Anxiety, lower back pain, and fatigue are all symptoms; they are sensations only the patient can perceive.

A constitutional symptom is a symptom indicating a systemic (the entire organism or bodily system – pertaining to or affecting the body as a whole) effect of a disease, e.g., weight loss.

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 applicant was first diagnosed as HIV positive in 1988, some 14 years ago, as indicated by a 1995 MEB.  He was placed on the TDRL on 27 May 1995 and removed in August 2000, approximately three months beyond the maximum period of five years mandated by law.  Nonetheless, his removal whether for retirement, separation, or return to duty as fit, was a foregone conclusion.  His retention beyond the five year period harmed him not.  There is no injustice in retaining him while the appeal process ran its course.

2.  There was no disagreement between the PEB and the USAPDA regarding the applicant’s disability ratings; consequently, the USAPDA had no reason to revise the findings of the PEB.  Therefore, the applicant’s case did not require a review by the APDAB, as the applicant has stated.  The USAPDA had the authority to affirm the findings and recommendations of the PEB without referral to the APDAB, and did so.  Regulatory procedures were correctly followed.  The applicant has either misread or misinterpreted that portion of the regulation pertaining to USAPDA review of PEB decisions. The Board notes that the applicant used every appeal option available to him – rebuttal of the 2 June 1999 PEB and consideration by the PEB of his appeal; formal board proceedings, his 30 August 1999 rebuttal to that board, consideration of his rebuttal and his case by the PEB and the USAPDA; and appeal to the Assistant Secretary of the Army, and the response thereof.  Therefore, and notwithstanding his contentions, the applicant had ample opportunity to state his views, and he has done so.  There are no procedural violations in the handling of his case.  

3.  The Board recognizes that he had an initial narrative summary dictation in January 1995; however, the applicant’s disability rating was based on the PEB considering the overall history of his HIV condition, his progression with that disease, and his current condition as reflected in the April 1999 TDRL narrative summary.  The rules changed after 15 May 1997.  The VASRD, and by extension the DOD, no longer mandated a 30 percent minimum rating for HIV.  There was no “grand-fathering” of the 30 percent minimum rating in his case as the applicant contends.  The applicant was so informed by the PEB on 20 July 1999. His continued insistence that he should have been grand-fathered is without merit.  His case was fairly processed in accordance with the rules in effect at that time. 

4.  The Board also recognizes that policy changes were being effected concerning military members with HIV-related illness, especially those members whose condition had improved because of HAART.  The Secretary of Defense requested that the VA recognize that the VASRD standard be revised for       HIV-related illness to reflect a 30 percent rating for recurrent constitutional symptoms, intermittent diarrhea, and on approved medication(s), or minimum rating with T4 cell count at any time less than 200, or hairy cell leukoplakia, or oral candidiasis. The 30 percent rating for those conditions is reflected in the VASRD for HIV-related illness.  Furthermore, the Under Secretary of Defense has stated that as a general rule, if a member has had or currently has recurrent constitutional symptoms, even if they have responded to appropriate treatment, the minimum rating is 30 percent.  The Under Secretary of Defense also stated that each case should be resolved on its own specific facts.  

5.  The July 1999 informal PEB noted that the applicant had no evidence of any constitutional symptoms or any history of opportunistic infections.  The 2 April 1999 TDRL examination showed that the applicant was asymptomatic with his HIV and had a good response in his CD4 count.  The informal PEB noted his conditions reflected by the 2 April 1999 TDRL examination – hyperlipidemia, small perirectal abscess, and episodes of occasional bronchitis, and determined that those conditions were not ratable.  The applicant did not have any of those HIV-related illness conditions contained in the VASRD that called for a 30 percent disability rating.  The PEB, in response to his appeal, so informed him.  The formal PEB made the same determination, and the PEB affirmed that decision.  The USAPDA informed him that his case was properly adjudicated.  The applicant’s condition at the time of his informal PEB was properly rated.  His discharge with a disability rating of 10 percent in August 2000 after his appeals had run its course was proper.       

6.  The applicant’s condition as shown in the 1995 MEB narrative summary showed that he had a CD4 count of 284, with a poor prognosis because of a lack of a cure for HIV.  Because he was qualified for disability retirement, but his condition was not stable, he was placed on the TDRL, with a 30 percent disability rating; however, with a minimum payment of 50 percent of his monthly retired pay base.  He was so informed and also told that he would receive 50 percent of his retired pay base until removed from the TDRL.  The applicant’s inference that he should have been retired with a 30 percent rating because the Army continued to apply that rating while he was on the TDRL is without merit.  

7.  The applicant’s condition improved substantially since 1995 – with a CD4 count of 648 as reflected in his last TDRL examination in April 1999.  The HAART has kept his virus in check.  He was asymptomatic with his infection.  His prognosis was good, especially in view of an earlier examination indicating his condition was incurable which would probably result in his death.  His condition did not suddenly improve, but did so over a period of time, as a result of the antiretroviral medications that he was taking.   

8.  The applicant’s medical records are not available.  Nonetheless, the various proceedings and documents contained in the applicant’s submission to this Board clearly show that the PEB and the PDA, in making their decisions relied on various sources, to include information contained in his medical records.  There is no evidence, and the applicant has not provided any, to show that the conclusions and recommendations made were contrary to medical standards.  

9.  The applicant has not shown that his episodes of bronchitis, his infection near the anus, or his fat in the blood and elevated cholesterol are constitutional symptoms as defined by medical authority.  All of his complaints are of a local origin and of short duration and minimal severity.  Bronchitis is a disease, an illness, not a symptom resulting from a disease.  It is an inflammation of the bronchial tubes caused by exposure to cold, the inhalation of irritants, such as cigarette smoke or acute general disease.  It was not chronic, did not cause weight loss, chronic cough, sleep deprivation, headaches, shortness of breath or any other symptom, which could be classified as constitutional.  His one episode of perirectal abscess, also, is not a constitutional symptom, but a localized collection of pus around the anus, and did not cause any type of infection that required the use of systemic antibiotics.  By the same token, the applicant’s elevated cholesterol and fat in his blood are diagnoses determined by laboratory tests, and are not conditions which are readily apparent to an individual.  They were controlled by diet and exercise and did not at any time affect his exercise tolerance, strength, or his energy levels.  Using the applicant’s reasoning, any infection, or inflammation, no matter how minor, or how localized could be considered, in his case, a constitutional symptom brought about by his HIV infection.  Medical authorities have determined that he did not have recurrent constitutional symptoms.  His current condition resembles that which warrants a ten percent rating according to the VASRD.   

10.  The applicant has HIV, asymptomatic.  His condition may or may not worsen with time.  The applicant, however, has the right to file a claim now with the VA.  Should he do so, and should his condition warrant, the VA may deign to award him a disability rating higher than 10 percent.  The VA makes its own decisions concerning entitlement to disability compensation and ratings and is not bound by decisions of the Army; and likewise, the Army is not bound by VA decisions.
The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated. 

11.  The applicant's disability was properly rated in accordance with the VA Schedule for Rating Disabilities.  His separation with severance pay was in compliance with law and regulation.

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

13.  In order to justify correction of a military record the applicant must show by the preponderance of the evidence that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

14.  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

__FNE__  __LE____  __TL____  DENY APPLICATION

	Karl F. Schneider
           Director, Army Review Boards Agency

INDEX

CASE ID	AR2001061062	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20021121	
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.		
3.		
4.		
5.		
6.