RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 1 September 2005 DOCKET NUMBER: AR20050001839 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. Mr. Carl W. S. Chun Director Mrs. Nancy L. Amos Analyst The following members, a quorum, were present: Mr. Stanley Kelley Chairperson Ms. Barbara J. Ellis Member Mr. Richard T. Dunbar Member Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, through a court remand, reconsideration of his June 2001 request to increase his disability rating to 50 percent and his March 2004 request to further increase his disability rating an additional 30 percent due to his being diagnosed with diabetes. 2. The U. S. Court of Federal Claims noted, in part, the government argued that the applicant waived any objection to his disability rating when he failed to contest the findings and recommendation of the Physical Evaluation Board (PEB) in 1998. The Court noted that the applicant's counterargument was that he was mentally disabled at the time of his discharge and therefore failed to fully appreciate or understand the import of failing to object to his disability rating. The Court found that where a serviceperson suffers from a mental disability and contends that he failed to fully appreciate the import of his actions due to his mental disability, he should not be deemed to have "waived" his objections to his rating because he waived his right to an administrative hearing. Accordingly, the government's motion to dismiss the applicant's complaint on the basis of "waiver" was denied. 3. The Court also noted, in part, that the applicant claimed that the 30 percent mental disability rating he received was not supported by the record and he should have received a 50 percent rating. The Court noted that Army Regulation 635-40 provides for a 50 percent disability rating when (a) the member is mentally competent to handle financial affairs and to participate in PEB proceedings; (b) the member requires intermittent hospitalization; (c) the member overtly displays some signs or symptoms of mental illness, such as …delusions…; (3) the member requires constant medications or psychotherapy; (3) the member exhibits extreme job instability; and (f) the member exhibits significant social maladjustment. 4. The Court also noted that Army Regulation 635-40 provides for a 30 percent disability rating when (a) the member does not require hospitalization; (b) the member displays some signs or symptoms of mental illness on examination; (c), the member usually requires medication and psychotherapy; (d) the member usually exhibits job instability; and (e) the member exhibits borderline social adjustment. 5. The Court agreed that the applicant met the criteria for a 50 percent disability rating under the regulation. The applicant had been hospitalized for psychiatric reasons in 1996 and 2001. The applicant overtly displayed delusional and paranoid behavior on multiple occasions and he was overtly delusional when his condition was first identified. The Court noted that, by contrast, the criteria for a 30 percent rating indicate that symptoms are identifiable only upon examination. The Court noted that the Army had indicated the applicant had "considerable" social and industrial impairment. 6. The Court found that the Army Board for Correction of Military Records (ABCMR) failed to properly evaluate the evidence of record in light of the criteria set forth in Army Regulation 635-40. The record established that the applicant met the criteria for a 50 percent disability rating and that his 30 percent rating was not consistent with the regulations. In such circumstances, the decision of the ABCMR not to amend his disability rating was arbitrary and capricious. 7. The Court also found, however, that the ABCMR's decision regarding the applicant's diabetes was supported by the record and that the applicant failed to meet his burden of proof regarding his diabetes claim. He never submitted medical evidence to show that he was in fact suffering from diabetes at the time he was discharged; he simply submitted tests that established that he could have had diabetes at that time. He also failed to submit medical evidence to show that his noninsulin-dependent diabetes was sufficiently severe in 1998 to have rendered him unfit for service and therefore entitled to a disability rating. 8. The Court found that, based on the record presented, the ABCMR's refusal to amend the applicant's disability rating to account for his diabetes was not arbitrary or capricious. 9. The applicant provides, in addition to the Court remand decision, his 18 March 2004 ABCMR application and a letter dated 14 January 2005 (with pages 16 through 19 of a Lab Result printout dated 22 November 2004 indicating he tested high for glucose levels as of 8 September 1998; page 38 of a Progress Note printout dated 22 November 2004 indicating he was prescribed an oral diabetes medication; an extract from his service medical records dated 14 July 1988 indicating he was treated for a tick bite; and a DA Form 2173 (Statement of Medical Examination and Duty Status) dated 18 June 1994 indicating he was bitten by a tick during training. 10. The applicant also provides a letter dated 13 April 2005 (with the same page 19 of a Lab Result printout dated 22 November 2004 plus page 23 of the printout indicating he was first given the A1c test (a test used to monitor the glucose control of diabetics over time) on 6 November 2001; a handwritten note dated 16 March 2005 from his doctor; and a 1 April 2005 letter from another doctor noting the applicant probably did have problems with low energy level and loss of vigor from 1998 on and that possibly some of that was contributed to by his diabetes). CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR2001062089 on 14 March 2002 (in part, to increase his disability rating to 50 percent) and by the ABCMR in Docket Number AR2004105956 dated 4 January 2005 (to award him an additional 30 percent disability rating for his diabetes). 2. While in the Army National Guard and on an Active Guard Reserve tour as a captain, the applicant's battalion commander referred him to the Community Mental Health Activity for a mental status evaluation. The reason for the referral was the applicant's isolating himself in the office and often getting very defensive, spending several nights in his office rather than going home, and continuously thinking that people were out to get him. On several occasions, the applicant had complained that his office, car, and home were bugged. 3. On 12 January 1996, the applicant was hospitalized with an admitting diagnosis of depression. He was later diagnosed as suffering from a delusional disorder. On 1 July 1996, an MEB determined he was suffering from a delusional disorder, persecutory type, and referred him to a PEB. 4. On 21 August 1996, an informal PEB determined the applicant was unfit for duty because of his delusional disorder (code 9208 (paranoid disorders) under the Veterans Administration Schedule for Rating Disabilities (VASRD)) and placed him on the Temporary Disability Retired List (TDRL) with a 30 percent disability rating. He was placed on the TDRL on 1 November 1996, at which time he was paid at the 50 percent rate. 5. On 14 September 1998, during a TDRL re-examination, a PEB determined that the 30 percent disability rating for the applicant's delusional disorder accurately reflected the degree of severity of his condition and considered that his condition had stabilized sufficiently for rating purposes. The PEB recommended permanent disability retirement with a 30 percent disability rating. On 6 October 1998, he was removed from the TDRL and placed on the Permanent Disability Retired List. 6. In his 14 January and 13 April 2005 letters, the applicant once again raised the issue of his being diagnosed with high glucose levels on 8 September 1998, prior to his permanent physical disability retirement. He also raised a new issue, that he was bitten by a tick in 1988 and in 1994. He contends that he was never tested for diabetes or Lyme Disease before the TDRL PEB, both of which can cause loss of vigor and low energy levels. 7. Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. It states that there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. 8. Department of Defense Instruction (DODI) 1332.38 (Physical Disability Evaluation), paragraph E3.P6.2.4 states that conditions newly diagnosed during TDRL periodic physical examinations shall be compensable when the condition is unfitting and the condition was caused by the condition for which the member was placed on the TDRL or the evidence of record establishes that the condition was incurred while entitled to basic pay or as the proximate result of performing duty and was an unfitting disability at the time the member was placed on the TDRL. 9. DODI 1332.39 (Application of the Veterans Administration Schedule for Rating Disabilities) notes that the VASRD percentage ratings represent, as far as can practicably be determined, the average impairment in civilian occupational earning capacity resulting from certain diseases and injuries. However, not all the general policy provisions of the VASRD are applicable to the Military Departments. Many of the policies were written primarily for VA rating boards and are intended to provide guidance under laws and policies applicable only to the VA. This Instruction replaces some sections of the VASRD. 10. DODI 1332.39 states that the rating criteria for VASRD codes 9200 through 9511 are essentially the same as the Court noted were outlined in Army Regulation 635-40. One minor but notable exception for the 50 percent rating is, whereas Army Regulation 635-40 states that the member requires intermittent hospitalization, DODI 1332.39 states that the member may demonstrate a significant requirement for hospitalization. DISCUSSION AND CONCLUSIONS: 1. The U. S. Court of Federal Claims found that the ABCMR failed to properly evaluate the evidence of record concerning the disability rating awarded the applicant in light of the criteria set forth in Army Regulation 635-40. The Court noted that the record established that the applicant met the criteria for a 50 percent disability rating for his mental disorder and that his 30 percent rating was not consistent with the regulations. 2. While the Board notes that the applicant did not meet all of the criteria listed for award of a 50 percent disability rating (there is no available evidence to show what medications he might have been taking or what psychotherapy he was undergoing), there is sufficient evidence to show he met more of the criteria to warrant a 50 percent rating than he did for a 30 percent rating. 3. The applicant still contends that he should be awarded an additional 30 percent disability rating because he was diagnosed with a high glucose level on 8 September 1998 and because he had been bitten by ticks, which can cause Lyme Disease. He contends that both diabetes and Lyme Disease can cause loss of vigor and low energy levels. 4. The year 1998 is not the key year to consider. DODI 1332.38 states that conditions newly diagnosed during TDRL periodic physical examinations shall be compensable when the condition is unfitting and the condition was caused by the condition for which the member was placed on the TDRL or the evidence of record establishes that the condition was incurred while entitled to basic pay or as the proximate result of performing duty and was an unfitting disability at the time the member was placed on the TDRL. 5. The applicant was first diagnosed with a high glucose level in September 1998, before he was permanently retired for disability in October 1998; however, he was placed on the TDRL in November 1996. In addition, as noted by the Court, the applicant never submitted medical evidence to show that he was in fact suffering from diabetes at the time he was discharged in 1998, much less in 1996. He also failed to submit medical evidence to show that his noninsulin-dependent diabetes was sufficiently severe in 1998 to have rendered him unfit for service and therefore entitled to a disability rating. 6. As regards the applicant's being bitten by a tick and possibly having Lyme Disease, he provides no evidence to show he had Lyme Disease at the time of his placement on the TDRL in November 1996 or that a "loss of vigor" or low energy levels rendered him unfit for service at that time. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF __sk____ __bje___ __rtd___ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant partial amendment of the ABCMR’s decision in Docket Number AR2001062089 dated 14 March 2002. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that he was awarded a 50 percent disability rating when he was permanently retired for disability in October 1998. 2. The Board determined that the evidence presented is insufficient to warrant amendment of the ABCMR’s decision in Docket Number AR2004105956 dated 4 January 2005. 3. The Board further determined that the evidence presented is insufficient to warrant a portion of the applicant's newly-requested relief. As a result, the Board recommends denial of so much of the application that pertains to increasing his disability rating based on his being bitten by a tick which he contends resulted in loss of vigor and low energy levels. __Stanley Kelley______ CHAIRPERSON INDEX CASE ID AR20050001839 SUFFIX RECON DATE BOARDED 20050901 TYPE OF DISCHARGE DATE OF DISCHARGE DISCHARGE AUTHORITY DISCHARGE REASON BOARD DECISION GRANT REVIEW AUTHORITY Mr. Schneider ISSUES 1. 108.02 2. 3. 4. 5. 6.