MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:           6 July 2000                   
	DOCKET NUMBER:   AR1999030774

	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. Calvin M. Fowler 		Chairperson	
	Mr. Ernest M. Willcher 		Member	
	Mr. John P. Infante 		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, the applicant requests an increase in his physical disability rating of 70 percent that he is currently receiving.   

APPLICANT STATES:  That his disability rating was incorrect because he was not diagnosed with hepatitis “C” at the time of his medical board.  The only time that he could have contracted hepatitis “C” was from the blood transfusion when his spleen was ruptured and removed in May 1971. 

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

The applicant, then a second lieutenant assigned to the 308th S&S Battalion in Germany, suffered numerous injuries in a motorcycle accident in May 1971.  He underwent extensive treatments and surgeries, and in June 1972 was found physically unfit by a Physical Evaluation Board (PEB) and placed on the temporary disability retired list (TDRL) with an 80 percent combined rating.  In October 1976 the applicant was permanently retired with a combined rating of 60 percent.  His medical records show that he did have a splenectomy, did receive a blood transfusion, but contain no evidence or information that he contracted hepatitis either while on active duty, or while on the TDRL. 

The applicant requested an increase in his disability rating, and on                     18 August 1982 this Board determined that there should have been a 5 percent bilateral factor, which when combined with his other disability ratings would have resulted in a combined disability rating of 70 percent.  The applicant was granted a 70 percent disability rating effective from the date of his removal from            the TDRL.         

A 10 June 1998 medical report shows that the applicant’s condition was diagnosed as abnormal liver function tests, etiology undetermined, chronic hepatitis C viral infection.

A 9 July 1998 medical report shows that the applicant’s condition was diagnosed as chronic hepatitis C with superimposed alcohol liver injury.  That report indicated that the applicant was now abstinent from alcohol and doing well.

A 12 August 1998 laboratory report indicates that the applicant had chronic hepatitis C.

A 22 September 1998 medical report shows that the applicant was referred because of liver function abnormalities.  That report indicated he had hepatitis C antibody positivity.  It indicated ethanol (alcohol) use.  He had chronic back pain and mild depression.  His condition was diagnosed as chronic hepatitis C with stage I, grade II biopsy changes of chronic active hepatitis, and minimal associated alcohol effect as evidenced by fat.

In the processing of this case, an advisory opinion (COPY ATTACHED) was obtained from the Medical Advisor to the Army Review Boards Agency.  That official indicated that the applicant’s medical records contained no mention or a diagnosis of a liver disease.  He did note that the applicant does now have chronic hepatitis C, but stated in essence, there is no cause to refer the applicant to a medical evaluation board (MEBD) based on symptoms and a diagnosis of this condition, more than 20 years after his treatments and surgeries.  He recommended that the applicant apply to the VA for benefits for his possible service connected disability.  

In his rebuttal (COPY ATTACHED) to the advisory opinion, the applicant stated that he did not quite understand the information in the advisory opinion, but that he does have hepatitis C, which is a liver disease.  He states that it would not benefit him to apply to the VA for service connection disability for his hepatitis, as the VA bases its ratings on the Army’s ratings. 

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

Army Regulation 40-501, chapter 3, gives the various medical conditions and physical defects which may render a soldier unfit for further military service.  Paragraph 3-5f of that chapter states in effect, that a soldier may be referred to a medical evaluation board for hepatitis, chronic, when, after a reasonable time    (1 or 2 years) following the acute stage, symptoms persist, and there is objective evidence of impairment of liver function.

Army Regulation 635-40 establishes the Army physical disability evaluation system.  Paragraph 3-1a, 3-1b, and 3-1c, pertains to standards of unfitness because of physical disability, to include guidelines for applying those standards to fitness decisions in individual cases.  Paragraph 3-2a concerns certain presumptions that apply to physical disability evaluations before and during active service.   

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. 

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 1976 PEB does not show that he had a liver condition at the time he was permanently retired for disability.  There is no medical evidence, nor has the applicant provided any, to show that his hepatitis C condition was a result of blood transfusions that he received in 1971.  His liver condition, which he now has [based on the information the applicant has provided], apparently did not surface until 1998.  He is not entitled to an increase in his disability rating.    

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

3.  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 the aforementioned requirement.

4.  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

___cmf__  ___emw__  ___jpi___  DENY APPLICATION

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

INDEX

CASE ID	AR1999030774	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000706	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  177	108.00	
2.		
3.		
4.		
5.		
6.