MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            27 MARCH 2003                
	DOCKET NUMBER:   AR2002076923

	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	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Ms. Joann H. Langston		Chairperson	
	Mr. Raymond V. O'Connor, Jr.		Member	
	Ms. Eloise C. Prendergast		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, that his military records be corrected to show that he was retired by reason of physical disability with a 30 percent disability rating and that he receive retroactive disability retired pay.

APPLICANT STATES:  The applicant made no statement but deferred to counsel.

COUNSEL CONTENDS: In effect, that the applicant commenced disability processing in October 2000 when he underwent a physical examination for the purpose of “MEB/PEB” (Medical Evaluation Board/Physical Evaluation Board) proceedings.  He notes that the applicant was diagnosed with “chronic symptomatic hepatitis C” in 1997 and had a history of “migraines” since 1998. Counsel states that the applicant was scheduled to separate from the Army in April 2001, but maintains that “due to the negligence of those who administered the disability Evaluation System (DES) Applicant was extended twice on active duty and kept on medical hold until beyond his ETS of Apr 01 until his separation on 19 Apr 02.”  He states that the negligence “worked a hardship upon [the] Applicant” and that there was “no clinical reason for these extensions.”

Counsel states that while the applicant “sat at Fort Stewart…awaiting a dictation of an MEB for a full year after his initial physical” the “Schedule of Rating Disabilities” was amended eliminating the 30 percent rating for individuals with the “chronic hepatitis of the kind associated with [the] Applicant” and replaced it with a 20 percent rating.  Counsel contends that as such the applicant “lost retirement” and that “equity demands that [the] applicant not be harmed by this change of law.”

Counsel also states that the applicant’s migraine headaches “went unrated even though they were unfitting.”  He maintains that the applicant’s headaches should have been rated at 10 percent.  He states that the applicant asked, in March 2002 that his “lengthy history of migraines be considered” and noted that the applicant had “four years of medicated and reported migraines which interfered with his duty performance.”

In support of the applicant’s request, counsel submits a copy of the applicant’s October 2000 medical examination, documents associated with his disability processing, extracts from the applicant’s service medical treatment records which detail treatment for his migraine headaches, and copies of a July 2000 permanent physical profile based on his hepatitis and bilateral hearing loss and a March 1999 temporary profile based on his migraine headaches.

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

He entered active duty on 16 April 1987 and was initially trained in an infantry specialty.  The applicant was subsequently trained and performed duties in the maintenance arena.  He was promoted to pay grade E-5 in February 1990 and to pay grade E-6 in July 1995.

During the applicant’s period of military service he was assigned to organizations located in Hawaii, Kansas, Missouri, Colorado and Alaska.  He was deployed in support of operations in Southwest Asia, Bosnia and Kosovo.  His awards include several Army Achievement and Army Commendation Medals, the Combat Infantryman Badge, a Meritorious Service Medal, and a Bronze Star Medal.  He was consistently rated as successful in the performance of his military duties.

Although the applicant’s performance evaluation reports indicate that he had various physical profiles during his military service, those reports consistently noted that his profiles did not prevent performance of his military duties.  

In April 1997 the applicant reenlisted for a period of 4 years.  As a result of his reenlistment, his scheduled separation date was established as 23 April 2001.

In March 1999 he was issued a 30 day temporary profile for headaches.  While the profile did permit the applicant to do some physical activities, his performance evaluation report, rendered in May 1999, indicated that the applicant did not take the Army’s physical fitness test and that the profile prevented him from losing weight.  It also noted that the applicant was “an exemplary NCO” and that “despite medical conditions continued to display tenacity of purpose and dedication to mission.”  His rater indicated that he was “among the best” in overall potential for promotion and service in positions of greater responsibility.  His senior rater placed him in the top block for both overall performance and potential.  The senior rater indicated the applicant should be promoted ahead of his contemporaries and that he “accomplished all assigned tasks with outstanding results.”

In July 2000 the applicant received a permanent physical profile based on his bilateral hearing loss and hepatitis C.

On 19 October 2000 the applicant underwent a physical examination.  The purpose of the examination was recorded as “MEB/PEB.”  The evaluating physician commented on the applicant’s hepatitis C, his hearing loss, unresolved 

skin lesions, weight gain, and that the applicant was pending various medical consultations.  The examining physician referred the applicant to a MEB.

A change of rater evaluation report, rendered for the period June 2000 through November 2000 indicated that the applicant was performing duties in his primary specialty and that although he was medically exempt from taking the physical fitness test, his profile did “not inhibit soldier’s ability to perform assigned duties.”

On 18 July 2001 the applicant underwent a physical evaluation which resulted in the narrative summary for the Medical Evaluation Board.  The summary indicated that the MEB had been “physician directed” and that the applicant’s chief complaint was “symptomatic hepatitis C diagnosed in 1997.”  It noted that the applicant was currently not on any “daily medication” and that he “continues to experience daily fatigue, generalized body aches and weight gain.”  The examining physician concluded that the applicant was suffering from “chronic hepatitis C, type 2A, symptomatic” (diagnosis 1) and referred the applicant to a Physical Evaluation Board.  The summary, which was transcribed on 
19 September 2001, made no reference to migraine headaches.  The applicant concurred with the findings and recommendation of the MEB on 20 September 2001.

The applicant’s narrative summary, associated with the Medical Evaluation Board, also noted that the applicant was undergoing drug therapy for his hepatitis beginning in September 2000, but that the therapy was halted in April 2001 when it was determined that the applicant’s condition was not responding as had been hoped.

On 25 September 2001 the applicant underwent an informal PEB.  The PEB noted that the applicant’s medical condition (MEB diagnosis 1) prevented reasonable performance of duties required by grade and military specialty and recommended the applicant be discharged by reason of disability with a 20 percent disability rating under the VASRD (Department of Veterans Affairs Schedule for Rating Disabilities).  The PEB also noted that the applicant had “requested retention” beyond his April 2001 scheduled separation date “to complete” MEB and PEB processing. 

On 15 October 2001 the applicant nonconcurred with the findings and recommendation of the informal PEB and demanded a formal hearing.

An addendum, dated 7 November 2001, was added to the applicant’s disability packet which reemphasized the course of the applicant’s hepatitis C treatment, 

that he failed to respond to a course of combination drug therapy, that he complained of severe daily fatigue, nausea, malaise, insomnia and post-prandial vomiting.  Since stopping his medication he continued to have chronic fatigue, nausea, vomiting, and arthralgia.  Again no mention was made of migraine headaches.

An annual performance evaluation report, rendered for the period December 2000 through November 2001 indicated that the applicant continued to perform duties in his primary specialty and that his profile did not inhibit his ability to perform assigned duties.  The applicant authenticated the report and was provided a copy in December 2001.
 
The applicant’s formal PEB convened on 20 December 2001 and “reevaluated all available medical records and sworn testimony by the soldier.”  The board concluded that the applicant’s 20 percent rating for hepatitis C “symptomatic with daily fatigue, without weight loss or hepatomegaly” was appropriate and recommended separation by reason of disability with entitlement to severance pay, if otherwise qualified.  

The applicant submitted a rebuttal to the formal findings and recommendation and noted that he believed he should receive a rating of 30 percent “due to the fact that [he] was sent to the MTF [medical treatment facility] on 28 September 2000 to begin this process.”  At that time he maintained that the VASRD provided for a 30 percent rating for his condition and that 10 months later the VASRD changed which “negated the 30% rating” and provided for rating “increments of 20, thus making the minimum rating for retirement benefits 40%.”  The applicant stated that his disability process should have been finished in 10 months.  He asked that he not be treated as if he were “being separated under the Quality [sic] Management Program (QMP)” but asked that he be granted retirement benefits.  The rebuttal statement, submitted with the applicant’s petition to this Board was dated 9 December 2001, but was unsigned.

The applicant’s disagreement with the findings of his PEB was reviewed along with his “entire case file.”  The United States Army Physical Disability Agency concluded that the applicant’s case was properly adjudicated and the “rules that govern the Physical Disability Evaluation System (PDES) in making its determination” were correctly applied.  The findings and recommendation of the formal PEB were approved “for the Secretary of the Army” on 20 December 2001.

Included with the applicant’s petition to this Board were copies of medical treatment forms, which indicated that the applicant complained of headaches on several occasions in 1998 and 1999.  The documents, which noted the applicant’s headaches, also included comments regarding his hepatitis C treatment.  A February 1999 medical treatment document notes that “imitrex resolves” the applicant’s headaches.  

A 12 March 2002 medical treatment form indicates that the applicant was seeking another addendum for his disability processing based on his headaches. However, on 22 March 2002 a medical consultation sheet noted that the applicant was undergoing disability processing for hepatitis C, and “has since been seen by [a] neurologist and diagnosed with migraines….”  It was determined that there was “no reason to changed the board findings” and suggested the applicant bring “new documentation on recent diagnosis” to the Department of Veterans Affairs.

On 19 April 2002 the applicant was discharged from active duty by reason of physical disability.  He received more than $59,000.00 in severance pay.

In a 1 May 2002 response to the applicant’s congressional representative, the United States Army Physical Disability Agency noted that there was no indication “from prior records” that the applicant’s migraine headaches ”would be unfitting.” The response indicated that while the applicant “may have migraine headaches” there was “no evidence that this significantly impaired his functioning as a soldier…”  They noted that the applicant’s case was “given a new and complete review” and that it was concluded that he “was provided all his administrative rights in accordance with the statutes and regulations, and the findings were in accord with the evidence of record.”

Army Regulation 635-40, which establishes the policies and procedures for determining whether a soldier is unfit because of physical disability, states that the medical treatment facility commander, having primary medical care responsibility will conduct an examination of a soldier referred for evaluation.  If it appears the soldier is not medically qualified to perform duty, the medical treatment commander will refer the soldier to a MEB.

It states that MEB are convened to document a soldier’s medical status and duty limitation and that the narrative summary is the heart of the disability evaluation system.  The MEB will recommend referral to a PEB those soldiers who do not meet medical retention standards.

The regulation states that the fact that a soldier has a condition listed in the VASRD does not equate to a finding of physical unfitness.  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.  

Prior to 25 June 2001 the VASRD provided for ratings of 0, 10 (demonstrable liver damage with mild gastrointestinal disturbance), 30 (minimal liver damage with associated fatigue, anxiety, and gastrointestinal disturbance of lesser degree and frequency but necessitating dietary restriction or other therapeutic measures), 60 and 100 percent for infectious hepatitis.  With the publication of supplement number 27 to the VASRD on 25 June 2001 the rating for hepatitis C “with serologic evidence…and the following signs and symptoms due to hepatitis C infection” included:

a 10 percent rating for intermittent fatigue, malaise, and anorexia, or incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least one week, but less than two weeks, during the pas 12-month period

a 20 percent rating for daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly), requiring dietary restriction or continuous medication, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least two weeks, but less than four weeks, during the past 12-month period

a 40 percent rating for daily fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least four weeks, but less than six weeks, during the past 12-month period

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.  While the applicant may feel that it was unfair that the VASRD rating for hepatitis changed between his initial physical examination in October 2000 and his MEB in July 2001, the fact remains that at the time of his MEB the new rating 

schedule for hepatitis had been in effect since the publication of the Supplement Number 27 on 25 June 2001.  The applicant’s contention that “negligence” on the part of those who administered the disability evaluation system resulted in his loss of retirement is without foundation.

2.  The Board notes that the applicant did undergo a physical examination in October 2000 in which the purpose of the examination was listed as “MEB/PEB.” However, that same evaluation indicated that the applicant was being referred for consultations.  The evidence presented to the Board indicates that the applicant was undergoing drug treatment therapy for his hepatitis between September 2000 and April 2001.  The Board concludes that it was reasonable to delay referral to the MEB pending a determination regarding the success of the drug therapy.  When that therapy failed the next logical occurrence would have been initiation of the MEB, which then occurred on 18 July 2001.

3.  The applicant’s contention that he “sat at Fort Stewart…awaiting a dictation of an MEB for a full year after his initial physical” is not supported by the evidence available to the Board.  Rather, the evidence indicates that the applicant underwent a MEB on 18 July 2001 and his narrative summary was transcribed on 19 September 2001.  

4.  The Board also notes that contrary to the applicant and his counsel’s contention that the applicant was extended on active duty past his April 2001 scheduled separation date with “no clinical reason” for the extensions, the evidence indicates that the applicant requested retention in order to complete his MEB and PEB processing.  The applicant could have separated from the Army on his scheduled separation date, but clearly that would have been to his disadvantage because such a separation would have been without any monetary benefits.

5.  While the evidence does indicate the applicant may have suffered from migraine headaches, the medical evidence indicates that he received a single 30 day temporary profile for the headaches in March 1999 and that his performance evaluation report rendered in May 1999 noted that “despite medical conditions” the applicant continued to “display tenacity of purpose and dedication to mission.”  Additionally, it was not until after his MEB, informal PEB and formal PEB, that the applicant raised the issue of his migraine headaches.  Clearly there was no indication that his headaches impacted on the applicant’s ability to perform his duties and as such there was, and continues to be, no basis to render a rating for that condition.

6.  The Board concludes that the applicant’s disability was properly rated, that he was afforded all the opportunities available to him to participate in the disability 

processing, and that his rights were not violated in any manner.  In particular, the Board notes that the applicant received a performance evaluation report ending in November 2001, just five months prior to his discharge by reason of disability, which indicated that he was fully participating in and performing duties in his primary specialty, in spite of his medical condition.

7.  The actions by the Army in this case were proper, and there is no doubt to be resolved in favor of the applicant.

8.  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 this requirement.

9.  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

__JHL  __  __RVO__  __ECP __  DENY APPLICATION

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

INDEX

CASE ID	AR2002076923	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20030327	
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.