APPLICANT REQUESTS:  That she be rated for the diagnosis of herniated nucleus pulposus L4-L5, L5-S1.

APPLICANT STATES:  She was told that she could not be rated for her back condition because it did not become physically unfitting until after her release from active duty and assignment to the Temporary Disability Retired List (TDRL).  She contends that since she had been diagnosed as having herniated disks prior to her discharge she should have been rated for that condition.

EVIDENCE OF RECORD:  The applicant's military personnel and medical records were not provided to the Board.  Information contained herein was derived from her VA medical records.

On 6 December 1984 she enlisted in the Regular Army and was released from active duty and transferred to the USAR Control Group in pay grade E-4 on 6 September 1985.

On 27 September 1989 she accepted assignment to a USAR unit and performed duties as a legal specialist.

On 10 May 1992 she was ordered to active duty in the Active Guard and Reserve (AGR) program.

In her 5th month of active duty in the AGR program, in October 1992 the applicant was involved in an automobile accident.  She was taken to a hospital at that time, treated for multiple contusions, and was given a series of tests.  Those tests revealed that she had herniated the nucleus pulposus in her L4-L5 and L5-S1 disks in the impact of the accident, and that she had a white blood count of 180,000, showing that she had chronic myelogenous leukemia.

On 9 February 1993 a medical evaluation board (MEB) convened and determined that the applicant suffered from chronic myelogenous leukemia requiring chemotherapy with an allogenetic bone marrow transplant planned in “the near future” at an Army Medical Center.  The MEB also found the applicant to have herniated nucleus pulposus in her L4-L5 and L5-S1 disks with secondary chronic low back pain syndrome and S1 radiculopathy (disease of the nerve roots); to have a history of occipital neuralagia (proxysmal pain of the nerves in the back of the head); and to have a history of conversion reaction (the physical manifestation of emotions).  The MEB referred the applicant to a physical evaluation board (PEB).

On 7 April 1993 a PEB convened and determined that the applicant was physically unfit due to chronic myelogenous leukemia requiring chemotherapy with a planned allogenetic bone marrow transplant.  The PEB determined that the other conditions noted by the MEB were not unfitting and, therefore, not ratable.  The PEB recommended that she be released from active duty and placed on the TDRL rated 100 percent disabled.  That recommendation was approved.

On 11 April 1995, while assigned to the TDRL, the applicant was considered by another PEB which determined that she was physically unfit due to chronic myelogenous leukemia, chronic, phase stable, rated 100 percent disabling, and due to chronic low back pain with intermittent radicular symptoms.  However, the PEB concluded that her low back pain became unfitting while she was on the TDRL and, therefore, was not compensable.  The PEB determined that her condition had stabilized to the degree necessary to permanently rate her and recommended that she be permanently retired, rated 100 percent disabled.

The applicant did not agree with those findings and recommendation, submitted a rebuttal to the PEB, and demanded a formal hearing.  She was contesting her not being rated for her back injury.

The PEB responded to her rebuttal, stating that her last physical examination supported the finding of her initial PEB that her back condition was not unfitting for her to perform her duties as a legal clerk at the time of her placement on the TDRL, and that a subsequent PEB can only rate a soldier assigned to the TDRL for conditions which were determined to be physically unfitting at the time of his or her placement on the TDRL.  The PEB informed the applicant that a formal hearing was being scheduled for her.

Accordingly, a formal PEB convened on 20 July 1995 and determined that the applicant was physically unfit due to chronic myelogenous leukemia, chronic, phase stable, rated 30 percent disabling.  The formal PEB determined that her chronic low back pain with intermittent radicular symptoms was not unfitting and not ratable.  This PEB also determined that her condition had stabilized to the degree necessary to permanently rate her and recommended that the applicant be permanently retired, rated 30 percent disabled.  This PEB also noted that the applicant had refused a bone marrow transplant, the only procedure which would significantly improve her leukemia.

The applicant appealed that decision and on 9 August 1995, the PEB rescinded its prior decision and recommended that the applicant be retained on the TDRL rated 100 percent disabled.

Currently, the applicant is assigned to the TDRL rated 100 percent disabled.

Army Regulation 600-8-1, paragraph 41-8 states, in pertinent part, that if an EPTS condition was aggravated by military service, the finding will be in line of duty.  If an EPTS condition is not aggravated by military service, the finding will be not in line of duty, EPTS.  Specific findings of natural progress of the pre-existing injury or disease based on well established medical principles alone are enough to overcome the presumption of service aggravation.  

Army Regulation 635-40, the regulation which governs PEB’s, paragraph 4-19b, states that a PEB may decide that a soldier’s physical defect was EPTS, but must then determine whether the condition was aggravated by military service.  If the PEB determines that a soldier has an unfitting EPTS condition which was service aggravated, the PEB must determine the degree of disability that is in excess of the degree existing at the time of entrance into the service.  The method of determining the percentage of disability to be awarded in such cases is outlined in appendix B, item B-10 of this regulation.  This regulation also provides that members who do not meet medical retention standards will be referred to a PEB for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.  For example, a noncommissioned officer who receives above average evaluation reports and passes Army Physical Fitness Tests (which have been modified to comply with the individual’s physical profile limitations) after the individual was diagnosed as having the medical disqualification would probably be found to be fit for duty.  The fact that the individual has a medically disqualifying condition does not mandate the person’s separation from the service.  Fitness for duty, within the perimeters of the individual’s grade and military specialty, is the determining factor in regards to separation.  If the PEB determines that an individual is physically unfit, it recommends the percentage of disability to be awarded which, in turn, determines whether an individual will be discharged with severance pay or retired.  Chapter 7 of this regulation provides the policy and procedures for individuals assigned to the TDRL.  Paragraph 7-11 states, in effect, that disabilities incurred while an individual is assigned to the TDRL are not grounds for medical retirement or discharge with severance pay.

Wintrobe’s Clinical Hematology, 9th Edition, Volume 2, states in pertinent part that in a study group of individuals who had leukemia, a white blood count of 100,000 (the level where an individual exhibits symptoms of the disease, or the preclinical stage) was reached in an elapsed time of about 19 months (with a range of 7 to 24 months) from the beginning of leukocylosis (elevated white blood count indicating the onset of leukemia).  At this rate of rise, 6.3 years would elapse from the time the initial chromosomal translocation occurs until the patient become symptomatic and the diagnosis becomes obvious.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1.  The applicant has not shown that her back injury prevented her from performing her duties as a legal clerk when she was initially medically boarded.  Absent this finding, she may not be rated for that condition.  The possibility that her back condition became unfitting after her placement on the TDRL is of no consequence, as was pointed out to the applicant by her second PEB.  Her physically unfitting condition was her leukemia, the condition for which she was rated.

2.  In addition, the applicant’s condition appears to have existed prior to her entry on active duty in the AGR program.  The Board theorizes that the applicant’s MEBs and PEBs erroneously assumed that she had been on active duty for a prolonged period of time based on her initial date of entry in the Army and her rank.  Such an error is understandable when dealing with an AGR soldier initially entering on active duty in that program.  However, if that fact had been recognized at the time she was initially considered by a PEB, it appears likely that her condition would have been considered EPTS and she would have been separated without any disability benefits.

3.  In view of the foregoing, there is no basis for granting the applicant’s request.

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:

BOARD VOTE:

                       GRANT          

                       GRANT FORMAL HEARING

                       DENY APPLICATION




						Karl F. Schneider
						Acting Director