MEMORANDUM OF CONSIDERATION


	IN THE CASE OF:   
	


	BOARD DATE:            20 January 1999                  
	DOCKET NUMBER:   AC97-10210

	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.



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:  That her military records be corrected to show that she was separated from active duty by reason of physical disability.

APPLICANT STATES:  The applicant deferred to counsel.

COUNSEL CONTENDS:  Counsel contends that the applicant’s medical condition did not exist prior to service as determined by a physical evaluation board (PEB) or, alternately, that the condition was aggravated by service; and that she should have been retired with a 100 percent disability rating.  Additionally, he requests that her records be corrected to show that she was promoted to pay grade E-5 while on the disability retired list; and that she be awarded all back pay due as well as all other pay or benefit to which she is entitled under law or by custom of the service.

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

On 24 September 1990, while serving as a member of the Army Reserve with a unit in San Antonio, Texas, she was ordered to active duty in pay grade E-4 in support of Operation Desert Shield/Desert Storm.

The applicant’s Reserve unit reported to Fort Sam Houston, Texas, and was then ordered to serve in Southwest Asia.  However, the applicant, with a 2-year history of foregoing treatment for an axillary mass, requested elective surgery at Brooke Army Medical Center (BAMC) and did not accompany her unit overseas.  Following that elective surgery on 17 October 1990 and a 2-week convalescent leave, she was discharged from BAMC on 5 November 1990 to a duty status with a physical profile serial and appropriate assignment limitations.

Approximately 1 month later (on or about 1 December 1990), she was separated from active duty.

A 16 July 1991 letter addressed to the applicant’s personal physician and signed by a physician specializing in arthritis and rheumatic diseases, shows, in part, that the applicant “has a one month history of swelling of the fingers and wrists with pain in the shoulders…Specific questioning with regard to systemic lupus erythematosus, Sjogren’s syndrome and scleroderma is unremarkable.”  He recommended treatment with a specific medicine (Prednisone) “in order that she may continue functioning at her job.”

A letter dated 17 September 1991 signed by the aforementioned specialist shows “[The applicant] carries the diagnosis of systemic lupus erythematosus [SLE] and is presently under treatment.  Her primary problem is joint pains which at times are severe.  Because of the unpredictable course of [SLE] there is a possibility that she may be disabled in the future.”

Apparently, the applicant was subsequently ordered to undergo disability processing.  On 29 October 1991 she underwent a medical evaluation board (MEBD).  The MEBD Narrative Summary shows that she was 28 years old at the time; and that she complained of joint pain and swelling of her hands, feet, wrists, right elbow, right shoulder, neck, knees, and left hip.  She was diagnosed as suffering from “Erosive inflammatory polyarthritis, probably seronegative rheumatoid arthritis,” and a nonqualified nodule in the left lung of unknown etiology.  The prognosis is shown as “Erosive rheumatoid arthritis is a chronic rheumatic disease with no known cure.  Although it may be controlled by medications, it is often marked by frequent disease exacerbations.  [She] will require continued and long term follow-up by a rheumatologist or an internist.  The development of deforming crippling arthritis can not be predicted at this point.  It is unlikely that her disease can be reliably controlled enough to allow continued active duty status.”

A 19 December 1991 memorandum addressed to the Commander, BAMC, shows that the applicant was flagged as of 1 April 1990 after failing to pass the Army physical fitness test; and that based on her medical records, “she can’t do much work with her hands.”

On 7 January 1992 a PEB found her physically unfit by reason of her arthritis condition.  The PEB Proceedings show, in part, “There is compelling evidence to support a finding that the current condition existed prior to service (EPTS) and was not permanently aggravated by such service.”  Separation without entitlement to disability benefits was recommended.  The applicant initially requested a formal hearing of her case; however, on 27 February 1992, her counsel, a military lawyer, signed a form stating that the applicant withdrew her request for a formal hearing but nonconcurred with the recommendation that she be separated without entitlement to disability benefits.

On 3 March 1992, following a review of the case by the Physical Disability Agency (USAPDA) the PEB findings and recommendation were approved for the Secretary of the Army.  

On 31 March 1992 she was honorably discharged as a Reserve of the Army.

A VA Medical Certificate shows that on 16 September 1993 she complained of “pain in left wrist for past week which is getting worse.” She was referred for further evaluation by a rheumatologist. 

On 14 June 1994 she submitted an application to this Board requesting that her separation document (DD Form 214) reflect the dates that her unit served in the Persian Gulf.  That application was administratively closed without action by the Board because of the absence of supporting documentation.

On 24 April 1998 the Board was advised (COPY ATTACHED) by the Army Review Boards Agency (ARBA) Medical Advisor that there was no basis on which to grant the applicant’s request.  A copy of the advisory opinion was provided to the applicant’s counsel.

On 2 June 1998 the applicant’s counsel provided a letter to the Board in which he wrote that a civilian physician had opined that although the MEBD and PEB used the diagnosis of seronegative rheumatoid arthritis, her symptoms were also consistent with systemic lupus erythematosis as well as other diffuse immune disorders; that the applicant had received immunizations in preparation for deployment to Southwest Asia; that the immunizations may have caused the diffuse immune system reaction or may have combined with previously received immunizations to cause the reaction; that the anesthetic agents used during the elective surgery could also have caused the reaction.  The civilian physician  further opined that her symptoms were strongly suggestive of a causal relationship between a service connected inciting event and the expression of her disease process.  He requested an additional 90 days in order to obtain additional documents and information.

Two days later, on 4 June 1998, counsel responded to the advisory opinion.  He wrote that the applicant had no arthritic problems prior to being activated for Operation Desert Storm/Desert Shield; that her arthritic problems developed suddenly in 1990 after she had received her immunizations and after the surgical removal of a small benign lipoma in her right shoulder; that immediately thereafter she experienced joint pain; and that within 6 years from the onset of symptoms in 1990, the condition has worsened until both wrists were fused and she was considered totally disabled by the Social Security Administration. 

On 21 August 1998 counsel provided the Board additional medical documents and stated that the applicant had undergone surgery on her right shoulder to relieve some of her symptoms.  The documents provide no new information other than the applicant was treated for a complaint of back pain after lifting boxes during annual training in August 1989, and that she was treated for temporomandibular joint syndrome (TMJ) in April 1991.

The Merck Manual, Sixteenth Edition describes rheumatoid arthritis as a chronic syndrome of unknown etiology which is characterized by nonspecific, usually symmetric inflammation of the peripheral joints that is 2 to 3 times more common in women than men.  Onset may be abrupt with simultaneous inflammation in multiple joints, or (more frequently) insidious with progressive joint involvement.  Rheumatoid arthritis may occur at any age, but it most often occurs between the ages of 25 and 50.

The aforementioned reference describes SLE as an inflammatory connective tissue disorder of unknown etiology occurring predominantly in young women but also in children (90 percent of cases occur in women).  SLE may begin abruptly with fever, simulating acute infection, or may develop insidiously over months or years with episodes of fever and malaise.  SLE can be difficult to differentiate from other connective tissue disorders in its early states; e.g., be mistaken for rheumatoid arthritis if arthritic symptoms predominate.

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 or her office, rank, grade or rating because of disability incurred while entitled to basic pay.

Army Regulation 635-40, Physical Evaluation for Retention, Retirement, or Separation, paragraph 2-4, provides that the USAPDA is responsible for reviewing PEB proceedings to ensure that soldiers are given uniform and fair consideration under applicable laws, policies, and directives; for making the final decision whether a soldier is unfit because of physical disability; and for determining percentage ratings and disposition.

Army Regulation 635-40, paragraph B-10, provides that hereditary, congenital and other conditions which existed prior to service frequently become unfitting through natural progression and should not be assigned a disability rating unless service aggravated complications are clearly documented or unless a soldier has been permitted to continue on active duty after such a condition, known to be progressive, was diagnosed or should have been diagnosed

Army Regulation 635-40, appendix B, Army Application of the VA Schedule for Rating Disabilities, paragraph B-3f, provides that conditions which do not render a soldier unfit for military service will not be considered in determining the compensable disability rating unless the conditions contribute to the finding of unfitness. 

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, it is concluded:

1.  The applicant entered active duty on 24 September 1990.  She served on active duty for approximately 2 months during which time she underwent elective surgery and, following a convalescent leave, she was returned to a duty status prior to her separation.

2.  The Board recognizes that at times there will be an honest difference of opinion among health professionals as to a specific diagnosis which is made at a specific time.  However, regardless of the diagnosis in this case, the issues of whether the illness existed prior to service and whether the illness was aggravated by service remains.
3.  The evidence of record indicates that the applicant was diagnosed as suffering from a medical condition that existed prior to service and rendered her physically unfit.  Counsel’s contentions that the condition might have been caused by immunizations or by general anesthesia drugs used during her surgery is not supported by sufficient medical evidence.

4.  There is no documentation which would indicate that the applicant’s medical condition was aggravated by her brief period of active duty at Fort Sam Houston, Texas.

5.  The foregoing is supported by the advisory opinion provided by the ARBA Medical Advisor and by the USAPDA.

6.  Notwithstanding the presence, or possible presence of other medical conditions, there is no evidence of record which would indicate that she suffered from any other medical condition that was in itself unfitting or contributed to the finding of unfitness.

7.  The applicant was in a nonpromotable status following her failure to pass the Army physical fitness test.  Accordingly, there is no basis on which to grant counsel’s request to show that she was promoted to pay grade E-5 at the time of her separation from active duty.

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 the aforementioned 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

jh______  rwg_____  dsj______  DENY APPLICATION




						Loren G. Harrell
						Director


INDEX

CASE ID
AC97-10210
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
1999 January 20
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19901201
DISCHARGE AUTHORITY
AR 635-40
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
108.04
2.

3.

4.

5.

6.