PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 8 November 2001
         DOCKET NUMBER: AR2001053950


         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 Amos		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Ms. Barbara J. Ellis		Member
Ms. Karen Y. Fletcher		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

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

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests that his medical records be corrected to show he had cancer prior to his retirement and that his retirement for length of service be changed to a medical retirement.

3. The applicant states, in effect, that he was diagnosed with colorectal cancer in September 2000. He had the cancer prior to his retirement but it was misdiagnosed as hemorrhoids. A letter dated 17 October 2000 from his attending physician states that the size and distribution of the carcinoma suggested that it had been present for 3 to 4 years prior to his September 2000 examination of the applicant.

4. The applicant’s military records show that he enlisted in the Regular Army on 26 June 1976.

5. Available service medical records show that the applicant had an abnormal digital rectal exam in October 1996. A flexible sigmoidoscopy and a colonoscopy were performed on 21 October 1996 which resulted in a diagnosis of internal hemorrhoids.

6. On 5 August 1997, the applicant requested retirement for length of service with an effective date of retirement of 1 July 1998. His request was approved on 5 August 1997.

7. The applicant’s noncommissioned officer evaluation report (NCOER) for the period June – November 1997 shows that he was rated as a “success” in all five categories of NCO responsibilities. Comments from the rater and senior rater included “maintained high level of physical fitness,” “accepted and met all physical and mental challenges,” and “simply an outstanding performance as the battalion’s COMSEC NCO.”

8. The applicant completed his retirement physical on 12 January 1998. On his Report of Medical History, SF 93, he noted that he had blood in his stool. A digital rectal exam determined there were no abnormalities and a hemoccult was negative for abnormalities. He was found qualified for separation.

9. The applicant retired effective 1 July 1998.

10. In September 2000, a biopsy determined the applicant had a carcinoma of the rectum. After receiving preoperative pelvic irradiation and chemotherapy, on 4 January 2001 he underwent a low anterior rectal resection at which time a loop ileostomy was created. His pathology report revealed the lesion to be stage I. On 24 January 2001, an examination showed his incision to be well healed and his loop ileostomy in good shape. On 14 February 2001, an examination revealed he had no complaints, he was having no problems with his ileostomy, and his incision was well healed. On 25 April 2001, he was rehospitalized to undergo an ileostomy closure. He was discharged on 3 May 2001.

11. Army Regulation 635-40 governs the evaluation for physical fitness of soldiers who may be unfit to perform their military duties because of physical disability. It states that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the soldier reasonably may be expected to perform because of his or her office, grade, or rank. It states that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. When a soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the soldier is scheduled for separation or retirement, creates a presumption that a soldier is fit. Application of the rule does not mandate a finding of fit. The presumption is rebuttable and is overcome when the preponderance of evidence establishes the soldier was physically unable to perform adequately the duties of his or her office, grade or rank.

12. Department of Defense Instruction 1332.38, paragraph E3.P3.5 states that the “Presumption of Fitness” rule will be applied to a soldier who enters the physical disability evaluation system and his request for voluntary retirement has been approved; when an officer has been approved for Selective Early Retirement; when an officer is within 12 months of mandatory retirement due to age or length of service; or when an enlisted member is within 12 months of his retention control point (RCP) or expiration of active obligated service (EAOS) but will be eligible for retirement at his RCP/EAOS.

13. Title 38, U. S. Code, sections 310 and 331, permits the Department of Veterans Affairs (VA) to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.

14. In the processing of this case, advisory opinions were obtained from the Medical Advisor to the Army Review Boards Agency and from the Office of the Surgeon General (OTSG). The Medical Advisor to the Army Review Boards Agency opined that given the size of the mass in September 2000 it was reasonable to conclude that the cancer was present at the time of the applicant’s retirement. OTSG opined that the applicant’s rectal carcinoma was most probably present at the time of his retirement physical examination in January 1998. It was possible that a lesion was present in 1996 but likely that a rectal cancer was not clinically detectable then, as indicated by the negative flexible sigmoidoscopy and full colonoscopy studies that were done at the time. It is possible that a repeat endoscopic study in 1998 would have revealed a cancer and it would have been prudent to refer him for a repeat gastrointestinal evaluation prior to his retirement. However, even if the cancer had been diagnosed at that time, the treatment would have been the same because it was still in the earliest stage for rectal cancer when diagnosed in September 2000. Based on the current results of treatment, the applicant most likely would have been found fit for retention after completion of treatment.

15. A copy of the advisory opinions were provided to the applicant for comment or rebuttal. He rebutted that he was seen by military doctors during his over-40 physical for rectal bleeding and no biopsies were performed. The colon cancer was mistaken for a hemorrhoid due to the fact that it was small and soft. During his retirement physical he was examined again for rectal bleeding and again the bleeding was dismissed as a hemorrhoid problem. In September 2000 he returned to the doctor because the bleeding had continued and he developed additional symptoms. They were excessive gas and a large knot around his rectal area. Two biopsies were performed and the second one returned with a positive reading. He feels that since military doctors misdiagnosed his condition, his records should be corrected and he should be granted a 100 percent disability rating. Military doctors put his life in danger by misdiagnosing his condition.

CONCLUSIONS:

1. In accordance with the advisory opinions, the applicant’s service medical records should be amended to show he had a rectal carcinoma prior to his retirement on 1 July 1998.

2. The Board is empathetic with the applicant’s medical problems and his concern that his condition was not diagnosed earlier. However, the evidence shows that he did not overcome the Presumption of Fitness rule.

3. The applicant’s request for retirement was approved in August 1997. The “Presumption of Fitness” rule will be applied to a soldier who enters the physical disability evaluation system and his request for voluntary retirement has been approved. Although the applicant may have had a rectal carcinoma since 1996, his NCOER for the period ending November 1997 contained highly
commendatory comments about his performance to include a comment that he “accepted and met all physical and mental challenges.” As long as he could continue to perform assigned duties commensurate with his rank he could not be considered physically unfit under the meaning of the regulation.
4. Any rating action by the VA does not necessarily demonstrate an error or injustice on the part of the Army. The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit. The VA is not required by law to determine medical unfitness for further military service in awarding a disability rating, only that a medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved (i. e., the more stringent standard by which a soldier is determined not to be medically fit for duty versus the standard by which a civilian would be determined to be socially or industrially impaired), an individual’s medical condition may be rated by the VA as a disability yet not be found unfitting by the Army.

5. In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1. That the applicant’s service medical records be amended to show he had a rectal carcinoma prior to his retirement on 1 July 1998.

2. That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

__fne___ __bje___ __kyf___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION



                           Fred N. Eichorn
                  ______________________
                  CHAIRPERSON

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INDEX

CASE ID	AR2001053950
SUFFIX
RECON
DATE BOARDED	20011108
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(GRANT)
REVIEW AUTHORITY
ISSUES 1.	124.01
2.	108.00
3.
4.
5.
6.