PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 1 August 2002
         DOCKET NUMBER: AR2001061061


         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
Ms. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Mr. Samuel A. Crumpler		Chairperson
Mr. Melvin H. Meyer		Member
Ms. Regan K. Smith		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 physical disability discharge with severance pay at a zero percent disability rating be changed to a medical retirement. In the event the Board is unwilling to correct the U. S. Army Physical Disability Agency’s (USAPDA’s) zero percent rating of his Human Immunodeficiency Virus (HIV)-related disability, he requests the Board correct the USAPDA’s finding that he is unfit to serve and then reinstate his length-of-service retirement.

3. The applicant states that he believes his condition at the time of his separation satisfied the requirements for a 30 percent disability rating under the Veterans Affairs Schedule for Rating Disabilities (VASRD), that the actions of the USAPDA were contrary to policy changes proposed by the Department of Defense (DoD) regarding the rating of HIV infection, and that prior to his placement on the Temporary Disability Retired List (TDRL) he was scheduled for a length of service retirement. He was scheduled to retire on 30 September 1996 with over 17 years of active service. During his retirement physical examination, his medical condition was evaluated by a physical evaluation board (PEB) and his retirement was delayed. He was placed on the TDRL on 27 September 1996 and his retirement orders were revoked. He was placed on the TDRL consistent with the then-current policy of providing a minimum rating for HIV infection of 30 percent. In November 1996, this minimum rating was eliminated by DoD. During his next re-evaluation, the PEB ordered that he remain on the TDRL. In 1999, however, the PEB recommended that his name be removed from the TDRL since he never had a CD4 count below 200. He disagreed with this recommendation and informed the PEB that in March 1993 his CD4 count was 179. The higher CD4 levels revealed in his subsequent TDRL evaluations were the direct result of an experimental research protocol in which his CD4 cells were removed, grown up, and re-infused into his body. His treating physician explained there was no way of knowing whether the higher CD4 counts in fact were accurate or whether his CD4 count would decline significantly if treatment were suspended. The USAPDA appears to have ignored his letters and his physician’s letters and summarily affirmed the PEB’s initial recommendation. Moreover, the PEB and USAPDA failed to consider the history of recurrent constitutional symptoms evidenced in his medical evaluations, an independent basis on which a 30 percent rating under the VASRD is to be granted. He suffered from several of those constitutional symptoms cited by DoD.

4. The applicant noted that the USAPDA’s actions in his case were directly contrary to recent policy changes at DoD regarding the rating of HIV infection under the VASRD. On 20 August 1999, the Under Secretary of Defense for Personnel and Readiness indicated in a letter to Senator K___ that DoD was reviewing current policy with regard to the rating of HIV-positive service members

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to preclude those individuals from being denied disability retirement benefits. On 14 February 2000 DoD requested that the VA alter the VASRD requirements for a 30 percent rating to provide for additional flexibility in rating HIV-related disabilities. In response, the VA issued on 10 May 2000 interpretive guidance for rating HIV infection under VASRD code 6351. Specifically, the VA confirmed that the 30 percent rating applies to HIV-positive service members who at any time have suffered from recurrent constitutional symptoms even if the symptoms have responded to appropriate treatment. Moreover, it clarified that only those who have no symptoms from HIV infection or its treatment should be rated at zero percent.

5. If the Board will not grant him a medical retirement, it would be only fair to return him to the same position he was in before his name was placed on the TDRL. He should not be harmed by having participated in the Army’s disability retirement program.

6. The applicant’s military records show that he was commissioned a second lieutenant on 9 June 1978 and entered active duty.

7. By memorandum dated 4 April 1996, the applicant was informed that he had been twice nonselected for promotion to lieutenant colonel and his mandatory release date was 1 October 1996. He was permitted to request voluntary retirement in lieu of mandatory discharge or retirement as he had completed 15 years of active federal service. On 13 April 1996, he requested voluntary early retirement. Orders dated 15 July 1996 were published retiring him from active service effective 30 September 1996 and placing him on the retired list 1 October 1996.

8. On 20 July 1996, a medical evaluation board (MEB) diagnosed the applicant with the medically unacceptable condition of HIV with a CD4 count of 340, normal DHS (delayed hypersensitivity skin test), insignificant adenopathy, no oral thrush or opportunistic infection, stage 3. The MEB’s Narrative Summary noted that the applicant was first diagnosed with HIV in June 1992 and listed ten CD4 counts between July 1992 and January 1996. The counts ranged from a low of 237 in December 1993 to a high of 381 in July 1992. The count for March 1993 was listed as 380. He was referred to a PEB. On 1 August 1996, the applicant agreed with the MEB’s findings and recommendation. He voluntarily requested retention on active duty beyond his scheduled release date for physical disability processing.

9. On 12 August 1996, a PEB found the applicant unfit for duty for a diagnosis of HIV infection, stage 3, with a CD4 count of 340, VASRD code 6351, with a disability rating of 30 percent. The PEB recommended he be placed on the

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TDRL. On 19 August 1996, the applicant concurred with the findings and recommendations of the PEB. His retirement orders were revoked and he was released from active duty on 26 September 1996 after completing 17 years, 10 months, and 26 days of creditable active service.

10. In December 1997, the applicant was retained on the TDRL.

11. After his second TDRL re-evaluation around November 1998, a PEB recommended the applicant’s separation for a diagnosis of HIV with a CD4 count of 680 and no intercurrent infection with severance pay and a zero percent disability rating.

12. On 26 February 1999, the applicant disagreed with the disposition that he be separated with severance pay. He requested that he remain on the TDRL or, since he was rated with zero percent disability, that he resume active duty. He also disagreed with the PEB’s finding that he never had a CD4 count below 200. He stated that he had a CD4 count of 179 during March 1993. He provided a letter of support from his treating physician. She noted that while it was not well reflected in her medical board, the applicant had a nadir of his CD4 count at 179. It was because of his participation in a very experimental research protocol that removed, grew, and re-infused CD4 cells back into him that he was currently doing well. In addition, he was found at his most recent TDRL re-evaluation to have two new conditions – an elevated hematocrit that possibly represented polycythemia vera and tinnitus and decreased hearing. Also of concern was the fact that in the last two months his HIV viral load was starting to be uncontrolled on his current antiretroviral regimen. She recommended the applicant remain on the TDRL.

13. On 15 March 1999, the USAPDA determined that there was no medical evidence upon which to base a change. Since the applicant nonconcurred with the USAPDA’s findings, his appeal and records would be forwarded to the Army Physical Disability Appeals Board (APDAB) for review.

14. On 22 March 1999, the applicant faxed to the USAPDA a withdrawal of his appeal. He later informed the Board’s analyst that he did not intend for this withdrawal to be received by the USAPDA. He was extremely upset and discouraged when the USAPDA denied his appeal. He had not sought legal advice and believed his case to be a lost cause. He was a single father heavily in debt. He feared that continued prosecution of his appeal would leave him with no resources to take care of his family. Therefore, he drafted the withdrawal of his appeal. However, after putting the withdrawal letter on the fax machine, he hesitated and stopped the transmission. He believed that the transmission never went through.

15. The applicant also provided to the Board’s analyst a letter from his treating physician. She stated that the applicant did have recurrent constitutional symptoms prior to his removal from the TDRL to include diarrhea, recurrent flu-like episodes, fatigue, and recurrent and intermittent night sweats.

16. Apparently based upon receipt of the applicant’s request for withdrawal of his appeal, his case was never forwarded to the APDAB and he was removed from the TDRL effective 30 March 1999 with entitlement to severance pay and a disability rating of zero percent.

17. USAPDA Policy Memorandum #9, Rating Guidance for Human Immunodeficiency Virus Infection, dated 6 June 1995 was issued to conform USAPDA HIV rating guidance to the VA rating criteria within the parameters of DoD guidance. The memorandum noted that DoD Directive 1332.18 stated that service members meeting the requirement for PEB referral would be given a minimum rating of 30 percent. After clinical manifestation of associated conditions, to include decreased T4 (same as CD4) cell count below the Army standard, the soldier would be unfit based on diagnosis alone of the clinical manifestation. VASRD rating criteria ranged from zero through 100 percent; however, the zero and ten percent ratings did not apply to military HIV cases. Soldiers who improved while on the TDRL would be continued on the TDRL until stable. To be considered stable for removal, the clinical condition must be the same as when placed on the TDRL and the CD4 count unchanged for two consecutive TDRL re-evaluations. Improvement achieved with the administration of anti-retroviral drugs or with vaccines might not represent a true restoration of normal immune function. Soldiers receiving such therapy or prophylaxis should be retained on the TDRL at the previously established rating or separated at that rating if removal from the TDRL was required.

18. On 20 August 1999, the Under Secretary of Defense for Personnel and Readiness responded to an inquiry from Senator K___ informing the Senator that DoD was considering possible solutions to a problem that could lead HIV-positive service members to be denied retirement benefits. The response indicated that with the advent of potent anti-retroviral therapy, many service members on the TDRL were experiencing significant clinical and immunologic improvements to include increases in their T4 cell count, resulting in reduced disability ratings. It was recognized that the durability of the response to anti-retroviral therapy was not certain and 20 to 50 percent of patients were not able to maintain complete viral suppression and subsequently developed resistant HIV and increasing immunodeficiency.

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19. On 14 February 2000, the Assistant Secretaries of Defense for Health Affairs and for Force Management Policy sent a letter to the Department of Veterans Affairs urging that Department to correct an outdated provision in the VASRD denying eligibility for disability retirement for a significant number of military members with advanced HIV disease. The letter noted that because of some changes in the service members’ conditions brought about by Highly Active Anti-Retroviral Therapy (HAART), many of these members would not qualify for the Permanent Disability Retired List and would be separated without retirement benefits. This was due to the outdated VASRD standard for a 30 percent rating for HIV-related illness. The VASRD standard for a 30 percent rating for HIV-related illness relies most heavily on the patient suffering a drop in T4 cell count below 200. Many members placed on the TDRL on this basis have experienced improvement in T4 cell count because of HAART. However, they remain very sick with continuing immune system impairment, high vulnerability to opportunistic infections, and heavy reliance on toxic and complex drug regimens. The suggested change was to revise the VASRD standard for a 30 percent rating for HIV-related illness, code 6351 to read, “Recurrent constitutional symptoms, intermittent diarrhea, and on approved medication(s), or minimum rating with T4 cell count at any time less than 200, or Hairy Cell Luekoplakia, or Oral Candiasis.

20. On 10 May 2000, the VA issued new guidelines for rating HIV infection. The new guidelines included recognizing that on HAART, a number of side effects and complications are likely, and it would be the unusual case where less than a 30 percent level of disability evaluation would be warranted. The new guidelines also stated that if there have been recurrent constitutional symptoms, even if they have responded to appropriate treatment, the minimum rating is 30 percent.

21. On 18 October 2000, the Under Secretaries of Defense for Health Affairs and for Force Management Policy disseminated DoD’s policy for service members on the TDRL with HIV to the Services. The DoD memorandum reiterated that, as a general rule, if a member has had or currently has recurrent constitutional symptoms, even if they have responded to appropriate treatment, the minimum rating is 30 percent. This rule applies whenever such a symptom occurs or has occurred more than once. Examples (not an exhaustive list) include weakness, fatigue, nausea, shortness of breath, loss of appetite, etc.

22. The USAPDA sent its Policy Guidance Memorandum #15, Rating Guidance for Human Immunodeficiency Virus Infection, dated 17 November 2000 to PEB presidents reiterating DoD’s policy guidance disseminated on 18 October 2000.

23. Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.

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CONCLUSIONS:

1. While it appears the USAPDA properly noted that there was no medical evidence upon which to base a change in the applicant’s disability rating (the MEB’s Narrative Summary noted he had a March 1993 CD4 cell count of 380 and there was no medical evidence other than the applicant’s own statement and that of his doctor indicating he had a CD4 cell count of 179 in March 1993), the Board presumes that the applicant had more than one count during March 1993 and for some reason his lowest count was not listed when the Narrative Summary was prepared. It appears that the USAPDA adhered to the “official” count noted on the Narrative Summary when it determined his disability rating. Since at the time the VASRD standard for a 30 percent rating for HIV-related illness relied most heavily on the patient suffering a drop in CD4 cell count below 200, the USAPDA rated the applicant below 30 percent.

2. In light of the facts of this case, however, (the applicant was scheduled for a length of service retirement prior to his being placed on the TDRL; his doctor was the Director, Infectious Diseases Division at Walter Reed Army Medical Center; and the VASRD guidelines for rating HIV-related diseases were changed and the changes were officially accepted by DoD in October 2000), the Board believes that it would be equitable to amend the applicant’s MEB Narrative Summary to show he had a CD4 cell count of 179 in 1993. The applicant would then have met the criteria for a 30 percent disability rating and a medical retirement.

3. The Board notes that the applicant received severance pay. It would be equitable to recoup that severance pay if full relief is granted.

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

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by:

a. showing that the applicant’s medical history reflects a CD4 cell count of 179 in March 1993;

b. showing that the applicant was determined to be unfit for duty with a 30 percent disability rating;

c. voiding the applicant’s 30 March 1999 removal from the TDRL and separation from the Army with severance pay at a zero percent disability rating; and

d. showing that the applicant was removed from the TDRL effective 30 March 1999 and permanently retired by reason of a physical disability with a 30 percent disability rating.

2. That the Defense Finance and Accounting Service be instructed to begin paying the applicant all due retired pay; however, payment of all due retired pay will be withheld until the previously paid severance pay has been offset.

BOARD VOTE:

__SAC__ __MHM__ __RKS__ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ___Samuel A. Crumpler___
                  CHAIRPERSON

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INDEX

CASE ID	AR2001061061
SUFFIX
RECON
DATE BOARDED	2002/08/01
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	108.02
2.
3.
4.
5.
6.