PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 17 October 2002
         DOCKET NUMBER: AR2002076846


         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
Mr. W. E. Schnupp		Analyst

The following members, a quorum, were present:

Ms. Joann H. Langston		Chairperson
Ms. Margaret V. Thompson		Member
Mr. Richard T. Dunbar		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 reconsideration of an earlier request for permanent disability retirement.

3. The applicant submits a letter from his spouse who explains in detail the applicant’s health and physical prowess prior to his illness and the events surrounding the progression of his disease. She states that her husband was never one to complain about his health or run to the doctor. She further states that although he told his doctor that he had swollen glands and congestion, he failed to tell the doctor that he also suffered from sweats, fevers, and headaches because he did not believe that they could be caused by the same ailment. Even though he was put on antibiotics, his symptoms continued to progress, to include more swollen glands in the back of his head, underarms and groin that were tender to the touch. She goes on to state that he wanted to wait a while before seeing the doctor again because he thought he might get better. However, on 21 June 2002, his condition was so bad that he again went to the emergency room. There, the doctors told him that he needed a hemorrhoidectomy. He had outpatient surgery on 24 June 2002, but no blood test was done. On 26 June 2002, he collapsed at home and went to the emergency room. Finally, blood was drawn and the Acute Myelodysplastic leukemia (AML) was diagnosed.

4. The applicant submits a volume of clinical records, which record his medical condition from 4 June 2002 to the present.

5. The applicant submits a letter, dated July 3, 2002, from one of his doctors, a pulmonary specialist. This doctor states that his symptoms of leukemia have dated back to the end of May, when he had what sounds like a febrile illness and at that time also had some diffusely enlarged lymph nodes. The doctor goes on to state that May 2002, is when his leukemia became clearly evident but it is likely the leukemia developed over a period of 6-12 months.

6. The applicant also submits a letter from his hematologist/oncologist who states that it is his professional opinion that the applicant’s lymphadenopathy had developed in early June 2002. The doctor goes on to state that the lymphadenopathy was almost certainly due to his newly diagnosed AML. As an aside, the doctor states that the applicant’s brother is not a viable bone marrow donor so they must search the National Marrow Donor Registry for a potential donor.

7. The Memorandum of Consideration of the Board’s 23 July 2002, review of the case (AR2002075461) is incorporated herein by reference as if wholly set forth.





8. The applicant’s submission is new argument that requires Board consideration.

9. The evidence of record shows that the applicant enlisted in the Regular Army on 16 June 2000. He completed basic and advanced training and was awarded military occupational specialty 12C (Bridge Crewmember).

10. Apparently, the applicant completed his separation physical examination in early April 2002. His blood tests were within normal limits. On 25 May 2002, he departed on transition leave. There is no evidence that he returned to his unit after he went on leave.

11. While on terminal leave the applicant was seen by his family physician on 4 June 2002. The applicant complained of swollen glands in his neck “a bit sore” and “slight congestion all the time.” The doctor observed, among other things, “several spotty bilateral anterior cervical nodes.” There is no reference to blood being drawn. The doctor prescribed antibiotics and advised the applicant to return in 2 weeks if there was no improvement.

12. On 15 June 2002 the applicant was released from active duty upon the expiration of his term of service.

13. On 24 June 2002, the applicant underwent a hemorrhoidectomy on an outpatient basis. There is no record of pre-surgical blood screening. Apparently, the procedure was successful but postoperative complications arose. The applicant developed chills, fatigue, and swollen eyes with a continued fever and gasping for air. He was hospitalized with respiratory failure and an elevated white blood cell count of around 300,000, highly suspicious of leukemia. He was transferred to the Cleveland Clinic Foundation intensive care unit on 26 June 2002. There, he was diagnosed with AML.

14. The applicant is currently under the care of the Department of Veterans Affairs awaiting a bone marrow transplant. His first child was born in September 2002.

15. The Merck Manual of Diagnosis and Therapy, states that when cervical lymph nodes are enlarged local or systemic disease is present. When the cervical node is present one should check the abdomen and/or chest for the primary source of metastasis. (In the applicant’s case there is no evidence that such an examination was done.)





16. The Merck Manual describes acute leukemia as a usually rapidly progressing leukemia characterized by replacement of normal bone marrow by primitive blast cells of the blood-forming series. Acute leukemia consists of, among others, acute lymphoblastic leukemia (ALL) and acute myeloblastic leukemia (AML). In the case of ALL, the central nervous system is often involved, whereas AML involves localized collections in any site.

17. Title 10, United States Code, section 1202, provides for the placement of a member on the Temporary Disability Retired List when the disability may be permanent. Placement on the Temporary Disability Retired List requires that the member meet the criteria of Title 10, United States Code, section 1201

18. Department of Defense (DOD) Directive 1332.18, Separation or Retirement for Physical Disability, applies to the Office of the Secretary of Defense and the Military Departments and establishes policy for processing Active and Reserve component members who have conditions that are cause for referral for physical disability evaluation. It is the DOD policy that the Disability Evaluation System (DES) shall be the mechanism for implementing retirement or separation because of physical disability in accordance with Chapter 61 of Title 10 USC. Paragraph 3.3 of that directive states that the sole standard to be used in making determinations of unfitness due to physical disability shall be unfitness to perform the duties of the member’s office, grade, rank, or rating because of disease or injury. In addition, pertinently, that the disease or injury is of a permanent nature.

19. Army Regulation 635-40, Physical Evaluation for Retention, Retirement, or Separation, establishes the Army Physical Disability Evaluation System according to provision of chapter 61, Title 10, USC and DOD Directive 1332.18. It sets forth policies, responsibilities, and procedures that apply in determining whether a soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.

20. Army Regulation 635-40, further defines a variety of terms used in the text: Terms pertinent to this review are listed below:

         Office, grade, rank, or rating: For the purpose of this regulation - a. Office is a position of duty, trust, or authority to which an individual is appointment.
b. Grade is a step or degree in a graduated scale of office or military rank that is established and designated as a grade by law or regulation. c. Rank is the order of precedence among members of the Armed Forces. d. Rating is the name prescribed for members of an Armed Force in an occupational field. The term equates with military occupational specialty (MOS).




         Physical disability: Any manifest impairment due to disease or injury, regardless of degree, that reduces or prevents an individual’s actual or presumed ability to engage in gainful or normal activity. The term includes disability due to mental disease.

         Physically unfit: Unfitness due to physical disability. The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of his employment on active duty. “Physically unfit” is synonymous with “unfit because of physical disability.”

         Preponderance of evidence: Factual information that tends to prove one side of a disputed fact by outweighing the evidence of the other side. Preponderance does not necessarily mean a greater number of witnesses or a greater mass of evidence; rather, the term means a superiority of evidence on one side or the other of a disputed fact. The term requires consideration of the quality rather than the quantity of the evidence.

         Presumption: An interference of the truth of a proposition or fact. It is reached through a process of reasoning and based on the existence of other facts. Presumed matters need no proof to support them. They may be rebutted by evidence to the contrary.

21. The same regulation, as changed, requires that the determination of physical fitness be made on the soldier’s primary MOS.

22. Army Regulation 635-40, Paragraph 3-2, covers “Presumptions.” The following presumptions will apply to physical disability evaluation before and during active service: (1) That a soldier was in sound physical and mental condition upon entering active duty (2) Any disease or injury discovered after a soldier entered active service, with certain exceptions, was incurred in line of duty (3) Acute infections and sudden developments occurring while the soldier is in military service will be regarded as service-incurred or service aggravated (4) Presumptions may be overcome only by a preponderance of the evidence, which differs from personal opinion, speculation, or conjecture. (5) When reasonable doubt exists about a soldier’s condition, an attempt should be made to resolve the doubt by further clinical investigation and observation and by consideration of any other evidence that may apply. In the absence of such proof by the preponderance of the evidence, reasonable doubt should be resolved in favor of the soldier.





23. Paragraph 3-2b(2) of that same regulation states, when a solider 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 the soldier is fit. The presumption of fitness may be overcome if the evidence establishes that (a) the soldier was, in fact, physically unable to perform adequately the duties of his or her office rank or rating for a period of time because of disability. However, there must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions, and (b) An acute, grave illness or injury or other significant deterioration of the soldier’s physical condition occurred immediately prior to, or coincident with processing for separation or retirement for reasons other than physical disability and which rendered the soldier unfit for further duty.

24. The same regulation provides that an individual may be placed on the Temporary Disability Retired List (TDRL) (for the maximum period of 5 years which is allowed by Title 10, United States Code, section 1210) when it is determined that the individual’s physical disability is not stable and he or she may recover and be fit for duty, or the individual’s disability is not stable and the degree of severity may change within the next 5 years so as to change the disability rating.

25. Army Regulation 40-501, Standards of Medical Fitness, governs, among other things, medical fitness standards for retention and separation, including retirement. The regulation defines causes for referral to a Medical Disability Board (MEB). Generally, soldiers will be referred to a MEB when the conditions (individually or in combination) result in interference with satisfactory performance of duty as substantiated by the individual’s commander or supervisor, the individual’s health or well-being would be compromised if he or she were to remain in the military service. Or, in view of the soldier’s condition, his or her retention in the military service would prejudice the best interests of the Government.

26. Army Regulation 40-501, lists AML as a cause for referral to a MEB.

CONCLUSIONS:

1. It is not unreasonable to assume that an individual with AML falls within the definition of “physically unfit” being unable to reasonably fulfill the purpose of his active duty service.





2. The applicant was on terminal leave when he developed glandular problems and chronic congestion, both symptoms of AML. However, since he was on terminal leave, he did not have the benefit of care in military medical facilities or treatment by military medical personnel. Consequently, his health care diverted to the hands of his hometown medical facilities.

3. Accordingly, it seems fair and equitable to accept without qualification the 5 August 2002 statement from the applicant’s cancer doctor who believes that the applicant’s AML was present in his system as early as May 2002. Although the applicant underwent a separation physical in April 2002 and apparently was found fit for duty, it would seem, given the clinical records of the applicant’s health since May 2002, that any doubt regarding the onset of his illness should be resolved in his favor.

4. The Board is satisfied that the applicant should be presumed unfit within the parameters of the above-cited regulation that describes an “acute, grave illness. However, the available evidence does not indicate that his medical condition has stabilized. Therefore, it would be appropriate to place the applicant on the TDRL pending a final determination of his physical condition.

5. In view of the foregoing findings and conclusions, correcting the applicant’s records as recommended below would remedy an injustice.

RECOMMENDATION:

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

a. voiding the honorable separation of the individual concerned on 15 June 2002, and showing that it is of no force or effect;

b. showing that on 15 June 2002, he was physically unfit to perform the duties of his office, grade, rank or rating by reason of AML rated 100 percent disabled under the VASRD code; that the disability was incurred while he was entitled to receive basic pay as a member of the active Army; that it did not result from misconduct or willful neglect; that it was not incurred during a period of unauthorized absence; that it was not the direct result of armed conflict; and that it was not caused by an instrumentality of war; and







c. showing that he was released from active duty on 15 June 2002 by reason of physical disability rated 100 percent disabled in accordance with the VASRD 7703; and that, effective 16 June 2002, he was placed on the TDRL.

BOARD VOTE:

___rtd___ ____mvt_ ____jhl__ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  _________Joann H. Langston______
                  CHAIRPERSON

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INDEX

CASE ID	AR2002076846
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20021017
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	(GRANT)
REVIEW AUTHORITY
ISSUES 1. 108.01
2. 108.04
3.
4.
5.
6.