RECORD OF PROCEEDINGS


         IN THE CASE OF:


         BOARD DATE: 06 MAY 29004
         DOCKET NUMBER: AR2003094874


         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. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Mr. Thomas D. Howard, Jr.		Chairperson
Mr. James E. Anderholm		Member
Mr. Ronald J. Weaver		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).


1. The applicant requests physical disability retirement or separation.

2. The applicant states that he was recalled to active duty in support of Operation Enduring Freedom on 26 November 2001 and was released from active duty on 23 August 2002. During his service on active duty he was treated at the Army hospital in Heidelberg, Germany at the internal medicine clinic for extreme headaches and tiredness, causing blurred vision. His headaches were diagnosed as migraines. He developed hiccups and went to the emergency room on several occasions. He was finally referred to the gastroenterology clinic at Landstuhl Medical Center. Tests were negative; however, he continued to be extremely tired with headaches almost every day. He was given medication, which eventually stopped his hiccups.

a. He was given a referral for the endocrinology clinic in Heidelberg; however, because he was scheduled to finish his active duty tour, and no cause for his problems had been found, a line of duty investigation was conducted to ensure continuation of treatment. It was determined that he had a hormone deficiency that was treated with testosterone patches; however he continued to be tired and still had migraine headaches.

b. Beginning in January 2003 he started to feel dizzy, losing his balance. He continued to have migraine headaches. He was diagnosed with vestibular neuronitis and loss of vision. He was referred to an ophthalmologist, who confirmed his loss of vision. He was sent to a hospital for further evaluation. Shortly thereafter, he was completely blind and went to the emergency room and was admitted to the hospital. He was seen by four doctors from three different clinics. They could not determine the cause of his blindness, and after three days released him without any diagnosis or treatment. A few days later he returned to the United States, and was seen by four different doctors. After numerous tests, it was concluded that his blindness was caused by an optic nerve chiasmatis, caused by an autoimmune inflammatory condition. Upon his return to Germany, he sought follow up evaluation; however, he has not had a significant improvement in his medical condition. He continues to have migraine headaches and dizziness, and is unable to work because of his loss of vision. His condition started prior to his admission to the hospital at Landstuhl in January 2003. The line of duty investigation only listed some of his medical conditions, but did not state any diagnosis or why he was having so many medical problems. Some of the doctors opined that the problem with his autoimmune system and the resulting damage to his optical nerve happened months before his admission to the Landstuhl hospital in January 2003.

3. The applicant provides a copy of his recall to active duty orders, his release from active duty orders, his 23 August 2002 DD Form 214 (Certificate of Release or Discharge from Active Duty), copies of his civilian and military medical records, a copy of a Department of Veterans Affairs (VA) statement in support of his claim for benefits and the VA benefits authorization, and a copy of orders transferring him to the Retired Reserve.

CONSIDERATION OF EVIDENCE:

1. On 17 July 1992 the applicant applied to this Board for physical disability separation because of a heart condition. On 19 February 1997 the Board denied his request. The Board proceedings show that the applicant entered on active duty in September 1974, served as an enlisted Soldier, attaining the rank of sergeant. He was commissioned a second lieutenant on 2 May 1980. He was promoted to captain in December 1983. In October 1988 he was informed that he would be involuntarily released from active duty based upon his degree of efficiency and manner of performance. He submitted a voluntary request for release, and he was honorably released from active duty due to his unqualified resignation in January 1989.

a. A review of the applicant's medical records show that he had a history of kidney stones dating back to 1976, that he first injured his back in 1986, and received periodic treatment for his back in 1987 and 1988. In June 1988 he was diagnosed with hypertension. While on active duty, he also had one incident of undiagnosed chest pain and a hearing loss. On 1 November 1989 he underwent a physical examination and was found fit for separation with no physical profile limitations. On 30 August 1990 the VA awarded him a 40 percent disability rating for hypertension, recurrent kidney stones, and low back pain. His non-cardiac chest pain was determined to be not service connected.

b. He joined a troop program unit in the Army Reserve on 7 December 1992, served on active duty from January 1994 to January 1995 and was promoted to major. The VA stopped the applicant's disability payments on 1 December 1992 in connection with his entry on active duty; however, the Board proceedings indicated that it would start payments once he was separated from an active duty status.

c. The Board, in denying his request, indicated that the evidence showed that he was physically fit for duty at the time of his separation in 1989, and also noted that he served on active duty for a year between 1994 and 1995.

2. On 3 May 2000 the Board denied the applicant's request for reconsideration.
In so doing, the Board noted that the applicant submitted a 6 July 1998 disqualification notice from a MEPS (Military Entrance Processing Station) indicating that he was found medically disqualified for entry in the Armed Forces due to angina, kidney stones, back pain, hypertension, and hearing loss. The Board determined that the 1998 medical evaluation was irrelevant to his 1989 separation from active duty, in that not only had several years transpired, but that his physical condition was being compared to entrance standards rather than retention standards.

3. A 21 September 1996 report of medical examination shows that the applicant was medically fit for retention with a physical profile serial of 1 1 1 T3 1 1.

4. Medical records show that the applicant was treated for hypertension in November 1999 and on various occasions in May 1998. A 28 May 1998 medical report indicated that the applicant was seen for hypertension because he wanted a second opinion in regard to his request for a Physical Evaluation Board (PEB). The examining physician indicated that the applicant, then in the Individual Ready Reserve who had been twice recalled to active duty, was concerned that if he was again recalled to active duty he would be denied because of his hypertension. The doctor indicated that there was no need for a Medical Evaluation Board (MEB)/PEB.

5. The applicant was on active duty in support of Operation Joint Endeavor/Guard from 15 September 1997 until his release from active duty. His record shows that he was retained on active duty because of a medical condition that required follow up medical care. On 28 May 1998 he was medically cleared to be released from active duty. He was released from active duty on 22 June 1998.

6. A 16 October 2001 report revealed a normal myocardial perfusion and wall motion.

7. The applicant is apparently a Department of the Army civilian whose home is in Brunssum, the Netherlands. On 20 November 2001, the applicant then assigned to the Army Reserve Control Group (Individual Mobilization Augmentee), was ordered to active duty for 365 days in support of Operation Enduring Freedom with a reporting date to the 64th Adjutant General Company, Untied States Army, Europe on 26 November 2001. A report of medical examination taken in 2001 shows that the applicant was medically qualified for service with a physical profile serial of 1 1 1 1 1 1.

a. A 22 April 2002 medical record indicates that the applicant was seen because of hiccups.

b. A radiologic examination report of 25 April 2002 indicated a normal MRI (magnetic resonance imaging) of the orbits. An MRI of the brain revealed a diagnosis of multiple, nonspecific white matter lesions. Differential diagnosis included demyelinating diseases, infectious processes, and less likely small vessel ischemic change.

c. A 7 May 2002 record indicates that the applicant needed to follow up with gastroenterology because of his chronic hiccups. On 10 May 2002 the applicant complained of pain in the frontal part of his head.

d. A 7 May 2002 radiologic examination report ordered because of the applicant's history of hiatal hernia and episodic chronic hiccups revealed a diagnosis of persistent submucosal versus intramural mass effect along the lesser curvature of the stomach, just proximal to the pylorus. There was no evidence of gastroesophageal reflux, esophagitis, or hiatal hernia. A 30 May 2002 medical report indicates that the applicant's stomach showed a small 2 cm hiatal hernia, otherwise normal. A 29 May 2002 medical report shows that the applicant continued to have hiccups.

e. The applicant was treated for low back pain and foot pain on 15 August 2002. The medical record indicates that the applicant complained of low back pain and foot pain since March of 2002, and that he complained that he fell down the stairs while in Kosovo, and had back problems since then.

f. A 21 August 1992 line of duty investigation, submitted by the applicant with his request, revealed that the applicant had various medical conditions while on active duty. The findings were in line of duty; however, the report was incomplete.

g. A 23 August 2002 report of medical history, indicating that the examination was for retirement purpose or for a medical board, shows that the applicant indicated that he had numerous medical problems, to include frequent or severe headaches. He indicated, by checking the "No" block on the item, "Dizziness or fainting spells," that he had never had any dizziness or fainting spells.

8. The applicant was released from active duty on 23 August 2002. He had 8 months and 28 days of active service.

9. On 1 September 2002 the applicant was reassigned to the Retired Reserve because of his non-selection for promotion.

10. Medical information subsequent to his retirement:

a. The applicant was seen on 13 September 2002, complaining of fatigue, running difficulty, and weight gain.

b. On 29 January 2003 the applicant complained of blurred vision and vertigo. He underwent a CT of the head. The findings indicated that there was no skull fractures evident. The ventricles and cisterns were of normal size and configuration. There were no extraaxial fluid collections, and no masses, mass effects, or areas of abnormal attenuation. The paranasal sinuses were clear. It was a normal examination.

c. The applicant had an MRI of the brain and orbits on 30 January 2003. There were no significant abnormalities noted in the orbits. The brain MRI revealed multiple, nonspecific white matter lesions. Differential diagnosis included demyelinating diseases, infectious process, and less likely vessel ischemic change.

d. A radiologic examination report of the chest indicated no acute process.

e. The applicant underwent a radiologic examination on 31 January 2003 to rule out atheroembolic disease. There was a small amount of plaque at the right carotid bulb/internal carotid junction, with a smaller amount noted in the same location of the left carotid bulb/internal carotid junction. No significant stenosis was noted. There was no evidence of ulceration.

f. On 24 February 2003 a physician at The Dean A. McGee Eye Institute in Oklahoma City in a letter to a physician in Amarillo Texas, stated that he was convinced that the applicant had probably sustained optic nerve chiasmatis, and he was hopeful that he would have a slow improvement, presuming that his condition was primarily an inflammatory condition.

g. On 7 March 2003 the applicant filed a claim with the VA requesting consideration of service connected disability for loss of vision in both eyes, and vertigo due to the effects of inflammation of the ear. He stated that he was treated for those conditions while on active duty and had been treated by a private physician in Amarillo, Texas and a German physician in Landstuhl.
Attached to that claim is a VA authorization, dated 5 September 2002, for the applicant to receive medical services for service connected disabilities, e.g., tinnitus, hiatal hernia, hydronephrosis, migraine headaches, low back condition, hypertensive heart disease, residuals of fracture of right fourth metacarpal, and bilateral hearing loss.

h. A 25 March 2003 medical report indicates that the applicant was hospitalized in January 2003 because of vision problems. In a medical record of that same date, the applicant indicated that he had difficulty with self-care activity, experienced a decline in the way he walked, balanced himself or moved around, and had experienced decreased strength, range of motion or endurance in his arms or legs.

i. In a 25 April 2003 statement, a doctor of the Southwest Neuroscience and Spine Center in Amarillo, Texas, stated that he saw the applicant once on 13 February 2003, and he was found to have optic neuritis, which was felt to be the cause of his symptoms. He stated that the applicant was treated with steroids and an oral steroid taper thereafter. He stated that there was no way to tell what would happen with regards to his visual recovery. He stated that the applicant saw two ophthalmologists, both concurring that there was at least, in part an optic neuritis component to his symptoms. He stated that the prognosis could vary from complete recovery to no functional improvement, although the latter would be more uncommon.

j. In a 13 February 2003 medical report the above-mentioned physician stated that the applicant presented himself with acute blindness. He indicated that the applicant stated that his problems began on 9 or 10 January [2003], and that he started noticing on those dates that he was having problems with his balance and started to stagger. The doctor continued in his evaluation, presenting a history of the applicant's illness and his treatment, his past medical history, medications, and a review of his symptoms. He stated that the applicant had a relatively sudden onset of blindness. There were no distinct abnormalities with the exception of some sluggish papillary response on the left. He stated that there were also some subjective components which could reflect an underlying somatization component. He stated that it was important that some testing be repeated, that in particular for malingering or hysterical blindness. He stated that the applicant should have an MRI of the brain with and without contrast and an MRI of the orbits as well, and that he would set him up for a lumbar puncture and with it send MS profile as well as look for inflammatory panels. He stated that he would plan on seeing him before he went back to Germany.

k. A 29 April 2003 radiologic examination report of the chest gave the impression of no acute cardiopulmonary disease and degenerative changes of the thoracic spine.

l. A 9 June 2003 neuro-opthalmic consultation report prepared by a physician of The Institute of Ophtalmology in New York City indicates that the applicant was evaluated for visual loss in January, which was bilateral and severe, progressing over four days. The report indicates that the visual loss followed about three days after discharge from hospital treatment with intravenous corticosteroid therapy twice daily for four days when he presented with imbalance and vertigo such that he was unable to walk or stand and vestibular basis presumed on ENT (ear, nose, and throat) evaluation. The report indicates that the applicant had been having headaches across the frontal area for five years which were considered migraine, and which became more severe since May, one year ago, culminating in the events of imbalance with vertigo and then subsequently visual loss. The report mentions the applicant's hypertension, the medication that he had been taking, and commented on the examination of the applicant. The examining physician concluded that the applicant had bilateral optic atrophy moderate to marked, essentially symmetric and only trace left relative afferent defect, although all but light perception denied, raising the possibility of some modest non-organic element and the possibility of slight improvement. The doctor stated that it did not seem reasonable that further therapy would be helpful and was not advised. He stated that it was likely that his vision would remain at or close to the current level, particularly since not improving in the past two months. He stated that it did not seem that the applicant would be able to continue his supervisory work.

m. On 7 July 2003 in a report to the American Consulate General Federal Benefits Unit in Frankfurt, Germany, a Germany neurologist and psychiatrist diagnosed the applicant's condition as migraine; high degree of eye sight loss bilaterally; suspicion of an optic neuritis bilaterally; suspicion of an inflammatory CNS disease; arterial hypertonia; and suspicion of a left vestibular neuropathy.

n. In a 2 October 2003 medical report a civilian doctor in Landstuhl diagnosed the applicant's condition as high blood pressure, vestibular vertigo, vestibular neuronitis on the right, light hearing loss on both sides, and unclear loss of vision.

11. In an undated memorandum to the Army Medical Activity at Landstuhl the applicant applied for incapacitation/disability retirement. He stated that he received retirement orders in September 2002, that a line of duty investigation was initiated on 20 August 2002, and that it determined that he had medical conditions that were incurred or aggravated while he was on active duty. He stated that he was retired from the Reserve before the investigation was completed. He stated that the line of duty determination had not been completed and that his medical condition had deteriorated to the point that he could no longer work or perform daily activities without assistance. He stated that neither the Landstuhl nor the Heidelberg Medical Facility could determine the cause of his medical problems, and therefore could not proved him with diagnostic treatment or evaluate the prognosis. He stated that because of his blindness, he was not able to work and had used up all his sick leave and annual leave.

12. Department of Defense Instruction1332.38 provides standards for determining unfitness due to physical disability or medical disqualification, and states in pertinent part that a service member shall be considered unfit when the evidence establishes that the member, due to physical disability, is unable to reasonably perform his duties, to include duties during a remaining period of Reserve obligation.

13. Army Regulation 635-40 provides instructions for retaining Soldiers on active duty after scheduled nondisability discharge date, and states that a Soldier whose normal scheduled date of nondisability separation occurs during the course of hospitalization or disability evaluation may, with his consent, be retained in the service until he has attained maximum hospital benefits and completion of disability evaluation if otherwise eligible for referral into the disability system.

14. Army Regulation 635-40 establishes the Army physical disability evaluation system and 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 office, grade, rank, or rating. It provides for medical evaluation boards, which are convened to document a Soldier’s medical status and duty limitations insofar as duty is affected by the Soldier’s status. A decision is made as to the Soldier’s medical qualifications for retention based on the criteria in AR 40-501, chapter 3. If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

15. Physical evaluation boards are established to evaluate all cases of physical disability equitability for the Soldier and the Army. It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.

16. Army Regulation 635-40, paragraph 3-2b states in pertinent part 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.

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

17. Title 38, United States Code, sections 1110 and 1131 , permit the Department of Veterans Affairs (VA) to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish error or injustice in the Army rating. An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service. The VA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s civilian employability. Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at a different disability rating based on the same impairment. Furthermore, unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings. The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability. A common misconception is that veterans can receive both a military retirement for physical unfitness and a VA disability pension. By law, a veteran can only be compensated once for a disability. If a veteran is receiving a VA disability pension and the ABCMR corrects the records to show that a veteran was retired for physical unfitness, the veteran would have to choose between the VA pension and military retirement.

DISCUSSION AND CONCLUSIONS :

1. The applicant's vision problems are well documented, beginning as the applicant has stated in January 2003, after his release from active duty in August 2002 and his reassignment to the Retired Reserve in September 2002. In August 2002 he completed a report of medical history prior to his transfer to the Retired Reserve, indicating that he had or had had various medical problems. There is, however, no report of medical examination that relates to the report of medical history [that he furnished for the examination]. Absent evidence to the contrary, the applicant was physically fit for separation and for subsequent transfer to the Retired Reserve.

2. Noted is the applicant's contention that a line of duty investigation was conducted to ensure continuation of treatment. A line of duty investigation, concluding that a Soldier sustained an injury or suffered a disease while on active duty, and that the injury or disease was in line of duty, is not tantamount to physical unfitness. A PEB determines whether a Soldier is physically unfit to perform his duties, and if so, makes a recommendation concerning physical disability retirement or separation. At the time of the applicant's release from active duty, he did not have a condition requiring entry into the disability evaluation system; consequently, he did not undergo an evaluation by a MEB or a PEB. Nonetheless, he could have been retained on active duty because of a medical condition that required follow-up medical care, as was the case in 1998. He was not. The presumption is that he had no medical condition that required further treatment while in an active duty status. He has submitted no evidence to overcome that presumption.

3. There is no evidence, and the applicant has not submitted any, to show that he is receiving a service-connected disability rating for his medical condition related to his vision. Nonetheless, an award of a VA rating does not establish entitlement to medical retirement or separation. The VA is not required to find unfitness for duty. Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected. Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.

4. The applicant did not have any medically unfitting disability which required physical disability processing. Therefore, there is no basis for physical disability retirement or separation.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

__ TDH __ __ JEA ___ __ RJW __ DENY APPLICATION


The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.





                  __Thomas D. Howard, Jr.___
                  CHAIRPERSON

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INDEX

CASE ID	AR2003094874
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20040506
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	108.00
2.
3.
4.
5.
6.