MEMORANDUM OF CONSIDERATION


         IN THE CASE OF
        

         BOARD DATE: 25 September 2003
         DOCKET NUMBER: AR2003083367

         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.

Mr. Carl W. S. Chun		Director
Mr. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Ms. Regan K. Smith		Member
Mr. Linda D. Simmons		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: Reconsideration of his earlier appeal to correct his military records by changing his disability with severance pay separation to a medical retirement.

APPLICANT STATES: In effect, that his case be reconsidered based on new argument presented in the enclosed brief from his counsel.

COUNSEL STATES: In effect, that the Army should recognize the applicant’s adult growth hormone deficiency (GHD) as service connected. Counsel specifically asks that the Board be accountable for the military’s failure to prescribe adult GHD medication, have a treatment plan, or at least periodically review his condition; that it reclassify his release from active duty as retirement vice discharge; and that it reassess his disability at 30 percent or higher, particularly given his severe foot problems that were not addressed earlier. Counsel’s full argument is provided in the enclosed nine page brief he provided for the Board’s review.

In his brief, counsel argues that this Board wrongly reasoned that the applicant had a childhood disease which affected nothing significant in his adult life, and did not render him unfit for military duty. He claims the Board erred, and GHD appears in both childhood and adult form and this is proved by objective medical evidence. He states that the applicant’s adult condition went untreated by military medicine, which caused a serious deterioration in the applicant. He also claims that the Board’s determination was based on an unfair and outdated view of the applicant’s medical condition.

Counsel further argues that the applicant was born with infantile GHD, and he entered the Army with a medical waiver for it. However, the Army failed to treat his adult GHD condition properly because it was considered a childhood disease only. He states that Army medicine was wrong and did nothing to arrest or alleviate the applicant’s condition.

Counsel further claims the Army negligently failed to prescribe growth hormone medication early on during the applicant’s active duty, and but for this error, his condition would have been arrested or at least minimized.

Counsel concludes his brief by stating that another client of his law firm won a military disability based on a disease for which she received a waiver upon entering military service. Unfortunately, it continued to worsen, and the Medical Evaluation Board (MEB)/ Physical Evaluation Board (PEB) process awarded her a medical pension for life. No one said that her waiver meant the military should shrink from its responsibility to her. Yet that is the false reasoning employed in the applicant’s case. This illogic comes from the view that GHD is GHD is GHD, and the Board apparently refuses to see that this condition comes in both adult and infantile forms.
Counsel concludes that Army’s negligence, not the inevitable aging process, is at the heart of the applicant’s problem. The applicant’s significantly deteriorating adult GHD condition was aggravated by the failure of military medicine. Therefore, the applicant deserves reassessment of his entire record, to include his foot problems, and a medical retirement. The applicant asks for reconsideration and additional advisory comments from the Surgeon General’s office on both adult GHD and his foot problems.

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's previous consideration of the case (AR2000044433) on 1 February 2001.

The Board elected to reconsider this case based on the contentions and issues raised by the applicant’s counsel. Included with his brief, counsel provides a statement from an Emeritus Professor of Pediatrics from the University of California, San Francisco, and an undated statement from a retired United States Navy Legal Nurse Consultant, which both support the argument he presents in his brief.

The statement provided by the Emeritus Professor of Pedatrics from the University of California, San Francisco, dated 28 January 2002, states that as a recognized authority in the field of growth hormone treatment and metabolism, she was providing information about the association of GHD and osteoporosis in adults and children. She outlines this association in her enclosed statement. She further states that the applicant was under her care as a child and during adolescence during which time he received growth hormone on a continuous basis. He has maintained his physical status by appropriate exercise and diet. She opines that despite an adequate intake of calcium and exercise, discontinuation of growth hormone therapy led to the applicant’s osteoporosis. She recommends that growth hormone therapy be reinstated at the adult dose.

The statement provided by the Legal Nurse Consultant indicates that she is in full agreement with the argument presented by counsel in his brief. She states that the Army should be held totally accountable for its failure to prescribe a growth hormone treatment plan or at least some form of periodic medical review for the applicant. She states that if it was the Army’s view that GHD was solely a problem for growing children, why did it give the applicant a waiver upon his entry in service. She claims a commitment was made by two parties, the applicant and the Army, on the day the applicant joined the Army. The applicant has been undeniably loyal to his commitment, while the Army wants to wipe its hands clean and walk away from its commitment. She also states that the discovery that childhood GHD has a direct correlation with adult GHD is not a newly discovered medical phenomenon and should have been addressed by the applicant’s primary care physician when clinical trials were verified.
In connection with the processing of this reconsideration request, an advisory opinion was obtained from the U.S. Army Physical Disability Agency (USAPDA). It states that a review of the entire case file, to include the new information provided in the reconsideration request, results in no change to the original PEB findings. It further indicates that the 1999 MEB did contain GHD as a listed diagnosis; however, the disease process of GHD did not, in and of itself, fall below the medical retention standards of the governing regulation. It was only after consultation with the PEB that the MEB decided to include GHD as a diagnosis. This was accomplished to ensure that all duty related issues were addressed at the PEB level, and not because anyone thought the applicant was unfit due to GHD itself.

The USAPDA opinion further indicates that the PEB considered all the evidence related to the GHD and its effect upon the applicant and his ability to perform his duties. Both the informal and formal proceedings of the PEB found the applicant was not independently unfit for his GHD. The applicant appealed these findings and the PEB again, after additional review, reaffirmed their findings. The USAPDA reviewed the entire case file and the PEB findings were affirmed. A physician provided a letter and new profile to the USAPDA in May 2000. These documents were reviewed, and it was determined that the PEB’s findings that GHD was not unfitting would not be changed by the new information. Additional reviews were made by the PEB staff in January 2001 in regard to a request from the Board for review. This review revealed no errors and no basis for a change to the PEB findings.

The USAPDA opinion also indicates that the additional material offered in this latest request for reconsideration provides nothing materially new about the issue of fit for duty for the disease of GHD. Adult or child, percentage issues, and eight years of active duty, are all issues that are irrelevant to the main issue of fit for duty. If the applicant is not unfit, none of the other issues matter.

The opinion further indicates that a review of the unfitness issue in regard to GHD reveals a disease process that clearly was being adequately controlled in 1999 (been on appropriate medication for almost 2 years at that time) with little to no residuals directly related to the disease. The main argument used for unfitness for GHD was that the applicant had to have shots everyday and there might be medication storage problems in some remote locations. The commander’s main concern in regard to this medication requirement was that it might hinder his deployment opportunity. However, the governing provisions of Department of Defense Instruction (DODI) 1332.38 states that deployability “will not be the sole basis for a finding of unfitness.” Even if the applicant had missed shots for days or months, there would be no immediate life threat to his health. Clearly, the GHD did not hinder the applicant’s day-to-day functions in his MOS. The PEB and the USAPDA took all these factors into consideration and each time came to the same conclusion, the GHD was not independently unfitting.
The USAPDA opinion concludes that the PEB findings were supported by substantial evidence and reviewed and reconsidered numerous times. The PEB findings were not arbitrary or capricious, and were not in violation of any statute, directive, or regulation. The recommendation of the USAPDA is that the Board make no changes to the applicant’s military record.

The applicant was provided a copy of the USAPDA advisory opinion and he responded on 19 August 2003. In his rebuttal, the applicant outlines the following factors of consideration: the eight year rule is not policy, but law; the VA will not compensate for any conditions that are not deemed to be service connected; the disability claim arises from the GHD as well as secondary afflictions brought on by GHD; and compensable medical can arise from childhood origins and/or connections. In the enclosed rebuttal, the applicant addresses each of these factors. He states that the eight year rule is germane in this case despite the executive fiat contrariwise from the Surgeon General’s Office ca 1992. He claims that in 1999, Congress reaffirmed the absolute applicability of the eight year law to any and all service members’ medical conditions. Once a service member has served honorably for at least eight years, the Army must assume all medical conditions are service related. Thus, after eight years, preexisting conditions or medical status prior to military service cannot be disregarded. The law requires the Army to fully evaluate for disability ratings and compensate all medical conditions, and do so without consideration of any pre-service origin , etiology, development or progression.

The applicant claims that because he served honorably for over eight years, and satisfied all other requirements, the Army is required by law to assume all his medical conditions are service connected, which requires its full evaluation of disability percentage ratings and subsequent compensation whether or not they are under control or preexisting, or of childhood origin or not. He contends that the Army has completely disregarded two medical conditions in his case, GHD and spinal osteoporosis. He goes on to state that the VA cannot compensate for medical conditions unless the condition is said to be service connected. In his case, the condition is service connected for the following two reasons: the eight year rule says so; and it is an adult condition incurred while on active duty.

The applicant further claims that GHD in adults has only recently been recognized by the medical community as a permanently restrictive condition requiring lifelong treatment to ameliorate, but not eliminate, the disabling impact it has upon the human mind and body. He states that Board has focused on the supposition that the GHD is under control and therefore can be ignored as a disabling condition. He contends this is akin to claiming that diabetes is under control by administering insulin; however, no one would agree this condition can be disregarded or ignored.

The applicant also states that GHD causes osteoporosis of the spine, which in turn precludes performing in any MOS or civilian job that requires lifting more than 20 pounds. He states that the Board must properly factor this into the disability ratings. He concludes by stating that medical disability is recognized for conditions which develop in the adult, but which have childhood origins or connections. For example, the Army recognizes that difference between childhood chickenpox and the adult follow on condition called shingles. Both are caused by the same organism, varicella, yet chickenpox in a child produces adult conditions with potentially life threatening results. Disability is rated for severe permanent adult complications of childhood chickenpox, as it should be for his adult condition arising out of a childhood condition. Included with his rebuttal is the enclosed fact sheet that outlines the connection between chickenpox and shingles.

The applicant also provides as an enclosure to this rebuttal, a memorandum from the Deputy Commander, USAPDA to PEB Presidents, Subject: Policy/Guidance Memorandum: Enactment of Eight-Year Rule for EPTS Conditions. The purpose of this memorandum was to provide implementation guidance of the “eight year rule” for pre-existing conditions signed into law on
5 October 1999 as part of the National Defense Authorization Act (NDAA) for Fiscal Year 2000. In pertinent part, the memorandum stated in effect, that any soldier with eight or more years of active service would be compensated for any unfitting disability even if the disabilities were not incurred or permanently aggravated while the member was entitled to basic pay, meaning that the condition was EPTS.

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 Board notes the latest contentions of the applicant and his counsel that Board erred in its original findings and conclusions. However, it finds insufficient evidence to support these claims.

2. As noted in the USAPDA advisory opinion, that Agency and the PEB have reviewed the applicant’s case on numerous occasions, carefully considering all the medical evidence of record and the independent medical evidence provided by the applicant, to include the argument concerning both his GHD condition and foot problems. The USAPDA has concluded that PEB was conducted in accordance with the governing law and regulation, and that the PEB findings and conclusions were both proper and equitable. The Board finds no evidence presented in this reconsideration request that contradicts this determination.

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3. The record shows that in 1999, the applicant had been receiving the appropriate GHD medication for over two years. It also confirms that a MEB composed of military officials of the applicant’s installation and unit, and a PEB made up of medical officials considered the applicant’s GHD condition, and found it was not unfitting. The Board finds none of the independent evidence provided by the applicant’s counsel on his behalf is sufficiently compelling to discredit the judgment of the members of these two properly constituted boards, or to change their findings and recommendations.

4. The Board also carefully evaluated the issues raised by the applicant in his rebuttal to the USAPDA advisory opinion. The Board agrees with the applicant that the eight year rule applied in his case; however, it does not find this rule was violated. The evidence of record confirms that the PEB fully considered and evaluated his GHD condition, and it determined that it did not render him medically unfit for further service. It is obvious the applicant disagrees with the PEB determination in his case; however, the Board finds no evidentiary basis to conclude that the PEB process was improper or inequitable. The Board is satisfied that all requirements of law and regulation were met and that the applicant’s rights were fully protected throughout his disability processing.

5. The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

6. 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

_JS__ __LDS___ __RKS__ DENY APPLICATION




         Carl W. S. Chun

Director, Army Board for Correction
         of Military Records

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INDEX

CASE ID	AR2003083367
SUFFIX
RECON	AR2000044433
DATE BOARDED	2003/07/
TYPE OF DISCHARGE	N/A
DATE OF DISCHARGE	N/A
DISCHARGE AUTHORITY	N/A
DISCHARGE REASON	N/A
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 177	108.0000
2.
3.
4.
5.
6.