MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        


                  BOARD DATE: 16 September 2003
                  DOCKET NUMBER: AR2003084746

         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
Mrs. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Melvin H. Meyer		Member
Ms. Karen A. Heinz		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)

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APPLICANT REQUESTS: That her physical disability discharge with severance pay be changed to a medical retirement.

APPLICANT STATES: In effect, that the Army did not consider her depression in determining the percentage of disability. In December 1999, the Department of Veterans Affairs (VA) awarded her a 100 percent disability rating for chronic depression.

EVIDENCE OF RECORD: The applicant's National Guard military records are not available. Evidence contained herein was obtained from her Regular Army records and from the physical disability proceedings provided by the applicant.

After having had prior service, the applicant enlisted in the Army National Guard of New Jersey on an unknown date.

On 29 April 1994, while on annual training, the applicant was bitten by a tick. On 20 May 1994, she first sought treatment for swelling and pain in her left arm and hand and joint tenderness of the elbow. Over the next several years, she received various treatments for Lyme Disease.

In 1998, the applicant appeared before a medical evaluation board (MEB). A Narrative Summary dated 8 January 1998 indicates the applicant's chief complaint was of multiple aches and pains and generalized fatigue for the past 3 years. It was noted that she was initially started on treatment for Lyme Disease. It was noted that a Lyme Western blot taken around early 1996 found she had only 2 in 5 titre and positive bands, both of which were frequent false positives in the New Jersey area. A rheumatalogist from the Walter Reed Army Medical Center also had the impression that the applicant did not have Lyme Disease. The Lyme ELISA titre had come back negative. It was noted that the applicant's fatigue and arthralgias were all thought to be consistent with fibromyalgia. The applicant was diagnosed with fibromyalgia severe enough to prevent successful performance of duties; hypertension, well-controlled with medication, medically acceptable; and bilateral patellofemoral syndrome, medically acceptable. She was referred to a physical evaluation board (PEB). The DA Form 3947 (Medical Evaluation Board Proceedings) is not available.

A psychiatric addendum to the MEB (but dated 5 September 1997) was prepared. It was noted the applicant had no previous psychiatric history until the past year. She had been "down" since March 1996. Sometimes she had to "stay in bed for a week" because of pain. She could "not do anything for herself" which both worried and depressed her. She was diagnosed with pain disorder associated with both psychological factor and general medical condition, chronic; and depression due to chronic medical condition. It was noted that she had an increasing [psychiatric] disability secondary to her progressive Lyme Disease.
By memorandum dated 6 March 1998, the U. S. Army Physical Evaluation Board, Walter Reed Army Medical Center returned the applicant's case for two doctors to come to a consensus on the diagnosis. It was noted that numerous physicians indicated Lyme Disease was not a diagnosis yet Doctor L___ (the physician who prepared the psychiatric addendum) added that [diagnosis] in her summary.

On 12 May 1998, Doctor R___ and Doctor L___ reached a consensus that the applicant did not have and had no laboratory evidence of Lyme Disease. It was noted that the result of the first Lyme titre done soon after the tick bite was not available in her records.

On 27 May 1998, an informal PEB found the applicant to be unfit for duty due to fibromyalgia (diagnoses 1 and 3). Diagnosis 2 (presumably hypertension) was found to be not a working diagnosis. Diagnoses 4 and 5 (presumably pain disorder and depression) were found to be not unfitting. The PEB recommended she be discharged with severance pay with a 20 percent disability rating.

On 2 June 1998, the applicant nonconcurred with the findings of the informal PEB and demanded a formal hearing.

On 9 July 1998, a formal PEB found the applicant to be unfit for duty for the same reasons as found by the informal PEB and with the same recommendation as the informal PEB. On 19 July 1998, the applicant nonconcurred with the findings of the formal PEB.

In her appeal dated 22 July 1998, the applicant requested that the panel review materials supporting her contention that she had Lyme Disease. She further submitted material that indicated that fibromyalgia and other muscoloskeletal disorders can result from Lyme Disease. She stated that she experienced all of the described symptoms of Lyme Disease.

A DA Form 18 (Revised Physical Evaluation Board (PEB) Proceedings) dated 2 September 1998 found the applicant unfit for duty due to fibromyalgia that existed prior to service and was not the proximate result of performing duty. It was noted that she was initially treated for Lyme Disease but subsequent follow up failed to produce evidence of Lyme Disease and fibromyalgia was subsequently diagnosed. It was noted that fibromyalgia can closely resemble the symptoms of Lyme Disease but the medical course of fibromyalgia is such that it could not be related to the performance of military duty. It was recommended the applicant be separated without disability benefits.

The applicant appealed the findings of the revised PEB. She stated that she had no physical problems until she was bitten by a deer tick while performing annual training in April 1994. She stated that fibromyalgia is a secondary disease of Lyme Disease or is triggered by Lyme Disease. She stated that she had not yet spoken about the depression that she fought daily.

On 18 August 1998, the applicant's case was forwarded to the U. S. Army Physical Disability Agency for review. It was further forwarded to the Army Physical Disability Appeal Board (APDAB). The APDAB adopted the rationale of the formal PEB, dated 9 July 1998, when it determined the applicant was unfit for continued duty and recommended a disability rating of 20 percent and separation with severance pay.

On 19 March 1999, the applicant was separated by reason of physical disability with severance pay. She had completed 13 years, 6 months, and 17 days of service.

The applicant provided a VA Form 10-1000 (Discharge Summary) which shows she was hospitalized on 2 July 1999 and discharged on 6 July 1999 with a discharge diagnosis of depression secondary to medical conditions: Lyme Disease, fibromyalgia, and hypertension.

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of 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 purposes of his employment on active duty. It states that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. Appendix B prohibits pyramiding. Pyramiding is the term used to describe the application of more than one rating on any area or system of the body when the total functional impairment of that area or system can be reflected under a single code. All diagnoses that contribute to total functional impairment of any area or system of the body will be merged with the principal diagnosis for rating purposes.

Title 38, U. S. Code, sections 1110 and 1131, permits the 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.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. The Board acknowledges that the applicant was diagnosed with depression prior to her PEB. However, the addendum to the Narrative Summary noted that her depression was secondary to her chronic medical condition. In July 1999, the VA indicated that her diagnosis of depression was secondary to her medical conditions. To rate her depression that was the result of her primary condition would violate the prohibitions against pyramiding.

2. The rating action by the VA does not necessarily demonstrate an error or injustice in the Army rating. 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. If the VA chooses, it may elect to be less stringent than the Army in guarding against pyramiding.

3. The Board also notes the applicant's primary argument in her appeals against the findings of the PEBs that she suffered from Lyme Disease and that fibromyalgia was caused by her contracting Lyme Disease. In the Army physical disability processing system, the presence alone of an impairment or disease does not justify finding a soldier unfit; however, the disabilities caused by the impairment or disease may be a reason to find a soldier unfit. (For example, a broken elbow by itself may not render a soldier unfit. If that broken elbow reduces the soldier's range of motion in his elbow, however, the reduced range of motion may render the soldier unfit.)

4. It appears the APDAB accepted the applicant's contention that her fibromyalgia was caused by her contracting Lyme Disease. However, it was the firbromyalgia that resulted in her being unfit for duty, not Lyme Disease itself.

5. Regrettably, 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

__fne___ __mhm___ __kah___ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2003084746
SUFFIX
RECON
DATE BOARDED	20030916
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	108.01
2.
3.
4.
5.
6.