MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        


                  BOARD DATE: 9 October 2003
                  DOCKET NUMBER: AR2003086517

         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
Ms. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor		Chairperson
Mr. Robert J. Osborn		Member
Ms. Eloise C. Prendergast		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: In effect, that she be medically retired with a disability rating of 100 percent in lieu of being discharged by reason of physical disability without severance pay. She also requests that she receive back retirement pay from the date of her separation and that the Line of Duty (LOD) investigation, dated 26 October 1984, be incorporated in her military records.

APPLICANT STATES: In effect, that she is entitled to a 100 percent disability rating because her medical condition did not exist prior to service (EPTS). She contends that her induction examination was normal; however, after receiving induction shots that were toxic to her system her kidneys began to deteriorate. She contends that the LOD investigation proves that her service-connected condition was brought on and aggravated by the Army, that it was no fault of her own, and that she was 100 percent disabled. She also contends that personnel at Walter Reed Army Medical Center hid the LOD investigation from her and never incorporated the investigation into her records. In support of her application, she submits letters of explanation, dated 3 February 2003 and
13 November 2002; a DD Form 261 (Report of Investigation); a letter, dated
5 September 2003, from the Department of Veterans Affairs; letters, dated
16 July 2003, 1 July 2003, 30 June 2003, and 25 June 2003; and a court document pertaining to child support.

EVIDENCE OF RECORD: The applicant's military records show:

The applicant enlisted in the North Carolina Army National Guard on 31 January 1984 for a period of 6 years. She was ordered to active duty on 11 June 1984 for training. While in basic training, on 6 July 1984, the applicant was hospitalized for nephrotic syndrome (1uphealth.com website states that nephrotic syndrome is a congenital/inherited disorder characterized by protein in the urine and swelling of the body. Medlineplus.gov website states that nephrotic syndrome is an abnormal condition that is marked by deficiency of albumin in the blood and its excretion in the urine due to altered permeability of the glomerular basement membranes).

On 20 September 1984, the applicant was diagnosed by a Medical Evaluation Board (MEB) with focal and segmental glomerulosclerosis with segmental glomerulosclerosis (an illness where scar tissue forms in some of the glomeruli of the kidney - glomeruli are structures in the kidney that filter harmful or unnecessary substances out of the kidney), arteriolar nephrosclerosis (hardening of the kidney) and severe tubulointerstitial (affecting or involving the tubular and interstitial tissue of the kidney) fibrosis (a condition marked by increase of interstitial fibrous tissue) (EPTS); and nephrotic syndrome secondary to diagnosis number one. The MEB recommended referral to a Physical Evaluation Board (PEB).

On 26 October 1984, a LOD investigation was conducted and the investigating officer found that the applicant's condition occurred in the line of duty. The approval authority approved the findings on 10 December 1984. The remarks section on the investigation states, "After speaking with SM [service member] it was made evident to me that a biopsy had been done on both kidneys and scarring along with inflammation was found to be present. SM has been told by doctors at Walter Reed Hospital that she has 50% function of her kidneys and they will not improve, only deteriorate. This will most likely lead to the need for a kidney machine as well as a kidney transplant in the future. Major Dr. Kenneth M____ (SSN _________) a Nephrologist stated that PVT [applicant's last name] condition "most likely" existed prior to entry into the Army, however according to Dr. M ____ it cannot be proven. During PVT [applicant's last name] induction urinalysis no protein was found. At the present time large amounts are present. Major Dr. M_____ also stated that this condition (Nephrotic Syndrome) was not brought on by negligence on the part of PVT [applicant's last name]. From all the evidence I have gathered as investigating officer it is obvious that PVT [applicant's last name] present condition occurred in the line of duty. The reason the SM was not interviewed personally by myself (I.O.) was because she was at Walter Reed in Washington, D.C. while I am located at Ft. Dix, NJ. The interview of PVT [applicant's last name] was conducted telephonically. The investigating officers reason for the finding was based upon the statement made by Major Dr. M____ who is the subject matter expert on Nephrology."

On 19 November 1984, a PEB found the applicant physically unfit due to nephrotic syndrome secondary to glomerulosclerosis, nephrosclerosis, and severe tubulointerstitial fibrosis, VA Schedule for Rating Disabilities (VASRD) Code 7599-7502. The PEB proceedings state, in pertinent part, that "Based upon a detailed review of medical evidence of record and under the provisions of para [paragraph] 2-1, AR [Army Regulation] 635-40, you are found to be unfit to perform assigned duties in your grade and specialty due to an EPTS condition that has not been service aggravated. It is noted that your illness by natural progression, became apparent within 1 month of your entering service and progressed to the point of your being hospitalized in July 1984. According to accepted medical principles manifestations of symptoms of chronic disease from date of entry, or so close to that date that the disease could not have started in so short a period, will be accepted as proof that the disease existed before entrance into active military service. In that EPTS conditions are not compensable under the Army Disability system, the proper disposition at this time is separation without benefits." The PEB recommended that the applicant be separated from the service without disability benefits. On 4 December 1984, the applicant did not concur with the findings and recommendations and demanded a formal hearing.

On 31 January 1985, the applicant appeared before a formal PEB. The formal PEB affirmed the same findings and recommendations of the PEB. On that date, the applicant elected to wait until the proceedings were mailed to her before she indicated whether or not to accept or decline the recommendation. The applicant's election is not available.

On 27 February 1985, the U.S. Army Physical Disability Agency approved the recommended findings of the formal PEB.

Accordingly, the applicant was honorably discharged on 3 April 1985 under the provisions of Army Regulation 635-40, paragraph 4-24e(4), for physical disability without severance pay. She had served 9 months and 23 days of total active service.

The applicant's service personnel records contain the original DD Form 261, dated 26 October 1984.

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 purpose of his employment on active duty. Appendix B, paragraph 10 states that when considering EPTS cases involving aggravation by active service, the rating will reflect only the degree of disability over and above the degree existing at the time of entrance into the active service, less natural progression occurring during active service. This will apply whether the particular condition was noted at the time of entrance into active service or is determined upon the evidence of record or accepted medical principles to have existed at that time. Hereditary, congenital and other EPTS conditions frequently become unfitting through natural progression and should not be assigned a disability rating unless service-aggravated complications are clearly documented.

Army Regulation 635-40, paragraph 3-3 states that according to accepted medical principles, certain abnormalities and residual conditions exist that, when discovered, lead to the conclusion that they must have existed or have started before the individual entered the military service. Examples of these conditions include scars, supernumerary parts, congenital malformations and hereditary conditions and similar conditions in which medical authorities are in such consistent and universal agreement as to their cause and time of origin that no additional confirmation is needed to support the conclusion that they existed prior to military service.

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.

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. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

2. The Board considered the applicant's contention that after receiving induction shots that were toxic to her system her kidneys began to deteriorate. However, the applicant has provided no evidence to support this contention.

3. The Board considered the applicant's contention that the LOD investigation proves that her service-connected condition was brought on and aggravated by the Army. However, there is no evidence in the LOD investigation which shows that the applicant's condition was service-connected or was aggravated by the Army. The Board noted that the PEB determined that the applicant's EPTS condition was not service aggravated.

4. The Board considered the applicant's contention that the LOD investigation proves that her medical condition was no fault of her own. The Board notes that the LOD investigation states that her condition was not brought on by negligence on her part. The Board also notes that the investigating officer who determined her condition was incurred in LOD was not a medical officer.

5. The Board considered the applicant's contention that the LOD investigation proves that she was 100 percent disabled. However, there is no evidence in the LOD investigation which shows that the applicant was 100 percent disabled at the time she separated.

6. The Board considered the applicant's request that the LOD investigation, dated 26 October 1984, be incorporated in her military records. However, the applicant's service personnel records did contain the LOD investigation.

7. The applicant’s disability was properly rated in accordance with the VASRD. According to accepted medical principles, certain abnormalities such as congenital malformations and hereditary conditions exist that, when discovered, lead to the conclusion that they must have existed or have started before the individual entered the military service. Medical evidence of record states that nephrotic syndrome is a congenital disorder. Since there was no clearly documented evidence of service-aggravated complications and the service component of the disability could not be determined a disability rating could not be assigned.

8. 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

RVO___ RJO_____ ECP_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2003086517
SUFFIX
RECON
DATE BOARDED	20031009
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	108.0000
2.	128.1400
3.	100.0000
4.
5.
6.