RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 1 April 2004
         DOCKET NUMBER: AR2003089358


         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
Mrs. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Walter T. Morrison		Member
Mr. John T. Meixell		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, in effect, that his Line of Duty (LOD) determination be changed from LOD – No, Not Due to Own Misconduct to LOD – Yes, Not Due to Own Misconduct.

2. The applicant states that the Army erred when it found that his disability was not in the line of duty because his service did aggravate his condition. In a Statement in Support of [Department of Veterans Affairs) Claim, the applicant stated that of all the medical reports, statements from other members of his reserve unit, and LOD determination, only the LOD determination show that his disability occurred during his summer camp.

3. The applicant provides his rebuttal, dated 11 February 2001, to the adverse LOD investigation finding; a DD Form 261 (Report of Investigation Line of Duty and Misconduct Status); a 1st endorsement from the Assistant Staff Judge Advocate, 88th Regional Support Command dated 16 June 2000; an LOD response dated 22 September 2000; his appeal, dated 11 December 2000, of the adverse LOD investigation finding; an LOD investigation response dated 30 August 2001; and three noncommissioned officer evaluation reports for the periods ending October 1996, October 1997, and June 1998, respectively.

CONSIDERATION OF EVIDENCE:

1. The applicant enlisted in the U. S. Army Reserve (USAR) on 20 May 1980. He was promoted to Staff Sergeant, E-6 on 1 December 1995 in military occupational specialty 63B (Light Wheel Vehicle Mechanic).

2. The applicant and his unit were ordered to annual training (AT) for the period 13 through 27 March 1998 (the DA Form 261 shows he started annual training on 14 March 1998).

3. It appears that parts of the LOD investigation are missing.

4. In a statement dated 20 January 2000, apparently in response to a request from an LOD investigating officer (IO), the applicant stated that on 21 March 1998 he attempted to drive from the AT site to Minneapolis, MN. After driving about 35 miles, he started getting a severe headache and blurry vision. He returned to the AT site. During the following week, he continued to have headaches. He had trouble staying awake and alert. He did not go on sick call. After returning home to his civilian job, he continued to have headaches. On
22 April 1998, his manager called paramedics. He was transported by ambulance to a hospital. A CAT scan indicated he had been hemorrhaging in his brain for a long period of time from an aneurysm.

5. An LOD was initiated (item 1 (Report Date) of the DD Form 261 indicates the report was made on 15 May 2000). The IO found that the applicant did not realize the severity of the medical problems he was having until after he had been admitted to a civilian medical facility about three weeks after his AT ended. Based on the professional medical advice of Doctor I___, the IO found that the applicant's condition was In Line of Duty. The appointing authority approved the finding.

6. One document reviewed by the LOD IO was a 16 February 2000 letter from Doctor I___. Doctor I___ opined that the applicant's difficulties began in March during his work activities [while on AT].

7. A legal review found that the IO's finding that the applicant's injury occurred at AT or had been aggravated at AT was unsupported by the evidence in the file. The LOD was returned for further action.

8. The LOD IO obtained an additional statement from Doctor I___. Doctor I___ noted that the applicant suffered a hemorrhage of the brain stem on 20 April 1998 which emerged following the rupture of a cavernous hemangioma, a congenital abnormality, within the brain stem. It was his opinion that though the vascular anomaly is congenital, the strenuous nature of the applicant's physical environment during his March tenure at [AT] precipitated the later hemorrhage of the angioma.

9. On 22 September 2000, a legal review found the LOD investigation to be legally sufficient to support the IO's finding of In Line of Duty. The reviewer noted that only specific findings of natural progress of the pre-existing cavernous hemangioma, based upon well-established medical principles, as distinguished from medical opinion alone, are enough to overcome the presumption of service aggravation. The legal reviewer found no evidence of such findings in the case.

10. Apparently the appointing authority later disapproved the IO's findings. On 9 November 2000, the applicant was provided the LOD investigation and notified he could appeal the adverse LOD investigation finding (Not in Line of Duty, Not Due to Own Misconduct). On 13 December 2000, the applicant indicated he would appeal the finding.

11. The applicant provided a 6 February 2001 letter from Doctor I___. Doctor I___ stated that, with all due respect to Doctor H___ (identity unknown, but most likely the doctor whose opinion caused the reviewing authority to change the LOD investigation findings to Not in Line of Duty), he retained an opinion to a reasonable degree of medical certainty that the applicant's activity during his AT caused the hemangioma to rupture. He stated that it is well known that strenuous physical activity increases blood pressure and cardiac output and would certainly put substantially more pressure on those congenitally abnormal blood vessels.

12. In a rebuttal dated 11 February 2001, the applicant, through counsel, noted, in part, that the symptoms during his annual training evidenced expansion or essential bleeding of his subsequent cavernous hemangioma. Importantly, there are no medical records to support any contention that the applicant had ever reported these symptoms to anyone prior to his symptoms while at annual training.

13. By memorandum dated 30 August 2001, the U. S. Total Army Personnel Command informed the applicant that his appeal was denied and the LOD finding of Not in Line of Duty - Not Due to Own Misconduct – EPTS (existed prior to service) - No Service Aggravation was affirmed. This memorandum referred to an Office of The Surgeon General opinion that there were documented medical records which indicated the applicant's condition developed while in a civilian status. Further, the available medical records supported the conclusion that the EPTS condition was not permanently aggravated by military service beyond the normal progression of the condition.

14. On 20 October 2001, the applicant was transferred to the Retired Reserve with an early retirement due to being medically disqualified.

15. Army Regulation 600-8-1 (effective 17 October 1986, revised in 1994; however, the 1986 version is still used as the LOD authority), chapters 39 through 41, dealing with LOD investigations, provides that an LOD determination is presumed to be In Line of Duty without an investigation except in two instances, one of which is when a USAR or Army National Guard member serving on an active duty tour of 30 days or less is disabled due to disease.

16. Army Regulation 600-8-1, paragraph 40-9c states that in no case will the appointing authority "disapprove" a finding without stating the reasons for disapproval and giving the new findings. If the proposed new findings are different from those of the IO and adverse to the service member, the member will be advised by the appointing authority and given a reasonable opportunity to reply, in writing, and to offer rebuttal.

17. Army Regulation 600-8-1, paragraph 41-8f(1) states that a member of the Army is presumed to have been in sound physical and mental condition on entering active service or authorized training. To overcome this, it must be shown by substantial evidence that the injury or disease, or condition causing it, was sustained or contracted while neither on active duty nor in authorized training. Paragraph 41-8f(2) states that specific findings of natural progress of the pre-existing injury or disease, based upon well-established medical principles, as distinguished from medical opinion alone, are enough to overcome the presumption of service aggravation.

18. Title 38 (Veterans Benefits), U. S. Code, section 101(24)(C)(ii) was added on 1 November 2000 to expand the definition of "active…military service" to include "any period of inactive duty training during which the individual concerned was disabled…from a cerebrovascular accident occurring during such training."

19. Information taken from the Internet site medlineplus.gov revealed that cavernous malformation is a rare disorder of the capillaries and smallest veins in one part of the brain. The disorder occurs when a blood-filled mass resembling a tumor, called a hemangioma, forms. A cerebral cavernous malformation is characterized by a slow bleed, or ooze, as opposed to the sudden rupture of an aneurysm. Symptoms include headaches and seizures. Symptoms are caused by the pressure of accumulated blood in and around the malformation on adjacent brain tissue. If the bleed is small, it may take several subsequent bleeds until enough pressure is built up in order for the person to notice symptoms. The malformation could also bleed substantially causing immediate problems or neurological deficits. Or, the lesion could remain dormant and not have evidence of any bleed at all.

20. Other information taken from the same Internet site states that bleeding in the brain from a broken or leaking blood vessel causes hemorrhagic stroke. Cerebrovascular accident is another term for stroke.

21. Army Regulation 15-185 governs the operation of the Army Board for Correction of Military Records (ABCMR). Paragraph 2-9 states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS :

1. The governing regulation states that specific findings of natural progress of the pre-existing injury or disease, based upon well-established medical principles, as distinguished from medical opinion alone, are enough to overcome the presumption of service aggravation.

2. It is acknowledged that, although the applicant's symptoms were not severe enough to be identified as a stroke until about 3 weeks after he was released from active duty, he clearly manifested those symptoms while he was on active duty. However, the applicant's own doctor noted that the stroke emerged following the rupture of a cavernous hemangioma, a congenital abnormality. Although it was the doctor's opinion that the strenuous nature of the applicant's physical environment caused the rupture, that opinion is not supported by available medical evidence.

3. The available medical evidence reveals that symptoms of cavernous hemangioma are caused by the pressure of accumulated blood in and around the malformation on adjacent brain tissue. If the bleed is small, it may take several subsequent bleeds until enough pressure is built up in order for the person to notice symptoms. Based on this evidence, it is most likely the applicant was having small bleeds for a period of time prior to the onset of his symptoms until they became significant enough for him to notice symptoms.

4. It appears the applicant's primary problem may be with the Department of Veterans Affairs using the LOD findings to deny him benefits. Title 38, U. S. Code, section 101(24)(C)(ii) was added on 1 November 2000 to expand the definition of "active…military service" to include "any period of inactive duty training during which the individual concerned was disabled…from a cerebrovascular accident occurring during such training." The purpose and effect of this change appears to be to eliminate any consideration of whether a cerebrovascular accident was caused by the immediate activities of a soldier during periods of duty or pre-existing conditions. In other words, the cause of the applicant's cerebrovascular accident should be irrelevant to any veterans' benefits determination. The Department of Defense, however, has no jurisdiction over Department of Veterans Affairs policies.

5. Even so, the amendment of Title 38, U. S. Code does not change the policies under which the Department of the Army operates. The LOD finding of Not in Line of Duty, Not Due to Own Misconduct was proper given all the known evidence in this case. The applicant has failed to provide evidence to show that the symptoms he first noticed during his annual training in March 1998 were permanently aggravated by that service beyond the normal progression of his condition.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

__ fne ___ __ wtm __ __ jtm ___ 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.




                  _Fred N. Eichorn______
                  CHAIRPERSON

---

INDEX

CASE ID	AR2003089358
SUFFIX
RECON
DATE BOARDED	20040401
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	122.02
2.
3.
4.
5.
6.