RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        05 APRIL 2005
      DOCKET NUMBER:  AR20040003397


      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             |
|     |Ms. Deborah L. Brantley           |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Mr. Mark Manning                  |     |Chairperson          |
|     |Mr. Thomas O'Shaughnessy          |     |Member               |
|     |Ms. Jeanette McCants              |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his “polycythemia vera” which
was determined by his 14 June 2000 Physical Evaluation Board (PEB) to be
“not unfitting” and therefore “not rated” be corrected to show that it was
unfitting and therefore ratable on subsequent physical evaluations
conducted as part of his TDRL (Temporary Disability Retired List)
proceedings.

2.  The applicant states that the condition was determined to be “medically
unacceptable” during his December 1999 Medical Evaluation Board (MEB),
based on a normal “CBC” (Complete Blood Count) blood test.  He maintains
that a Bone Marrow Biopsy should have been ordered and then compared with a
Bone Marrow Biopsy which was taken in 1997 at Landstuhl Medical Center and
subsequently diagnosed at Walter Reed Medical Center.

3.  The applicant argues that these two biopsies would “be the only true
evaluation toward the evolution of the polycythemia vera.”  He states that
“non evolution of the disease was taken for granted not medically ruled
out.”

4.  The applicant states that a July 2003 Bone Marrow Biopsy was conducted
by the Veterans Administration in Durham North Carolina and showed a
“clotting of the cells as well as fibrosis in the bone marrow which was not
present in the 1997 biopsy.”  He states that this “clearly shows the
polycythemia vera evolving towards life threatening.”  He states that he is
currently scheduled to undergo a Bone Marrow Transplant and believes that
if a biopsy had been conducted in December 1999 as part of his medical
evaluation “it would have shown some fibrosis which would have proven the
evolution of the disease.”

5.  He contends that because the Bone Marrow Biopsy was not conducted and
presented to the medical board the board members had insufficient medical
evidence available to render an appropriate determination on the
polycythemia vera evaluation.  He states that had the biopsy been done, his
medical treatment would have been changed “toward slowing down the fibrosis
which would clearly make [him] unfit for service on the merits of the
polycythemia vera” and as such would have been “reviewable at [his] final
Medical Board Evaluation in May 2005.”

6.  The applicant provides a copy of his 2000 Physical Evaluation Board, a
copy of a December 1999 physical examination conducted as part of his
Medical Evaluation Board, and a copy of a 1997 biopsy report from Womack
Army Medical Center, and medical reports from the Durham Veterans Affairs
Medical Clinic, which are dated in 2003.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred 2000.  The application submitted in this case is dated 22
June 2004.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  One of the medical documents provided by the applicant indicates that a
marrow biopsy was conducted in November 1997 at Womack Army Medal Center.
The applicant was assigned to Fort Bragg, North Carolina at the time.  The
report indicates that the applicant had a prior diagnosis of “P. vera”
(polycythemia vera) and asked that a bone marrow biopsy from Landstuhl be
reviewed.  The November 1997 biopsy noted no new information and that it
did “not show fibrosis” and “no leukemia now.”  The final diagnosis was
“marrow: tri-lineage myeloproliferative disorder. N.O.S. [not otherwise
specified].”

4.  In December 1999 the applicant underwent a medical examination as part
of his MEB.  His chief complaint was “stroke.”  The medical summation noted
that the applicant had been found fit by a PEB in 1996 after a “diagnosis
of polycythemia vera.”  It noted, however, that the applicant had been
having neurologic symptom since July 1997 that had not been adequately
addressed until he was referred to a neurology clinic in February 1999.
The clinic noted that the applicant reported headaches that had been
present for 18 months and were associated with left face and arm numbness.
The MEB summary noted that the applicant sought medical treatment at the
Womack emergency room on 8 July 1997 “for acute facial and left arm
numbness” and that his previous diagnosis of polycythemia vera was noted as
part of his “past medical history.”  The summary indicated that ultimately
a CAT (computed assisted tomography) revealed evidence of a prior cerebral
infarct and the applicant was started on medication.  Over time the
applicant continued to have exertional headaches with residual left sided
hemiparesis (muscular weakness or partial paralysis restricted to one side
of the body).  The MEB summary noted that the applicant continued “to
receive regular phlebotomy to treat his polycythemia as well as daily oral
hydroxyurea.”



5.  The final diagnosis was cerebral infarction with persistent neurologic
deficits (diagnosis 1), polycythemia vera (diagnosis 2), and chronic daily
headaches secondary to diagnosis 1 (diagnosis 3).  The evaluating physician
included a statement indicating all three of the conditions were “medically
unacceptable” and cited the appropriate paragraphs of Army Regulation 40-
501 for each diagnosis which served as the basis for referring the
applicant to a PEB.

6.  The document, which would have indicated if the applicant concurred or
nonconcurred with the findings and recommendation of the MEB were not in
records available to the Board.  However, there is no indication of any
additional medical documents, submitted after the MEB, which might indicate
that he nonconcurred.

7.  A PEB, conducted on 14 June 2000, concluded that the cerebral
infarction that occurred in July 1997 was secondary to the diagnosis of
polycythemia vera and that the applicant now had exertional headaches
accompanied by left side facial numbness.  It noted that the applicant had
lost fine motor control of his left hand and that ultimately MEB diagnosis
1 and 3 were unfitting but had not stabilized to the point that a permanent
degree of severity could be determined.  The PEB recommended that the
applicant’s name be placed on the TDRL.  It also concluded that MEB
diagnosis 2 (polycythemia vera) was not unfitting and as such, not rated.

8.  The applicant concurred with the findings and recommendation of the
PEB.

9.  The applicant’s separation document was not in records available to the
Board; however, the applicant indicated on his application to the Board
that he was discharged on 20 August 2000.  His name is currently on the
TDRL.

10.  Although the applicant indicated in a telephonic conversation with a
member of the Board’s staff that while he has had medical appointments he
had not undergone a physical examination since being placed on the TDRL.
He did state that he was scheduled to have an evaluation at Fort Bragg in
May 2005.  However, information from the Physical Evaluation Agency
indicated that their records showed that the applicant underwent a TDRL
evaluation on 7 August 2001 and on 7 May 2003.  Both evaluations
recommended retention on the TDRL.  Those evaluations, however, were also
not available to the Board.

11.  The medical documents provided by the applicant from the Durham
Veterans Affairs Medical Clinic indicate that a bone marrow specimen was
taken on 16 July 2003 and showed, among other things, “bone marrow of
approximately 98% cellularity.  There is an increase in megakaryocytes and
many appear large and atypical.  There are areas of increased fibrous
tissue.”  The final diagnosis was “morphology suggestive of
myelofibrosis/myelodysplasia.”  The medical documents noted that the
applicant continued his “phlebotomy and hydrea.”  The documents also noted
that “according to the written reports he [the applicant] did not have
fibrosis on the prior BM [bone marrow]…[but] now he has fibrosis so the
disease seems to be evolving.”  The evaluating physician indicated that he
discussed the “possibility of allo BMT” (bone marrow transplant) which “he
[the applicant] seems interested in.”

12.  Medline Plus, an online medical information service provided jointly
by the National Library of Medicine and the National Institutes of Health
indicates that Polycythemia vera (PV) is a chronic myeloproliferative
disorder (relating to, or being a disorder (as leukemia) marked by
excessive proliferation of bone marrow elements and especially blood cell
precursors) characterized by an increase in blood cells.  The blood may
become too thick, which can cause serious health problems including
shortness of breath, dizziness, itchy or flushed skin, fatigue and
headaches.  Hands and feet may become blue and tender and the individual
may have abnormal blood clots, which could lead to a stroke.  PV may begin
with a bone marrow problem and may be diagnosed after an incidental finding
of an elevated hemoglobin and/or hematocrit level on a complete blood count
(CBC).  Treatment may include phlebotomy (blood removed to help keep the
number of red blood cells down) and Hydroxyurea (Hydrea) with or without
phlebotomy.

13.  Medline Plus describes myelofibrosis as an anemic condition in which
bone marrow becomes fibrotic and the liver and spleen usually exhibit a
development of blood-cell precursors and myelodysplasia as a developmental
anomaly of the spinal cord.

14.  Army Regulation 635-40 states that the mere presence of an impairment
does not, in itself, justify a finding of unfitness because of physical
disability.  In each case, it is necessary to compare the nature and degree
of physical disability present with the requirements of the duties the
Soldier reasonably may be expected to perform.  To ensure all Soldiers are
physically qualified to perform their duties in a reasonable manner,
medical retention qualification standards have been established in Army
Regulation 40-501.  These retention standards and guidelines should not be
interpreted to mean that possessing one or more of the listed conditions or
physical defects signifies automatic disability retirement or separation
from the Army.

15.  Army Regulation 40-501, in effect at the time, indicated that
neoplastic conditions of the lymphoid and blood-forming tissues might be
cause for referral to an MEB.  Currently Army Regulation 40-501 separates
neoplastic conditions into malignant and benign neoplasms and provides more
specific criteria, which may be cause for referral.

16.  Army Regulation 635-40 further states that the combined percentage
rating approved at the time the Soldier was placed on the TDRL cannot be
changed by the PEB throughout the period the Soldier is on the TDRL.
Adjustment will be made at the time of removal from the TDRL to reflect the
degree of severity of those conditions rated at the time of placement on
the TDRL and any ratable conditions identified since placement on the TDRL.

17.  Additionally, Department of Defense Instruction Number 1332.38, which
implements policy, assigns responsibilities, and prescribes procedures for
the separation or retirement for physical disability notes that in addition
to the above the TDRL periodic examinations should also address the
etiology of all medical impairments diagnosed since the member was placed
on the TDRL, to include:

      a.  where the new diagnosis was caused either by the condition for
which the member was placed on the TDRL or the treatment received for such
a condition.

      b.  if not caused by the condition for which the member was placed on
the TDRL, whether the member’s medical records document incurrence or
aggravation of the condition while the member was in a military duty
status; and if so, whether the condition was cause for referral into the
Disability Evaluation System at the time the member was placed on the TDRL.

18.  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.  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.

DISCUSSION AND CONCLUSIONS:

1.  While the fact that the applicant had a history of a diagnosis of
polycythemia vera warranted its acknowledgment, under Army Regulation 40-
501, as part of the applicant’s disability processing, it did not
necessarily render the applicant unfit.  The PEB determined that while the
applicant may have had that condition, it did not render him unfit and as
such, it was not rated.  The applicant concurred with that determination.
2.  Although the applicant now argues that a Bone Marrow Biopsy should have
been conducted as part of his December 1999 MEB and as such, might have
shown “the evolution of the polycythemia vera” which could have resulted in
a ratable finding, there is no evidence that suggests that a biopsy was
warranted.

3.  To suggest that because a subsequent medical procedure, conduct nearly
4 years later, showed that an earlier condition was “evolving” is not
evidence that even if that procedure had been done in 1999 that it would
have showed the same results, or that it would then have contributed to the
applicant’s inability to perform his military duties.

4.  The November 1997 medical document from Womack Army Medical Center,
which the applicant provided with his application to the Board, appears to
indicate that two biopsies were done, one at Landstuhl and then one at
Womack Army Medical Center which compared those results to the results from
Landstuhl.  The physician who completed the applicant’s MEB evaluation
would have had access to that information and likely determined that no
further biopsies were necessary and that such a procedure would not have
provided any additional information concerning the applicant’s primary
complaint (stroke), which ultimately was the basis for his placement on the
TDRL.

5.  The fact that a medical condition might now exist or deteriorated,
which was originally not considered to contribute to the applicant’s
inability to perform his duties, is not evidence of any error or injustice
in the original findings of the PEB.  The condition was documented and its
progression, as it may impact and the applicant’s future employability is
more appropriately addressed through the Department of Veterans Affairs
rating system.

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

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 20 August 2000; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
19 August 2003.  However, the applicant did not file within the 3-year
statute of limitations and has not provided a compelling explanation or
evidence to show that it would be in the interest of justice to excuse
failure to timely file in this case.




BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___MM  _  ___TO __  ___JM  __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  ______Mark Manning________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040003397                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050405                                |
|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.                      |                                        |


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