RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            20 July 2004
      DOCKET NUMBER:   AR2004101353


      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. Kenneth W. Lapin              |     |Member               |
|     |Mr. Antonio Uribe                 |     |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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant's physical disability separation
with severance pay at a zero percent disability rating be changed to a
medical retirement.

2.  Counsel states that the applicant requested his case be heard by a
formal Physical Evaluation Board (PEB) and that he be retired by reason of
disability due to both chronic leukemia and hypothyroidism.  The formal PEB
instead recommended his separation by reason of disability at a zero
percent rating.  The crux of the PEB's findings was that the applicant did
suffer from chronic leukemia but that the disease was not active at that
point in time.  The applicant rebutted the finding as the progression of
his white blood cell count clearly showed progression of the disease.  The
PEB also erred as a matter of law in failing to find that the applicant's
hypothyroidism and hypoparathyroidism were separate unfitting conditions
due to the fatigue and chronic headaches those conditions caused him on a
daily basis.  Removal of his thyroid secondary to lymphocytic infiltration
of the gland was proof that he suffered from active leukemia and it should
have been viewed by the PEB as treatment of an active disease.

3.  Counsel states that proof of the debilitating nature of the applicant's
conditions is clearly shown by the Department of Veterans Affairs (VA)
rating the applicant's chronic leukemia at 100 percent, his hypothyroidism
at 30 percent, and his hypoparathyroidism at 10 percent less than a month
after his separation from active duty.  While VA ratings are not binding
upon the Board, it is clear that the VA found the applicant's disease was
active within a month of his separation from active duty and lends support
to the arguments regarding the applicant's progressing white blood cell
count.

4.  Counsel provides the DA Form 199 (Physical Evaluation Board (PEB)
Proceedings) for the formal PEB and related formal PEB documents; the
applicant's appeal of the PEB findings; the applicant's DD Form 214
(Certificate of Release or Discharge from Active Duty); an extract from the
Merck Manual on hypocalcemia (which occurs as a result of
hypoparathyroidism); two medication printouts; laboratory results dated 3
June 2003; a radiological examination report dated 3 June 2003; an extract
from a dictionary defining "active" and "remission"; a 5 May 2003 request
from the applicant's legal counsel to the U. S. Army Physical Disability
Agency (USAPDA) requesting leukemia statistics; an 11 May 2003 response
from the USAPDA with the requested statistics; the VA Rating Decision dated
29 August 2003; and 44 pages of medical records (military and civilian).

CONSIDERATION OF EVIDENCE:

1.  The applicant’s official military records are not available to the
Board.  This case is being considered using reconstructed records, which
primarily consist of the documents provided by the applicant and/or
counsel.

2.  The applicant initially enlisted in the Army National Guard (ARNG) in
1970, separated in 1980, and reenlisted in the ARNG in 1988.  He entered
active duty on 31 July 2002.

3.  Around February 2003, the applicant underwent a thyroidectomy after
being diagnosed with chronic lymphocytic leukemia (CLL).

4.  The applicant's Medical Evaluation Board (MEB) proceedings and
Narrative Summary are not available.

5.  On 11 June 2003, a formal PEB found the applicant to be unfit by reason
of stage I CLL, asymptomatic, not requiring therapy at that time, under the
VA Schedule for Rating Disabilities (VASRD) code 7703.  He was recommended
for separation with severance pay with a zero percent disability rating.

6.  On 20 June 2003, the applicant rebutted the findings of the formal PEB.
 He stated that he had undergone a thyroidectomy due to evidence of
lymphocytic infiltration into the thyroid during the winter of 2002.  His
treating physician noted he suffered from post-operative hypoparathyroidism
requiring treatment with Rocaltrol and Oscal.  His physician noted that he
was now hypothyroid for life but that the hypoparathyroidism could resolve
over time.  That showed that his condition was not stable and required
continued treatment, thus representing a continuation of the initial
treatment for his CLL that began by performing the actual surgery itself.

7.  The applicant further stated that his treating physician noted that he
suffered from bilateral parathesias of the hands and frequent tension
headaches, commonly recognized symptoms of hypoparathyroidism.  He also
suffered from hypothyroidism, causing him to experience fatigue, mental
sluggishness, and constipation.  He was prescribed Ducosate for
constipation and Synthroid for thyroid replacement therapy.  He stated that
a recent CT (computed tomography) scan showed his white blood cell count
was increasing; therefore, his CLL should have been characterized as
active.  The PEB erred by determining his disease was not active and erred
by finding that he did not require treatment, since he was still actively
being treated for hypoparathyroidism secondary to his CLL.

8.  The applicant further stated that while some people might construe
"treatment" to mean chemotherapy for acute leukemia cases, there is no such
distinction in any of the applicable references.  Therefore, as a minimum,
he should have been rated at not less than 30 percent disabled under VASRD
code 7703.  In the alternative, the formal PEB should have found him to be
unfit for hypoparathyroidism and hypothyroidism, VASRD codes 7905 (a 60
percent disability rating) and 7903 (a 30 percent disability rating).

9.  By memorandum dated 2 July 2003, the U. S. Army Physical Evaluation
Board affirmed the decision of the formal PEB and forwarded the applicant's
case to the USAPDA.  By memorandum dated 9 July 2003, the USAPDA affirmed
the findings and recommendations of the PEB.

10.  On 30 July 2003, the applicant was released from active duty for
physical disability with severance pay.

11.  By letter dated 11 August 2003, a civilian doctor noted, in part,
"Right now, there does not seem to be any immediate indication for
treatment, given the patient's lack of symptoms, anemia, thrombocytopenia,
or bulky lymph node enlargement."

12.  On 29 August 2003, the VA awarded the applicant service connection for
CLL with a 100 percent disability rating; service connection for complete
thyroidectomy due to left thyroid mass with a 30 percent disability rating;
service connection for cholelithiasis (the presence of gallstones in the
gallbladder without any associated symptoms) with a disability rating of 10
percent; and service connection for hypocalcemia/hypoparathyroidism with a
disability rating of          10 percent.

13.  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.

14.  Army Regulation 635-40, paragraph B-3 states that the VASRD is
primarily used as a guide for evaluating disabilities resulting from all
types of diseases and injuries encountered as a result of, or incident to,
military service.  Because of differences between Army and VA applications
of rating policies, differences in ratings may result.

15.  Army Regulation 635-40, paragraph B-15 states that occasionally a
medical condition which causes or contributes to unfitness for military
service is of such mild degree that it does not meet the criteria for even
the lowest rating provided in the VASRD.  In such cases, a zero percent
rating will be applied even though the lowest rating listed is 10 percent
or more.

16.  The VASRD is the standard under which percentage rating decisions are
to be made for disabled military personnel.  Unlike the VA, the Army must
first determine whether or not a soldier is fit to reasonably perform the
duties of his office, grade, rank or rating.  Once a soldier is determined
to be physically unfit for further military service, percentage ratings are
applied to the unfitting conditions from the VASRD.  These percentages are
applied based on the severity of the condition.

17.  The VASRD gives code 7703 (leukemia) 100 percent rating when it
requires intensive treatment such as periodic irradiation or transfusion.
Otherwise, it is rated under VASRD code 7700 (pernicious anemia).  The
VASRD gives code 7700 a 30 percent rating when the anemia is incipient,
with characteristic achlorhydria (absence of hydrochloric acid from gastric
secretions) and changes in blood count, and higher ratings for more severe
anemia.

18.  Department of Defense Instruction (DODI) 1332.39, Subject:
Application of the Veterans Administration Schedule for Rating
Disabilities, implements policy for rating disabilities of service members
determined to be physically unfit.  In pertinent part, it states that
leukemia requiring the use of chemotherapeutic agents is rated analogous to
leukemia requiring irradiation or transfusion.  Service members with
chronic leukemia who require treatment are often fit for prolonged periods
of time with few profile restrictions.  Such cases must be individually
judged on their merits.

19.  Army Regulation 40-501 governs medical fitness standards for
enlistment, retention, and separation.  Paragraph 3-11k states that
hypoparathyroidism with objective evidence and severe symptoms not
controlled by maintenance therapy is a cause for referral to an MEB.
Paragraph 3-11l states that hypothyroidism with objective evidence and
severe symptoms not controlled by medication is a cause for referral to an
MEB.

20.  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.

DISCUSSION AND CONCLUSIONS:

1.  It is noted the applicant had his thyroid removed secondary to his CLL
and thereafter developed hypothyroidism and hypoparathyroidism.  However,
before either of those conditions would be a cause for referral to an MEB
there must be objective evidence and severe symptoms not controlled by
maintenance therapy. It is acknowledged the applicant was prescribed
medication for those conditions; however, there is no evidence that those
symptoms were severe and not being controlled by those medications.
Therefore, the PEB properly did not consider those conditions.

2.  It cannot be determined what the formal PEB told the applicant
concerning whether or not his CLL was "active" or "inactive."  The DA Form
199 describes his condition as "asymptomatic" and not requiring therapy at
that time.

3.  The VASRD itself gives leukemia a 100 percent rating when it requires
intensive treatment such as periodic irradiation or transfusion.  More
importantly, DODI 1332.39 states that leukemia requiring the use of
chemotherapeutic agents is rated analogous to leukemia requiring
irradiation or transfusion.  DODI 1332.39 also notes that service members
with chronic leukemia who require treatment are often fit for prolonged
periods of time with few profile restrictions and that such cases must be
individually judged on their merits.

4.  By letter dated 11 August 2003, a civilian doctor noted that it seemed
the applicant had no immediate indication for treatment given his lack of
symptoms. That appears to confirm the PEB's findings that the applicant was
asymptomatic at the time of his separation and therefore not entitled to a
higher disability rating.

5.  The fact that two weeks after the 11 August 2003 letter the VA awarded
the applicant service connection for CLL with a 100 percent disability
rating and service connection with ratings for a complete thyroidectomy,
gallstones, and hypocalcemia/hypoparathyroidism is immaterial.

6.  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.
Consequently, due to the two concepts involved (i.e., the more stringent
standard by which a soldier is determined not to be medically fit for duty
versus the standard by which a civilian would be
determined to be socially or industrially impaired), an individual’s
medical condition may be rated by the Army at one level and by the VA at
another level.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

__fne___  __kwl___  __au____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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                 |AR2004101253                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040720                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |108.02                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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