RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         24 August 2006
      DOCKET NUMBER:  AR20050012073


      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. Maria C. Sanchez              |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Jeanette R. McCants           |     |Chairperson          |
|     |Mr. Scott W. Faught               |     |Member               |
|     |Mr. Rowland C. Heflin             |     |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, correction of his records to show a
higher disability rating at the time he was placed on the Temporary
Disability Retired List (TDRL).

2.  The applicant states, in effect, that after he was removed from the
TDRL in July 2004, he was diagnosed with a brain tumor which was present at
the time he was on the TDRL.

3.  The applicant provides U.S. Army Physical Disability Agency Orders
Number D191-10, dated 9 July 2004; two Medical Statements from William
Beaumont Army Medical Center, dated 26 July 2005; a Standard Form 600
(Chronological Record of Medical Care), dated 22 April 2005; a copy of his
Medical Evaluation Board (MEB) packet and his Physical Evaluation Board
(PEB) packet, in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Army on 21 August 1978.  Through a series
of reenlistments, the applicant continued to serve until he was honorably
retired on 14 August 1999 based on disability (temporary).

2.  On 18 February 1999, the MEB diagnosed the applicant with Nephrotic
syndrome [a condition marked by very high levels of protein in the urine
(proteinuria); low levels of protein in the blood; swelling, especially
around the eyes, feet, and hands; and high cholesterol] secondary to focal
segmental glomerulosclerosis [scarring that occurs within the kidneys in
the small balls of tiny blood vessels called the glomeruli. The glomeruli
assist the kidneys in filtering urine from the blood.], hypertension,
hyperlipidemia, and lower extremity edema which was concluded to have been
incurred while on active duty and were not permanently aggravated by
service.  The MEB referred the applicant's case to a PEB for evaluation.
The applicant signed the MEB Proceedings and agreed with its findings and
recommendation.

3.  On 16 March 1999, the applicant's case was evaluated by a PEB convened
at Walter Reed Medical Center, Washington, DC.  The PEB found that the
applicant was physically unfit based on his diagnosed condition of
nephritic syndrome secondary to focal segmental glomerulosclerosis with
bilateral lower extremity pitting edema.  The PEB assigned a disability
rating of 60 percent.  The PEB also recommended that the applicant be
placed on the TDRL with reexamination on 1 September 2000.
4.  On 24 March 1999, the applicant concurred with the PEB findings and
waived his right to request a formal hearing.

5.  U.S. Total Army Personnel Command Orders Number D112-1, dated 14 June
1999, released the applicant from assignment and duty due to physical
disability  which incurred while entitled to basic pay.  These orders
placed the applicant on the TDRL effective 15 August 1999 with a percentage
of disability of 60 percent.

6.  U.S. Army Physical Disability Agency [Washington, DC] Orders Number
D191-10, dated 4 July 2004, removed the applicant from the TDRL due to
permanent physical disability and permanently retired him effective 4 July
2004 with a 60 percent disability rating.

7.  The applicant submitted a William Beaumont Army Medical Center, El
Paso, Texas, Medical Statement, dated 26 July 2005.  The Chief,
Neurosurgery Service states the applicant underwent a right craniotomy for
extirpation of a pterional meningioma on 18 August 2004 and his
postoperative course was complicated by a stroke of his right temporal
lobe.  The Chief, Neurosurgery Services continues that the applicant's
recovery was further complicated by a second stroke he suffered on 25
January 2005.

8.  The Chief, Neurosurgery Service further states the applicant made
significant improvement; however, he still requires continuous supervision
by his wife, is unable to drive independently, cannot concentrate well
enough to perform the types of duties he performed in the past, and has
memory difficulties that do not allow him to perform complicated tasks.

9.  The Chief, Neurosurgery Service opined that the applicant is unable to
return to the computer technology field and will not be able to perform
jobs requiring frequent standing and walking interspersed with sitting.
The Chief, Neurosurgery Service recommends the applicant be considered for
a permanent disability rating based heavily on his performance during
neuropsychological testing.

10.  The United States Army Physical Disability Agency (USAPDA) provided an
advisory opinion in this case.  The Deputy Commander opines that there were
no errors or injustices regarding the applicant's disability processing.
The Deputy Commander stated that the applicant was placed on the TDRL in
1999 at 60 percent for the unfitting condition of nephrotic syndrome
secondary to focal segmental glomerulosclerosis.  The Deputy Commander
continues that the applicant did not complain of any brain tumor symptoms
at the time and there was no diagnosis of any such condition.
11.  The USAPDA Deputy Commander further states that the applicant
concurred in all aspects of his disability processing.  The USAPDA Deputy
Commander continues that the applicant's treating physician opined that the
tumor was present "prior to his retirement of the Army" and that it was
unclear whether such opinion considers the removal from the TDRL in July
2004 as "his retirement" or the placement of the TDRL in 1999.  The USAPDA
Deputy Commander states that the applicant had no documented symptoms or
diagnosis before either date.

12.  The USAPDA Deputy Commander states that Soldiers are only compensated
for conditions that existed while entitled to basic pay and that are
unfitting while in the military.  The USAPDA Deputy Commander continues
that there is no evidence that the applicant's tumor was present while on
active duty in 1999 and did not present sufficient evidence to show the
condition was unfitting.  The USAPDA Deputy Commander further states that
even if the tumor was discovered, or present, while on the TDRL it would
not be compensable as the Soldier was no longer on active duty and there is
no evidence that such a condition existed prior to placement on the TDRL
and that it was unfitting at that time.

13.  The USAPDA Deputy Commander states that Soldiers cannot be compensated
for conditions unless they manifest into unfitting conditions while
entitled to basic pay which is not the case here and there can be no
additional compensation authorized for the residuals from the applicant's
strokes.

14.  The USAPDA Deputy Commander concludes that there were no errors or
injustices made in the applicant's records and recommends no change be made
regarding the applicant's disability processing, findings and final
disposition.

15.  The applicant was provided a copy of the advisory opinion for review
and comment.  On 31 July 2006, the applicant did not concur with the
advisory opinion.  The applicant stated that he believes his records should
be corrected and the disability rating increased to reflect the tumor and
the strokes suffered as a result of the operation to remove the tumor.  He
continues that the tumor was diagnosed in June 2004, he was removed from
the TDRL on 9 July 2004, and underwent a craniotomy on 18 August 2004.

16.  The applicant contends that the tumor was present while he was on the
TDRL, even if the symptoms did not occur until the very end of his time on
the TDRL.  The applicant concludes that the main focus while of the TDRL
was his kidney disease and had never occurred to him or the doctors to
include the recent diagnosed tumor.
17.  With the applicant's nonconcurrence to the advisory opinion, he
submitted a William Beaumont Army Medical Center, Medical Statement, dated
6 April 2006. The Chief, Neurosurgery Service states that the Veterans
Affairs denied the applicant's claim for service connection of his
meningioma on the grounds that his opinion, "has no scientific support; no
analysis of the record and underlying medical principles supporting (my)
opinion is shown.  He did not elaborate on the medical or scientific basis
for (my) opinion, other than providing general comments."

18.  The Chief, Neurosurgery Service continues that he further elaborates
his statement that the lesion in the applicant's brain was present prior to
his retirement from the Army.  The Chief, Neurosurgery Service further
states that his clinic notes, dated 30 July 2004, documented a 3-4
centimeter right sphenoid wing enhancing lesion consistent with meningioma,
with minimal mass effect, and a small amount of edema was seen in the right
temporal lobe.

19.  The Chief, Neurosurgery Service states the applicant retired on 15
August 1999 and his tumor was documented less than five years later.  The
Chief, Neurosurgery Service continues a conservative calculation for the
first existence of the "mass", at 4.8 cc/0.79 cc per year, is 6.1 years and
a more accurate calculation based on doubling times estimates the size of
the meningioma to be 2.4 cc in August 1994, which is well within the
applicant's period of enlistment.

20.  The Chief, Neurosurgery Service opines that future Veteran Affairs
reviews should be conducted by individuals familiar with the
pathophysiology and treatment of meningeal tumors.

21.  Department of Defense Instruction (DODI) 1332.38 (Physical Disability
Evaluation) implements policy, assigns responsibilities, and prescribes
procedures for retiring or separating service members because of physical
disability.  Paragraph E3.P4.1 states, in part, that members who are
determined unfit under the standards of determining unfitness due to
physical disability or medical disqualification shall be retired or
separated with disability benefits when the physical disability was
incurred or aggravated while a member of the regular component of the armed
forces entitled to basic pay.

22.  Paragraph E3.P6.2.4 of DODI 1332.38, states that conditions newly
diagnosed during TDRL periodic physical examinations shall be compensable
when the condition is unfitting and the condition was caused by the
condition for which the member was placed on the TDRL or the evidence of
record
establishes that the condition was incurred while entitled to basic pay or
as the proximate result of performing duty and was an unfitting disability
at the time the member was placed on the TDRL.

23.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement,
or Separation), paragraph 3-1, provides that the mere presence of an
impairment does not, of 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 member reasonably may be expected to perform because of his or
her office, rank, grade or rating.

24.  Paragraph 4-19 of Army Regulation 635-40 states, in part, that the
first and most important determination made by the PEB is whether the
soldier is physically fit or unfit to perform the duties of the soldier’s
grade or rank.  All other actions are directly or indirectly tied to this
one finding.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests correction of his records to show he was
diagnosed with a brain tumor while on the TDRL; therefore, his disability
rating should be increased to reflect this condition and the strokes he
suffered after the removal of the tumor.

2.  The evidence of record confirms the applicant was properly processed
through the Physical Disability Evaluation System in accordance with the
applicable laws and regulations.  The argument presented by the applicant
and his physician that the brain tumor existed prior to the applicant's
removal from the TDRL is not corroborated by the evidence of record.
Evidence shows the applicant concurred with the findings and
recommendations of the PEB and did not pursue the appellate process.

3.  Regulation states that the mere presence of an impairment does not, of
itself, justify a finding of unfitness because of physical disability and
it is necessary to compare the nature and degree of physical disability
present with the requirements of the duties the member reasonably may be
expected to perform because of his or her office, rank, grade or rating.

4.  The Directive states that conditions newly diagnosed during TDRL
periodic physical examinations will be compensable when the condition is
considered unfitting and is one of the conditions for which the service
member was placed on the TDRL.

5.  In concurrence with the advisory opinion, there is no evidence in the
applicant's service records and the applicant did not submit evidence which
shows the tumor existed or was an unfitting medical condition while he was
receiving basic pay.  Conceding the possibility that the tumor began on, or
before, his day of placement on the TDRL, it was still asymptomatic, it did
not terminate his military career, and it was immaterial to his placement
on the TDRL.  The fact that the applicant was diagnosed with the brain
tumor following his placement on the TDRL and suffered strokes after the
removal of the tumor, is unfortunate.  However, these factors do not
provide a basis to grant the requested relief.

6.  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
provide any new medical evidence that would call into question the original
decision of the PEB.  As a result, there is an insufficient evidentiary
basis to support his request to increase his Army disability rating.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_JRM___  _RCH___  _SWF___  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.




                                     _Jeanette R. McCants___
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050012073                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |YYYYMMDD                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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