IN THE CASE OF:	

		BOARD DATE:	  6 January 2009

		DOCKET NUMBER:  AR20080012109 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that the records of her deceased spouse, a former service member (FSM), be changed to medical retirement retroactive to the original retirement date of 31 December 2005.  The applicant also requests that all benefits, compensation, entitlements, and maximum amount of survivor benefits be awarded to the FSM's dependents.  In addition, the applicant requests that the Department of Veterans Affairs (DVA) disability rating be changed from 60 percent to 100 percent.

2.  The applicant states, in effect, that the FSM's records show he presented himself with multiple symptoms relating to his cancer while on active duty without a formal diagnosis.  The FSM's diagnosis was not made until the cancer (multiple myeloma – plasma cell leukemia) was in its final stage.  The FSM expired less than a month after his diagnosis.  She states that had the FSM been properly diagnosed, he would have elected full survivor benefits for his dependents (his spouse and a 3-year old son).

3.  The applicant states that the FSM's prognosis of plasma cell leukemia was grim due to poor response to any form of treatment.  The FSM was told he had a bad back and that he was an otherwise healthy 45-year old male prior to leaving the military.  She states that the FSM's medical records will show that in January 2006 his kidneys were failing and he had severe back and lower extremities pain which were symptoms of his cancer which he had already brought to the attention of medical professionals.  If the FSM had been diagnosed properly prior to his retirement, the outcome would have been the same medically, but he would have made financial arrangements for her and their son.
4.  The applicant states that she is only asking the Army to do what we all know the FSM would have done had he been properly diagnosed; he would have made maximum financial provisions for his family members if he had been given adequate information.  She states their lives have changed tremendously since the death of the FSM, to include quality of life.  They have lost $100,000.00 of income per year and the FSM sacrificed his life for this country and died horrifically.

5.  The applicant states that prior to the FSM's death he made her promise that she would fight for maximum support from the U.S. Army.  The FSM told the applicant that he had been exposed to various hazardous materials while serving in the Persian Gulf War.

6.  The applicant states that a correction is justified because the FSM's cancer was service-connected and the military misdiagnosed the symptoms of his cancer during his last few years of his military service.  The applicant states that the Department of Defense considers "total disability" to exist when the member's impairment is sufficient to render it impossible for the average person suffering the same medical condition to engage in a substantially gainful civilian occupation (exhibit D).  She states that the FSM found work as a GS-12, but after 10 months he was forced to stay home by taking extensive leave due to pain.  She states that the short post-retirement tenure cannot be considered as a "substantially gainful civilian occupation."

7.  She states that if the FSM had been properly diagnosed, he would have been undergoing chemotherapy, radiation, bone marrow transplant, and other forms of treatment which would have undoubtedly reduced his ability to engage in a substantially gainful civilian occupation.

8.  The applicant states that the DVA rated the FSM's cancer as service-connected and granted him death benefits "because the veteran died of a condition that was military service related" (exhibit F).  She continues that the DVA analogized multiple myeloma to leukemia and noted that "service-connection can be granted for leukemia if it (sic) onset to a compensable degree within 1 year of discharge from military service.  The FSM was discharged on 31 December 2005 and died on 14 January 2007.  It is assumed that the leukemia onset within 1 year of discharge" (exhibit E).  She states that the Army Board for Correction of Military Records (ABCMR) should not assume that the FSM's cancer occurred during the year after his retirement because the FSM's medical records indicated that he presented himself with several symptoms of his illness well before his retirement.

9.  She noted that the symptoms of multiple myeloma include weakness and collapse of the spinal bones which causes the compression of the nerves and severe pain, numbness, and/or muscle weakness.  Another symptom is weakness or numbness in the legs (exhibit G).  She continues that these symptoms manifested themselves as early as 15 December 2004 when the FSM's back was x-rayed by medical personnel to determine the source of his persistent back pain (exhibit H).

10.  She states that the FSM's medical records for the last 2 years in the Army shows that military medical officials attributed his symptoms to a parachuting injury, to carrying a heavy brief case, and a 1991 to 1992 shoulder injury.  The FSM was diagnosed as having degenerative disc disease lumbar spine and right knee degenerative joint disease, spinal stenosis and arthrosis with left leg lumbar (L) 4-L5 radiculopathy, cubital tunnel syndrome, osteochondritis, dissecans, lumbar radiculitis, diffuse bony metastatic disease and pleural metastatic disease, lumbar spinal stenosis secondary to congenitally short pedicles and multilevel spondyloarthropathy and disc disease.  She states that while it is said multiple myeloma is difficult to diagnose early, the FSM nonetheless clearly suffered its symptoms well before he retired.

11.  She states that the FSM had selected Survivor Benefit Plan (SBP) coverage for her and the children with a reduced based amount of $635.00 upon retirement.  The FSM wanted to purchase commercial life insurance to cover his family members' needs.  Although the FSM knew he had some medical issues, he did not anticipate that the United States Automobile Association (USAA) would turn him down 1 month after he retired based on elevated creatinine levels in his urine (exhibits S and T).  She states that the presence of abnormal proteins in the blood or urine, which can be produced by myeloma cells, is another symptom of multiple myeloma.  She continues that had the military medical officials correctly diagnosed the FSM's cancer upon his retirement, he would have elected different financial arrangements for his family.

12.  She states that the DVA awarded the FSM a 60 percent disability rating based on his military medical history alone, and that notice arrived 1 week after the FSM died.  The disability rating was a result of degenerative disc disease lumbar spine, radiculopathy left lower extremity (left hip pain), degenerative joint disease right knee, right knee instability, tinnitus, hearing loss left ear, and paracervical spasms.  The DVA did not award the FSM a disability rating for gastroesophageal reflux disease, lipoma right axillary region (claimed as armpit mass), ganglion cyst left wrist, and plantar fasciitis (claimed as right foot condition).

13.  She concludes that several of the conditions were no doubt symptoms of the FSM's multiple myeloma and that the ABCMR should consider the FSM's three tours in Southwest Asia, his three separate tours as an Air Defense Artillery officer in Riyadh, and the environmental factors associated with the areas of deployment, and retroactively award 100 percent disability to the FSM.

14.  The applicant provides a copy of a statement and an enclosure which she tabulates as exhibits A through X.  Included in the exhibits are the following documents:  a copy of the FSM's military and civilian records, marriage certificate, death certificate, separation document (DD Form 214, Certificate of Release or Discharge from Active Duty), DVA documents with disability ratings prior to the FSM's death, death indemnity claim, Department of Defense Instruction Number 1332.39, DA Form 3349 (Physical Profile), DD Form  
2808 (Report of Medical Examination), DA Form 2656 (Data for Payment of Retired Personnel), DA Form 4037 (Officer Record Brief), and a case summary.

CONSIDERATION OF EVIDENCE:

1.  The FSM was appointed as a second lieutenant on 23 May 1984 and was promoted to first lieutenant on 7 January 1987.  The FSM served continuously on active duty in various assignments from 7 July 1985 until he achieved the rank of lieutenant colonel on 1 June 2002.  The FSM was honorably retired from active duty on 31 December 2005 and placed on the retired list on 1 January 2006.  He completed 20 years, 5 months, and 24 days of active service.

2.  A DA Form 3349 shows that the FSM was issued a permanent physical profile on 4 April 2005 for degenerative disc disease lumbar spine and right knee degenerative joint disease with the following limitations:  no running, no prolonged standing, no wearing of armor or rucksack, and no lifting of more than 40 pounds.  On 8 April 2005, the FSM was seen by a military sports medicine physician for weakness and numbness in his left leg.  The FSM returned to the physician for help with his back pain and numbness on 16 May 2005 and on  
12 September 2005.

3.  On 7 June 2005, the FSM was given a lumbar/sacral selective nerve root block to decrease his back pain and a lumbar selective nerve root block done at his left L5 and S1.  The clinical indication was lumbar degenerative disc disease/lumbar radiculitis.  The benefit of the procedure was decreased pain, increased function, and/or confirming clinical diagnosis.  It was noted that the FSM tolerated the procedure and there were no complications.


4.  On 26 August 2005, the FSM had a follow up evaluation that reported cramping and pain in his left right finger and second finger, noted as possibly related to carrying a heavy brief case and a lot of typing of cases associated with his job as Inspector General.  Noted was a left shoulder injury in 1991 and 1992. He also complained of shoulder, arm, wrist pain, numbness in his left elbow and hand. 

5.  On 4 December 2006, he received a computerized tomography scan (CT scan) to try to discover the cause of the pain in the right side of his chest and abdomen.

6.  A radiologic examination report conducted at Walter Reed Army Medical Center, dated 15 December 2004, shows that the applicant had a prior magnetic resonance imagining (MRI) done in 2000.  The findings were that there were no comparison studies and the signal, height, and alignment of the L1 through L4 vertebral bodies were normal.  There were type II endplate changes at L5 and sciatica (S) 1 and there was narrowing of the spinal canal secondary to congenitally short pedicles.  The L1 through L3 levels were normal.

7.  The MRI report continues that at the L3 through L4 level there was bilateral facet hypertrophy and hypertrophy of the ligament flavum.  No significant neural foraminal narrowing.  At the L4 through L5 level there was a left paracentral disc bulge.  There was bilateral facet hypertrophy and overgrowth of the ligamentum flavum.  There was mild neural foraminal narrowing on the left.  There was a small synovial cyst adjacent to the left facet at L4 through L5.  At the L5 through S1 level there was a broad-based disc bulge with annular tear.  There was bilateral facet hypertrophy and hypertrophy of the ligamentum flavum.  There was mild neural foraminal narrowing on the left.  The impression was lumbar spinal stenosis secondary to congenitally short pedicles and multilevel spondyloarthrophy and disc disease from L3 through S1.

8.  A consultation report from the Orthopedic Military Treatment Facility, dated  
8 April 2005, shows that the FSM had a new onset of weakness and numbness with activity in his left leg.  The provisional diagnosis was spinal stenosis and arthrosis with left leg L4 through L5 radiculopathy.  The FSM's chronological record of medical care dated 16 May 2005 shows he continued to experience chronic lower back pain at his left lower extremities.  He had more tightness and numbness than pain.  He experienced weakness only after stressing his lower extremities.  The chronological record of medical care noted from an MRI, multi-level degenerative disc disease (DDD) at L4 through L5 and L5 through S1, severe loss of disc space at L5 through S1, disc bulge at L4 through L5 recess and foraminal narrowing.

9.  The FSM's retirement physical examination was done on 9 September 2005.  It shows that he was not qualified for service.  The summary and defects section shows he had a herniated disc at L5-S1, he was a parachutist who had over  
55 jumps and had L4, L5, and S1 discs herniated from hard landings.  The FSM had a dislocated shoulder from falling from a van.

10.  A chronological record of medical care, dated 12 September 2005, noted that the FSM was seen for cramping and pain, considered cubital tunnel syndrome.  The FSM was in compliance and he reported no increase in symptoms, other than a decrease in frequency.  A measurement of his left wrist and elbow was done, an early indication of cubital tunnel syndrome and evidence of improvement was based solely on the FSM's report.

11.  The FSM's lab inquiry from 29 June 2005 through 7 October 2005 shows no positive signs of disease.  His radiological examination report for retirement shows bilateral lungs are free of active parenchymal disease.  The cardiac silhouette, mediastinum, visualized bony structure and other chest findings were within normal limits.  The FSM had a history of pain in his right knee following an arthroscopy for osteochondritis dissecans.  There was no joint effusion.  The impression shows changes within the medial femoral condyle compatible with osteochondritis dissecans.  A mild medial compartment joint space narrowing was present at the tibiofemoral joint.

12.  The DA Form 2656, dated 15 December 2005, shows that the FSM elected SBP coverage at the reduced base amount of $635.00 and his spouse concurred.

13.  On 20 January 2006, a lab result from USAA shows that the FSM's protein was 49 H, microalbumin 2.2, creatinine 153.0, and protein/creatinine ratio 0.32 H.  It stated that the serum appeared to be normal and adulterant test within normal limits.

14.  On 21 February 2006, another USAA lab result shows that the FSM's protein was 237 H, microalbumin 7.1 H, creatinine 339.3 H, and protein/creatinine ratio 0.70 H.

15.  A letter from the DVA, dated 11 April 2006, shows that the DVA needed additional information to process the FSM's claim for service-connected compensation.



16.  On 4 December 2006, a radiological consultation was done at the Open MRI and CT Specialists Clinic in Stockbridge, Georgia.  The findings for the CT-chest provided that the cardiac silhouette and great vessels were within normal limits in size.  No axillary, mediastinal or hilar adenopathy was present.  The thyroid gland was homogeneous without focal defects.  The lungs were free of plural effusions and infiltrates.  A pleural based soft tissue mass was seen in the right upper lung best demonstrated on image number 21 where it measures 3.9 by 3.4cm.  A pleural based nodular density along the posterior medial aspect of the right lung was seen on image number 31.  Another pleural based mass more inferiorly was seen on image 36 in the right lung medially.  A small pleural based mass in the left lung was suspected also on image 36.  A pleural based mass inferiorly in the right lung and its medial aspect was best demonstrated on image number  
43 where it measures 2.4 by 1.2cm.

17.  The CT-abdomen provided that the visualized portions of the unenhanced images of the liver, spleen, adrenal glands and pancreas appear unremarkable.  Overall condition was normal with no evidence of impending compression deformity was appreciated.  Impression, diffuse bony metastatic disease was suspected.  Bone scan correlation was recommended in order to better evaluate the process.  Bilateral pleural based masses were present, greater on the right.  Pleural metastatic disease was suspected.  The process was amenable to
CT-guided biopsy if indicated.  There was a tiny (2mm) non-obstructing right renal calculus.  A CT scan of the chest, abdomen, and pelvis was recommended in order to better evaluate the FSM.

18.  During the remainder of December 2006, the FSM's case summary from the Atlanta Cancer Care, Stockbridge shows follow up patient visit for bone marrow morphology analysis, flow cytometry analysis, chromosome analysis, and fluorescence in situ hybridization (FISH).  The case summary noted that his problem was multiple myeloma.  The case summary shows that the FSM continued to have back pain and that he had aredia and his bone marrow was consistent with multiple myeloma with 90 percent involvement with myeloma.

19.  A letter from the Blood and Marrow Transplant Group of Georgia, dated 4 January 2007, noted that the FSM had a Durie-Salmon stage III-A multiple myeloma.  By the new international staging criteria, the FSM was stage III based on his high beta-2-microglobulin level with a median survival of approximately
29 months.  The FSM, his spouse, and brothers were briefed by the medical doctor during the consultation concerning the role of hematopoietic stem cell transplantation for the treatment of his multiple myeloma and general procedure involved in stem cell transplantation.  The FSM was asked to be seen for pre-transplant evaluation in approximately 4 months but not later than 6 months after starting induction therapy.
20.  The FSM died on 14 January 2007.  A letter from the Disabled American Veterans (DAV) National Service Office dated 19 January 2007 shows that the FSM was awarded a combined evaluation of 60 percent disability rating.  On 29 January 2007, the DVA awarded dependency and indemnity compensation (DIC) to the FSM's spouse with children.  On 3 July 2007, the DVA also granted that the FSM's cause of death was service-connected.

21.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a Medical Evaluation Board (MEB).  Those members who do not meet medical retention standards will be referred to a Physical Evaluation Board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.

22.  Title 38, U.S. Code, permits the DVA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The DVA, however, is not required by law to determine medical unfitness for further military service.  

23.  Title 10, U. S. Code, section 1450(c) requires an SBP offset for the amount of DIC paid.  Section 1450(c)(1) states that if, upon the death of a member participating in the SBP, the surviving spouse or former spouse is also entitled to DIC, the surviving spouse or former spouse may be paid an SBP annuity but only in the amount that the annuity otherwise payable would exceed that compensation.  

24.  Title 10, U. S. Code, section 1450(e)(1) provides that if an SBP annuity is not payable because the DIC payment is greater, then any amount deducted from the retired pay of the deceased member shall be refunded to the surviving spouse or former spouse.  

25.  Multiple myeloma is a cancer in which antibody producing plasma cells grow in an uncontrolled and invasive (malignant) manner.  Approximately 5 percent of multiple myeloma cases are not progressing at diagnosis, and may not progress for months or years.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the FSM's records should be changed to medical retirement retroactive to the original retirement date of 31 December 2005.  She request that all benefits, compensation, entitlements, and maximum amount of survivor benefits be awarded to the FSM's dependents.  

2.  The FSM's medical condition recorded during his retirement physical examination was consistent with lumbar degenerative disc disease/lumbar radiculitis and right knee degenerative joint disease.  The FSM's lab inquiry from 29 June 2005 through 7 October 2005 did not show any positive signs of multiple myeloma.

3.  There is no evidence of any multiple myeloma cancer cells during the process of the FSM's retirement physical examination or his prior medical evaluation for back pain.  The records show that the FSM experienced pain at his lower extremities that was associated with prior injuries from his duties as a parachutist and from injuring his shoulder from falling from a van.  In January 2006 and February 2006, right after the FSM retired, the lab result from USAA showed abnormal levels of protein, microalbumin, creatinine and protein/creatinine ratio.  It appears that USAA did not award the FSM life insurance coverage.

4.  The evidence shows that the FSM worked as a civilian for 10 months and within 1 year of retirement was evaluated and diagnosed by the Atlanta Cancer Care of Stockbridge and the Blood and Marrow Transplant Group of Georgia as having the symptoms of multiple myeloma.  It is noted that multiple myeloma plasma cells may not progress for months or many years.

5.  Based on the FSM's health at the time of his retirement from the Army, there were no indicators of cancer cells during his military service.  If there were indicators that would have shown that the FSM had multiple myeloma, it is reasonable to conclude that the Army would have referred the FSM to an MEB at some point during his military service.  The fact that the FSM was diagnosed within a year and a half after retiring from the Army does not signify that he had multiple myeloma before he retired and that the military overlooked his medical condition.

6.  In summary, the applicant would have to show by a preponderance of evidence that the symptoms experienced by the FSM while he was on active duty were due to multiple myeloma and that the diagnoses made by the military physicians were wrong.  The applicant has not met this burden of proof.

7.  With regard to benefits, compensation, and entitlements, the evidence shows that the applicant received due compensation from the DVA in the form of DIC.  As for the election of reduced SBP coverage for her and their children, it is noted that if the FSM had chosen full coverage SBP, the SBP would have been offset by the amount of DIC paid.  Based upon all of the evidence in this case, there is no basis for changing the FSM's SBP election.

8.  The applicant further requested that the VA disability rating be changed from 60 percent to 100 percent.  The VA operates under its own policies and procedures, and the Department of Defense has no jurisdiction over the VA.  Therefore, the Board cannot address this issue.
 
9.  While it is understood the applicant desires to have the FSM's records changed, regrettably, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X_____  ___X____  ____X__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the FSM in service to our Nation.  The applicant and all Americans should be justifiably proud of the FSM's service in arms.




      _________X______________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080012109



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080012109



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1