IN THE CASE OF:	  

		BOARD DATE:	  22 April 2010

		DOCKET NUMBER:  AR20090004921 


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, a change in the disability description on his DA Form 199 (Physical Evaluation Board (PEB) Proceedings) from "asthma" and "history of hepatitis C" to "visceral leishmaniasis."

2.  The applicant states he is a 1991 Persian Gulf War veteran.  He contracted visceral leishmaniasis in Southwest Asia (SWA), but it went undiagnosed.  He contends that his asthma was, in fact, gram positive cocci (a type of bacteria such as strep or staph) and mycoplasma which are secondary to leishmaniasis.

3.  He states in 1998 the Army referred him for physical disability processing.  At that time, doctors diagnosed him with hepatitis C, asthma, and glaucoma.  The Army placed him on the temporary disability retired list (TDRL) with a 70 percent disability rating.  In 2000, the Army reevaluated his physical condition and permanently retired him on 28 January 2000 with a 100 percent disability rating for bilateral glaucoma with an average concentric contraction of 4 degrees, right and left eyes.

4.  The applicant states in 2007 doctors changed their diagnosis and determined he suffered from visceral leishmaniasis with active liver failure and secondary “gram positive cocci and mycoplasma.”



5.  The applicant provides:

   a.  Orders D17-8, US Army Physical Disability Agency (USAPDA), Washington, DC, dated 28 January 2000, permanently retiring him with a 100 percent disability;

	b.  DA Form 199, dated 18 January 2000, recommending permanent disability retirement for glaucoma (VA Codes 6013 and 6080);

	c.  DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 26 October 1998, retiring him for temporary disability;

	d.  DD Form 215 (Correction to DD Form 214) adding his Persian Gulf War awards and decorations and his service in SWA;

	e.  Certificate of Retirement;

	f.  Orders 252-0186, Headquarters, US Army Armor Center and Fort Knox, Fort Knox, KY, dated 9 September 1988, placing him on the TDRL;

	g.  Medical Evaluation Board (MEBD) Proceedings, dated 27 May 1998, show the applicant was diagnosed with glaucoma, hypertension, hyperlipidemia, history of hepatitis C, and asthma;

	h.  Copy of an MEBD Narrative Summary (NARSUM) Addendum, dated 9 April 1998;

	i.  Memorandum from Acting Commander, US Army Medical Department Activity, Fort Knox, dated 30 June 2008, advising the applicant he has visceral leishmaniasis acquired during his deployment to SWA;

	j.  Letter from Department of Veterans Affairs (DVA) Medical Center, Louisville, KY, dated 12 June 2008, stating the applicant has visceral leishmaniasis with hepatomegaly, anemia, splenomegaly, and intermittent fevers;

	k.  Standard Form (SF) 600 (Chronological Record of Medical Care), dated 1 April 2009, showing a litany of medical problems;

	l.  A DVA Rating Decision appeal, dated 12 February 2000;

	m.  A DVA Patient Inquiry Form, printed 3 November 2008;



	n.  A DVA Clinical laboratory Report, dated 23 April 2004; and

	o.  A Defense Finance and Accounting Service (DFAS) letter, dated 10 November 2008, confirming his eligibility for Combat-Related Special Compensation (CRSC).

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

 Counsel makes no additional statement.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was a Regular Army Soldier from 20 June 1985 through 26 October 1998.  He served in SWA and was awarded the SWA Service Medal with three bronze service stars, the Kuwait Liberation Medal (Kuwait), and the Kuwait Liberation Medal (Saudi Arabia).

3.  The applicant began having medical problems after his SWA deployment.  He was referred to the physical disability evaluation system (PDES).  On 27 May 1998, he underwent an MEBD.  The MEBD found him unfit for glaucoma, hypertension (high blood pressure), hyperlipidemia (an elevation of lipids in the bloodstream), hepatitis C, and asthma.  The NARSUM Addendum accompanying the MEBD indicated the applicant reported having hepatitis C since 1992, but there was no medical evidence to support the claim.  The MEBD directed a PEB.

4.  The PEB is not in the record.  A printout from the USAPDA shows the applicant had an informal PEB at Fort Sam Houston, TX on 12 August 1998.  That PEB found the applicant unfit for glaucoma with bilateral visual field defects of 6-15 percent.  He was rated as 70 percent disabled and placed on the TDRL with a retirement date of 26 October 1998.

5.  The Army reevaluated the applicant on 18 January 2000.  The reevaluation PEB found him unfit and recommended permanent retirement with a 100 percent disability rating for bilateral glaucoma with average concentric contraction of 4 degrees, right and left eyes; there was no mention of asthma or hepatitis.  On 28 January 2000, Orders D17-8, USAPDA, Washington, DC, permanently retired the applicant by reason of 100 percent permanent disability.  His disability was not determined to be combat-related.

6.  A DVA Patient Inquiry, printed on 3 November 2008, rates the applicant 100 percent disabled for:

* Blindness, bilateral
* Asthma, bronchial
* Intervertebral disc syndrome
* Hiatal hernia
* Superficial scars
* Hypertensive vascular disease
* Dermatophytosis (a fungal infection – tinea, ringworm)
* Hepatitis C

7.  The applicant receives medical care from Ireland Army Community Hospital, Fort Knox.  On 30 June 2008, the Acting Commander provided a memorandum stating:

This letter is provided on behalf of Staff Sergeant (Retired) XXXXX, who was recently diagnosed with active visceral leishmaniasis.  Medical authorities at Ireland Army Community Hospital feel that this condition most likely was acquired during his deployment to SWA during Operation Desert Storm.  Visceral leishmaniasis can account for the majority of symptoms he has suffered since his deployment.

He was also diagnosed with mycobacterium avium intracellular tuberculosis, a disease endemic to SWA which may also account for some of the medical aliments he experienced during the past year.

It is reasonable to assume that given the unique nature of the diagnoses and the timeframe for the onset of symptoms, these conditions are directly related to Staff Sergeant XXXXX's service during Operation Desert Storm.  Point of contact is Lieutenant Colonel XXXX, Deputy Commander for Clinical Services, [telephone number].
8.  A DVA doctor, on 12 June 2008, wrote a similar letter on the applicant's behalf.  It stated:

Staff Sergeant (Retired) XXXXX is being followed by the DVA for multiple medical issues.  A review of his records indicate that his diagnoses include visceral leishmaniasis with its concomitant hepatomegaly, anemia, splenomegaly, and intermittent fevers.  The leishmaniasis has resisted treatment.  In review, it is reasonable to assume that SSG(R) XXXXX acquired leishmaniasis from his deployment to SWA as it is endemic to the area.  Leishmaniasis can account for his records and ongoing symptoms.  Other possibilities for contracting the disease have been discounted.

In my collaboration with his Department of Defense physicians, an additional diagnosis of mycobacterium avium complex (MAC) infection was diagnosed and treated.  This illness can also be found in SWA.

Patients with leishmaniasis can become malnourished which can account for SSG(R) XXXXX's hypovitaminosis B6, folate, and B12, resulting in pernicious anemia and autonomic neuropathy.  Leishmaniasis patients are also known to get secondary infections which can account for the cadida glabrata and mycoplasma fermentans infections listed in his records.

Staff Sergeant XXXXX's request for consideration of these diagnoses to be combat related is more than reasonable when taking into account the timeframe of the onset of symptoms and his service in SWA during Operation Desert Storm.

Any questions or concerns may be directed to the undersigned at [telephone number].

9.  On 10 November 2008, DFAS notified the applicant he was eligible for CRSC.

10.  Title 38, U.S. Code, sections 310 and 331, permits the DVA to provide treatment and to award compensation for disabilities which were incurred in or aggravated by active military service.

11.  Visceral leishmaniasis, also known as kala-azar, black fever, and Dumdum fever, is the most severe form of leishmaniasis, a disease caused by protozoan parasites.  It is the second-largest parasitic killer in the world (after malaria), responsible for an estimated 500,000 cases each year worldwide.  The parasite migrates to the internal organs such as liver, spleen and bone marrow and, if left untreated, will almost always result in the death of the host.  Signs and symptoms include fever, weight loss, mucosal ulcers, fatigue, anemia and substantial swelling of the liver and spleen. (Wikipedia)

DISCUSSION AND CONCLUSIONS:

1.  The applicant wants the diagnosis of visceral leishmaniasis entered on his 
DA Form 199.

2.  Army and DVA doctors have stated the applicant suffers from visceral lieshmaniasis attributable to his Persian Gulf War service in SWA.  Doctors ascribe many of his conditions to visceral leishmaniasis; however, they do not ascribe his sole unfitting condition – glaucoma – as being secondary to leishmaniasis.

3.  Unfortunately, Army and DVA doctors arrived at the diagnosis of visceral leishmaniasis in 2007, almost 10 years after his medical retirement.  When he was referred to the Army's PDES, he was evaluated based on conditions presenting in 1998 and enumerated on his MEBD.  By regulation, the PEB could only address those conditions.  The fact that it has been determined he suffers from visceral leishmaniasis is significant, but it cannot be used to change a 
10-year old DA Form 199.

4.  The DVA operates under different laws and its own policies and regulations.  The DVA, which has neither the authority nor the responsibility for determining medical unfitness for military service, awards ratings because a medical 
condition is related to service (service-connected) and affects the individual’s civilian employability.  Furthermore, the DVA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.

5.  The 100 percent disability rating assigned by the Army was based on the single condition of glaucoma present at the time of his retirement on 26 October 1998.  At this point, changes in conditions or the severity of disabilities cannot be made to his DA Form 199.  This Record of Proceedings will be placed in the applicant's official service record and will serve to acknowledge his recent diagnosis of visceral leishmaniasis and the fact it most likely was acquired during his deployment to SWA during Operation Desert Storm and accounts for the majority of symptoms he now suffers.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X____  ___X____  __X_____  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.




      _______ _   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)                                         AR20090004921



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ABCMR Record of Proceedings (cont)                                         AR20090004921



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