IN THE CASE OF:	  

		BOARD DATE:	  3 February 2011

		DOCKET NUMBER:  AR20100017143 


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, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show the disability for which he was discharged did not exist prior to service and it was aggravated by military service.

2.  The applicant states, in effect, that the finding that his scleroderma had existed prior to service and was not aggravated by his service is in error.  He has evidence showing he reported such symptoms while on active duty attending the Primary Leadership Development Course (PLDC) in 1989.  He also states the "benefit of the doubt" standard published in Title 38, U.S. Code, section 5107(b) is applicable to his case.

3.  The applicant provides copies of his Physical Evaluation Board (PEB) Proceedings, Medical Evaluation Board (MEB) Proceedings, and his service and Department of Veterans Affairs (VA) medical records.  He also provides a self-authored statement and a statement from fellow Soldiers in 1989, and a VA rating decision.

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.  Following a period of service in the Regular Army, the applicant enlisted in the Louisiana Army National Guard (LAARNG) on 27 February 1986.  He served in military occupational specialty (MOS) 63W (Wheel Vehicle Repairer) and related MOS's during his military service. 

3.  A DA Form 2173 (Statement of Medical Examination and Duty Status) shows that on 11 July 1989, he underwent a medical examination to determine the origin of edema to the hands which occurred in June 1989 while on active duty for training (ADT) to attend PLDC at Fort Polk, LA.

	a.  The form shows in item 11 (Medical Opinion) the injury was likely to result in a claim against the government for future medical care and was incurred in the line of duty.  

	b.  Item 30 (Details of Accident - Remarks) shows he was found to be in the early stages of Scleroderma Crest.  

	c.  Statements made by him and fellow Soldiers on 13 June 1989 substantiate the information recorded on the DA Form 2173.  

4.  On 30 November 1990, he was ordered to active duty in support of Operation Desert Shield/Desert Storm.  

5.  A Medical Record Report, dated 14 March 1991, shows:

* he had a history of scleroderma initially diagnosed in August 1990
* his chief complaint was multiple joint aches and pains
* in the fall and winter of 1990, he developed digital infarcts of the hands that required a profile for gloves in cold weather
* extensive use of his hands and worsening of digital infarcts limited his performance in his MOS
* due to the unpredictable nature of the disease and his poor response to aggressive medical therapy it was expected his disease process had a poor prognosis
* he did not meet retention standards and he was recommended for presentation to the PEB

6.  A DA Form 3947 (MEB Proceedings) shows an MEB found he had scleroderma with an approximate date of origin of August 1990 and that the condition was incurred while entitled to base pay, had not existed prior to service, and was not permanently aggravated by service.  The MEB recommended the applicant's referral to a PEB.

7.  On 25 April 1991, the findings and recommendations of the MEB were approved.  He indicated he agreed with the MEB findings and recommendation.  

8.  A DA Form 199 (PEB Proceedings) shows a PEB found him unfit for scleroderma, rated as analogous to Raynaud's disease, with multiple painful, ulcerated areas.  The PEB found the condition existed prior to service and was not service aggravated.  The PEB recommended no disability rating and separation from the service without disability benefits.

9.  He did not concur with the PEB findings and recommendations and demanded a formal hearing with personal appearance and representation by counsel.

10.  A second DA Form 199 shows a formal PEB adjourned on 13 August 1991.  The formal PEB also found him unfit for scleroderma, rated as analogous to Raynaud's disease, with multiple painful, ulcerated areas; found the condition existed prior to service; and was not service aggravated.  The formal PEB recommended no disability rating and separation from the service without disability benefits.  The form shows he appeared before the PEB and he was represented by counsel.

11.  On 22 August 1991, he indicated he concurred with the formal PEB findings and recommendations.  The findings and recommendations were approved on 26 August 1991.  He was honorably discharged for physical disability without severance pay on 16 September 1991.  

12.  MedlinePlus, a website maintained by the National Institutes of Health's National Library of Medicine, provides the following definition of scleroderma:

Scleroderma means hard skin.  It is a group of diseases that causes abnormal growth of connective tissue, the proteins that support your skin and organs.  There are two main types.  Localized scleroderma affects only your skin.  Systemic scleroderma affects your blood vessels and internal organs, as well as your skin. 
Symptoms of scleroderma include

* Calcium deposits in connective tissues
* Raynaud's Phenomenon, narrowing of blood vessels in the hands or feet
* Swelling of the esophagus, the tube between your throat and stomach
* Thick, tight skin on your fingers
* Red spots on your hands and face

No one knows what causes scleroderma.  It is more common in women.  It can be mild or severe.  There is no cure, but various treatments can relieve symptoms.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states hereditary, congenital, and other existed prior to service conditions frequently become unfitting through natural progression and should not be assigned a disability rating unless service-aggravated complications are clearly documented or unless a Soldier has been permitted to continue on active duty after such a condition, known to be progressive, was diagnosed or should have been diagnosed.

14.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  The regulation provides that scleroderma, either generalized or of the linear type, which seriously interferes with the function of an extremity is a cause of medical unfitness for military service.

15.  Title 38, U.S. Code, establishes veterans' benefits.  Section 5107(b) provides that when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary of Veterans Affairs shall give the benefit of the doubt to the claimant.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for correction of his DD Form 214 to show the disability for which he was discharged did not exist prior to service and it was aggravated by military service.

2.  The evidence of record shows the process that led to his discharge for disability followed the rules and guidelines established in law and regulations.

3.  There is no evidence contradicting the PEB's finding that his scleroderma was a condition that existed prior to service.  Considering the cause of scleroderma is unknown, the onset of symptoms cannot be attributed to military service.  The fact that he reported symptoms while he was in an ADT status can only be considered coincidental.  There is no evidence showing he suffered any service-aggravated complications.  Accordingly, the PEB's recommendation to discharge him for disability without a rating and without benefits was appropriate.  

4.  He cites statutory language governing veterans' benefits under the purview of the Secretary of Veterans Affairs as a basis for granting him relief.  This language applies to decisions made within the VA.  It is not applicable to his separation for disability from the Army. 

5.  In view of the foregoing, there is no basis for granting the requested relief.

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)                                         AR20100017143



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ABCMR Record of Proceedings (cont)                                         AR20100017143



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