IN THE CASE OF:	  

		BOARD DATE:	  8 December 2011

		DOCKET NUMBER:  AR20110004578 


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 correction of his military records to show that he was medically retired due to physical disability.

2.  The applicant states he underwent a radiology scan on 4 February 1995 and a small density was noted; however, no action was taken at the time.

   a.  On 15 November 1999, he underwent another radiology scan and the results indicated that a circular mass density suggested either an enlarged prostate or lipoma.  The diagnosis code typed in capital letters indicated "MINOR ABNORMALITY, ATTENTION ADVISED."

   b.  He states no further scans were taken at the time.  Had this been done, he could have had surgery to remove the tumor while he was still on active duty.  As a result, he had to have a $500,000 surgery to get most of the tumor removed. He adds that 4 of 13 lymphnodes had high grade cancer requiring chemotherapy. In addition, because of the growth of the tumor, a specialist was not able to remove the entire tumor due to the location and size it had grown.

   c.  There were at least four times that he went to the medical treatment facility for stomach problems and a test was never done to determine if his condition was related to cancer.  If, at the time, it had been determined that it was cancer, his disability rating would have been higher than 10% and he would have been medically discharged or medically retired based on a permanent disability.

3.  On 23 February 2011, the Army Board for Correction of Military Records (ABCMR) advised the applicant that the ABMCR can consider his issue; however, he also had the option of applying to the Department of Defense (DoD) Physical Disability Board of Review (PDBR).  He was also advised that while he had the option of applying to either the ABCMR or the PDBR, the decision of either Board is final and if denied by one of the Boards, he may not apply to the other Board concerning the same issue.  However, the PDBR may only consider the unfitting conditions evaluated and ratings rendered by the original Physical Evaluation Board (PEB), while the ABCMR may consider the original PEB's findings concerning fitting and unfitting conditions and any other related issue of error or injustice.

4.  On 7 March 2011, the applicant elected to continue with his application for disability review by the ABCMR in lieu of the DoD PDBR.

5.  The applicant provides copies of several documents from his medical records, his DD Form 214 (Certificate of Release or Discharge from Active Duty), and Department of Veterans Affairs (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 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 entered active duty as a member of the USAR on 5 May 1993. He was promoted to sergeant first class/pay grade E-7 on 1 November 1995.

3.  The applicant's military service records do not contain a copy of his Medical Evaluation Board (MEB) or PEB proceedings.

4.  The applicant's DD Form 214 shows he entered active duty this period on
5 May 1993 and he was honorably discharged on 31 January 2004 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3), based on disability with severance pay.
   a.  He completed 10 years, 8 months, and 26 days of net active service this period; 3 years, 2 months, and 29 days of total prior active service; and 5 years, 4 months, and 24 days of total prior inactive service.

   b.  Item 18 (Remarks) shows he was authorized disability severance pay in the amount of $79,092.

5.  In support of his request, the applicant provides the following documents.

   a.  Rutland Regional Medical Center, Department of Diagnostic Imaging, Rutland, Vermont, Intravenous Pyelogram (IVP) with Post Void Cystogram
[a procedure where a dye is injected into a vein in the arm; the dye travels through the body and then concentrates in the urine to be excreted] examination report, dated 4 February 1995.  It shows, "[a] faint density is seen on the right side of the pelvis, not clearly due to a calculus."  It also shows, "Impression:  Findings compatible with a tiny calculus at the right UV Junction."

   b.  A medical record, dated 12 October 1999, that shows the applicant was examined by Jxxx G. Jxxxxx, Medical Doctor [Wisconsin Department of Health Services].  It shows the applicant was diagnosed with bilateral renal lithiasis [coalescence of minerals in the body] with hydronephrosis [a condition in which the kidney swells, due to a backup of urine], gastroenteritis [inflammation of the stomach and the intestines], and dehydration secondary to gastroenteritis.  The plan was for the applicant to be admitted to the Tomah Memorial Hospital for hydration and pain control.

   c.  Radiology Display, Genitourinary examination report, dated 15 November 1999, that shows the applicant had a history of "four stones in past 5 years." The report section shows, "[t]here is no prior [IVP] examination for comparison." It also shows, "[i]n addition, the field bladder was anteverted with a circular mass density underneath suggestive of an enlarged prostate or either a lipoma."  The Diagnostic Code section shows, "'MINOR ABNORMAILTY, ATTENTION ADVISED." 

   d.  A medical record, dated 4 January 2002, that shows the medical doctor's diagnosis was possible reflux disease [a condition when stomach contents leak back into the esophagus; commonly referred to as Gastroesophageal Reflux Disease.  The plan was to perform an upper endoscopy and an ultrasound of his gallbladder and pancreas.

   e.  Fanciscan Skemp Healthcare, Report of Operation, dated 7 January 2002,
that shows the medical doctor's diagnosis was "Abdominal pain and belching. Entiology undermined.  Lack of response to Aciphex."  During the procedure, biopsies were taken of the esophagus.  The doctor's impression was mild gastritis and duodenitis, and mild esophagitis.  The plan was for an ultrasound on 8 January 2001 [sic].  [No copy of an ultrasound report was provided].

   f.  Standard Form 600 (Chronological Record of Medical Care), dated
22 September 2002, that shows the applicant complained of not feeling well, body aches, nausea with no vomiting, and his abdomen feeling sore.  The attending medical official assessed his condition was gastroenteritis.

   g.  St. Edward Mercy Medical Center, Fort Smith, Arkansas, Department of Radiology, Nuclear Medicine and Medical Imaging examination, dated 23 March 2010, that shows the applicant was examined for frontal and lateral chest pain.

       (1)  It shows the applicant had a CAT [computerized axial tomography] scan done that demonstrated some carcinomatosis and a possible colonic mass in the abdominal cavity.  The plan was for him to be seen by Gastroenterology.

       (2)  The Operative Report shows that during the exploratory procedure,  "we felt the entire abdomen was full of tumor; small bowel, large bowel, stomach, extensive peritoneum."  It also shows the surgical team decided it would not be safe to proceed with the operation.

   h.  A Creighton University Medical Center, Department of Pathology, Surgical Pathology Final Report, dated 8 June 2010, that includes two Operative Reports documenting the applicant's exploratory surgery.  The post-operative diagnosis shows "pseudomyxoma peritonei [the accumulation of mucoid or mucinous material in the peritoneal cavity, either as a result of rupture of a mucocele of the appendix or of rupture of a benign or malignant cystic neoplasm of the ovary].  It ruled out appendix neoplasm [an abnormal formation of tissue; for example, a tumor]."

   i.  Three Cooper Clinic, Physician Assistant, East Family Practice reports.

       (1)  On 22 July 2010, Doctor Nxxxxxxx R. Gxxxxxxxx assessed that the applicant has adenocarcinoma involving the omentum, small intestine, and lymph nodes and that he has recovered from surgery.

       (2)  On 13 August 2010, Doctor Dxxx W. Axxxxx wrote "The question at hand is whether or not this young man had carcinomatosis to some degree of his abdominal cavity while in the military.  While this is clearly impossible to say definitively, the natural course of this process would indicate that he indeed did have some form of carcinomatosis of his abdominal cavity during his military career.  His military career I am sure did not contribute to the disease process, but it was highly probable to be present during this period of time."

       (3)  On 1 March 2011, Doctor Gxxxxxxxx wrote "The [applicant] still has metastatic disease in the peritoneum and in the pelvis.  The [applicant] is clinically stable.  He has a high risk of recurrent carcinoma and he will not be in remission.  He needs to undergo treatment on an as needed basis."

   j.  A VA Regional Office, North Little Rock, AR, letter, dated 23 February 2011, and Rating Decision, dated 22 February 2011, that summarized the applicant's VA benefits.
   
       (1)  The applicant was granted service-connected disability with a combined rating of 100% for pseudomyxoma peritonei (claimed as cancer), effective 27 July 2010.

       (2)  The reason for the decision, in pertinent part, was because the disability has been established as directly related to military service.  It indicates "Your service treatment records show that you were found to have an abnormal finding on an ultrasound imaging on 2 February 1995.  A medical opinion from
Dr. Pxxxxxx Txxxxx, a medical specialist in oncology (cancer) states that it is very likely that the abnormal finding in 1995 was a pseudomyxoma peritonei.  The report goes on to explain that the pseudomyxoma peritonei is an abdominal malignancy that grows very slowly with a growth period measured, not only in years, but in decades.  Private medical records from Creighton University Medical Center, Cooper Clinic, and St. Edward Mercy Medical Center show confirmed diagnosis by biopsy and surgical treatment."

6.  On 22 August 2011, the ABCMR requested a copy of the applicant's MEB/ PEB proceedings from the U.S. Army Physical Disability Agency (USA PDA), Walter Reed Army Medical Center (WRAMC), Washington, DC.  Shortly thereafter, the WRAMC relocated to Bethesda, Maryland.  In mid-October, a follow-up inquiry was made.  To date, the USAPDA has not provided a copy of the applicant's MEB or PEB proceedings to the ABCMR.

7.  The National Center for Biotechnology Information (available via the Internet at:  http://www.ncbi.nlm.nih.gov/) shows that the Annals of Surgery (A Monthly Review of Surgical Science Since 1885) describes pseudomyxoma peritonei (PMP) as a clinical syndrome with a poorly defined natural history.  The relative contributions of tumor biology, patient selection, and the extent of treatment on ultimate outcome are not well characterized.  PMP is an uncommon clinical syndrome characterized by the slow and progressive accumulation of peritoneal implants and mucinous ascites.  Over time, accumulation of mucin in the peritoneal cavity results in massive symptomatic distension and associated mechanical and functional gastrointestinal obstruction.  Inconsistent or imprecise classification of this entity by surgeons, pathologists, and oncologists has caused confusion in the understanding of its natural history.  It is now generally thought that PMP arises as the result of neoplastic mucin-secreting cells with low-grade cytologic features disseminating within the peritoneal cavity.  In almost all cases, these cells are derived from a ruptured appendiceal neoplasm.

8.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.

	a.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  Separation by reason of disability requires processing through the Physical Disability Evaluation System.

	b.  Paragraph 4-17 provides guidance for the PEB.  Specifically, it states that the PEB is established to evaluate all cases of physical disability equitably for the Soldier and the Army.

9.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30%.  Section 1203, provides for the physical disability separation with severance pay of a member who has less than 20 years service and a disability rated at less than 30%.

10.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish error or injustice in the Army rating.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at a different disability rating.  Furthermore, unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA may rate any service connected impairment, including those that are detected after discharge in order to compensate the individual for loss of civilian employability.

11.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-9 contains guidance on the burden of proof.  It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show he was medically discharged or retired due to permanent disability with an appropriate disability rating because a test was never done to determine if his condition was related to cancer and he was diagnosed with carcinomatosis after he was medically discharged.

2.  The evidence of record shows that pseudomyxoma peritonei is described as a clinical syndrome with a poorly defined natural history.  It is an abdominal malignancy that grows very slowly with a growth period measured, not only in years, but in decades.

3.  The applicant's contention was carefully considered.

   a.  In February 1995, a faint density was seen on the right side of the  applicant's pelvis compatible with a tiny calculus at the right UV Junction.

   b.  In November 1999, the applicant reported a history of four stones in the past 5 years.  A minor abnormality was found and attention was advised.

   c.  In January 2002, he was diagnosed with gastroenteritis.
   
	d.  The applicant's PEB proceedings are not available for review.

	e.  The applicant provided insufficient evidence that demonstrates the approved PEB proceedings were in error, arbitrary or unjust.  There is also no definitive evidence the applicant had any other medical conditions that were found physically unfitting for military service at the time he was discharged.
   
   f.  He was medically discharged on 31 January 2004 based on disability with severance pay.
   
	g.  In March 2010, a CAT scan demonstrated some carcinomatosis and a possible colonic mass in the abdominal cavity.  His physician indicated it was impossible to say definitively that the applicant had carcinomatosis to some degree of his abdominal cavity while in the military.  He added that the applicant's military career did not contribute to the disease process, but it was probable to be present during that period of time.

	h.  In February 2011, a VA medical opinion was rendered indicating that it is very likely that the abnormal finding in 1995 was a pseudomyxoma peritonei.  Accordingly, the VA granted 100% service connection for the condition, effective 27 July 2010.

4.  The two medical opinions rendered more than 6 years after the applicant's medical discharge are acknowledged.  However, they are insufficient as a basis for correcting the applicant's records.

5.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial credible evidence to rebut the presumption.

	a.  Since there is no evidence of record to show that the applicant's medical condition that is currently under review was medically unfitting for retention at the time in accordance with Army Regulation 40-501, there was no basis for medical retirement.

	b.  Therefore, the applicant is not entitled to a medical evaluation board, or correction of his records to show a higher disability rating or that he was medically retired based upon a permanent disability rating of 30 percent or more.

6.  The evidence of record shows that statutory and regulatory guidance provides that the Army rates only conditions determined to be physically unfitting that were incurred or aggravated during the period of service.  Furthermore, the condition can only be rated to the extent that the condition limits the performance of duty.  The VA (and some other Government agencies) on the other hand, provides compensation for disabilities which it determines were incurred in or aggravated by active military service and which impair the individual's industrial or social functioning.  Moreover, the law requires the VA to give the veteran the benefit of any reasonable doubt.  The fact that the VA (or any other Government agency), in its discretion, awarded the applicant a disability rating for conditions that were determined to meet Army retention standards, is a prerogative exercised within the policies of that agency.

7.  Therefore, in view of all 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)                                         AR20110004578



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110004578



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1