BOARD DATE:	  13 January 2015

		DOCKET NUMBER:  AR20140007596 


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, the widow of a former service member (FSM), requests correction of the FSM's military records to show he was authorized disability severance pay.

2.  She further states the FSM was rendered unfit for further military service due to amyotrophic lateral sclerosis (ALS), commonly referred to as Lou Gehrig's disease.  Additionally, she states that neither the Physical Evaluation Board (PEB) nor the U.S. Army Human Resources Command (HRC) followed the regulatory guidance in deciding the FSM's case.

3.  She defers to counsel:

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the FSM's Line of Duty (LOD) determination be corrected and he be granted a medical retirement.

2.  Counsel states:

   a.  The FSM was diagnosed with ALS, a disease characterized by degeneration of the nerve cells in the brain and spinal cord that control voluntary muscle movement.  The Army found the FSM to be medically disqualified for continued service in the U.S. Army Reserve (USAR) in June 2010 because of ALS. 
   
   b.  In May 2011, a PEB found the FSM unfit to continue military service and opined that his condition neither occurred nor was aggravated by active duty service.  The PEB determined his condition was not in the LOD and he was separated in July 2011 without disability benefits.  The HRC affirmed the PEB's determination.  The FSM appealed the decision to the U.S. Army Physical Disability Agency (USAPDA) who determined that the FSM's case was properly adjudicated.  However, the Department of Veterans Affairs (VA) concluded the FSM's ALS was service-connected.

	c.  Counsel explains that the FSM enlisted in the USAR on 7 August 2002 and he was mobilized from 10 February 2003 to 9 September 2004 in support of Operation Iraqi Freedom.  During his Post-Deployment Health Assessment, the FSM stated that he received the required vaccination before or during his deployment and he was often exposed to insect repellents, environmental pesticides, fuels, loud noises, and sand/dust during his deployment.  After his deployment, the FSM worked first as a metal fabricator and later as a corrections officer until July 2010.

	d.  On 31 March 2010, a neurologist diagnosed the FSM with ALS and characterized his disease as "progressing fairly rapidly."  A familial ALS test showed that the FSM did not have genetic susceptibility for the disease.   On
16 April 2010, the VA determined his condition was service-connected and assigned an initial disability rating of 70 percent (%).  On 14 June 2010, the FSM was notified that he was medically disqualified for continued service in the USAR.  On 13 May 2011, the PEB determined he was physically unfit to continue military service.  The PEB also found that the FSM's ALS arose when he was not entitled to base pay and although his other conditions of anxiety and major depressive disorder arose when he was entitled to base pay, they were not unfitting.  He was subsequently discharged without disability benefits.

   e.  After the FSM was discharged from the USAR, his ALS progressed to the point where he was dependent on a power wheelchair because he could only walk for approximately two feet with assistance.  The FSM participated in a clinical trial for an experimental ALS treatment.  He had a gastrostomy tube placed in February 2011 and he used a Tobii device to aid with his communications due to enunciation problems making his speech hard to interpret.  He died due to ALS on 27 April 2012.
   
   f.  Counsel argues that the PEB erred when it overturned the determination made by the FSM's  command and the Medical Evaluation Board (MEB).  He explained that the PEB failed to follow Army Regulation 600-8-4 (LOD Policy, Procedures, and Investigations) and Department of Defense Instructions (DoDI) 1332.38.  Counsel concludes that if the PEB had followed the above guidance, the board would have concluded that the FSM's ALS was In LOD.
   
3.  Counsel provides:

* FSM's DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* FSM's DA Form 2A (Personnel Qualification Record)
* Case "IMS, P.C. versus Alvarez . . . "
* Narrative Summary, dated 28 March 2011
* VA Rating Decision, dated 19 May 2011
* Memorandum, Subject:  Medical Determination for [FSM], dated 21 May 2010
* Memorandum, Subject:  Notification of Medical Unfitness for Retention Reference:  [FSM], dated 14 June 2010
* Support Statement, dated 30 June 2010
* Memorandum, Subject:  Acknowledgement and Election of Option for MEB/PEB,  Notification of Medical Unfitness for Retention, undated
* Congressional response letter, dated 24 February 2011
* Casualty and Mortuary Affairs letter, dated 2 May 2011
* Memorandum, Subject:  LOD Determination (Overturn) [FSM], dated
2 May 2011
* USAPDA Letter, dated 13 May 2011
* Memorandum, Subject:  LOD Appeal Review for [FSM], dated 28 June 2011
* PEB with FSM's Nonconcurrence memorandum, dated 15 July 2011
* Progress Notes
* Internet articles titled:  "ALS in Veterans," "Prospective Study of Military Service and Mortality from ALS," and "Occurrence of ALS Among Gulf War Veterans" 
* Oversight Hearing, dated 23 September 2010
* Extensive Medical Records
* Excerpts and/or policy, cites, regulations:

* Title 10, U.S. Code, section 1201 and 1401 
* Army Regulation 15-185 (Army Board for Correction of Military Records)
* Army Regulation 600-8-4
* DoDI Number 1332.38
* VA 38 Code of Federal Regulation 


CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the USAR on 7 August 2002.  He was trained in and awarded military occupational specialty 77F (Petroleum Supply).  On 
10 February 2003, he was ordered to active duty in support of Operation Iraqi Freedom from 8 May 2003 to 31 July 2004.  He was honorably released from active duty on 9 September 2004.

2.  On 21 May 2010, the 99th Regional Support Command (RSC) Surgeon reviewed the FSM's medical documents in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3-13b (right foot pain) and 3-30a (Lou Gehrigs Disease) and determined his "condition" was medically unacceptable.

3.  On 14 June 2010, the FSM was notified that as a result of his medical evaluation, he was medically disqualified for continued service in the USAR.  On an unknown date, the FSM signed a memorandum, Subject:  "Acknowledgement and Election of Options for MEB/PEB" in which he checked block 1d(1) indicating that he requested an MEB (Duty Related) to review his medical records for a final determination about his medical fitness for retention. 

4.  On 13 July 2010, an LOD was conducted to accurately ascertain the nature and extent of the FSM's disease.  The investigation shows the following:

   a.  The investigating officer (IO) stated a review of the FSM's medical records demonstrated that he was diagnosed with ALS and suffered from symptoms of the disease which included weakness in his bifacial and upper extremities and increased spastic dysarthria.  The doctor's report indicated that there was a rapid progression of the disease process, as evidenced by a decline in the FSM's forced vital capacity from 95% to 90% of predicted decrease in a five-week period.  Additionally, the FSM was suffering from fatigue, muscle pain in his jaw, cramping of the muscles of his arms and legs, and depression.  In summary, the IO stated it was evidence that the FSM was diagnosed with ALS, a life-threatening illness, and his illness was incurred in the LOD.

   b.  On 20 July 2010, the command Judge Advocate General (JAG) determined that sufficient evidence existed to support the findings of the IO.  Specifically, he stated that the FSM served on active duty in the Iraqi theatre during a time which the VA presumptively found ALS suffered by Soldiers who served in that location was service connected.  He recommended the commander adopt the findings of the LOD IO. 

	c.  On 4 October 2010, the RSC JAG reviewed the FSM's LOD and found it was legally sufficient.  He stated the IO concluded that the FSM incurred the disease of ALS in the LOD.  He added the FSM was diagnosed with ALS on
31 March 2010, as a result of slurred speech and muscle weakness.  He offered that the VA determined ALS carries presumptive service connection for all veterans with 90 days or more of continuous active service in the military.  He further stated the substantial evidence supports the determination that the disease was incurred in the LOD. 

5.  On 28 March 2011, an MEB was convened and made a determination on the following medical conditions/defects:

* ALS, medically unacceptable, incurred in 2009 while entitled to base pay
* Anxiety disorder not otherwise specified (NOS), medically unacceptable, incurred in 1993
* Major depressive disorder, recurrent, medically unacceptable, incurred in 1993
* Left ankle sprain, meets retention standards
* Isolated elevated blood pressure, meets retention standards
* Bunion right foot, meets retention standards
* Gastroesophageal reflux disease, meets retention standards

6.  The MEB recommended that the FSM be referred to a PEB.  On 30 March 2011, the FSM concurred with the MEB findings and recommendation.

7.  On 2 May 2011, after a thorough administrative review of the LOD pertaining to the FSM, HRC, changed the original findings of the LOD investigation from "In LOD to Not In LOD - Not Due to Own Misconduct."

   a.  The HRC representative explained that a formal LOD was completed on the FSM and the IO determined his diagnosis of ALS was incurred In LOD and recommended a finding of In LOD.  It was approved by the appointing and final approval authorities.  The LOD finding was predominately based upon an independent finding of In LOD according to VA procedures and further supported by the MEB on 28 March 2011.  

   b.  The representative quotes Army Regulation 600-8-4 and states for an injury to be considered as In LOD, it must have been sustained while on active duty or aggravated as a result of military service.  He states it was undisputed that the FSM was not on active duty orders at the time the disease manifested or was diagnosed.  In order for the condition to be considered In LOD, it must be shown that either the disease was actually incurred while he was on active duty and there was an incubation period preceding the FSM becoming symptomatic, or that his illness was somehow aggravated by his military service.  He states that although VA considers ALS a "presumptively compensable illness for all veterans with 90 days or more of continuously active service," there is no evidence presented in the LOD investigation which clearly links the FSM's illness to his military service.
   
   c.  HRC states the presumption that because the FSM served in the Gulf region at one point in his career and that there was some indication that ALS occurs more often in veterans who have served there, is "inadequate to overcome the substantial evidence and degree of certainty necessary to demonstrate service connection or service aggravation as required by Army Regulation 600-8-4."  Furthermore, there is no documentation showing that ALS has an incubation period which would line up with the FSM's Gulf War service and the date his illness became symptomatic.  Although the Office of the Surgeon General (OTSG) stated "it is possible for the onset of the disease to begin long before the patient becomes symptomatic," this does not make it factual.  Without evidence linking the FSM's military service, he is determined to be "Not In the LOD - Not Due to Own Misconduct."

8.  On 13 May 2011, in a letter to VA, the Washington D.C. PEB stated that the board found the FSM was physically unfit to continue military service.  The PEB determined that none of the conditions listed were compensable by the Department of Defense since none of the conditions occurred or were aggravated while the FSM was entitled to base pay.  The PEB listed the following referred unfitting conditions:

a. ALS:  this condition arose while the FSM was not entitled to base pay.

   b.  Anxiety disorder NOS:  this condition arose while the FSM was entitled to base pay, but was not unfitting until after he was determined to have a terminal disease.  However, it was not unfitting or aggravated while the FSM was entitled to base pay.

	c.  Major depressive disorder:  this condition arose while the FSM was entitled to base pay, but it was not unfitting until after he was determined to have a  terminal disease.  However, it was not unfitting or aggravated while the FSM was entitled to base bay.

9.  On 19 May 2011, a PEB convened at Washington, D.C. and considered the following conditions pertaining to the FSM:

   a.  The condition of ALS.  The PEB stated that it was not a battle injury, was not caused by an instrumentality of war, and did not occur in a combat theater.  The FSM was diagnosed with this condition in 2009.  A formal LOD investigation that found the condition occurred while the FSM was entitled to base pay was overturned at HRC on 2 May 2011.  The condition is unfitting because it prevents the FSM from performing the normal physical activities or Soldier functional activities.  The condition is not compensable.
   
   b.  In reference to his condition of major depressive disorder with anxiety disorder, NOS and associated with ALS with loss of both hands, listed as anxiety disorder and depression disorder, the PEB stated that these conditions are not battle injuries, they were not caused by an instrumentality of war, and they did not occur in a combat theater.  The FSM was diagnosed with this condition in 1993, (Existing Prior to Service (EPTS)).  This condition did not limit duty performance until after the diagnosis of a terminal (not in the LOD, not due to own misconduct) disease in 2009.
   
   c.  The PEB stated that a DA Form 3349 dated 7 August 2005 and endorsed by the unit commander on 11 July 2007 indicated that the FSM's only limitation was a prohibition against running for the Army Physical Fitness Test (APFT).  His Noncommissioned Officer Evaluation Reports (NCOERs) from 2008 and 2009 indicated superior service with the 2009 NCOER indicating "excellence" in all values and NCO responsibilities except physical fitness.  In this area, the FSM was rated as "successful" noting that he passed the APFT on 4 October 2008.  This is clear and unmistakable evidence that there was no permanent service aggravation of these EPTS conditions.  Neither of these conditions became unfitting until after the FSM was diagnosed with a terminal disease.  The FSM was not entitled to base pay at the time of the onset of the condition and the depressive disorder arising from this not in the LOD condition also did not arise while entitled to base pay.  The condition is unfitting as it prohibits access to weapons and was referred as unfitting, but not compensable.

10.  On 19 May 2011, the VA rendered their Rating Decision as follows:

* Service connection for ALS with loss of use of both hands is granted 100% effective 9 August 2010
* Service connection for the loss of use of both feet and hands associated with ALS is granted 100% effective 17 August 2010
* Service connection for right upper extremity weakness associated with ALS is granted 30% effective 1 April 2010 and 50% from 17 June to
9 August 2010
* Service connection for major depressive disorder with anxiety disorder NOS, associated with ALS is granted 50% effective 17 June 2010

* Service connection for dysphagia associated with ALS with loss of use of both hands is granted 30% effective 1 April 2010 and 40% from 17 June to 
9 August 2010
* Service connection for left upper extremity weakness associated with ALS with loss of use of both hands is granted 10% effective 1 April 2010 and 40% from 17 June to 9 August 2010
* Service connection for dysarthria associated with ALS with loss of use of both hands is granted 20% effective 1 April 2010
* Service connection for right lower extremity weakness associated with ALS is granted 10% effective 1 April 2010 and 20% from 17 June to
17 August 2010
* Service connection for left lower extremity weakness associated with ALS is granted 10% effective 1 April 2010 and 20% from 17 June to
17 August 2010
* Service connection for facial, orbicularis and tongue weakness with jaw tremors associated with ALS is granted 10% effective 17 June 2010 and 20% from 5 May 2011
* Service connection for gastroesophaegeal reflux disease is granted 0%  effective 10 September 2004 and 10% from 17 August 2010
* Service connection for mobility issue, legs, and chest is denied
* Previous denial for service connection for scoliosis thoracic and lumbar spine is confirmed and continued 

11.  On an unknown date, the FSM appealed the HRC LOD findings of "Not In LOD - Not Due to Own Misconduct" and on 28 June 2011, the Director, Casualty and Mortuary Affairs Operation Center reiterated the information provided in their letter to the FSM dated 2 May 2011.  Additionally, the representative stated that the only cited evidence in the FSM's appeal which directly related to him was the OTSG statement that "it is possible for the onset of the disease to begin long before the patient becomes symptomatic."  This alone does not provide sufficient evidence to directly link the FSM's military service with his illness in this specific case.  "We regret we are unable to give the [FSM] a more favorable ruling at this time."

12.  On 15 July 2011, the Chief, Operations Division, USAPDA noted that the FSM disagreed with the findings of the PEB and, therefore, his entire case was reviewed.  The agency concluded that the FSM's case was properly adjudicated by the PEB which correctly applied the rules that govern the PDES in making its determination.  The findings and recommendations of the PEB were supported by substantial evidence and were therefore affirmed.  The agency representative further stated that they have issued an administrative correction to the findings in a Revised PEB, dated 15 July 2011, that states:

In response to your appeal, we have specifically considered the VA's position that ALS may be presumptively service connected.  We have considered the foundations upon which the presumption appears to have been based.  The ALS study findings had to be qualified by two considerations:  "(i) the results could have been influenced by ascertainment bias because they were based on just seven additional cases of ALS among Gulf War veterans in a study of 2.5 million participants and (ii) the mortality rate of Gulf War veterans due to ALS has not yet been found to be elevated." . . . Based on this, even though the Agency does not make In LOD findings, we find support for their ultimate conclusions, notwithstanding the somewhat conclusory explanation for their findings.  We find the evidence supporting a link between your military service and later development of ALS too weak to support a finding of service connection; to request reconsideration by HRC; or to disregard their findings. 

13.  On 18 July 2011, the FSM was honorably discharged from the USAR.  He died on 27 April 2012.

14.  Army Regulation 600-8-4 states the commanding general, HRC, acting for the Secretary of the Army, may at any time change a determination made under this regulation.  The correct conclusion based on the facts must be shown. However, if the change is from "in line of duty" to "not in line of duty," or, if other evidence is considered which supports a "not in line of duty" determination, the Soldier must be informed of the proposed change, its basis, and his or her rights, and be given a chance to respond in writing.  Any statement or evidence that the Soldier submits must be considered before taking corrective action. 

15.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) 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 office, grade, rank, or rating. 

	a.  Paragraph 4-19, PEB decisions, states 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 office, grade, rank, or rating.  All other actions are directly or indirectly tied to this one finding.  The PEB may decide that a Soldier's physical defect existed prior to entry in service or inactive duty for training, or resulted from a nonservice connected condition (not in LOD).  If so, the board must further consider whether military service aggravated the unfitting defect.

   b.  Soldiers who are unfit by reason of physical disability neither incurred nor aggravated during any period of service while entitled to basic pay, or as the proximate result of performing active duty or inactive duty training, but which effects duty performance, will be separated for physical disability without entitlement to benefits

16.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  

17.  DODI 1332.38 prescribes policy and procedures for retiring or separating service members because of physical disability; making administrative determinations under references and for Service members with Service-incurred or Service aggravated conditions; and authorizing a fitness determination for members of the Ready Reserve who are ineligible for benefits because the condition is unrelated to military status and duty.

   a.  E3.P4.5.2, Presumptions for Members on Ordered Active Duty of More Than 30 days states, in pertinent part, that service member is presumed to have been in sound physical and mental condition upon entering active duty except for medical defects and physical disabilities noted and recorded at the time of entrance.  Any injury or disease discovered after a service member enters active duty -- with the exception of congenital and hereditary conditions -- is presumed to have been incurred in the line of duty.
   
   b.  The presumption that a disease is incurred or aggravated in the line of duty may only be overcome by competent medical evidence establishing by a preponderance of evidence that the disease was clearly neither incurred nor aggravated while serving on active duty or authorized training.  Such medical evidence must be based upon well-established medical principles, as distinguished from personal medical opinion alone.  Preponderance of evidence is defined as that degree of proof necessary to fully satisfy the board members that there is greater than a 50% probability that the disease was neither incurred during nor aggravated by military service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant and her counsel requests, in effect, that the FSM's LOD determination be corrected to the original determination of In LOD and the FSM be granted a medical retirement.

2.  On 13 July 2010, an LOD investigation was conducted which concluded that the FSM disease of ALS was incurred In LOD.  Additionally, the FSM's MEB, which convened on 28 March 2011, determined that his condition of ALS was incurred in 2009 while he was entitled to base pay.

3.  However, on 2 May 2011, the HRC overturned the original findings of the LOD investigation from "In LOD to Not In LOD - Not Due to Own Misconduct."  The representative quoted Army Regulation 600-8-4 and stated for an injury to be considered as In LOD, it must have been sustained while on active duty or aggravated as a result of military service.  His NCOER for the periods through 2009 all show he could perform his duties.  He further stated that the FSM was not on active duty orders at the time the disease manifested or was diagnosed in 2009.  He also stated for the condition to be considered In LOD, it must be shown that either the disease was actually incurred while he was on active duty and there was an incubation period preceding the FSM becoming symptomatic, or that his illness was somehow aggravated by his military service.  He argues that although VA considers ALS a "presumptively compensable illness for all veterans with 90 days or more of continuously active service," there is no evidence presented in the LOD investigation which clearly links the FSM's illness to his military service.

4.  On 19 May 2011, he received a 100% disability rating from the VA for service connection for ALS effective 9 August 2010.  He was also granted service connection disability ratings for numerous conditions associated with ALS. 

5.  On 19 May 2011, the PEB determined that none of the conditions listed on the FSM's MEB were compensable since none of the conditions occurred or were aggravated while the FSM was entitled to base pay.  In reference to his condition of major depressive disorder with anxiety disorder, the PEB stated that he was diagnosed with this condition in 1993, EPTS and the condition did not limit his duty performance until after he was diagnosed with a terminal disease in 2009.  The PEB further stated that the FSM was not entitled to base pay at the time of the onset of the condition and the depressive disorder arising from this was not In LOD and did not arise while he was entitled to base pay.

6.  The FSM appealed the HRC LOD findings and on 28 June 2011, the Director, Casualty and Mortuary Affairs Operation Center reiterated HRC overturned findings of not in LOD.  Additionally, the director stated that the only cited evidence in the FSM's appeal which directly related to him was the OTSG statement that "it is possible for the onset of the disease to begin long before the patient becomes symptomatic."  He stated that this alone does not provide sufficient evidence to directly link the FSM's military service with his illness in this specific case.
7.  On 15 July 2011, the USAPDA reviewed the FSM's entire case and concluded that the FSM's case was properly adjudicated by the PEB which correctly applied the rules that govern the PDES in making its determination.  The findings and recommendations of the PEB were supported by substantial evidence and were therefore affirmed.  The agency representative issued an administrative correction to the findings in a Revised PEB, dated 15 July 2011.  In the administrative correction, the representative stated they specifically considered the VA's position that ALS may be presumptively service connected and found the evidence supporting a link between the FSM's service and later development of ALS too weak to support a finding of service connection.

8.  The evidence of record shows that FSM's condition of ALS was reviewed by the PEB on two separate occasions, HRC, and the USAPDA.  All the agencies involved determined that the FSM's condition of ALS neither occurred nor was aggravated by active duty service.  Additionally, they found that none of his conditions were compensable. 

9.  Additionally, the applicant and her counsel offer the fact that the FSM was awarded a 100% disability rating from the VA as proof that he should have been medically retired.  The VA is not required by law to determine medical unfitness for further military service.  The VA awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, although FSM's medical condition of ALS was considered unfit, it was considered unfit by reason of physical disability neither incurred nor aggravated during any period of service while he was entitled to basic pay.  His other conditions of anxiety and major depressive disorder arose when he was entitled to base pay, but they were not unfitting.  Therefore, he was properly separated for physical disability without entitlement to benefits. 

10.  Additionally, the applicant or her counsel has not shown or suggested where the Army was in error regarding the FSM release from active duty.  No medical evidence has been presented by the applicant or her counsel to demonstrate an injustice in the medical treatment the FSM received in service.  Therefore, there is no basis for granting her or her counselor's 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.



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