MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           1 February 2001                   
	DOCKET NUMBER:   AR2000044433

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. James E. Anderholm		Member	
	Ms. Barbara J. Lutz		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, that his disability separation with severance pay be changed to a medical retirement.

APPLICANT STATES:  That his growth hormone deficiency was not “resolved” and that it was a condition that made him unfit for service and therefore was rateable.  His osteoporosis was unfitting and therefore was rateable.  He received a combined physical profile on 30 May 2000 which listed all his unfitting medical conditions.  Without making provisions for his future medical needs, the Army has put him out with a medical condition which has already caused serious and deleterious changes in his life and lifestyle.  In a 15 September 2000 letter to his Senator, the applicant noted that it was important for the Army to recognize his condition and award him disability for it because the Department of Veterans Affairs will not recognize and treat a medical condition which the Army does not recognize as being service-connected.  He also noted that the Army’s “8-year rule” considers military service to be of such a severe nature that 8 years of continuous duty are to be presumed to have aggravated any pre-existing condition.  

COUNSEL CONTENDS:  Counsel makes no additional contention.

EVIDENCE OF RECORD:  The applicant's military records show:

He enlisted in the Regular Army on 25 August 1988 for training in military occupational specialty (MOS) 98G (Voice Interceptor, Linguist) with a medical waiver for having growth hormone deficiency.  He was reclassified into MOS 97B (Counter Intelligence Agent) in 1993.  He was promoted to Staff Sergeant, E-6 on 1 February 1996.

The applicant was given a permanent physical profile on 5 September 1998 which listed his medical condition as osteoporosis, growth hormone deficiency. His assignment limitations were that he must be able to obtain growth hormone at duty stations.  He must have access to refrigeration at all times so the medication could be kept cold.  No activities except body weight training were prohibited.  He was allowed to wear a helmet, carry and fire a rifle, and to lift up to 10 pounds.  Army Regulation 611-201 required a soldier in MOS 97B to be able to lift 50 pounds and carry it 50 feet.

On 26 July 1999, the applicant was given a new physical profile for bilateral shoulder surgery.  He was prohibited from performing some activities due to this condition.  He was allowed to lift up to 5 pounds.  His osteoporosis and growth hormone deficiency were not mentioned on the profile.

The applicant underwent a medical evaluation board (MEB) in September 1999 due to his growth hormone deficiency.  The MEB noted that after the applicant’s return from Desert Storm, his fatigue worsened and he had an increase in weight.  He was referred to the Endocrinology Clinic and found to have classic signs and symptoms consistent with growth hormone deficiency in the adult.  It was noted he had been placed on human growth hormone replacement in September 1997.  After initiation of the therapy his fatigue as well as concentration significantly improved. He was able to work longer, had decreased fatigue, and lost six pounds.  As part of his osteoporosis evaluation, lumbar spine films were done due to a prior history of back discomfort.  The films showed a T8 anterior wedging which was suggestive of fracture.  A subsequent MRI revealed a marrow (sic) compression of T8 anteriorly.  Evaluations for other potential secondary causes of osteoporosis were unremarkable.  

The MEB further noted that because of his osteoporosis and growth hormone deficiency the applicant was given a P3 profile on 5 September 1998.  An MEB was to be initiated at that time but had been delayed due to some shoulder problems bilaterally.  He subsequently had shoulder surgery.  The applicant continued to do well on growth hormone replacement with significant resolution of his prior fatigue, lack of concentration, and improved sense of well-being, all these factors being consistent with resolution of growth hormone deficiency syndrome, on replacement therapy.

An MEB addendum prepared on 9 November 1999 noted that the applicant’s growth hormone deficiency syndrome was complicated by osteoporosis.  His osteoporosis, although improved on replacement therapy, could deteriorate with activity causing potential fractures and military service had aggravated his osteoporosis.  The growth hormone replacement required refrigeration and was needle-dependent.  All those factors made him unfit for duty and non-deployable. It noted that his osteoporosis had improved and he had a good prognosis on the current replacement therapy but it could deteriorate if he was required to do strenuous activity.  That would be due to increasing risk of fractures and fractures could, therefore, develop due to military service.

The MEB referred the applicant to a physical evaluation board (PEB) for            14 diagnosed conditions, four of which are at issue here – isolated growth hormone deficiency (found not to have been incurred while entitled to base pay, to have existed prior to service, and not to have been permanently aggravated by service), osteoporosis secondary to isolated growth hormone deficiency, bilateral impingement syndrome, and bilateral acromioclavicular joint arthritis.

On 15 December 1999, a formal PEB found the applicant physically unfit for bilateral acromioclavicular joint arthritis secondary to bilateral impingement syndrome.  The PEB considered all other diagnoses and the addendum dated    9 November 1999 and determined those diagnoses were not unfitting and therefore not ratable.  The PEB noted his major limiting symptom was pain.  His hormone deficiency was not an unfitting impairment due to the fact that the MEB’s narrative summary noted it had “resolved.”  He was recommended for separation with severance pay at a disability rating of 20 percent.

The applicant appealed the findings of the PEB.  The applicant stated that the limitations on his ability to lift over 10 pounds had an enduring impact on his activities.  His current unit made accommodations for him when they traveled as a group; others carried the heavy equipment they took to accomplish the mission. Someone else went in his place when the mission required an extended absence because he had to return to his duty station for fresh medication.  Both his first sergeant and his sergeant major told him as kindly as possible that although they respected him highly, they considered him a liability to the unit because of his profile and medical requirements.  His osteoporosis was a long-term, probably permanent disability which prevented him from performing his duties adequately.

The U. S. Army Physical Disability Agency (USAPDA) reviewed the applicant’s entire case file and concluded that his case was properly adjudicated by the PEB and that the PEB’s findings and recommendations were supported by substantial evidence and were therefore affirmed.

On 1 April 2000, the applicant’s doctor wrote a letter of clarification concerning two issues.  First, the doctor noted that the applicant’s growth hormone deficiency was not “resolved,” it would be with him throughout his life.  Second, the doctor noted that although the applicant’s osteoporosis would have occurred due to his growth hormone deficiency regardless of his vocation, it certainly progressed during his period of active duty.  He had evidence of a slight compression of a vertebral body in the thoracic spine.  Compression fractures were certainly more likely to occur with rigorous activity.

On 3 May 2000, in replying to a letter from the applicant’s Senator, the USAPDA noted that the basis for the PEB’s finding was, in part, due to his physical profile limitation dated July 1999, which indicated the only impairment to be with his upper extremities.  In addition, the medical impairments of osteoporosis and growth hormone deficiency were not permanent if properly treated with growth hormone replacement.  It was determined that the applicant could safely take the hormone replacement and still adequately perform in his job specialty.

On 30 May 2000, the applicant was given a new physical profile for bilateral shoulder surgery and osteoporosis, growth hormone deficiency. 

On 1 June 2000, the applicant was discharged by reason of disability with severance pay.  He had completed 11 years, 9 months, and 7 days of creditable active service.

In the processing of this case an advisory opinion was obtained from the medical advisor to the Army Review Boards Agency.  The advisor opined that it was determined that the applicant’s shoulder arthritic condition was the cause for the applicant’s career termination.  The MEB narrative summary and its addendum did not specifically find that his growth hormone deficiency was a career terminating condition at the time.  

The applicant rebutted the advisory opinion.  He stated that the advisory opinion did not adequately address the human growth hormone deficiency and the additional problems it causes.  He will need treatment for the rest of his life and he must restrict his activities due to osteoporosis.  He came into the Army reasonably healthy.  However, today, after nearly 12 years of honorable service, including combat, he must take daily injections for the rest of his life and must restrict his lifestyle.  It does not seem right or fair for the Army to not call this a problem.

The applicant’s Noncommissioned Officer Evaluation Report (NCOER) for the period ending August 1996 shows that he received 1 “excellence” and 4 “success” ratings in Part IV.  His overall potential for promotion was rated as “fully capable.”  His NCOER for the period ending December 1996 shows that he received 1 “excellence” and 4 “success” ratings in Part IV.  His overall potential for promotion was rated as “among the best.”  His NCOER for the period ending April 1997 shows that he received 1 “excellence” and 4 “success” ratings in Part IV.  His overall potential for promotion was rated as “fully capable.”  His NCOER for the period ending December 1997 shows that he received 1 “excellence” and 4 “success” ratings in Part IV.  His overall potential for promotion was rated as “fully capable.” 

The applicant’s NCOER for the period ending November 1998 shows that he received 1 “excellence” and 4 “success” ratings in Part IV.  His overall potential for promotion was rated as “among the best.”  His NCOER for the period ending November 1999 shows that he received 5 “success” ratings in Part IV.  A comment was made that his profile did not hinder the performance of his current duties.  His overall potential for promotion was rated as “fully capable.”  His NCOER for the period ending May 2000 shows that he received 1 “excellence” and 4 “success” ratings in Part IV.  A comment was made that his profile did not hinder the performance of his current duties.  His overall potential for promotion was rated as “among the best.”

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability. The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  Paragraph 3-1 states that although the ability of a soldier to reasonably perform his or her duties in all geographic locations under all conceivable circumstances is a key to maintaining an effective and fit force, this criterion (world-wide deployability) will not serve as the sole basis for a finding of unfitness.

Army Regulation 40-501 governs medical fitness standards for enlistment, retention and separation.  Growth hormone deficiency is not listed in paragraph 3-11, endocrine and metabolic disorders that are causes for referral to an MEB.  Osteoporosis is not a disqualifying medical condition under any provision in chapter 3.

The VA Schedule for Rating Disabilities (VASRD) is the standard under which percentage rating decisions are to be made for disabled military personnel.  The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. 

The VASRD states that osteoporosis, with joint manifestations, code 5013, will be rated on limitation of motion of affected parts as arthritis, degenerative, code 5003.

Department of Defense Instruction 1332.38, Subject:  Physical Disability Evaluation, dated 14 November 1996.  Paragraph E3.P4.5.5 states that members who entered the service with a medical waiver for a pre-existing condition and who are subsequently determined unfit for the condition shall not be entitled to disability separation or retired pay unless military service permanently aggravated the condition or hastened the condition’s rate of natural progression.

The National Defense Authorization Act for fiscal year 2000 included two provisions concerning medical conditions which existed prior to service.  Section 1207a was added to Title 10, U. S. Code, which states that a soldier on active duty for over 30 days who has at least 8 years of “active service” will now be compensated for all unfitting disabilities under sections 1201, 1202, or 1203 of Title 10, U. S. Code even, in most cases, if the disabilities were not incurred or permanently aggravated while the member was entitled to basic pay.

The Office of the Surgeon General stated that the “8-year rule” does not apply to members who entered active service with a waiver for a medical condition.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion, it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  The Board notes that the applicant’s doctor’s 1 April 2000 letter acknowledged that his osteoporosis would have occurred due to his growth hormone deficiency regardless of his vocation.  While the letter stated that his osteoporosis certainly progressed during his period of active duty, it did not state that it would not have progressed had he not been on active duty.  This indicates to the Board that the osteoporosis was in a state of natural progression and was not aggravated by his military service.  The letter stated that while compression fractures were certainly more likely to occur with rigorous activity, it did not state that his active duty did cause the one compression fracture he had.  In addition, the MEB’s 9 November 1999 addendum noted that his osteoporosis could deteriorate with activity causing potential fractures.  Fractures could, therefore, develop due to military service.  This indicates that his condition could have been potentially unfitting but that it was not unfitting at that time. 

3.  The Board notes that, despite the applicant’s first sergeant and sergeant major considering him a hindrance to his unit, his immediate supervisors rated his duty performance and his potential as above-average and noted that his profile did not hinder the performance of his duties.  Non-deployability by itself is not an unfitting condition.

4.  Neither growth hormone deficiency nor osteoporosis are listed as disqualifying conditions for retention in Army Regulation 40-501.  The applicant’s osteoporosis could have been a disqualifying condition had it limited his range of motion to a disqualifying degree.  However, there is no evidence in his available medical records, in his MEB narrative summary, nor in his doctor’s 1 April 2000 letter of clarification indicating that he had any range of motion limitations due to his osteoporosis.  The Board agrees with the PEB’s findings that the applicant’s growth hormone deficiency and osteoporosis did not render him unfit for military service.

5.  The Board is sympathetic to the applicant’s concern that he entered the Army “healthy” and was discharged with a life-long debilitating medical condition.  However, his circumstances are not much different from other soldiers who enter the Army at an early age in a “healthy” condition and separate, 15 or 20 years later, with degenerative joint disease or a hearing loss.  Such conditions have not prevented them from performing their military duties yet they are conditions which will be with them their entire lives and for which they may need lifelong medical treatment.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__LLS___  __JEA___  __BJL___  DENY APPLICATION

                 Karl F. Schneider
                 Deputy Assistant Secretary
                 (Army Review Boards)

INDEX

CASE ID	AR2000044433	
SUFFIX		
RECON		
DATE BOARDED	20000201	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.