MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           1 March 2001                  
	DOCKET NUMBER:   AR2000045907

	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	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. John H. Kern 		Chairperson	
	Mr. Curtis L. Greenway 		Member	
	Mr. Richard T. Dunbar 		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, physical disability retirement.  

APPLICANT STATES:  The board’s (Physical Evaluation Board) decision was arbitrary and capricious.  The board ignored evidence of several experts and asserted their own definition to multiple sclerosis, which was contrary to accepted medical principles.

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

The applicant was appointed a second lieutenant from ROTC on 22 May 1999 and was ordered to active duty to Fort Benning, Georgia, with temporary duty at Western Maryland College in Westminister, Maryland, from 13 September 1999 to 20 January 2000.

A medical board report from the National Naval Medical Center in Bethesda, Maryland indicates that the applicant had been referred by neuro-ophthalmology for further evaluation of diplopia.  The report indicated that the applicant was in his usual state of health until October 1999 when he developed a horizontal diplopia.  He was diagnosed by neuro-ophthalmology as having bilateral intranuclear ophthalmoplegia (paralysis of the eye muscles).  His past medical history was remarkable for having some facial numbness this past summer (1999).  His numbness resolved, and he was doing well.  On questioning, the applicant at age 15 had an episode that was described as acute disseminated encephalomyelitis (ADEM), with symptoms which include ataxic gait, diplopia diagnosed with a bilateral third nerve palsy, and dysarthria.  He was hospitalized for six days, treated with steroids, and his symptoms resolved without sequelae.   
The report indicates that evaluation included an MRI scan of the brain which showed some periventricular white matter changes with slight enhancement of one of the lesions in the left temporal horn.  He had two angiotensin-converting enzymes both slightly elevated.

The applicant’s condition was diagnosed as demyelinating disease with resolved bilateral intranuclear opthalmoplegia.  The examining physician stated that a complete evaluation had been performed looking for other etiologies with none having been found; however, HTLV-1 was a remote possibility, and the results of the test were pending.  It was recommended to the applicant that he be started on Betaseron.  The doctor stated that the applicant was not worldwide deployable and should not be assigned to a combat duty position.  He was referred to a Physical Evaluation Board (PEB).

On 8 May 2000 a PEB determined that the applicant was physically unfit for service because of a demyelinating (a destroying or removing of the myelin sheath of a nerve or nerves) disease.  The board also concluded that there was sufficient evidence that this condition existed prior to service (EPTS), and had not been permanently aggravated by service but was the result of natural progression.  The board report indicated that EPTS conditions were not compensable under the Army physical disability system, and the proper disposition was separation from the Army without disability benefits.  The board so recommended.  The applicant nonconcurred with the findings and recommendation and demanded a formal hearing.

In a 30 May 2000 memorandum to the PEB, the physician who administered the MEB stated that he believed that the applicant had multiple sclerosis, and that diagnosis was different from the diagnosis that he had prior to active duty, ADEM, and while ADEM did not exclude him from military service, multiple sclerosis might exclude him.  That doctor stated that he believed that the applicant acquired multiple sclerosis while on active duty.

In a 1 June 2000 letter a neurologist stated that the applicant had been under his care from 7 May 1999 to 27 October 1999, and that his current problems were different from his 1993 diagnosis of ADEM, from which he had recovered.  He stated that the applicant was doing well until the recent and current signs and symptoms of multiple sclerosis arose.  He opined that the applicant acquired multiple sclerosis while on active duty.

On 6 June 2000 the applicant and counsel appeared before a formal PEB.  That board came to the same findings and recommendation of the informal PEB that was conducted on 8 May 2000.  The applicant rebutted the findings and recommendation, stating that there was inadequate evaluation of new evidence presented during the formal hearing, that there was neither questions asked nor comments given throughout the hearing regarding the newly submitted doctor’s evaluation of his condition.  The applicant questioned the impartiality and integrity of the board members, and the lack of respect shown him.  He stated that the board’s rating was based on misinformation, and that the hearing was not fair.

On 22 June 2000 the PEB informed the applicant that his rebuttal did not provide information as to any new diagnosis or changes in his currently rated disability, and the board affirmed its decision.

On 29 June 2000 the Army Physical Disability Agency informed the applicant that it had reviewed his entire case file, and had concluded that his case was properly adjudicated by the PEB.  It affirmed the findings and recommendation of the        6 June 2000 board.  

The applicant’s separation document is not available; however, he was scheduled to be discharged on 12 October 2000. 

Dorland’s Illustrated Medical Dictionary defines diplopia as the perception of two images of a single object, also called ambiopia, double vision, and binocular polypia.  Horizontal diplopia is described as diplopia in which the images lie in the same horizontal plane, being either crossed or direct.

Dorland’s Illustrated Medical Dictionary defines encephalomyelitis as an inflammation involving both the brain and the spinal cord.  ADEM is defined as an acute or subacute encephalomyelitis or myelitis characterized by perivascular lymphocyte and mononuclear cell infiltration and demyelination; it occurs most commonly following an acute viral infection, especially measles, but may occur without a recognizable antecedent.  Mortality ranges from 5 to 20 percent.  Many survivors have residual neurologic defects.

Dorland’s Illustrated Medical Dictionary defines multiple sclerosis as a disease in which there are patches of demyelination throughout the white matter of the central nervous system, sometimes extending into the gray matter.  Typically, the symptoms of lesions of the white matter are weakness, incoordination, paresthesias, speech disturbances, and visual complaints.  The course of the disease is usually prolonged, with remissions and relapses over a period of many years.  The etiology is unknown.

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 office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a soldier’s medical status and duty limitations insofar as duty is affected by the soldier’s status.  A decision is made as to the soldier’s medical qualifications for retention based on the criteria in AR 40-501, chapter 3.  If the MEB determines the soldier does not meet retention standards, the board will recommend referral of the soldier to a PEB.

Physical evaluation boards are established to evaluate all cases of physical disability equitability for the soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of soldiers who are referred to the board; to evaluate the physical condition of the soldier against the physical requirements of the soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the soldier; and to make findings and recommendation to establish eligibility of a soldier to be separated or retired because of physical disability.

Army Regulation 635-40, paragraph 3-2b states in pertinent part that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  

Army Regulation 635-40 provides that according to accepted medical principles, certain abnormalities and residual conditions exist that, when discovered, lead to the conclusion that they must have existed or have started before the individual entered military service.  

Paragraph B-10 of that regulation provides that hereditary, congenital and other EPTS 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.

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

1.  The Board recognizes that at times there will be an honest difference of opinion among physicians as to a diagnosis of a disease or ailment, its inception, treatment, etc.  Notwithstanding the opinions of two doctors that evaluated him, both an informal and a formal PEB concluded that his unfit condition existed prior to his service, and was not aggravated by his service.  Taking into consideration the applicant’s medical history as depicted by the MEB, the Board believes likewise - his condition existed prior to his service, and was not aggravated by his service.  Consequently, the applicant is not entitled to physical disability retirement.

2.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

3.  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 that requirement.

4.  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

___jhk___  ___rtd___  ___clg___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000045907	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010301	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  177	108.00	
2.		
3.		
4.		
5.		
6.