RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 29 April 2008 DOCKET NUMBER: AR20070005114 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. Director Analyst The following members, a quorum, were present: Chairperson Member Member The Board considered the following evidence: Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, that his final DA Form 199 (Physical Evaluation Board [PEB] Proceedings) be corrected to show that he was assigned a 100 percent disability rating for metastatic prostate cancer under Department of Veteran Affairs (VA) Schedule for Rating Disabilities (VASRD) code 7528 (Malignant neoplasms of the genitourinary system). He also requests that his retirement orders be corrected to reflect that he is 100 percent disabled. 2. The applicant essentially states that he was a Maryland Army National Guard Soldier on active duty undergoing treatment for metastatic prostate cancer when he was erroneously medically separated. He also states that Department of Defense Instruction (DODI) 1332.39 (Application of the Veterans Administration Schedule for Rating Disabilities) was not followed. He further states that three major errors or injustices occurred during his medical separation process, namely: a. DODI 1332.39 was erroneously used to medically separate him from the United States Army, and states that this instruction reads, in pertinent part, "Following the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of six months. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of §3.105(e) of this chapter. If there has been no local recurrence or metastasis, rate of residuals as voiding dysfunction or renal dysfunction, whichever is predominant." The applicant states that medical documentation [enclosure 6 of his supporting evidence] was provided at his second, third, and fourth PEBs that stated he had stage IV (metastatic) prostate cancer and… "will remain on hormonal therapy indefinitely." When he attempted to include this documentation before his first PEB, he was told by a noncommissioned officer at the PEB Liaison Office (PEBLO) at Walter Reed Army Medical Center (WRAMC) that the Army would ask for what it needed and that they did not have to consider statements from civilian doctors. He continued by essentially stating that he was eventually rated on voiding dysfunction even though there was documented evidence of metastatic prostate cancer; b. DODI 1332.39 required an initial rating of 100 percent while undergoing a therapeutic procedure, and that his hormone therapy was a therapeutic procedure. He also states that in his opinion, the United States Army appears to have demonstrated it was unable to make a fair and consistent decision in his case, and that during a period of 6 months from April 2006 through September 2006, he was awarded four different disability percentage ratings although his medical condition did not drastically change during this period; and c. the United States Army did not follow regulations concerning his transfer to a medical holding company. He states that enclosure 8 of his supporting evidence is a letter signed by the Director of Personnel/ Administration, Headquarters, Maryland Army National Guard, dated 27 February 2004, which requested that he be attached to the Medical Holding Company at WRAMC. He also states that enclosure 9 of his supporting evidence is a memorandum, dated 30 January 2004, signed by his medical doctor which stated, "Patient needs to be assigned to [the Medical Holding Company at WRAMC as soon as possible]," but that this never happened. 3. The applicant continued by essentially stating that although there was medical documentation that supported the fact that he was unable to work, he remained on active duty for more than 2 years, which caused him mental anguish, forced him to cancel medical appointments due to mission priorities, and worsened his overall medical condition, particularly his mental state. He also states that to add insult to injury, after the United States Army failed to diagnose his prostate cancer in a timely manner [documented in enclosure 9 of his supporting evidence], they then refused to treat him fairly in accordance with regulations and other written instructions. He further states that although he had participated in the appropriate required routine physical tests, his elevated Prostate Specific Antigen (PSA) results were simply filed in his medical records for more than 1 year before anyone took the time and interest to notify him. 4. The applicant provides his retirement orders, dated 9 November 2006, four DA Forms 199, a letter, dated 17 April 2006, from the Director, Genitourinary Oncology Program at the University of Maryland, Baltimore, Maryland, a letter, dated 13 April 2006, from a licensed clinical social worker, information related to VASRD codes 7528, 7542 (Neurogenic bladder), and 7332 (Rectum and anus, impairment of sphincter control), pages 5 and 6 of DODI 1332.39, a memorandum, dated 27 February 2004, from the Director of Personnel/ Administration, Headquarters, Maryland Army National Guard, which requested that the applicant be attached to the Medical Holding Company at WRAMC, a memorandum, dated 30 January 2004, signed by his medical doctor which stated the applicant needed to be assigned to the Medical Holding Company at WRAMC as soon as possible, an unsigned letter, dated 2 June 2006, from a doctor from the WRAMC Urology Service, and 83 pages of medical and personnel documents, some of which are duplicates, related to his Medical Evaluation Board (MEB) in support of this application. CONSIDERATION OF EVIDENCE: 1. Documentation related to the applicant's disability processing was not found in the applicant's military records and, as a result, this case is being considered using the evidence provided by the applicant. 2. The applicant's MEB Summary [pages 14 through 17 of enclosure 10] shows that in 2001, the applicant had a PSA test done, with the resulting score of 20.90 nanograms of PSA per milliliter (ng/mL) of blood. However, the applicant stated that he was never informed of these results. In 2003, the applicant started having rectal bleeding and was evaluated by gastroenterology with a colonoscopy at a civilian hospital. At that time, the gastroenterologist discovered an abnormal digital rectal examination, and his PSA was rechecked and found to be 39.85 ng/ml in September 2003. The applicant was then referred to a civilian urologist, who performed a transrectal ultrasound-guided prostate biopsy in October 2003. At that time, four out of eight cores were positive for prostate cancer. The applicant then had a bone scan and computerized tomography scan done. Although the bone scan was negative, the computerized tomography scan showed a 3.3 centimeter left pelvic mass suspicious for lymphadenopathy. The applicant was seen for a second opinion at John Hopkins Hospital in Baltimore, Maryland, and possible external beam radiation was recommended. The applicant then went to the University of Maryland for another opinion, then he started 42 cycles of external beam radiation therapy to his prostate and lymph nodes, and started the medications Casodex and Lupron in November 2003. The applicant completed his radiation treatment in January 2004, then started on adjuvant chemotherapy. In May 2004, the applicant's PSA level bottomed at 0.003 ng/ml, and he had completed his chemotherapy and doing well on his every three month Zoladex injections when he suffered a stroke that left him with left-sided paralysis in July 2004. The applicant was admitted to a civilian hospital for 5 days and started physical therapy. 3. On or about 22 February 2006, a MEB recommended that the applicant be referred to a PEB, and diagnosed him with: a. metastatic prostate cancer, left hemiparesis on his non-dominant side, chronic low back pain due to lumbar spondylosis, dominant right shoulder impingement syndrome and acromioclavicular arthritis, which were medically unacceptable; and b. mood disorder due to prostate cancer with depressive features, mild bilateral knee degenerative joint disease, radiation proctitis, mild on colonoscopy in 2005, colon polyp on colonoscopy in 2005, gastroesophageal reflux disease (GERD), hypertension, hypothyroidism, hyperlipidemia, diet controlled diabetes mellitus, right plantar fasciitis, early left hip arthritis, erectile dysfunction, and bilateral hearing loss, which were medically acceptable. 4. Although page 2 of the DA Form 3947 (Medical Evaluation Board Proceedings) essentially indicates that the findings and recommendations of the MEB were approved, there is no indication whether or not the applicant agreed or disagreed with those findings and recommendations. 5. On 4 April 2006, the applicant's informal PEB [enclosure 5] found the applicant physically unfit, and recommended a combined disability rating of 40 percent. His metastatic prostate cancer was rated at zero percent, and it was determined that his metastatic prostate cancer was treated with external beam radiation, chemotherapy, and hormone and ongoing therapy. This PEB also stated that the applicant's PSA level was over 20, but at the time it was undetectable, and that there was no evidence of bone metastasis. It also indicated that the applicant did not report any urinary or kidney problems. It was also noted that previously, the applicant was noted to have a 3.3 centimeter pelvic mass on the left side prior to therapy. On 7 April 2006, the applicant did not concur and demanded a formal hearing, but did not attach a statement identifying his issues of disagreement. He also requested a regularly appointed counsel to represent him. 6. In a letter, dated 17 April 2006, the Director, Genitourinary Oncology Program at the University of Maryland essentially stated that the applicant was a patient under her care, and that the applicant was initially diagnosed with stage IV prostate cancer in 2003. She also stated, in effect, that the applicant's chance of cure was less than 20 percent, but that he was aggressively managed with radiation therapy, hormone therapy, and chemotherapy. She further stated that although the applicant was doing well at the time, his chance of relapse was very high, and that he will remain on hormonal therapy indefinitely. 7. The applicant also provided a letter, dated 13 April 2006, from a licensed clinical social worker, who essentially indicated that she first saw the applicant on 30 December 2003 for psychological treatment as a result of being diagnosed with prostate cancer. She also stated, in effect, that his reaction was intensified by the fact that he had been evaluated by the military for an enlarged prostate in 1998 but that a PSA test was not done at that time, and that in 2001 he had a physical which included a PSA test, but that he was never told that the results were abnormal [the issue of normal and abnormal PSA levels will be addressed later]. She also essentially stated that given the applicant's diagnosis and treatment side effects, she expected that the applicant would continue in counseling. 8. On 6 July 2006, the applicant's informal PEB was reconsidered [enclosure 4] under what appears to be the provisions of paragraph 4-22c, Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) and which superseded his previous informal PEB, dated 4 April 2006. This informal PEB found the applicant physically unfit, and recommended a combined disability rating of 100 percent. His metastatic prostate cancer was rated at 100 percent, and it was determined that his metastatic prostate cancer was treated with external beam radiation, chemotherapy, and hormone and ongoing therapy. This PEB also stated that the applicant's PSA level was over 20, but at the time it was undetectable, and that there was no evidence of bone metastasis. It also indicated that the applicant did not report urinary problems. It was also noted that previously, the applicant was noted to have a 3.3 centimeter pelvic mass on the left side prior to therapy. It further noted that the applicant had radiation proctitis with other effects from his therapy. Although this PEB indicated that the applicant did not report urinary problems, he was rated 40 percent disabled for urinary incontinence secondary to prostatic cancer, with the applicant voiding at least 10 times per day and had to awake from sleep at least three times a night. It also indicated that the applicant also had to use one to three pads per day to avoid wetting his clothing, and that his 40 percent rating was for voiding dysfunction. This PEB further rated him at 30 percent disabled for fecal incontinence at night secondary to radiation proctitis about three to four times per week, which was unpredictable and required the applicant to wear an adult incontinence product so he would not have to change clothing. He was also rated 20 percent disabled for another medical issue, 10 percent disabled for two separate medical issues, and zero percent disabled for another medical issue. On 10 July 2006, the applicant concurred with this informal PEB reconsideration, and waived a formal hearing of his case. 9. On 18 August 2006, the applicant's informal PEB [enclosure 3] was reconsidered a second time under the provisions of paragraph 4-22c, Army Regulation 635-40, and which superseded his initial reconsidered PEB, dated 6 July 2006. This informal PEB found the applicant physically unfit, and recommended a combined disability rating of 70 percent. His disability ratings for voiding dysfunction and fecal incontinence at night secondary to radiation proctitis remained unchanged from the previous informal PEB, and his 20 percent rating for another medical issue, 10 percent rating for two separate medical issues, and zero percent rating for another medical issue also remained unchanged. However, the applicant's MEB diagnosis of metastatic prostate cancer was not found unfitting. This PEB determined that his metastatic prostate cancer was treated with external beam radiation, chemotherapy, and hormone and ongoing therapy. This PEB also stated that the applicant's PSA level was over 20, but at the time it was undetectable secondary to hormonal therapy, and that there was no evidence of bone metastasis. It also indicated that previously, the applicant was noted to have a 3.3 centimeter pelvic mass on the left side prior to therapy, but that there was no clear evidence of a tumor. On 5 September 2006, the applicant did not concur and demanded a formal hearing with personal appearance, but did not attach a statement identifying his issues of disagreement. He also requested a regularly appointed counsel to represent him. 10. On 21 September 2006, a formal PEB found the applicant physically unfit, and recommended a combined rating of 80 percent. The formal PEB's findings and recommendations were identical to the applicant's informal PEB reconsideration, dated 18 August 2006, with the exception that his disability rating for voiding dysfunction rose from 40 percent to 60 percent, and the applicant's combined rating rose from 70 percent to 80 percent. On 25 September 2006, the applicant did not concur with the formal PEB findings and recommendations, and submitted a rebuttal statement. 11. In his rebuttal statement, the applicant essentially stated that he was not in convalescence, that he was actively undergoing medical treatment, and contended that he should be rated under VASRD code 7528. He also stated, in pertinent part, that two different physicians certified that he must receive hormone treatment, a form of treatment for his cancer, for the rest of his life. He further stated that he was dying of prostate cancer, that he is 100 percent disabled, and that he had not worked full-time since April 2005. He continued by stating that he had not worked for all of those years with the full knowledge and support of the United States Army. The applicant also essentially admonished one of the PEB board members for blaming him for not knowing what a PSA score was in 2001. He also stated that it cannot be denied that the United States Army failed to identify and treat his prostate cancer when it should have, but that he understood that it is not the purpose of the PEB, nor could the PEB, right that wrong. However, he asked that the PEB simply do the right thing, and that recognizing anything less than his 100 percent total disability was a lie. 12. On 25 January 2007, the applicant was released from active duty because of physical disability, and was retired for permanent physical disability on 26 January 2007 with an 80 percent disability rating. 13. The applicant essentially stated that he was a Maryland Army National Guard Soldier on active duty undergoing treatment for metastatic prostate cancer when he was erroneously medically separated. He also stated that DODI 1332.39 was not followed. He further stated that three major errors or injustices occurred during his medical separation process, namely: a. DODI 1332.39 was erroneously used to medically separate him from the United States Army, and stated that this instruction reads, in pertinent part, "Following the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of six months. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of §3.105 of this chapter. If there has been no local recurrence or metastasis, rate of residuals as voiding dysfunction or renal dysfunction, whichever is predominant." The applicant stated that medical documentation [enclosure 6 of his supporting evidence] was provided at his second, third, and fourth PEBs that stated he had stage IV (metastatic) prostate cancer and… "will remain on hormonal therapy indefinitely." When he attempted to include this documentation before his first PEB, he was told by a noncommissioned officer at the PEB Liaison Office (PEBLO) at Walter Reed Army Medical Center (WRAMC) that the Army would ask for what it needed and that they did not have to consider statements from civilian doctors. He continued by essentially stating that he was eventually rated on voiding dysfunction even though there was documented evidence of metastatic prostate cancer; b. DODI 1332.39 required an initial rating of 100 percent while undergoing a therapeutic procedure, and that his hormone therapy was a therapeutic procedure. He also stated that in his opinion, the United States Army appears to have demonstrated it was unable to make a fair and consistent decision in his case, and that during a period of 6 months from April 2006 through September 2006, he was awarded four different disability percentage ratings although his medical condition did not drastically change during this period; and c. the United States Army did not follow regulations concerning his transfer to a medical holding company. He stated that enclosure 8 of his supporting evidence in a letter signed by the Director of Personnel/ Administration, Headquarters, Maryland Army National Guard, dated 27 February 2004, which requested that he be attached to the Medical Holding Company at WRAMC. He also stated that enclosure 9 of his supporting evidence in a memorandum, dated 30 January 2004, signed by his medical doctor which stated, "Patient needs to be assigned to [the Medical Holding Company at WRAMC as soon as possible]," but that this never happened. 14. The applicant continued by essentially stating that although there was medical documentation that supported the fact that he was unable to work, he remained on active duty for more than 2 years, which caused him mental anguish, forced him to cancel medical appointments due to mission priorities, and worsened his overall medical condition, particularly his mental state. He also stated that to add insult to injury, after the United States Army failed to diagnose his prostate cancer in a timely manner [documented in enclosure 9 of his supporting evidence], they then refused to treat him fairly in accordance with regulations and other written instructions. He further stated that although he had participated in the appropriate required routine physical tests, his elevated PSA results were simply filed in his medical records for more than 1 year before anyone took the time and interest to notify him. 15. VASRD code 7528 deals with malignant neoplasms of the genitourinary system, and indicates that a 100 percent disability rating is to be assigned. It notes that following the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure, the rating of 100 percent shall continue with a mandatory examination at the expiration of 6 months. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of §3.105(e) of this chapter. If there has been no local recurrence or metastasis, rate on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. 16. DODI 1332.39 provides, in pertinent part, that not all of the general policy provisions in Sections 4.1 t 4.3 of the VASRD are applicable to the Military Departments. Many of these policies were written primarily for DVA rating boards, and are intended to provide guidance under laws and policies applicable only to the DVA. This instruction replaces these sections of the VASRD. It also provides, in pertinent part, that unlike the DVA, the Military Departments must first determine whether a service member is fit to reasonably perform the duties of the member's office, grade, rank, or rating. Once a service member is determined to be physically unfit for further military service, VASRD percentage ratings are applied to the unfitting condition(s). Under certain diagnostic codes, the VASRD provides for a convalescent rating to be awarded for specified periods of time without regard to the actual degree of impairment for function. SUCH RATINGS DO NOT APPLY TO THE MILITARY DEPARTMENTS. 17. Information from the National Cancer Institute, which is part of the U.S. National Institutes of Health, states, in pertinent part, that PSA test results report the level of PSA detected in the blood. The test results are usually reported as nanograms of PSA per milliliter (ng/mL) of blood. In the past, most doctors considered PSA values below 4.0 ng/mL as normal. However, recent research found prostate cancer in men with PSA levels below 4.0 ng/mL. Many doctors are now using the following ranges with some variation: 0 to 2.5 ng/mL is low, 2.6 to 10 ng/mL is slightly to moderately elevated, 10 to 19.9 ng/mL is moderately elevated, and 20 ng/mL or more is significantly elevated. There is no specific normal or abnormal PSA level. PSA levels alone do not give doctors enough information to distinguish between benign prostate conditions and cancer. However, the doctor will take the result of the PSA test into account when deciding whether to check further for signs of prostate cancer. 18. Army Regulation 635-40 provides, in pertinent part, that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. 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 their office, grade, rank, or rating. 19. Paragraph 4-22c of this same regulation provides that based upon review of the PEB proceedings, the USAPDA may take the following actions: a. concur with the findings and recommendations of the PEB or make minor changes or corrections that do not affect the recommended disposition of the Soldier or lower the combined percentage rating; b. return the case to the PEB for reconsideration, clarification, further investigation, a formal hearing, or other action when the case records show such action is in the best interests of the Soldier or the Army. A detailed explanation for the reasons for return of the case will be provided to the PEB; c. issue revised findings providing for a change in disposition of the Soldier or change in the Soldier's disability rating; or d. refer the case to the Army Physical Disability Appeal Board. 20. Title 38, United States Code, sections 1110 and 1131, permit the DVA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a DVA rating does not establish error or injustice in whether or not an Army rating is given, or in an Army rating that is given. 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 DVA, 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 different positions. Furthermore, unlike the Army, the DVA 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 DVA may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability. 21. Army Regulation 15-185 (Army Board for Correction of Military Records [ABCMR]) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. 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 final DA Form 199 should be corrected to show that he was assigned a 100 percent disability rating for metastatic prostate cancer under VASRD code 7528. He also contends that his retirement orders should be corrected to reflect that he is 100 percent disabled. 2. Although there is no specific normal or abnormal PSA level, it would appear that the applicant's 2001 PSA test should have been followed up with additional testing to check further for signs of prostate cancer. The fact that the applicant was essentially blamed by a PEB board member for not knowing what a PSA score was in 2001 also was unfortunate, as was the fact that he was not reassigned to the Medical Holding Company at WRAMC. However, just as the applicant understood that it was not the purpose of the PEB, nor could the PEB, right certain wrongs, neither can the ABCMR right all wrongs. As a result, the ABCMR can only make a determination regarding the applicant's formal PEB combined rating and whether he should have been retired from the Army with a 100 percent disability. 3. Although the applicant did not provide correspondence from the USAPDA which would have provided a detailed explanation for the reasons for return of his case to the PEB, it is clear that the USAPDA, in its authority, determined that it his case needed to be returned to the PEB at least twice for reconsideration, clarification, further investigation, or a formal hearing because his case records showed such action to be in the best interests of the Soldier or the Army. 4. The applicant's formal PEB determined that his PSA level was over 20, but at the time it was undetectable secondary to hormonal therapy, and that there was no evidence of bone metastasis. It also indicated that previously, the applicant was noted to have a 3.3 centimeter pelvic mass on the left side prior to therapy, but that there was no clear evidence of a tumor. The fact that the applicant had metastatic prostate cancer is not in question; however, as there was no local recurrence or metastasis at the time of his formal PEB, he was properly rated by the Army for the residuals, namely voiding dysfunction. 5. While the applicant contends that DODI 1332.39 essentially states that following the cessation of therapeutic procedure, a rating of 100 percent shall continue was noted. However, the VASRD states this, not DODI 1332.39. it appears that this is a convalescent rating, and such ratings do not apply to the Military Departments. While the DVA may award him a disability rating for metastatic prostate cancer, as there was no evidence of bone metastasis or clear evidence of a tumor at the time of the applicant's formal PEB, the PEB had no reason to assign him a disability rating for this condition. 6. 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. In view of the foregoing, there is insufficient basis for correcting his final DA Form 199 to show that he was assigned a 100 percent disability rating for metastatic prostate cancer under VASRD code 7528, or correcting his retirement orders to reflect that he was 100 percent disabled. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __XXX __ __XXX__ __XXX__ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. 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. 2. The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States throughout his military career. The applicant and all Americans should be justifiably proud of his service in arms. ___ XXX ___ CHAIRPERSON ABCMR Record of Proceedings (cont) AR20070005114 13 DEPARTMENT OF THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS 1901 SOUTH BELL STREET, 2ND FLOOR ARLINGTON, VA 22202-4508