IN THE CASE OF: BOARD DATE: 1 March 2016 DOCKET NUMBER: AR20150009238 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests to have his disability rating be reconsidered to include the diagnosis of kidney cancer which was diagnosed on 11 November 2014 prior to his retirement on 29 November 2014. 2. The applicant states he was in the process of a medical retirement; however, it was discovered while on transition leave that he had cancer in his right kidney. He had the kidney removed and would like to have his disability rating reconsidered. 3. The applicant provides: * his DD Form 214 (Certificate of Release or Discharge from Active Duty) * National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) * Romius Institute Adult and Pediatric Urology letter dated 17 November 2014 * Post-Operative Visit Reports dated 5 December 2015 and 24 November 2014 * Mercy St. Vincent Medical Center documents * Mercy St. Vincent Surgical Pathology Consultation letter dated 20 November 2014 * Mercy St. Vincent Medical Center Operative Report date 12 November 2014 * Romius Institute Clinical documents * Office Visit Report dated 6 November 2014 * Mercy St. Vincent Medical Center Laboratory Report * Mercy St. Charles Hospital Operative Report * Toledo Clinic Signed Charts * DA Form 199 (Informal PEB Proceedings) * DA Form 3947 (MEB Proceedings) * Army National Guard Current Annual Statement CONSIDERATION OF EVIDENCE: 1. On 2 June 2011, the applicant, a member of the Ohio Army National Guard (OHARNG), was ordered to active duty in support of Operation Enduring Freedom (OEF). 2. DA Form 3947 shows on 22 October 2013, the applicant was given a MEB for the following conditions which were deemed medically unacceptable: * Thoracic Spine Spondylosis with Disc Bulge * Lumbar Degenerative Disc Disease * Cervical Spine Degenerative Disc Disease * Cervical Spine Foraminal Stenosis, mild-severe, right and left upper extremity * Anxiety Disorder Not Otherwise Specified 3. A DA Form 199, dated 1 August 2014, shows a PEB found the applicant physically unfit and recommended a disability rating of 80 percent and that the applicant’s disposition be placement on the temporary disability retired list (TDRL) with a reexamination during May 2015 for the following conditions: * Post-traumatic Stress Disorder (referred as Anxiety Disorder) * Lumbar Degenerative Disc Disease with Disc Herniation and Thoracic Spondylosis with Disc Bugle * Cervical Spine Degenerative Disc Disease with Canal Stenosis * Left Upper Extremity Cervical Foraminal Stenosis * Right Upper Extremity Cervical Foraminal Stenosis 4. The applicant was pending medical retirement and was placed on transition leave. 5. While on transition leave, on 11 November 2014, the applicant was diagnosed with cancer in the right kidney, which was removed on 18 November 2014. 6. On 29 November 2014, the applicant was medically retired and placed on the TDRL. 7. The applicant provides several statements from medical providers who diagnosed his kidney cancer, his treatment for the removal of his right kidney and his post-operative condition. 8. In the processing of this case, on 28 December 2015, an advisory opinion was received from Headquarters, Tripler Army Medical Center, HI. The advisory official stated, in effect: a. The applicant’s request was based upon the date of his diagnosis of his kidney cancer on 11 November 2014 occurring during his transition leave and he was ultimately discharged on 29 November 2014. Although this may be justified, it is his opinion that there was enough medical evidence leading up to the diagnosis of kidney cancer before the PEB convened on 1 August 2014. As such, “Hematuria” should have been added to the narrative summary (NARSUM) and to the DA Form 3947 as an update prior to the PEB’s final adjudication. b. The applicant’s request that his disability rating be reconsidered to include the additional diagnosis of kidney cancer should be honored. 9. On 30 December 2015, a copy of the advisory opinion was provided to the applicant for information and to allow him the opportunity to submit comments or a rebuttal. The applicant did not respond. 10. 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 govern the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. Paragraph 4-20f(2) states when additional medical evidence or an addendum to the MEB is received after the PEB has forwarded the case and the PEB determines that such evidence would change any finding or recommendation, the case will be recalled by the PEB and a new DA Form 199 issued. Normal procedures apply following the preparation of a new DA Form 199. DISCUSSION AND CONCLUSIONS: The available evidence and regulatory guidance supports the applicant’s request for a review of his PEB based on the diagnosis of kidney cancer to determine if it would have changed his disability rating. As such, all available documentation related to his diagnosis of hematuria should be referred to a PEB to determine if this evidence would change any finding or recommendation. BOARD VOTE: ____X____ ___X_____ ___X_____ GRANT FULL RELIEF ________ _______ _________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all State Army National Guard and Department of the Army records of the individual concerned be corrected by referring all available documentation related to his diagnosis of hematuria to a PEB to determine if this evidence would change any previous finding or recommendation. If a PEB determines the evidence supports changing a previous finding or recommendation, this Record of Proceedings serves as the authority to amend the records of the individual concerned as necessary. ____________X___________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20120020795 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150009238 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1