2.  The applicant requests that his disability be considered service connected and that he be placed on the permanent disability retired list (PDRL), rated at least 50 percent disabled.

3.  The applicant states that his current disability is at least 50 percent disabling and is the result of a ruptured appendicitis, a condition he experienced while on a short tour of active duty while a reservist.  He goes on to claim that while on active duty in Korea, he was seen by a military physician due to complaints of stomach cramps.  His condition was misdiagnosed by the military physician as a cold and was treated with antibiotics, a regime which masked his actual condition of appendicitis until after his prescription of antibiotics ran out, which was after he was released from active duty.  He outlines the errors he believes were made by the Army in his treatment, in the lessening of the rating recommended by both informal and formal physical evaluation boards (PEB’s) by the Physical Disability Agency (PDA), and that agency’s subsequent conclusion that his condition was not incurred while he was in a duty status and, therefore, not entitled to be separated due to disability with severance or retired pay.

4.  In support of his application he submits letters from the civilian physicians, dated from 21 May 1987 through 1988, who had diagnosed his appendicitis and performed surgery on him for that condition after he had been released from active duty.  Those physicians stated that he was first seen complaining of abdominal pain on 25 April 1987, with surgery being performed the following day.  Those physicians opine that by the time the applicant was operated on, his condition had deteriorated to the point where it appeared that it had existed while he was on active duty and, therefore, the Army had misdiagnosed the condition, an error bordering on medical malpractice.  Also submitted is a comment from the chief of surgery from an Army hospital in which the physician opined that the applicant’s gangrenous appendicitis “probably could have developed or did actually develop while the patient was on active duty”, and a letter from the physician who had treated him in Korea who stated that he had seen the applicant for complaints of stomach cramps and muscle aches during sick call during the first week of April 1987.  Finally, the applicant submits a copy of an approved line of duty investigation on his appendicitis and a medical evaluation board (MEB) proceedings in which his condition was said to have been incurred while he was on active duty.

5.  The applicant's military records show that while he serving in the rank of a major assigned to the USAR Control Group, he was performing active duty in Korea for the period 16 March through 17 April 1987.

6.  Upon his return to the United States, on 13 April 1987 the applicant reported to Madigan Army Medical Center, Tacoma, Washington, complaining of a cough.  The treatment summary shows that the applicant was producing yellow/green sputum when coughing, and that his chest hurt when he coughed.  The applicant admitted to having a cold prior to going to Korea.  The applicant was diagnosed as suffering from bronchitis and was prescribed antibiotics.  (There is no record that the applicant received any medical treatment while in Korea.)

7.  On 21 December 1991, while still a reservist assigned to the USAR Control Group not on active duty, a PEB was convened and determined that the applicant was medically unfit due to peritoneum, adhesions secondary to gangrenous appendix with ruptured and severe peritonitis.  The PEB recommended that the applicant’s name be placed on the PDRL, rated 50 percent disabled.  The applicant concurred with that finding.

8.  The PDA considered the findings of the PEB flawed and ordered the applicant’s case to be reconsidered.  The new PEB also determined that the applicant was medically unfit, but only due to peritoneum, adhesions secondary to ruptured appendix with pain but without demonstrated bowel obstruction.  This PEB recommended that the applicant be discharged with severance pay, rated 10 percent disabled.  The applicant disagreed with those findings and recommendation and demanded a formal hearing.

9.  On 2 May 1991 a formal PEB was convened and determined that the applicant was medically unfit due to peritoneum, adhesions secondary to gangrenous appendix with rupture and severe peritonitis with operation requiring drainage, causing constant severe pain with frequent episodes of colic, occasional distention, with constant nausea and reflex disturbances, rated as severe.  That PEB recommended that the applicant’s name be placed on the PDRL, rated 50 percent disabled.

10.  The PDA also considered the findings of this PEB flawed and again ordered the applicant’s case to be reconsidered.  This PEB also determined that the applicant was medically unfit, but only due to abdominal pain syndrome following appendicitis, occurring after release from reserve active duty.  This PEB determined that the cited disability originated after his release from active duty and, therefore, he was not entitled to disability severance or retired pay.  The applicant disagreed with those findings and recommendation and appealed his case to the Physical Disability Appeal Board (PDAB).

11.  On 3 February 1992 the PDAB upheld the last PEB’s and the PDA’s findings that the evidence of record did not conclusively prove that the onset of the applicant’s disease occurred while he was on active duty.

12.  Accordingly, the applicant was honorably discharged due to medical unfitness, without entitlement to severance pay, on 13 March 1992.

13.  Title 10, United States Code, section 1202, provides for the placement of a member on the Temporary Disability Retired List (TDRL) when the disability has not stabilized to the degree that it may be properly rated.  A member placed on the TDRL must receive periodic medical examination at least every 18 months to determine whether final disposition is warranted in his case.  Final disposition is in the form of return to duty, discharge, or placement on the PDRL.  Placement on the TDRL requires that the member meet the criteria of Title 10, United States Code, section 1201.  Section 1210 of this law states that an individual whose name is not sooner removed from the TDRL will have his pay terminated on the expiration of 5 years after the date when his name was placed on that list.

14.  Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.

15.  Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.

CONCLUSIONS:

1.  Although the applicant claims to have been treated for stomach cramps while in Korea, there is no clinical record of that treatment.  However, the Board accepts the letter from the physician that treated him as verification that he was in fact medically treated while in Korea.

2.  The opinion from the Army hospital chief of surgery lends reasonable doubt as to the appropriateness of the actions taken by the PDA and the PDAB.  This skepticism is further reinforced by the fluctuation of the position taken by both the PEB’s and the PDA in determining whether the applicant was eligible to be processed for physical disability and, if so, his percentage of disability.

3.  In view of the above conclusions, the Board is of the opinion that the applicant should be given the benefit of doubt, that his appendicitis and resultant illnesses be considered to have had their origins while he was on active duty.

4.  However, the applicant’s condition did not appear to have been stabilized to the degree required to take final disposition in his case on the date of his release from active duty.  Therefore, it would be appropriate to have the applicant’s name placed on the TDRL instead of the PDRL.  It is also the opinion of the Board that the applicant should be placed on the TDRL rated 50 percent disabled, as was recommended by both of his formal PEB’s, effective 13 March 1992, the date of his discharge.  The Board does not consider the applicant to have completed his physical disability processing until that date, and to place his name on the TDRL prior to completion of his disability processing would be contrary to the intent of law and regulation.

5.  In view of the time which has now passed since his surgery, it would also be appropriate to have the applicant undergo a periodic medical examination and PEB evaluation to make final disposition in his case.

6. In view of the foregoing, it would be appropriate to correct the applicant’s records as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected:

	a.  by showing that the name of the individual concerned was placed on the TDRL, rated 50 percent disabled, effective 13 March 1992 in lieu of the discharge he now holds;

	b.  by considering his honorable discharge from the USAR dated 13 March 1992 null and void;

	c.  by paying to him the moneys he is due by this action; and

	d.  by scheduling him for an immediate periodic medical examination and PEB review.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

                       GRANT AS STATED IN RECOMMENDATION

                       GRANT FORMAL HEARING

                       DENY APPLICATION




		                           
		        CHAIRPERSON