PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 30 April 2002
         DOCKET NUMBER: AR2001054368


         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.

Mr. Carl W. S. Chun		Director
Mr. David E. Weightman		Senior Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Hubert O. Fry, Jr.		Member
Mr. Thomas E. O'Shaugnessy, Jr.		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

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

FINDINGS:

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

---

2. The applicant requests correction of his records to show he is entitled “to receive pay and allowances, [and] medical discharge with retirement as promised with disability since [he] was on [Inactive Duty for Training (IDT)].” He also requests, in effect, health care and subsistence, compensation for temporary disablement, disability separation or retirement for an illness or injury that he incurred during IDT.

3. The applicant asserts that he has been denied these entitlements by an improper adverse finding in a Line of Duty Investigation (LDI) conducted by his unit and the National Guard Bureau (NGB). He states that no one individual will admit responsibility for sending him to the Walter Reed Army Medical Center (WRAMC) causing incapacitation and loss of employment for nine months. He provides a letter from the Commanding General, 29th Infantry Division (Light), Fort Belvoir, Virginia, that refers to a LD Determination. Additionally, he provides a 1995 Report of Medical History, civilian appointments for cataract extraction and microdiscectomy and a copy of the surgical report from WRAMC, dated July, August and September 1999.

4. The applicant’s records were not provided to the Board. Alternate records and the applicant’s application shows him as a member of the Maryland Army National Guard (MD ARNG).

5. During the period 1 February 1966 through 9 January 1968, he was inducted and served on active duty in the Army of the United States.
 
6. During the period 10 January 1968 through 31 January 1972, he was in the Army Reserve.
 
7. During the period 1 February 1972 through 24 July 1985, he had a break in service.
 
8. On 25 July 1985, he enlisted in the MD ARNG for the Try One Enlistment Program.
 
9. On 27 May 1992, per Orders 102-23, the MD ARNG discharged the applicant and assigned him to the Army Reserve Control Group (Reinforcement), St. Louis, Missouri based on his failure to complete a physical examination.
 
10. On 24 November 1992, per Orders D-11-262231, the Army Reserve Control Group (Reinforcement) directed his honorable discharge based on the expiration of his term of service.
 
11. The applicant was subsequently enlisted into the MD ARNG.

12. On 17 July 1999, after leaving his home for IDT, he experienced chest pain. He was treated by the Emergency Medical Service and admitted to Northwest Hospital, Lutherville, Maryland.
 
13. On 18 July 1999, he was transferred to the WRAMC. He was accepted as a patient in an active status.
 
14. On 21 July 1999, he received a Coronary Artery Bypass.
 
15. On 6 August 1999, he was discharged from the WRAMC.
 
16. On 17 September 1999, he returned to WRAMC for a colonoscopy.

17. On 20 December 1999, the Chief, Personnel Division, NGB sent a memorandum to The Adjutant General (TAG), Maryland, concerning an LDI of the applicant. She advised the TAG that the Chief Surgeon’s Office and Judge Advocate General’s Office reviewed the Report of Investigation, dated 28 July 1999, and the medical and legal officials concurred with the recommended finding by the Appointing Authority and Reviewing Authority, and the LD finding, dated 2 December 1999, of NOT IN LINE OF DUTY – NOT DUE TO OWN MISCONDUCT, was reaffirmed. She also stated the Chief Surgeon stated that the applicant’s “gangrenous cecum with microperforation, found early in hospitalization period” with resultant affects related to a previous bypass surgery procedure and would also be considered NOT IN LINE OF DUTY – NOT DUE TO OWN MISCONDUCT.

18. Two NGB legal reviews explicitly recognized that the Army had obtained signed, written statements regarding the disease and injuries from the applicant without the benefit of the warning required by paragraph 40-3 of Part Five, Army Regulation (AR) 600-8-1, and had incorporated those statements into the LDI. The first reviewer quoted the unwarned statement at length, basing his review on the facts contained in that statement. (Memorandum, MAJ N_____, Assistant Staff Judge Advocate, STARC, Maryland Army National Guard, 7 October 1999, subject: Legal Review of Line of Duty Determination Concerning [Applicant].) The second reviewer, after acknowledging the use of the unwarned statements in the LDI, goes on to state that he “believes that the contemporaneous statements provided by [the applicant] prior to [the required warnings] provide a more accurate description of what happened.” (Memorandum, MAJ M_____, Administrative Law Branch, Office of the Chief Counsel, NGB, 24 Nov 99, subject: Legal Review – Line of Duty Determination on [Applicant].)

19. The ARNG Chief Surgeon, COL W_____, noted the applicant’s unwarned statement in his opinion, concluding that the applicant’s “original (24 July 1999) and revised (20 October 1999) statements show this acute myocardial infarction” did not occur in the line of duty. (Memorandum, COL W_____, Chief Surgeon, ARNG, 13 Dec99, subject: Request for Medical Opinion on [Applicant].) It is noted that although the Chief Surgeon’s medical opinion that the acute MI occurred as a result of the underlying atherosclerotic coronary artery disease (ASCAD) is medically correct, the LD recommendation that flowed from his medical opinion was applied against outdated law and regulation.

20. The NGB, in effect, determined that the applicant’s medical conditions were not incurred in the line of duty (NLD), were not due to his own misconduct (NDOM), existed prior to his military service (EPTS), and were not aggravated by his service (NO AGGRAVATION).

21. The Total Army Personnel Command (PERSCOM) memorandum of decision engages in an extensive analysis of differences between the initial unwarned statement by the applicant and his subsequent statement. (Memorandum, Mr. S_____, Chief, Personal Affairs Branch, PERSCOM, 21 June 2000, subject: Line of Duty Determination on [Applicant].) Further, the NGB transmittal of the applicant’s appeal to the PERSCOM highlighted the applicant’s unwarned statement, recounting that “[t]he original statement from [the applicant] … state[d] that he was dressed for drill, but prior to his departure for drill [the applicant] decided to walk his dog.” (Memorandum, COL C_____, Chief, Personnel Division, NGB, undated, subject: Appeal of Line of Duty Determination [Applicant].)

22. On 2 February 2000, the Commanding General, 29th Infantry Division (Light) responded to a 29 December 1999 letter from the applicant concerning his LDI status. He was informed that the LDI had not been approved and advised him of the appeal process.
 
23. On 7 June 2001, the NGB was requested by the staff of the Board to provide a comprehensive opinion concerning the issues raised by the applicant.
 
24. In an undated memorandum received by this Board on 16 January 2002, the Chief, Human Resources Policy and Programs Division, NGB opined that the applicant was a drilling member of the MD ARNG; that he apparently experienced a medical problem while attending inactive duty training; that he was transported to a civilian hospital; and then transferred to WRAMC. On
17 September 1999, he returned to WRAMC for an elective outpatient colonoscopy. The Chief Surgeon of the MD ARNG determined the applicant’s medical condition(s) was not a result of his military duties or service, and therefore considered not to be in the line of duty. The NGB opinion is that the LD determination should stand.
 
25. On 17 January 2002, the NGB opinion was forwarded to the applicant for his acknowledgement and possible rebuttal.

26. On 22 January 2002, the applicant submitted his rebuttal by asking for an extension of the Board’s determination. He indicated that he did not want to be railroaded into letting this matter go; that he had asked for a hearing with an attorney present; that he was a patient at WRAMC for 20 plus days; that it appears the LD should be reviewed along with all of the statements for further review; that there should be no cover up of the facts; that there seems to be some missing information; and that this memorandum serves as the reply for the 21-day requirement. He further indicates he will be filing a personal action form to extend his enlistment until after this matter is settled. He asks for an immediate reply. He provides a copy of a MD ARNG letter concerning his incapacitation pay.

                                    Summary of Events

27. The applicant was scheduled for 2 days of IDT starting at 0730, 17 July 1999.

28. He states- he

aw[oke] and proceeded to … dress[ ] for drill [at] about 0600. At about 0645, as [he] was just about to leave, [his] dog was at the front door wanting to go out. [The applicant] took [the dog] out for a brief walk to let [the dog] relieve itself. [The applicant] returned with the dog and proceeded out of the house to drive to drill at Havre de Grace. While walking to the car [he] experienced pain in [his] left arm, turned around, and walked back to the house. It was at [that] time that the pain became very intense and [he] began sweating very profusely. When [the applicant] returned to the house at 0705 … [the applicant’s spouse] called 911. The paramedics arrived and took [the applicant] to Northwest Hospital Center where [he] was admitted.

29. Northwest Hospital emergency room shows-

Fifty-seven year-old … male presents to the Emergency Room for evaluation of his left-sided chest pain that began shortly after walking his dog this morning. Pain felt “like a muscle pull” – started to go home after the pain began, then “broke out in a sweat.” Had moderate shortness of breath at the time – called 911. Pain was relieved after one sublingual nitroglycerin tablet in the ambulance. Patient denies any prior episode of chest pain in the past. Pain does radiate to the back.

30. Physicians at Northwest Hospital diagnosed a myocardial infarction (MI). Northwest provided immediate emergency care, monitored the applicant’s condition, and arranged for the applicant to be transferred to WRAMC.

31. Northwest transferred the applicant to WRAMC by ambulance on 18 July 1999 at approximately 1500.

32. Physicians at WRAMC continued to monitor and evaluate the applicant. Various evaluations and diagnostic procedures, including a cardiac catheterization, led WRAMC physicians to conclude that in addition to the recent MI, the applicant faced an “impending infarct,” that is, a likely further heart attack in the very near future. (Standard Form (SF) 509-E, Narrative Summary, WRAMC, CPT O_____, 6 Aug 99, Subject: [Applicant] ASCAD and Microperforation of Cecum.) WRAMC physicians diagnosed high-grade left anterior descending (LAD) artery disease that required “urgent revascularization,” that is, the physicians determined that the blood vessels that supplied the portion of the heart that pumps blood throughout the body were severely weakened and blocked with fatty deposits and immediate surgical intervention was required to allow the blood to pass through those vessels to prevent the applicant’s death. (SF 516, Operative Report, WRAMC, MAJ R_____, 18 Jul 99 [sic], subject: [Applicant].) LAD artery disease is essentially a condition where a particular group of the blood vessels supplying the left front side of the heart suffer from atherosclerotic coronary artery disease (ASCAD), that is, the deterioration and blockage of blood vessels supplying the heart. (The LDI and related actions use the more general label of ASCAD.)

33. On 21 July 1999, physicians at WRAMC performed a triple coronary artery bypass graft (CABG). (SF 516, Operative Report, WRAMC, MAJ R_____, 18 Jul 99 [sic], subject: [Applicant].) A CABG is a surgical procedure where the blocked, deteriorated vessels to the heart are bypassed with segments of other vessels taken from other locations in the patient’s body.

34. On an undetermined date between 21 and 26 July 1999, health care providers at WRAMC apparently began to suspect that the applicant suffered complications from the CABG and other interventions. (SF 509-E, Narrative Summary, WRAMC, CPT O_____, 6 Aug 99, Subject: [Applicant] ASCAD and Microperforation of Cecum; SF 502-E, Narrative Summary, WRAMC, CPT W_____, 13 Oct 99, Subject: [Applicant] Ileostomy Take-Down.) The staff ordered and obtained numerous laboratory and radiological reports.

35. On 26 July 1999, WRAMC physicians discovered that the applicant suffered a gangrenous cecum with microperforation. (SF 509-E, Narrative Summary, WRAMC, CPT O_____, 6 Aug 99, Subject: [Applicant] ASCAD and Microperforation of Cecum.) Gangrene is a rapidly-developing, life-threatening infection of dead body tissue. The cecum is the juncture of the large and small bowel. Gangrene emits gas as it progresses. Because some of that gas exited the bowel and entered the abdominal cavity, the applicant was determined to have a microperforation of the bowel, that is, a hole large enough to allow the gas to pass through, but too small to allow solid waste into the abdominal cavity.

36. The applicant underwent an emergency hemicolectomy and ileostomy that same day. (SF 509-E, Narrative Summary, WRAMC, CPT O_____, 6 Aug 99, Subject: [Applicant] ASCAD and Microperforation of Cecum.) A hemicolectomy is a removal of a portion of the patient’s bowel. An ileostomy is a hole made in the abdominal wall that allows a shortened bowel to expel waste through the hole. WRAMC discharged the applicant from the hospital on 6 August 1999, with an undetermined period of recuperation and extended home care anticipated.

37. On 3 September 1999, the applicant underwent a colonoscopy at WRAMC as an outpatient. (SF 502-E, Narrative Summary, WRAMC, CPT W_____,
13 Oct 99, Subject: [Applicant] Ileostomy Take-Down.) The colonoscopy, a procedure used to examine the interior of the patient’s bowel, was performed as a follow up to the 26 July 1999 hemicolectomy and ileostomy, to determine whether the applicant was prepared to have the ileostomy closed and the bowel rejoined.

38. On 6 October 1999, the applicant was readmitted to WRAMC. The ileostomy was closed and the bowel rejoined. The applicant was discharged from WRAMC on 13 October 1999, with an undetermined period of recuperation anticipated. (SF 502-E, Narrative Summary, WRAMC, CPT W_____, 13 Oct 99, Subject: [Applicant] Ileostomy Take-Down.)

39. During the applicant’s initial hospitalization in July 1999, his unit began a Line of Duty Investigation that would eventually encompass all of these medical conditions and procedures. The LD Investigating Officer determined that the conditions were incurred in the line of duty (LD YES). After numerous delays and changes by the reviewing and appointing authorities, however, the National Guard Bureau (NGB) ultimately determined that the applicant’s injuries and illnesses were NOT IN LINE OF DUTY – NOT DUE TO OWN MISCONDUCT – EXISTED PRIOR TO SERVICE – NO AGGRAVATION. The applicant appealed this finding to the PERSCOM. PERSCOM officials denied the applicant’s appeal, upholding the NGB Line of Duty (LD) determination.

                           Governing Authorities and Policies

40. There is no current Army regulation governing LD determinations. Part Five of the 18 September 1986 edition of AR 600-8-1, Army Casualty and Memorial Affairs and Line of Duty Investigations (Part Five), the most recent Army regulation that governed LD determinations, was superseded in 1994. When AR 600-8-1 was revised and reissued on 20 October 1994 as Army Casualty Operations/Assistance/Insurance, the PERSCOM omitted LD determinations. Although it appears that the PERSCOM temporarily resurrected Part Five by message in 1995, that second life has since lapsed. Part Five, superseded but not replaced, is no longer a regulation. Because the 1986 AR 600-8-1 has been superseded, Part Five is no longer available in the Army publications system.

41. Under Part Five, State Adjutants General functioned as the reviewing authority for ARNG LD determinations, and a delegation of this authority was permitted in writing.

42. Under Part Five, the fundamental ground-rule of LD determinations is that “[t]he …determination is presumed to be ‘LD YES.’” Paragraph 39-2a, Part Five. In other words, “[a] member of the Army is presumed to have been in sound physical and mental condition on entering active service or authorized training.”
(Paragraph 41-8f(1), Injury or disease while …in authorized training (…IDT for ARNG), Part Five.)

         “To overcome this” presumption under the policy set out in September 1986 in Part Five, the Army “must … show [ ] by substantial evidence that the injury or disease, or condition causing it, was sustained or contracted while neither on active duty nor in authorized training.” (Paragraph 41-8f(1), Part Five.)

43. Under Part Five, “sufficient evidence of inception before service” included “[l]esions or symptoms of chronic disease so near the date of entry on active duty or authorized training they could not have started after entry, or … disease within less than the minimum incubation period after entry on active duty or authorized training.” (Paragraph 41-8f(1)(a) and (b), Part Five.)

         “It is further presumed that, even if the provisions of (1) above [foregoing] are overcome by such evidence, any other condition, resulting from the pre-existing injury or disease, was caused by service aggravation. Specific findings of natural progress of the pre-existing injury or disease, based upon well-established medical principles, as distinguished from medical opinion alone, are [required] to overcome the presumption of service aggravation.” (Paragraph 41-8f(2), Part Five.)

44. Despite the fact that the 1986 LD regulation is no longer in effect, many sources still consider Part Five to be the Army’s official LD guidance. (See Reserve Component Note, New Rights for Reserve and National Guard Soldiers Suffering Heart Attack or Stroke, Army Lawyer, Feb 01, 28, note 65; Administrative Law Notes, Line of Duty – How Strong Is the Presumption of “In
Line of Duty?”, Army Lawyer, May 95, 65, at 68; A Guide for the Line of Duty Investigating Officer, Office of the Staff Judge Advocate, III Corps & Fort Hood (Jun 97), and How to Conduct a Line of Duty Investigation, Administrative and Civil Law Division, Vilseck Law Center, Office of the Staff Judge Advocate, 1st Infantry Division (Undated). The provisions of Part Five are the last Army guidance on the subject of LD determinations. To the extent that Part Five does not conflict with current statutes, directives, regulations and policies, the superseded regulation may be regarded as the Army’s policies and procedures for LD determinations.

45. Paragraph 37-3 of Part Five provides the reasons for conducting a LDI under the 1986 regulation included the determination of appropriate “[e]xtension[s] of enlistment … [l]ongevity and retirement multiplier[s], [and] … [f]orfeiture[s] of pay,” entitlements to “[d]isability retirement and severance pay, [and] … [c]ompensation for disablement during training,” which included both healthcare and subsistence and temporary incapacitation pay, and eligibility for “[b]enefits administered by the Veterans’ Administration,” now the DVA. While Part Five acknowledged the unique statutory provisions that underlay each of these six distinct determinations, Part Five also attempted to harmonize the implementation of these statutes by setting out a single regulatory scheme. Under that scheme, a single LD determination ensured consistent treatment of a soldier’s injury or illness for these six disparate purposes. The advantage of a single LD determination is obvious, particularly in the logically related but statutorily distinct entitlements to health care and subsistence, incapacitation pay, disability separation or retirement, and veterans’ benefits that are the subject of this application. Most soldiers and veterans regard these four entitlements as a single continuity of care. A system that granted some segments of this continuum but withheld others would appear inherently absurd and unfair, generating alienation and bitterness that the nation could ill afford in a volunteer force.

46. Since the initial promulgation of Part Five in September 1986, however, extensive changes to the statutes governing these entitlements have overridden many of Part Five’s key provisions. Many of these changes created new distinctions between the bases of the LD determinations relevant to each of the six disparate purposes described in Part Five. Because of these statutory changes, an LD determination made under the unaltered provisions of Part Five can no longer be used to determine a Reserve Component service member’s eligibility for entitlements to health care, compensation for temporary disablement during training, disability separation or retirement, and veterans’ benefits for an injury, illness, or disease incurred during IDT. The changes in the underlying statutes have rendered many of the substantive provisions of Part Five either void or irrelevant. The 1987 National Defense Authorization Act (NDAA) repealed section 318 of Title 32, U.S. Code and amended section 1074a of Title 10, U.S. Code, eliminating the 30-day rule as it applied to disablement caused by an illness or disease incurred during training or en route to or from training. (Pub. L. 99-661, Div. A, Title VI, Part A, § 604, 100 Stat. 3874 (14 November 1986).) It also provided that “[e]ach member of a uniformed service who incurs or aggravates an injury, illness or disease in the line of duty while traveling directly to or from … inactive duty training” is entitled to “the medical and dental care appropriate for the treatment of the injury, illness or disease of that person until the resulting disability cannot be materially improved by further hospitalization and treatment, and … subsistence during hospitalization” under subsection 1074a (b) of Title 10, U.S. Code. (Pub. L. 99-661, Div. A, Title VI, Part A, § 604, 100 Stat. 3874 (14 Nov 86) (emphasis added)). Effectively, the 1987 NDAA amendments to section 1074a created health care and subsistence entitlements for soldiers who incurred or aggravated an illness or disease en route directly to or from IDT, regardless of whether the illness or disease was causally related to the IDT. This statutory change to section 1074a (a)(2) of Title 10, U.S. Code, voided the Reserve Component provisions of paragraph 41-8d(2)(b) and the entirety of paragraphs 37-3e(1), 41-8(f) and 41-9 of Part Five, previously discussed, for purposes of health care and subsistence benefits.

47. Current Army regulations and policies implementing entitlements to health care, compensation for temporary disablement during training, and disability separation or retirement continue to require an LD determination. As a matter of general practice, the Army continues to follow the scheme set out in Part Five of conducting a single LD investigation, arriving at a single LD determination that is then applied to each of the distinct statutory entitlements requiring an LD determination. When a single LD determination involving a Reserve Component soldier is made on the basis of the policies and procedures embodied in Part Five, that determination is frequently inconsistent with current law. Existing Army regulations make no provision for the disparate bases of the LD determinations required for each of the distinct entitlements affected by the determination.

48. A Reserve Component soldier’s entitlements to health care, compensation for temporary incapacitation during training, disability separation or retirement, and veterans’ benefits for an illness or injury incurred during IDT are governed by the following statutes, regulations and related publications:

(1) A soldier’s entitlement to medical care and subsistence is generally established by sections 1074 and 1074a of Title 10, U.S. Code. Current Army regulations implementing 10 USC §§ 1074 and 1074a include AR 40-400, Patient Administration, 12 March 2001, and AR 135-381, Incapacitation of Reserve Component Soldiers, 1 June 1990. Army Regulation 135-381, like Part Five, contains provisions that have been voided by subsequent statutory enactments.

(2) A soldier’s entitlement to incapacitation pay is generally established by section 204 of Title 37 and section 1074a of Title 10, U.S. Code. The principal current Army regulation implementing 37 USC § 204 and 10 USC § 1074a is AR 135-381.

49. Army Regulation 135-381, Incapacitation of Reserve Component Soldiers, …1 June 1990, contains provisions that are consistent with the conclusion that the gangrenous cecum and resultant procedures are presumptively LD YES for all purposes. Under paragraph 2-6s (Treatment for soldiers in IDT status or ordered to AD for 30 days or less), “[t]reatment for a subsequent injury, illness or disease incurred or aggravated in the line of duty by a soldier undergoing authorized care in a hospital (patient status) is authorized at Government expense. This is regardless of duty status … at the time the injury, illness or disease was incurred or aggravated.” These provisions of AR 135-381 have not been altered by statute.

50. A soldier’s entitlement to disability separation or retirement is generally established by Chapter 61 of Title 10, U.S. Code. Current Army regulations implementing Chapter 61 of Title 10, U.S. Code include AR 635-40, Physical Evaluation for Retention, Retirement or Separation, 15 August 1990, AR 600-60, Physical Performance Evaluation System, 31 October 1985, and AR 40-501, Standards of Medical Fitness, 27 February 1998. Other important references in this area include Department of Defense Directive (DoD Dir) 1332.18, DoD Instruction (DoDI) 1332.38, DoDI 1332.39, and the Veterans’ Administration Schedule for Rating Disabilities (VASRD).

51. A former soldier’s entitlement to veterans’ benefits is generally established by Title 38, U.S. Code. The VASRD, mentioned above, is maintained by the DVA for the administration of veterans’ disability benefits. Although Army regulations do not directly govern veterans’ benefits, an Army LDI and LD determination do affect a former soldier’s veteran’s benefits administered by the DVA. Because veterans’ benefits form part of the continuity of care, and because much of the law related to LD determinations is drawn from the long history of administration of veterans’ benefits, certain of the veterans’ benefits statutes must be incorporated into an analysis of the current law.

52. Since 1958, Federal statutes have set out the prohibition that no “member of an armed force may … be required to sign a statement relating to the origin, incurrence, or aggravation of a disease or injury …. Any such statement against … interests, signed by a member, is invalid.” 10 USC § 1219. This prohibition was clearly reiterated in paragraph 40-3 of Part Five in 1986, which required that a soldier be provided a specific, written warning before any such statement was requested. No statement obtained in violation of these provisions may be used in any way to arrive at the LD determination.
53. Title 10, U.S. 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.

54. Title 10, U.S. 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.
 
55. AR 40-501, paragraph 3-3b(1), as amended, provides that an individual to be found unfit by reason of physical disability must be unable to perform the duties of his office, grade, rank or rating.
 
56. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 3-1, provides that the mere presence of 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 member reasonably may be expected to perform because of his or her office, rank, grade or rating.
 
57. AR 40-501, at paragraph 3-3a, provided, in pertinent part, that performance of duty despite impairment would be considered presumptive evidence of physical fitness.

58. Title 38, U.S. Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

59. AR 15-185 (Army Board for Correction of Military Records) indicates, in pertinent part, that, “applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires.”





CONCLUSIONS:

1. On 19 July 1999, the attending physician reflected his medical opinion that the applicant’s initial injury, the acute MI, was in the line of duty. His opinion regarding the LD determination for the MI and ASCAD is ultimately correct. The Board concludes that the undated NGB advisory opinion to the Board is both factually and legally flawed. Contrary to the NGB opinion, the colonoscopy performed on the applicant in September 1999 at WRAMC was not an elective procedure. The colonoscopy was a follow-up to the emergency hemicolectomy and ileostomy performed at WRAMC in July 1999, in preparation for the reduction of the ileostomy later that month. Further, the unconditional statement that “when a determination is made that an illness or injury is not in the line of duty, the soldier is financially liable for any costs incurred in the treatment of his … condition” is not true under all circumstances, as shown in the foregoing evidence.

2. The applicant is entitled to correction of his records to show he is entitled “to receive pay and allowances, health care and subsistence, and compensation for temporary disablement, for an illness or injury that he incurred during IDT. He is not entitled to disability separation or retirement.

3. Reviewed in light of the statutes, directives, regulations, and policies in effect at the time of the incidents, the overall LD determination is wrong as a matter of law. The Investigating Officer, the Appointing, Reviewing, Approving and Appellate Authorities, and various other reviewing officials appear to have conducted the investigation and made their determinations based solely upon provisions of the outdated and superseded 1986 Part Five. Their failure to take into account changes in the enabling statutes resulted in determinations that are clearly contrary to the requirements of the law. As a matter of law, the correct LD determination for the gangrenous cecum and all related medical procedures is LD YES for all purposes. The substituted finding that the gangrenous cecum is NLD – NDOM – EPTS – NO AGGRAVATION is unsupported by the evidence, inconsistent with the law, and was arrived at in a manner that violated both the law and the policies and procedures embodied in the superseded regulation.

4. As for the substance of the application, the LD determination that the applicant’s acute MI, the treatment of his acute and impending MIs, and the gangrenous cecum with microperforation and all related medical procedures are NLD – NDOM – EPTS – NO AGGRAVATION is legally and factually wrong. The applicant’s request should be granted. Both the LDI conducted by the NGB and the action on appeal by the NGB and the PERSCOM misapplied the surviving policies and procedures of Part Five, failed to apply the correct law, repeatedly violated many of the applicable laws and policies, and incorporated gross factual errors.

5. The appropriate LD determination for the acute and impending MIs and all related medical procedures is LD YES for all purposes. As a matter of law and regulation, the correct LD determination for the acute and impending MIs and all related medical procedures is LD YES for purposes of health care and subsistence, temporary incapacitation, and disability separation or retirement. As a matter of equity, because statutory changes made since the incident would result in an LD YES determination for veterans’ benefits as a matter of law as well, the LD YES determination should be extended to all purposes. Also pertinent, because no valid LD determination has been made, as a matter of law and regulation, all treatment the applicant has received for the acute and impending MIs and related medical procedures has been and continues to be at Government expense.

6. Reviewed solely in the light of the surviving policies and procedures of the outdated and superseded Part Five, the LDI is so deeply flawed that the investigation is void. The LDI contains a substantive defect so grave that it alone renders the entire investigation void. Both of the NGB legal reviews not only failed to recognize the statutory requirement that the unwarned statement not be considered, but explicitly approved of the use of the statement as a basis of the LDI findings, contrary to both the statute and paragraph 40-3 of Part Five. It contains a statement obtained from the applicant on 24 July 1999 without the required warning. No unwarned statement may be used in any way to arrive at the LD determination. Just as clearly, the unwarned statement made by the applicant formed a key factual basis of the LD determination. Likewise, the factual basis of the PERSCOM decision on the applicant’s appeal of the LD determination is also drawn largely from the applicant’s unwarned statement.

7. After the initial call of LD YES, the LDI Appointing Authority, LTC J_____, entered a substituted finding of NLD – NDOM that was apparently based on the applicant’s unwarned statement. LTC J_____ annotated his substituted finding with the conclusion that the “soldier was walking his dog, not en route to drill. Soldier was not performing military duty.” (Department of Defense (DD) Form 261, RE: [Applicant], 28 Jul 99, Block 19.)

8. Because the LD determination in the applicant’s case was based largely upon the applicant’s unwarned 24 July 1999 statement obtained in violation of 10 U.S. Code § 1029, the LD determination itself is invalid. Although this gross error will not ultimately be determinative of the appropriate LD finding, it is indicative of the handling of the applicant’s affairs by the responsible officials at the NGB and PERSCOM.




9. It is noted that apart from the fact that the analysis of the unwarned statement is barred by 10 U.S. Code § 1029 and Part Five, the purported inconsistencies between the two statements by the applicant, discussed at great length by the NGB and PERSCOM, are not supported by the record. The emergency room treatment record, made by Northwest Hospital personnel shortly after the time of the applicant’s presentation to their facility, is entirely consistent with the applicant’s later, warned statement. (Northwest Hospital Center Emergency Record (17 July 1999)).

10. The Reviewing, Approving, and Appellate Authorities and various other officials repeatedly and consistently reversed and misapplied the fundamental presumptions and burdens of proof appropriate to LD determinations involving injuries, illnesses or diseases incurred by a soldier on IDT as they are set out in Part Five. The purported LDI Reviewing Authority made a substituted finding on 10 September 1999 that “based upon the event occurring on the first day of drill with no aggravation due to any activities ordered by the military,” the “heart attack” was found NLD – NDOM – EPTS – NO AGGRAVATION. (DD Form 261, RE: [Applicant], 28 Jul 99, Block 20.) The Reviewing Authority did not support her conclusion with the required evidentiary findings demonstrating that the underlying condition of ASCAD existed prior to service and that based upon well-established medical principles, the MI resulted from the natural progression of the pre-existing ASCAD. Because no such findings exist in the record, it appears that the Reviewing Authority simply ignored these requirements. A later and similar opinion (18 May 2000) not only fell short of the evidentiary requirements of Part Five, but also confused the pre-existing condition of ASCAD with the condition that was the subject of the LDI, the acute MI. Although the ARNG Chief Surgeon recognized that the gangrenous cecum likely resulted from the cardiac catheterization and CABG in his 13 December 1999 opinion, he failed to apply the presumption that the injury was incurred in the line of duty. (Memorandum, COL W_____, Chief Surgeon, ARNG, 13 December 1999, Subject: Request for Medical Opinion on [Applicant].) Also, in the action on appeal, the Appellate Authority determined that because “[i]t is stated as competent medical opinion that the … ASCAD was not caused or aggravated by military service,” the “competent medical opinion … rebut[s] the presumption of service aggravation of the prior condition.” (Memorandum, Mr. S_____, Chief, Personal Affairs Branch, PERSCOM, 21 Jun 00, subject: Line of Duty Determination on [Applicant].) The decision of the Appellate Authority failed to recognize that specific evidentiary findings based upon well-established medical principles, as opposed to medical opinion, are required to overcome the presumption of service aggravation. “It is further presumed that, even if the provisions of (1) above [the foregoing] are overcome by such evidence, any other condition, resulting from the pre-existing injury or disease, was caused by service aggravation. Specific findings of natural progress of the pre-existing injury or disease, based upon well-established medical principles, as distinguished from medical opinion alone, are [required] to overcome the presumption of service aggravation.” (Paragraph 41-8f(2), Part Five.) Various key officials failed to appropriately apply these standards.

11. All legal and medical reviews for the LD determination erroneously ignored the applicant’s gangrenous cecum with microperforation, which rendered the action on appeal questionable.

12. It is noted that State Adjutants General will function as the reviewing authority for ARNG LD determinations, and that while delegation of authority was permitted, none was executed in this case.

13. Since the evidence does not show the applicant had any medically unfitting disability which required physical disability processing, and the medical condition was not shown to be medically unfitting for retention at the time in accordance with Army Regulation 40-501, and since he has continued to perform his duties in the MD ARNG, he is not entitled to retirement or separation based on physical disability with pay and allowances. Also, there is no evidence of record to show promises or entitlement of physical disability retirement made to the applicant.
 
14. The Board concludes that a formal hearing in this case is not required.

15. In view of the foregoing, and insofar and the Department of the Army is concerned, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

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

         a. by expunging the existing void LDI containing the substituted finding of NLD –NDOM – EPTS – NO AGGRAVATION from the records of the individual concerned, and from all Army records;

         b. by executing a corrected LDI by the PERSCOM for the acute and impending myocardial infarctions suffered on 17 and 19 July 1999, the coronary artery bypass graft performed on 21 July 1999, and all related procedures, containing a finding of LD YES;

c. by executing a second corrected LDI for the gangrenous cecum with microperforation suffered on 22 July 1999, the hemicolectomy and ileostomy performed on 26 July 1999, and all related procedures, containing a finding of LD YES; and

d. by providing the applicant all pay and allowances due based on these corrections, including payment of unpaid incapacitation pay and repayment of paid medical costs by the applicant, as appropriate.

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

3. Upon completion of the foregoing, by notifying the applicant that he may be entitled to apply for DVA care and benefits based upon service connected disabilities, and that he may contact his local DVA office for that purpose.

BOARD VOTE:

_teo____ __hof___ _aao_____ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION



                           Arthur A. Omartian
                  ______________________
                  CHAIRPERSON

---

INDEX

CASE ID	AR2001054368
SUFFIX
RECON
DATE BOARDED	20020430
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	208.00
2.
3.
4.
5.
6.