MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 30 APRIL 2002
         DOCKET NUMBER: AR2001064831

         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. Arthur A. Omartian		Chairperson
Mr. Hubert O. Fry, Jr.		Member
Mr. Thomas E. O’Shaughnessy, Jr.		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)

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APPLICANT REQUESTS: Physical disability retirement with a 60 percent disability rating.

APPLICANT STATES: The applicant made no statement, but deferred to counsel.

COUNSEL CONTENDS: That the applicant is a physician; consequently, the provisions contained in DOD instructions concerning standard of fitness for physicians pertain. He states that the applicant was diagnosed with systemic lupus erythematosus (SLE), suffered from extreme fatigue, joint pain, arthritis, and arthralgias. She also suffered from interstital cystitis secondary to the lupus, with attendant incontinence and excruciating pain. She was found fit for duty by an informal Physical Evaluation Board (PEB), her rebuttal was denied, and the Physical Disability Agency (USAPDA) confirmed the denial.

Counsel states that physicians can be so impaired that practicing medicine is impossible, and that a credentialing action is not required to prove unfitness. He states that neither the PEB nor the USAPDA were presented with anecdotal evidence of the applicant’s inability to practice in a military environment, but they (applicant and counsel) now do so. He states that the applicant was not informed that she was operating under a special standard as a physician, that her duty performance and ability to perform her duty were more important than her physical condition, and that neither the narrative summary nor her rebuttal focused on those issues. He states that a physician’s OERs do not fully disclose the physician’s impairments.

He states that her supervisor from May 1999 to January 2000 had direct knowledge of her duty limitations as her colleague and primary care physician from May 1997 to May 1999. That person listed her various duty limitations. He states that although her supervisor referred to symptoms associated with the applicant’s lupus, the applicant also suffered from interstitial cystitis, but her medical record was devoid of clinical information regarding that disorder. The PEB never saw any information concerning that disorder other than that contained in the narrative summary.

Counsel provides information indicating that the applicant’s condition, in accordance with applicable provisions of the VASRD, required a disability rating under VASRD code 6350 (lupus erythematosus, systemic (disseminated) or 7512 (cystitis, chronic, including interstitial and all etiologies, infectious and non-infectious). The applicant should have been medically retired. He states that it was difficult to understand under what circumstances the applicant was fit for duty when she was only working 3 hours a day. He states that the USAPDA routinely fails to actually examine physician cases, and is a rubber stamp agency for “fit for duty.” The USAPDA has created a criterion for fitness that is not the law – the criterion being whether the physician’s credentials have been restricted. He states that credentials deal with competency, not physical ability. The applicant was unfit for duty.

EVIDENCE OF RECORD: The applicant's complete military records are not available. The available records are those submitted by the applicant.

A 19 October 1998 physical profile (DA Form 3349) shows the applicant’s condition as SLE with a physical profile serial of 3 3 1 1 1 1. Her assignment limitations included limiting her work week to less than 50 hours, with less than 12 hours on-duty with at least an 8 hour break.

A 29 March 1999 narrative summary shows that the applicant’s condition was diagnosed as SLE, history of interstitial cystitis, and history of iron deficiency anemia. The summary indicated approximately 3½ years ago she noted the onset of arthralgias and fatigue and was noted to have laboratory abnormalities during her pregnancy. She stated that her arthralgias and fatigue continued but were self limited, but since that time she had multiple episodes of arthritis and fatigue which lasted anywhere from 3 to 7 weeks, but over the last approximate 6 to 12 months she noticed nearly continuous symptomatology. She noted several hours of morning stiffness, and has taken a variety of medications. In October 1998 she complained of a memory deficit. Tests revealed that she might not be performing as efficiently as in the past, and that a probable decline from higher level performance would be evident in her day-to-day functioning. It was felt that her SLE might have been contributing and that the secondary contributor was most likely her use of steroid therapy. The summary indicated that the applicant was also diagnosed with interstitial cystitis, and also evaluated for occurrence of hip pain.

The summary indicated the medications that she was and had been taking, and stated that her SLE has affected her ability to do her job because of the extreme fatigue and arthritis and arthralgias that she experienced after working a long day. Consequently, her given profile limited her work week to less than 50 hours, with less than 12 hours on duty with at least an 8 hour break. The applicant has had several exacerbations in the past 6 months with at least 3 or more per year with symptomatology which was productive of moderate impairment of health. The summary indicated that the applicant did have frequent exacerbations of the small joints of her hands, wrists, and feet, but had no significant organ manifestation other than the fact that interstitial cystitis was associated with SLE.

On 31 March 1999 a Medical Evaluation Board (MEB) recommended that the applicant be referred to a PEB. The applicant agreed with the board’s findings and recommendation, but stated that she wanted to continue on active duty but only if she was able to remain in clinical medicine or a teaching program. The findings and recommendation of the board were approved on 1 April 1999.

On 27 April 1999 a PEB found the applicant fit for duty within the limitations of her profile.

In a 10 May 1999 statement the applicant requested that the board reconsider her case, stating that she had constant hip pain due to lupus arthritis, that her pain was exacerbated by minimal amounts of walking or standing, and that the pain interfered with her sleep. She stated that she was unable to use steroids or narcotics for pain control. She has not returned to normal energy levels, and has had to schedule leave in order to recuperate from duty. She stated that her cystitis from her lupus has not resolved, continuing to cause her chronic discomfort and loss of sleep.

In a 12 May 1999 memorandum to the PEB, the applicant reiterated her physical problems – arthralgias, fatigue, joint swelling, and a malar rash. She stated that she experienced the onset of loss of memory and concentration in August 1998, affecting her work, and she was taken off prednisone. Her cognitive deficits improved significantly, but she was no longer able to take steroids that allowed her to perform at a higher functional level. She had less stamina and even moderate levels of physical activity required several days in order to recuperate. She stated that she had the initial onset of hip pain in January 1998, which has never resolved. She stated that she began to have frequent episodes of dysuria and urgency. This became daily frequency, urgency, bladder spasms, and nocturia. She has been treated but the symptoms have not cleared. She still had symptoms 1-2 days a week that were severe enough to interfere with work. She stated that she had chronic fatigue and pain for the past 18 months which is worsened by her daily activity at work. Reducing her duty hours and restricting her call has improved her ability to perform but she was still unable to keep up with the demands of an Army physician’s job.

On 12 May 1999 the PEB reviewed her rebuttals, and stated that no change to the original findings was warranted. It stated that DOD instructions stipulated that a medical officer in any grade shall not be found unfit because of physical disability if the officer could be expected to reasonably perform assigned duties; and that her medical board narrative summary, outpatient records, and physical profile, indicated that she was capable of satisfactory performance of her duties as a family physician.

On 19 April 1999 the USAPDA notified the applicant that her case was properly adjudicated by the PEB, and the findings and recommendations were supported by substantial evidence, and were therefore affirmed. On 24 May 1999 the Total Army Personnel Command directed that the applicant’s profile be modified, and that her records be adjusted.

On 24 January 2000 the applicant was released from active duty under the provisions of Army Regulation 600-8-24, paragraph 2-7 (voluntary release from active duty due to expiration of active duty commitment) as a result of her completion of required active service, and transferred to the 7233d Medical Support Unit, a Reserve unit in Tuskeegee, Alabama. She had over 11 years of active service, and over 3 years of inactive service.

In an 8 February 2001 memorandum to the VA in support of the applicant’s medical compensation claim, the applicant’s former supervisor stated that the applicant’s duty hours and ability to function as a physician were significantly more limited [than 50 hours a week] during her tour of duty. Her OERs reflected her efforts rather than her limitations in function. She stated that the applicant had physical, duty, and clinical limitations imposed by her chronically active SLE. She stated that the applicant was removed from the obstetrical call rotation because of her arthritis, that she did not participate in delivering her pregnant patients, and that she was removed from all calls requiring overnight in-house duty. She went on to describe the applicant’s other limitations, stating that the applicant was limited to three hours of direct patient care per day, and that the curtailment of her direct patient care hours was progressive from late 1997 and during the time she had direct knowledge of her work schedule. She stated that the applicant stopped performing many of the usual office procedures, and that her chronic, daily morning stiffness limited her hand flexibility and strength. Time spent standing exacerbated her arthritis, requiring extended recuperative time. She did not routinely attend daily morning and afternoon medical conferences, and was excused from many of the evening and weekend duty-related events. There were many days in which she was allowed to leave her duty post early, as the requirement of physically being present caused exacerbations of her SLE. She stated that the applicant’s ability to function as a family practice physician was significantly limited by her chronic and persistent medical problems, impacting on her overall health and well being. She was not gainfully functioning as a family practice physician.

In a 28 February 2001 memorandum to the VA, the chief of Urology Service at the Martin Army Community Hospital at Fort Benning, Georgia, stated that he had evaluated and treated the applicant from October 1998 through January 2000 for symptoms of urinary frequency and urgency. He stated that the applicant indicated that she experienced urinary frequency requiring her to void every two hours and that she would awake three to five times a night to void. The frequency was accompanied by urgency that caused occasional incontinence. She received treatment, but continued to experience exacerbations necessitating adjustments in her medications. Her symptoms were continuous and recurrent over this period of time. He stated that her urinary urgency was ameliorated, but frequency and nocturia continued. He stated that her symptoms might have been related to her SLE.

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of her office, rank, grade or rating because of disability incurred while entitled to basic pay.

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 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 also provides in pertinent part that a soldier may provide additional information to the medical treatment facility commander to forward to the PEB. The information may be from the unit commander, supervisor, or other persons who have knowledge regarding the effect the condition has on the soldier’s ability to perform the duties of the office, grade, rank, or rating.

Department of Defense Instruction Number 1332.38 states in pertinent part, that a medical officer shall not be determined unfit because of physical disability if the member can be expected to perform satisfactorily in an assignment appropriate to his or her grade, qualifications, and experience. Thus, the inability to perform specialized duties or the fact that the member has a condition which is cause for referral to a PEB is not justification for a finding of unfitness.

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 29 March 1999 MEB narrative summary indicated that the applicant’s SLE had affected her ability to do her job because of the extreme fatigue and arthritis and arthralgias she experienced after working a long day. That summary also indicated that her profile limited her work week to less than 50 hours, with less than 12 hours on duty with at least an 8 hour break. The MEB recommended referral to a PEB. The applicant concurred and stated that she wanted to remain on active duty. Consequently, and in spite of her SLE condition, interstitial cystitis, and other medical problems, the applicant felt that she was physically fit to perform duties as a physician, albeit in clinical medicine or a teaching program. The PEB felt that she could perform her duties as a physician and determined that she was fit for duty within the limitations of her profile. The USAPDA affirmed the decision of the PEB.

2. The applicant continued on active duty some 8 months after the USAPDA determination, then elected to transfer to a Reserve unit in order to continue her military career. Again, it is apparent that the applicant felt that she could perform duties as a physician.

3. The Board notes the information contained in the memorandum from the applicant’s former supervisor to the VA in support of the applicant’s medical compensation claim.

4. The applicant did not have any medically unfitting disability which prevented her from performing her duties as a physician. Therefore, there is no basis for physical disability retirement or separation. Neither the applicant nor counsel has submitted probative evidence or a convincing argument in support of her request.
5. 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.

6. 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

__AAO__ __HOF __ __TEO _ DENY APPLICATION

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

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INDEX

CASE ID	AR2001064831
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020430
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.	108.00
2.	177
3.
4.
5.
6.