MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 1 August 2002
         DOCKET NUMBER: AR2001065401

         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. Edmund P. Mercanti		Analyst

The following members, a quorum, were present:

Mr. Samuel A. Crumper		Chairperson
Mr. Melvin H. Meyer		Member
Ms. Regan K. Smith		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: That her husband’s records be corrected to show that he was placed on the retired list, rated 100 percent disabled, prior to his death on active duty.

APPLICANT STATES: That her husband, the former service member (FSM), was undergoing a medical evaluation board (MEB) at the time of his death on 13 May 2000. She contends that the MEB was delayed because additional tests were ordered, a situation that was beyond the FSM’s control. Also delaying the MEB was an investigation into how the Army lost accountability for her husband while he was a lieutenant colonel. She adds that the stress of that investigation hastened her husband’s death.

In support of her request the applicant submits a host of documents which include medical treatment records, portions of the investigation conducted on the loss of accountability for her husband, and statements from various officers and physicians concerning her husband’s military and medical status prior to his death.

EVIDENCE OF RECORD: The FSM's military records show:

He enlisted in the Regular Army on 1 March 1979, was awarded the military occupational specialty of telecommunication operator, and was promoted to pay grade E-5. On 9 April 1981, the FSM was honorably discharged to accept a commission as a second lieutenant.

The FSM was awarded the area of concentration of ordnance, remained on active duty in his commissioned status, and was promoted to lieutenant colonel.

On 6 June 1998, the FSM assumed command of a support battalion.

On 12 January 1999, the FSM submitted a request to be relieved from command due to health problems.

On 13 January 1999, Winn Army Community Hospital (WACH), Fort Stewart, Georgia, issued a fitness for duty assessment of the FSM, which recommended that he be placed on convalescent leave for 30 days.

On 9 February 1999, WACH issued another fitness for duty assessment on the FSM, stating that he had responded well to treatment during his convalescent leave period, and most of his symptoms had resolved. His diagnosis at that time was atypical chest pain (resolved), medication dependence and withdrawal syndrome (resolving), hypertension (stable), and hyperlipidemia (stable). It was recommended that the FSM be given a two-month trial of duty.

On 13 May 1999, the FSM’s request for relief from command was approved.
On 12 April 2000, an officer conducting an investigation into how the Army lost accountability for the FSM questioned the physician with overall responsibility for the FSM’s treatment. In that interview, the physician explained the FSM’s symptoms, diagnoses and treatments. He said, in part, that the FSM was diagnosed with chronic pain syndrome. This diagnosis is given to people who have pain for which they cannot find a cause. He continued that when the FSM began complaining of chest pain, he was sent to Walter Reed Army Medical Center (WRAMC) to rule out heart problems. Once that was accomplished, he was given a diagnosis of mononeuropathy multiplex a form of peripheral neuropathy (damage to nerves other than the nerves of the brain and spinal cord), a condition which cannot be definitively identified with a slide or lab test, but was consistent with the FSM’s symptoms and would explain some of his pain. (Explanation of this condition as well as the others noted in this Memorandum of Consideration was derived from MedLine Plus Medical Encyclopedia). The FSM had pain and was treated with a variety of medications; however, he continued to experience pain and the physicians were unable to explain its cause. The FSM also suffered from fatigue syndrome, which he did not mention until later in his treatment. When he did mention it, all of the organic reasons for fatigue were systematically examined and ruled out. The finding was that although he had subjective symptoms of fatigue, he did not have a clearly identifiable organic reason for the condition. The FSM was diagnosed by psychiatry as having depression not otherwise specified, meaning it could be situational. While he was treated with anti-depressants, it was never ascertained whether he actually had an anxiety disorder. His other physical defects were either treated and resolved or remedial. The physician stated, “the chronic fatigue for him would, in my opinion, limit his ability to effectively be a leader and a commander. If he truly cannot stay focused and concentrated for more than 45 minutes to an hour at a time, then I don’t think he can appropriately execute the functions of a commander.”

On 13 May 2000, the applicant called the hotel where the FSM was staying while undergoing testing at WRAMC and asked them to check on him since she hadn’t heard from him in several days. When the hotel staff complied with her request, they found him unconscious (later to be determined dead). Emergency medical personnel were called and the FSM was transported to Washington, DC General Hospital, where he was officially declared dead.

The autopsy report listed the FSM’s cause of death as arteriosclerotic heart disease (a narrowing of the small blood vessels that supply blood and oxygen to the heart - coronary arteries). However, the pathologist performing the autopsy noted that the FSM had a liver methadone level within the reported range for fatal intoxication. He noted that “the span of blood concentrations of victims of methadone over dosage is said to overlap that of maintenance subjects.” Based on the fact the FSM was a maintenance user of methadone, the pathologist opined that the FSM’s death was not due to methadone toxicity. The pathologist also noted that the FSM had a liver ethanol level of 31 mg/dL, and a kidney ethanol level of 62 mg/dL, but commented that “The ethanol detected in the liver and kidney is consistent with decomposition, and should not necessarily be interpreted as evidence of ethanol ingestion.”

In a letter from the applicant to the commander of WACH on 16 November 2000, the applicant stated that she was putting together a petition to this Board to have her husband medically retired with 100 percent disabled prior to his death. She explained that correction of her husband’s records would result in her receiving an additional $600.00 a month (in Survivor Benefit Plan, or SBP annuities).

In a clinical summary prepared by WACH, dated 18 January 2001, it was stated that the FSM first complained of chest pain in November 1998. At that time, he was taking maintenance pain medication for chronic headaches. He was given a treadmill stress test in which he showed good exercise tolerance, but also experienced chest pain at peak exercise. As a result, he was referred for a Cardiolite perfusion study (during a stress test, either thallium or Cardiolite is injected into the patient's vein). Pictures resulting from this study were normal. However, it was noted that he had elevated CPK levels (when a muscle is damaged, CPK leaks into the bloodstream). Determining which isoenzyme [specific form of CPK] is elevated helps determine which tissue has been damaged. Meanwhile, he continued to have intermittent severe headaches, chest pain, abdominal pain, uncontrollable hypertension, and insomnia. To treat these disorders, he was admitted to WACH where he was weaned off his pain medications, which resulted in physical withdrawal symptoms. He was also given an echocardiogram of the heart that was determined to be normal. His blood pressure was brought under control with his normal outpatient medications. Following hospitalization, the FSM continued to experience left side chest pain and burning, some atrophy of his right leg and left arm as well as weakness in those areas. In April 1999, he was sent to WRAMC where he underwent a PM&R (EMG) (electromyography, which is a test that measures muscle response to nervous stimulation). The EMG was noted to be abnormal, which led to a muscle biopsy. This resulted in a diagnosis of mononeuritis multiplex by neurology. Rheumatology diagnosed the FSM with axonal neuropathy and prescribed a trial of steroids. The pain clinic gave a diagnosis of neuropathic pain and recommended TCA (tricyclic antidepressant), neurontin (used to help control some types of seizures in the treatment of epilepsy), and a possible trial of oxycontin/duragesic (narcotic analgesics that acts in the central nervous system to relieve pain). Psychiatry instructed the FSM in self-relaxation techniques to augment pain control. Pulmonary did not find any evidence of chest wall/pulmonary pathology contributing to the FSM’s symptoms. Endocrinology noted that his thyroid function was normal and did not render a diagnosis. He was then followed at WACH from August 1999 to April 2000, when he returned to WRAMC, where he reported having severe chest pain and fatigue. He was given a quick acting pain medication and transferred to a long-term pain medication regimen. Rheumatological tests were repeated for fatigue, but again yielded normal results. The plan was to convene a MEB, with a diagnosis of chronic fatigue syndrome (primary dx), chronic non-cardiac chest pain, chronic pain syndrome, mononeuritis multiplex, bilateral hearing loss, degenerative joint disease, and allergic rhinitis. He was also treated for hypothyroidism and hypertension.

Army Regulation 635-40, Physical Evaluation for Retention, Retirement or Separation, Appendix B, Army Application of the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD), paragraph B-24, VASRD Code 5003, Arthritis, degenerative, hypertrophic and pain conditions rated by analogy to degenerative arthritis, provides that inasmuch as there are no objective medical laboratory testing procedures used to detect the existence of or measure the intensity of subjective complaints of pain, a disability retirement cannot be awarded solely on the basis of pain. A maximum 20 percent rating by analogy to degenerative arthritis may be awarded as an exception in unusual cases, either for a single diagnosed condition or for a combination of diagnosed conditions each rated essentially for a pain value. To do otherwise would be to combine pain ratings so as to achieve a percentage of disability that would result in erroneous disability retirement. (Severe eye pain is an exception).

The VASRD, code 6354, Chronic Fatigue Syndrome (CFS), states that for the purpose of evaluating this disability, the condition will be considered incapacitating only while it requires bed rest and treatment by a physician.
Army Regulation 635-40 provides that those members who do not meet medical retention standards will be referred to a physical evaluation board to determine whether they are unfit to be retained in the Army and, if so, to determine the percentage of disability to be awarded. This regulation also provides that only unfitting conditions or defects and those that contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.

Army Regulation 635-40 provides also that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board. Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.   The fact that the individual has a medically disqualifying condition does not mandate the person’s separation from the service. Fitness for duty, within the parameters of the individual’s grade and military specialty, is the determining factor in regards to separation. If the PEB determines that an individual is physically unfit, it recommends the percentage of disability to be awarded which, in turn, determines whether an individual will be discharged with severance pay or retired. 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.   In this regard, the Army rates only conditions determined to be physically unfitting, thus compensating the individual for loss of a career.

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.

In the processing of this case an advisory opinion was obtained from the Army Review Boards Agency (ARBA) Medical Advisor who stated that while the FSM’s medical diagnoses probably would have resulted in his being referred to a PEB, it would be futile to speculate on whether the PEB would have found the FSM physically unfit or, if unfit, what percentage of disability he would have been assigned. The ARBA Medical Advisor added that none of the FSM’s medical diagnoses could reasonably have been expected to result in his death within seventy-two hours. This advisory opinion was forwarded to the applicant for comment. She responded on 26 June 2002, stating that fourteen documented illnesses and a documented history of inability to work (resignation of battalion command) cannot be considered speculation. She continued that the Army Disability Evaluation System (DES) continually delayed her husband’s MEB, and she should not be punished for that delay. She asks for an exception to the law and medical retirement for her husband after the fact of his death.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion, it is concluded:

1. While the FSM was being examined and treated for many complaints, there is no evidence that there was anything identifiably wrong with him that wasn’t resolved or, at the least, controlled to an acceptable level for retention in the Army.

2. The FSM’s two unresolved issues were pain and fatigue, neither of which could be specifically explained (the physicians could not identify the cause of the symptoms). Without a definitive diagnosis (VASRD code) to attach to the pain diagnosis, it is not ratable. As for fatigue, that condition is only ratable if it requires bed rest and treatment by a physician. The FSM was never prescribed bed rest for his fatigue and, while he was extensively examined for a cause for his fatigue, he was never treated for that condition since no underlying cause for it could be found.

3. Since the FSM did not have any physically unfitting conditions that were ratable under the VASRD, there was no basis to medically retire him under the DES.

4. While it is understandable that the applicant would view the lengthy testing procedures as delays in the FSM’s MEB, they were not. The physicians were attempting to determine the cause of the FSM’s pain and fatigue. Once a cause for these disabilities could be determined, they could be treated and properly rated under the DES. Without a determination of the underlying causes, if the FSM were to have been determined physically unfit, it would more likely than not have been with a minimal percentage of disability. As such, the applicant’s contention that her husband would have been medically retired, rated 100 percent disabled, if it had not been for the delays in his MEB, is not supported by the available evidence.

5. 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

___sac __ ___mhm_ ____rks__ DENY APPLICATION

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

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INDEX

CASE ID	AR2001065401
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020801
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.	108.04
2.
3.
4.
5.
6.