| Mr. Carl W. S. Chun | Director | |
| Mr. Kenneth H. Aucock | Analyst |
| Ms. Margaret K. Patterson | Chairperson | |
| Mr. Walter T. Morrison | Member | |
| Mr. Thomas E. O'Shaughnessy, Jr. | Member |
2. The applicant requests reconsideration of his earlier appeal to correct his military records by showing that he was retired because of physical disability, or that he be allowed to retain his longevity retirement, after appropriate counseling on the benefits of each type of retirement.
3. In effect, the applicant states that his packet deals with three distinct issues, a Privacy Act Amendment Request (PAAR), a reconsideration request of his original appeal, and an amended request of his original appeal. He states that he submitted a PAAR for correction of the factual record, only to have his request turned down, directing him to send his appeal to this Board. Consequently, he states that his PAAR should be processed before the Board undertakes any reconsideration of his original appeal since a complete, accurate, timely, and relevant record is essential to a fair decision of his reconsideration request.
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Regardless of the disposition of the PAAR, he states that all the information contained in reference f [noted on page 1 of his request] is relevant to any reconsideration of his original appeal to the Board. He states that the reconsideration request is based on additional new facts and arguments that were not in the record at the time of the Board's prior consideration. He makes reference to all the documents in paragraph 1, References, on page 1 and 2 of his request, that were not available to the original Board, and states that the information represents well-founded, uncontested, expert medical opinions, supporting his contention that he was unfit for duty both at the time of this Physical Evaluation Board (PEB) and his retirement.
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He states in his amended request, that the Board should offer him the opportunity he should have been afforded prior to his retirement for longevity in 1999 – that is, the option to have his retirement status changed to military disability retirement with the appropriate disability rating, or to retain his longevity retirement, after appropriate counseling on the benefits of each type of retirement.
4. Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's previous consideration of the case (AR2000049499) on 20 September 2001. This case, however, contained several errors, noted by the applicant in his 1 April 2002 request for amendment of the record (PAAR). In paragraph 3 of his PAAR the applicant listed and described what he believes to be 21 substantial Army Board for Correction of Military Records (ABCMR) Memorandum of Consideration (MOC) factual errors. Those are listed as indicated beginning on page 14 of this case. This Board accepts that errors were made in the original MOC, although not all the 21 cited by the applicant. The proceedings constitute an amendment to the 20 September 2001 MOC as indicated in the conclusions portion of this case.
5. Some of the applicant’s submissions, as referred to in paragraphs 1f through 1q on page 1 and 2 of his request are new; and, some of his contentions are new arguments not previously considered by the Board. Consequently, his application requires Board consideration.
6. The applicant's request consists of his 48 page narrative, and –
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a 1 April 2002 PAAR with one attachment, an 8 December 2001 report by a Doctor Oxman ("Oxman report") based on exhibits 1A through 1Z with 49 enclosures, identified as reference 1f in his submission;
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correspondence concerning his PAAR, identified as references 1g through 1k in his submission;
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a 22 April 2002 letter with 19 enclosures to a Doctor Frame ("Frame"), a VA cardiologist, and his undated response, identified as reference 1l;
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assessments used to document the Social Security Administration's (SSA's) disability determination, identified as reference 1m;
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a 12 July 2002 report of a compensation and pension (C&P) psychiatric examination and a 23 July 2002 handwritten addendum by a Doctor Viola ("Viola"), a Veterans Affairs (VA) psychiatrist, identified as reference 1n;
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a 12 September 2002 VA letter and a 21 August 2002 rating decision awarding a 70 percent disability rating for a nervous condition; a 25 September 2002 letter, together with a corrected rating decision awarding a combined disability rating of 100 percent; and his 26 September 2002 notice of disagreement with two enclosures, identified as reference 1o;
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a 28 May 2002 submission with 20 enclosures to the VA, documenting service connection for nervous conditions and problems with his chain of command, identified as reference 1p; and
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copies of various social security rulings (SSRs), identified as reference 1q.
7. Beginning on page 3 of his 48 page narrative is an analysis of his PAAR.
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The PAAR had 41 specific factual errors that he submitted for amendment. Those errors dealt with the records of the ABCMR, the PEB, the MEB (Medical Evaluation Board), the USAPDA (Army Physical Disability Agency), an OER (Officer Evaluation Report), and his medical records.
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He makes reference to court decisions, states that both the PEB and ABCMR made a decision adverse to him, based primarily on an incomplete, inaccurate medical disability evaluation record with unsupported diagnostic conclusions, and on an OER in his Official Military Personnel File (OMPF) that had no probative value in a disability determination. The PEB denied disability retirement without procedural due process, and subsequently, the ABCMR denied his appeal by relying on the same factually incorrect, inaccurate, and in places irrelevant, medical record and OER, without reviewing his entire Army and post-retirement medical records or providing him a fair evidentiary hearing.
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The ABCMR misquoted and distorted the MEB medical record, Inspector General (IG) memorandum, and profile. The Army's diagnostic conclusions concerning his hypertension, pre-syncope/syncope, and back ailment, are based on facts resulting from incomplete, inaccurate examinations, and reports of examinations that violated Army regulations, or were contrary to established medical principles, and were so thoroughly tainted that they had no probative value in a disability determination and should be expunged from the record.
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The MEB's narrative summary stated that his hypertension was mild and controlled on medication; however, in his original appeal he cited 14 hypertensive clinical readings, which challenged the Army's finding of fact that it was mild and controlled. Although medical evidence showed that his hypertension exceeded the standards for the mild category, Army physicians made no effort to further evaluate his hypertension or to adjust his medication. Neither the ABCMR's advisory opinion (AO) nor the MOC even mentioned his hypertension. The MOC, on page 2, had the audacity to label his contentions, "statements of self-diagnosis," when every one of his statements was about a confirmed diagnosis with professional medical literature, representing expert medical opinion. Neither the AO nor the MOC cited one piece of professional medical literature or treatise to back up its contentions.
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The preponderance of medical evidence, to include the information in the Oxman report and the information in the response from Frame, shows that his hypertension was not mild, controlled on medication. The Army physicians did not even make an effort to diagnose accurately the etiology of his pre-syncope and syncope conditions or to evaluate completely and accurately his hypertension.
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The MEB's orthopedic assessment of his ailments is also so thoroughly discredited that it has no value in a disability determination and should be expunged. The orthopedic surgeon grossly violated regulatory provisions in conducting his physical examination and writing his report of examination. He also changed previous diagnoses for his lower back ailment of degenerative disc disease, L3-S1 and sciatica, to mechanical low back pain, no objective radiculopathy. The non-examining physician who wrote the NARSUM (narrative summary) then changed the diagnosis to "low back pain." A post-retirement private neurosurgeon and VA orthopedic surgeon, who both reviewed the original CT (computerized tomography) scan of his lower back, diagnosed degenerative disc and joint disease with sciatica after a thorough examination.
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The Army failed to diagnose his nervous condition (NC). He complained of suffering from it on three different occasions. In each instance, his primary care physician (PCP) failed to refer him to a specialist for evaluation. After retiring, he has been diagnosed with a NC by both the VA and the Social Security Administration (SSA). The SSA determined that he was suffering from the NC as of 1 June 1999, the first day of his retirement.
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The Army is required to make a ruling on each of his 41 amendment requests since they are clearly provable. A Department of Defense (DOD) Privacy Board opinion reinforces the ability to attack judgmental decisions by corrections to the factual record by saying, "If factual matter is corrected under Privacy Act procedures, subsequent judgmental decisions that may have been affected by the factual correction, if contested, should be considered by the Boards for Correction of Military and Naval Records." He is requesting the correction of factual matters in ABCMR, medical, and personnel records that influenced the ABCMR's initial 2001 decision to deny his original appeal. He requested 41 specific amendments to the record.
8. Beginning on page 4, and in paragraph 4, the applicant states new facts and arguments pertinent to his reconsideration request. These are titled as he has indicated. His new facts and arguments are delineated herein –
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Probative value of MEB, physical examinations and reports in a disability determination by the PEB and the ABCMR. The references provide extensive, strong, incontrovertible evidence that the MEB and its examining physicians did not follow Army regulations and produced a defective, inaccurate, and incomplete report of little probative value in a disability evaluation. Most important is the ABCMR's sole reliance on a superficial AO by non-examining physicians based primary on a review of only the MEB's flawed NARSUM. The authors of the AO did not examine his Army and VA medical files that could have been requested from the VA. The Oxman report states, about the NARSUM, that the most significant defect is the total absence of any discussion of the functional impairments resulting from the [applicant's] impairments. The NARSUM has no functional analysis of his ability to work fulltime. There was no medical opinion on the applicant's ability to perform his duties. Neither the Army physicians in their MEB reports nor the ABCMR's AO addressed his assertions that stress could raise his blood pressure to a dangerous level and that the clinical blood pressure readings on active duty showed his hypertension was not mild and controlled as stated in the Army reports. Additionally, the authors of the ABCMR's AO had a regulatory obligation to obtain additional information or documentation as needed before providing the opinions to the ABCMR.
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Failure of the USAPDA to carry out its regulatory responsibilities. The USAPDA could not have had his case for review on 6 January 1999 as indicated in the MOC. In addition, Army Regulation 635-40 mandates a USAPDA review to ensure that due consideration was given the facts and requests contained in any rebuttal to the PEB findings and recommendations submitted by, or for, the soldier being evaluated. In view of the MEB regulatory violations, together with its incomplete and inaccurate physical examinations and reports of examinations, and the PEB failure to review his rebuttal statement, the USAPDA should have returned the case to the PEB for reconsideration, clarification, further investigation, a formal hearing, or other action, when the case record showed that such action is in the best interests of the soldier and the Army. This, too, is in accordance with the provisions of Army Regulation 635-40. The USAPDA's 5 January 1999 letter to him, approving the PEB's final decision, shows that it also failed to consider his rebuttal statement, since the PEB, at the earliest received it on 13 January 1999, and at the latest on 19 January 1999. The USAPDA could not have ascertained that due consideration was given the facts and requests contained in any rebuttal to the PEB findings and recommendations.
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USAPDA's application of the wrong standard of proof. The USAPDA affirmed the PEB's flawed decision; however, cited no specific piece of substantial evidence, and applied the wrong standard of proof in its review. Army Regulation 635-40 stipulates that the standard of proof for any finding is the preponderance of evidence, not substantial evidence as the USAPDA has indicated.
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ABCMR's error related to the Physical Disability Branch (PDB). The ABCMR's MOC on page 5 erroneously stated that the Army PERSCOM's PDB sent him the 11 January 1999 letter; however, that letter was not sent to him, but to the MTF (Medical Treatment Facility) commander. The letter, however, provided another indication of the MTF's incompetence. It directed the MTF to place a "Y" in the code block 45b of the Standard Form (SF) 88. The SF 88 for his retirement physical examination on 10 March 1999 has no "Y" in this code block.
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ABCMR's incomplete and incorrect depiction of his concurrence with MEB findings. The MOC on page 9 notes that he concurred with the MEB findings and recommendations, but failed to mention his considerable efforts to have all the errors, noted by him, corrected before the MEB packet was forwarded to the PEB. The MTF commander and the PEBLO (Physical Evaluation Board Liaison Officer), not him, were responsible for ensuring the accuracy of the MEB packet. The MOC's contention that any administrative errors are not considered fatal flaws since the applicant concurred with the findings and recommendations of the MEB and was found fit for duty, is illogical and absurd. Nevertheless, the MEB shortcomings were not innocuous administrative shortcomings, but harmful procedural and substantive errors that precluded a rational, fair decision by the PEB. The failure of the Doctor "O" to write a NARSUM "PRESENT CONDITION" paragraph that conformed to mandatory regulatory requirements to describe the effect of each ailment, and/or combination thereof, or of his ability to perform his duties are both procedural and substantive harmful errors that made it impossible for any deliberative body relying on the MEB to make a balanced, reasoned decision about his fitness or unfitness for duty.
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ABCMR's erroneous application of presumption of fitness rule. The MOC, on pages 8 and 9, discusses the application of this rule, although the rule did not apply to him at the time of the MEB and PEB because he had not requested retirement and was not within 12 months of mandatory retirement. According to DOD Instruction 1332.38 and the USAPDA's 22 June 2001 information paper, the PEB and ABCMR were precluded from applying that standard. The PEB was obligated to determine if the effect of any ailment or the combinatory effect of some, or all, his ailments rendered him unfit for duty based on the preponderance of evidence. Moreover, there is no evidence of record, except for his active duty status, of his continued performance of duty raising a presumption of fitness after the MEB in the fall of 1998 since there is no OER evaluating his performance from 1 October 1998 through 31 May 1999, and showing that he was performing adequately for the last nine months of active duty service. The only cited OER of any relevance ending in September 1998 says nothing about his performance from the fall of 1998 until his retirement. This OER lacks objectivity and probative value. The ABCMR cannot produce any evidence, other than his mere presence on active duty, that he performed his duties adequately up to the PEB's finding of fit for duty on 3 December 1998 or his retirement on 1 June 1999.
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ABCMR's erroneous standard for overcoming presumption rule. The MOC, on page 8, cites Army Regulation 635-40, paragraph 3-2b(2), saying the regulation requires that in order to overcome the presumption rule, a soldier had to be unable to perform his duties because of a disability for a period of time and a nexus must exist between the less than adequate duty performance and the unfitting condition(s). The ABCMR, however, paraphrased just one sub-paragraph. Another subparagraph states that the presumption of fitness rule can be overcome by establishing that an acute, grave illness or injury or other significant deterioration of the soldier's condition occurred immediately prior to, or coincident with processing for separation or retirement for reasons other than physical disability and which rendered the soldier unfit for further duty. The MOC, on page 9, even misconstrued that provision for overcoming the presumption rule. Both the Army Regulation and DOD Instruction 1332.38 state that the deterioration of a chronic condition(s) precluding future duty is sufficient to overcome the rule. The MTF's 23 August 1999 IG response to him essentially states the same. His pre-retirement medical record clearly and convincingly establishes a dramatic decline in physical capability due to the fairly rapid serious deterioration in numerous old chronic conditions, as well as new ailments, through the spring and summer of 1998. The Oxman report, page 8, corroborates this. The ABCMR's MOC contained no discussion of, or explanation for, the decline in his health or physical capabilities in relation to working fulltime and adequately performing the duties of a military intelligence office in the future.
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ABCMR's erroneous quoting and characterization of IG response to his request for assistance (RFA). The MOC, on page 6, gave much weight to the MTF IG response to his 8 March 1999 IG RFA in which the MTF commander allegedly said any inconsistencies in the MEB were not of such a nature to establish an unfitting medical condition or to significantly affect the board's overall findings. The ABCMR misquoted the IG's letter by substituting "MEB's overall findings," for "board's overall findings." It is logical to conclude, however, that the commander is referring to a PEB. The ABCMR avoids any mention of his appeal claim that the commander exceeded his authority in making a determination that any medical condition was not unfitting. Army Regulation 635-40 lists the MTF's responsibilities. Determining whether a medical impairment is unfitting is not within his authority. The IG response not only was untimely but also failed to address any major issue, for instance, Doctor "O's" failure to write a proper NARSUM "PRESENT CONDITIONS" paragraph.
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ABCMR's erroneous characterization of AO. The MOC, on page 6, notes that the ARBA medical advisor provided an AO; however, neither the AO nor the ABCMR MOC, discuss the overall effect of all, or some, of his ailments on his ability to perform his duties; pain as an unfitting condition; his VA and Army medical records; the postretirement report of examinations in the appeal that conflicted with Army MEB diagnoses, and any of the procedural or substantive issues in his appeal. The AO even misconstrued Army Regulation 40-501. Moreover, the signature dates [on the MEB] show that the MTF commander and PEBLO had ample time to ensure the physicians determined the etiology for all his ailments, and that a complete, accurate, timely, and relevant MEB packet was submitted for the PEB.
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ABCMR and PEB's failure to consider the overall effect of ailments. Neither the PEB decision, nor the USAPDA response to his 8 February 1999 FOIA/PA (Freedom of Information Act/Privacy Act) request contained one shred of evidence that the PEB considered the overall effect of some, or all his ailments on his ability to perform his duties. The ABCMR in its MOC only noted in passing about his statement about the PEB's failure to do so, but contained no discussion of the issue, and no explanation why some, or all, his ailments did not make him unfit for duty. In view of the VA and the SSA ratings, the ABCMR must provide a rationale to support its disregard for the overall effects of his ailments.
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ABCMR and PEB's failure to consider pain as an unfitting factor. There is no mention of any consideration of pain as a factor in determining his fitness for duty. Army Regulation 635-40 and the USAPDA policy guidance memorandum stipulate that pain should be considered - and he discussed pain in his appeal at all levels. He suffers from pain from head to toe; yet, neither the PEB nor the ABCMR address this unfitting factor.
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USAPDA's admission that no performance standards exist for a particular branch, military occupational specialty (MOS), and rank. The USAPDA's legal advisor stated that there were no specific performance standards that must be met for particular military branches, MOSs, or ranks. Consequently, the Army has no performance criteria for determining an officer's fitness. It, therefore, is a subjective process without the application of any objective performance criteria for determining how exertional or nonexertional limitations can affect an officer's ability to perform his specific duties or functions. He cites articles from two legal officers, one of whom stated that PEB decisions of fitness were subjective; and the other, who stated that the PEB members relied heavily on their own experience and knowledge of the Army to determine whether a soldier could function in a particular MOS. In his case, one PEB member, the medical member, stated, "I think he is able to do his job and do not see anything to the contrary. We could ask for his last three OERs." Another member stated, "looked like a pre-retirement physical." That statement is false and prejudicial because the record clearly shows that he was directed into a MEB and PEB and the "physical" was for a MEB, not retirement. There is not one word found in his PEB file of just what functions and performance standards the job required. The DA civilian physician member's knowledge concerning the performance requirements for a MI colonel was not questioned; however, his naked medical conclusion evidently played a decisive role in the PEB's decision. The Army seemingly expects each PEB member to know intuitively if a soldier is fit or unfit. There is no guidance on what conditions, combination of conditions, or severity of conditions make a soldier unfit. The process itself is necessarily capricious and arbitrary since there is no way the Army can ensure that decisions of different boards at the Army's three PEB locations have the consistency required of a rational adjudication system. The SSA physical disability evaluation system has expert disability examiners to make the initial determinations and an administrative law judge rules on an appeal after a quasi-judicial evidentiary hearing. In the Army physical disability evaluation system, unlike the SSA system, there are no performance standards, and the decision makers are not professional disability examiners. The Army cannot manage the adjudication of fitness cases by different PEBs in ways that produce predictable and consistent outcomes.
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PEB's failure to include a rationale of DA Form 199 (Physical Evaluation Board (PEB) Proceedings). The failure of the PEB to provide a rationale for its decision underscores its capriciousness and arbitrariness. The ABCMR avoided any discussion in its MOC of his claim that the PEB failed to provide a rationale for its decision, as required by regulations.
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ABCMR's distorted interpretation on the use of VA schedule for rating disabilities (VASRD) by the Army and VA. The MOC went into detail to explain the statutory differences between the Army and the VA disability systems to justify its position of assigning no significance to his VA disability rating of 80 percent. In most instances, the VA's rating would almost always differ from the Army's; however, the MOC failed to address, as indicated in DOD Directive 1332.18, that the assignment of disability ratings should be based on the VASRD, and that most importantly, the VA and the Army use the VASRD to rate ailments according to severity. DOD Instruction 1332.39 stipulates that VASRD percentage ratings are applied to the unfitting condition and that the percentages are based on the severity of the condition. Army Regulation 635-40 stipulates that percentage ratings are applied to the unfitting conditions from the VASRD. Consequently, if the VA physical evaluation determined that a veteran had an ailment of the same severity as the Army physical evaluation for an unfitting condition, the percentage awarded from the VASRD should be the same. His postretirement private and VA examinations were conducted shortly after his retirement and are pertinent to the issues of fitness, since the conditions could not have changed that much. The ABCMR never even mentioned the postretirement medical reports that he included in his appeal packet, nor did it request his Army and postretirement VA medical files from the VA. The information contained in references a, f, and l through p has all his pertinent medical and SSA disability determination records for a fresh look at the issue.
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PEBLO's statement about PEB and NARSUM. The PEBLO, in response to his inquiry, informed him that the PEB would not change its decision of fit for duty, regardless of any new arguments or MEB. He pointed out the failure of Doctor "O" concerning the regulatory requirements of a NARSUM. The PEBLO stated that Doctor "O" wrote all his NARSUM "PRESENT CONDTIONS" in that manner, suggesting to him that the doctor and supervisors were either contemptuous or ignorant of the regulatory requirement.
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Memorandum to hospital patient advocate. He never received a response to his request to speed up an appointment with a cardiologist; consequently, he was unable to receive an appointment prior to 9 March 1999.
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Primary care physician's failure to refer him for evaluation. Despite his complaints of suffering from depression, his primary care physician declined to refer him to a psychologist or psychiatrist for evaluation, stating that he was an excessive worrier. He states that the doctor had an obligatory duty to refer him to a specialist for evaluation; and, subsequent to his retirement and his appeal to the ABCMR, VA and SSA psychiatrists diagnosed him as suffering from major depression, moderate, recurrent. The SSA determined that it contributed to his inability to work as of 1 June 1999. His symptoms while on active duty were essentially the same that he has now. The VA has granted him a 70 percent service connected disability rating for this condition. He repeatedly sought treatment while in the Army, but was denied. The ABCMR must address this issue since substantial uncontested medical evidence indicates he was suffering from depression while on active duty, and that it was disabling.
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Inaccurate and incomplete etiology of ailment. Both his primary care physician and Doctor "O" rendered a diagnosis concerning his pre-syncope and syncope conditions that was not supported by any objective evidence and was contradicted by a cardiologist. Neither of the two was qualified in the appropriate specialty to render the diagnosis. Subsequently, a VA neurologist and cardiologist, confirmed by "Frame," that his conditions were due to orthostatic hypotension in a setting of bradycardia. None of the Army physicians ever issued a profile for his ailment in violation of requirements to maintain an accurate record. The ABCMR is obligated to consider this diagnosis and treatment complications in reconsidering his appeal.
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Failure of NARSUM and DA Form 3947 (Medical Evaluation Board Proceedings) to characterize his ailments in accordance with governing regulation. His MEB contains no indication of which conditions do not meet medical retention standards, rendering the record incomplete, incorrect, and not totally relevant, undermining the ability of a PEB to reach a fair decision in his case. The ABCMR is obligated to render an opinion on which specific ailments did not meet medical retention standards.
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DOD Instruction 1332.39 and Army Regulation 635-40 on total disability rating, together with SSA disability award. The two directives discuss a total disability rating for a soldier when an impairment is sufficient to render it impossible for the average person to follow a substantially gainful occupation. The language is similar to that used by the SSA in its disability evaluation. After retiring, he applied for and was granted a SSA disability award for basically the same ailments that the MEB and PEB evaluated, or should have evaluated. The SSA disability system has been called the toughest to qualify for. The SSA statement has two more ailments, depression and right second toe neuritis. He was treated for the second ailment on active duty and receives a 10 percent disability rating from the VA for this condition. Both the ailments should be included in any ABCMR reconsideration. The SSA disability award, like the VA 80 percent rating (since raised to 100 percent) was effective the first day of his retirement. Those awards have significant probative value in any ABCMR reconsideration on whether he was fit for duty on 31 May 1999. If he was suffering from depression on the first day of retirement, it is more than likely that he was suffering from it on active duty. The ABCMR cannot summarily dismiss the disability ratings and additional ailments by applying boilerplate statutory language, but must explain its reasons for determining their insignificance in any finding that he was fit for duty.
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PEB and ABCMR's denial of formal hearing. In his rebuttal statement of the PEB's initial 3 December 1998 decision, he asked for a formal hearing, as authorized by Army Regulation 635-40. His request was denied. Other disability determination systems have procedural due process safeguards, which allow a claimant, initially denied an entitlement, to have a quasi-judicial evidentiary hearing. In the Army, however, even if a soldier disagrees with an informal PEB's decision of unfit and has a formal PEB, a formal hearing does not ensure procedural due process safeguards like the SSA, VA, and welfare systems. He was denied a formal hearing by the PEB and the ABCMR, despite his presentation of credible evidence, raising the due process issue of equal protection under the law, in effect, creating a whole class of soldiers who have no due process guarantees while being denied a property entitlement, disability retirement, while other soldiers, who are found unfit, have at least minimal due process guarantees.
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Certification of medical qualification for retirement without determining the etiology of an ailment or referring him for psychological or psychiatric evaluation. He saw his primary care physician for a pre-retirement physical on 10 March 1999, checking the blocks on his SF 93 indicating that he had suffered dizziness or fainting spells and periods of unconsciousness, had frequent trouble sleeping, and did not know if he was suffering from depression or excessive worry. The doctor not only declined to send him for evaluation to determine if he was suffering from depression, but made no mention of his fainting, and rendered a diagnosis outside his area of expertise.
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Failure of MTF commander or PEBLO to contact unit commander for a statement. Army Regulation 635-40 requires the MTF commander to notify the unit commander of a referral to a PEB after the MEB report is approved and to obtain from the commander a written statement. The commander's statement, however, is dated some three months prior to the MEB approval. In fact, the MEB commander never contacted his unit commander about a statement.
9. Beginning on page 24 and in paragraph 5 of his submission, the applicant provides a summary of new information. He states that the summary consists of reference f with its 49 enclosures and its attachment, the Oxman report with its exhibits, and references 1l through 1p, as well as the issues and arguments advanced in his request for reconsideration. He provides statements in 18 subparagraphs, 5a through 5r, which require no clarification.
10. Beginning on page 25 and in paragraph 6 of his submission, the applicant provides a summary of documented procedural and substantive harmful errors in MEB, PEB, USAPDA, and personnel records. That summary is contained in paragraph 6a through 6n.
11. Beginning on page 26 and in paragraph 7 of his submission, the applicant provides a comprehensive legal analysis of the Army's determination. That analysis runs to page 46, and is summarized in paragraph 8 on that page.
12. In concluding, the applicant states that the PEB's and ABCMR's decisions represent nothing more than administrative determinations based upon a mere recitation of naked conclusions, where the facts clearly and convincingly demonstrate that the MEB and PEB consistently violated mandatory procedural and substantive regulatory requirements in performing their functions. The PEB and ABCMR based their decisions on an incorrect, incomplete NARSUM, since the physician himself never examined him and never was questioned about his findings relative to his conditions. None of the Army physicians ever have been questioned about their examinations and findings. If the PEB and ABCMR had examined his entire medical record, those boards would have discovered pre-MEB diagnoses that conflicted with diagnoses used for his MEB, inconsistencies related to the evaluation of his hypertension, the failure to diagnose the etiology of his pre-syncope accurately and completely, the incomplete evaluation of his musculoskeletal ailments, and the lack of any clear statement on his RFC (residual functional capacity). The ABCMR relied on a medical AO, which cannot be considered substantial, since its authors never examined him or even reviewed his complete medical records and basically relied on the double-hearsay NARSUM from a non-examining physician. The AO represents nothing more than a triple-hearsay document from a non-examining physician.
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He was denied due process at every level. The procedures do not meet Fifth Amendment due process constitutional requirements because soldiers can be deprived of a property interest without either a pre- or post-deprivation evidentiary hearing. Additionally, the Army conducted a fitness evaluation in which there is no statement on his RFC and what performance standards were used to evaluate whether he was fit for duty.
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The ABCMR's decision consists of nothing more than naked conclusions, a regurgitation of his allegations, a listing of regulatory and statutory provisions, and a bland statement that the ABCMR based its decision upon all the evidence without any analysis of the evidence in writing. There is absolutely no satisfactory showing on the record that the ABCMR's decision was based on a balanced consideration of all the evidence available and presented. Substantial evidence does not support the Army's factual findings, and the record is rife with legal error. The PEB's and ABCMR's decisions simply do not contain the elements necessary for a well-grounded administrative determination.
13. In his 1 April 2002 request for amendment of the record (PAAR) to the Army Reserve Personnel Command concerning the 20 September 2001 MOC, the applicant made reference to his original appeal to the ABCMR with its 48 exhibits, his addendum to the appeal with seven enclosures, the 13 March 2001 ABCMR AO, his 31 March 2001 rebuttal to the AO with his three attachments, the above mentioned MOC, and an 8 December 2001 expert witness analysis [the Oxman report]. He requests that the Oxman report be included as an addition to the record. He further requests amendment, to include deletions, additions, and changes of wording, of the MOC's factual record, as well as the factual record of the MEB, PEB, and the USAPDA.
14. In paragraph 3 of his PAAR request, the applicant listed and described 21 substantial ABCMR MOC factual errors, requesting that the errors be corrected as he has indicated. Those 21 are contained in paragraphs 3a through 3u, pages 2 through 20. The errors, which he stated are contained in the MOC, are indicated herewith –
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Error related to the number of ailments rated by the VA. He stated that the MOC on page 2 states that he wrote that the VA gave him a combined service connected disability rating of 80 percent for eight different diagnoses. He disputed the number, requesting that the accurate number of ailments for which he receives VA compensation be corrected and that his latest letter to the VA be added to his official records.
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Errors and incomplete information related to physical profile. The MOC on pages 2 and 9 states that all three profiles, DA Forms 3349, issued between 1 April 1998 and 4 June 1998, were annotated that no change in MOS or duty assignment was required within the restrictions provided by the profile. He stated that the assertion was wrong, in that his commander, Major "S," checked the blocks requiring a change in duty assignment because of his beard on the profile that was issued on 4 June 1998. He stated that ABCMR made no mention of a 9 July 1998 DA Form 3349 (Physical Profile) signed by his commander on 20 August 1998. He commented on the incorrect address on this profile, and the failure of that form to be included in his MEB file. He stated that every profile had an empty or incorrectly completed block 3, which required specific codes to be used. He stated that the MOC on page 4 incorrectly stated, "as a result of the MEB consults and MEB summary, a physical profile was approved on 31 August 1998." He stated that there was no direct evidence that the assertion was true, since none of the consults or NARSUM had the date blocks filled out. He stated that the MOC on page 4 also states that "the MEB was conducted on 16 October 1998," a statement indicating an overt admission that the MEB convened and made a decision while he was still attempting to have his medical records corrected. The ABCMR, in effect, concedes that the MEB met before the NARSUM was even completed. The MOC made no mention of his 31 August 1998 DA Form 3349.
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Errors and incomplete information related to assignment limitations. The major's determination on the 20 August 1998 signed profile that he required a change in MOS and duty, together with his rebuttal statement, provides direct evidence contradicting the MOC's conclusion in paragraph 2, page 9, that there was no evidence of record to indicate that the applicant was or would have been denied additional assignments within the limitations of his profile until his mandatory removal date.
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Error about probative value of commander's input. His commander's 20 August 1998 letter stating that he was able to perform his current duties had no probative value. That officer was not even in the DIA (Defense Intelligence Agency) and was merely his commander for administrative and judicial purposes and had absolutely no contact with him or anyone in his rating chain.
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Regulatory violations, incomplete information, and erroneous facts in medical examinations and reports. The MOC made no mention that the Army, in accordance with Army Regulation 635-40, directs its physicians who perform MEB and physical disability examinations to use the VA Physician's Guide for Disability Evaluation Examination to describe physical defects. A cursory comparison of the examinations conducted and reports written by the Army primary care and consulting specialists with the VA worksheets, now available on the internet, proves that the examinations and resultant reports were defective, inadequate, and in contravention of even minimum regulatory requirements for an MEB as well as standard medical procedures and care.
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Errors, incomplete information, and regulatory violations in orthopedic examination, orthopedic reports of examination, consultation report, and NARSUM for orthopedic ailments. The MOC's summary of the orthopedic consultation statement about his lower back, shoulder, elbow, and foot ailments on page 3 is erroneous and incomplete, thereby presenting a distorted, inadequate, and clearly erroneous medical description of these ailments. He commented on the incomplete information and violations, and stated that the consultation's diagnosis was "mechanical low back pain secondary to facet arthrosis," not "mechanical back pain secondary to an unspecified joint disease without specific findings," as stated on page 3 of the MOC. He stated that he provided the ABCMR two other examinations, one by a neurosurgeon, and one by a VA orthopedic surgeon. The former diagnosed "degenerative disease of the lumbar spine with nerve root irritation (sciatica)," and the latter diagnosed "degenerative joint and disc disease lumbosacral spine with chronic low back pain and lower extremity pain." Consequently, the VA awarded him a 40 percent disability rating for the severity of his lower back impairment effective 1 June 1999. The two examinations after his retirement were thorough and relied on the same CT scan available to the orthopedic consultant in August 1998. More importantly, two months before that doctor's examination, on 10 June 1998, a senior Army colonel orthopedic surgeon, after reading the CT scan stated that the scan showed degenerative disc disease L3-S1 and mild annular bulges. Two other medical authorities made similar diagnoses. The reasons for changing his diagnoses were never explained.
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The MOC, on page 3 stated that he had "recurrent ankle pain," and "recurrent foot pain." He stated that those generalizations did not conform to the record and diagnoses that were "recurrent right ankle tarsal tunnel syndrome" and [bilateral] "plantar fasciitis," ailments found in the VASRD, which the Army is obligated to use in rating ailments. He received a 10 percent rating from the VA for each of those ailments.
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Errors, omissions, and regulatory violations in internal medicine examination (IMC), reports of examination, consultation report (IMC), and NARSUM for ailments evaluated by Internal Medical Clinic. He stated that the MOC on page 3 distorted the evidentiary record of the internal medicine consultation and Doctor O's NARSUM, dealing with those ailments, by omitting a diagnosis and changing the wording. There was no mention of his pre-syncope, which later became syncope, associated with bradycardia. In referencing the NARSUM, the MOC again made no mention of his pre-syncopal episodes. The MOC's failure to even note the pre-syncope and syncope is a gross distortion of the record.
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Absence of valvular heart disease in NARSUM's diagnoses paragraph. The MOC makes no mention of the IMC's diagnosis that an echocardiogram discovered valvular heart disease, mild aortic sclerosis with mild aortic insufficiency. The NARSUM discussed the test results, but it was not listed in the NARSUM's diagnoses.
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Erroneous statement about arrhythmia (bradycardia). The MOC on page 3 further erroneously stated that the IMC diagnosed a "history of decreased pulse rate on one occasion" when, in fact, his records showed he had a long history of sinus bradycardia diagnosed.
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Erroneous statement on hyperlipidemia. The MOC on page 3 also stated a diagnosis provided was "mild hyperlipidemia (high cholesterol) controlled by medication." Nowhere does the IMC or NARSUM say that this ailment was under control, only that he was taking medication for it and needed to be monitored.
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Erroneous listing of ailments. The MOC makes no mention that Doctor "O" erred in the NARSUM by listing his positive response to a stress EKG (electrocardiogram) and hyperlipidemia as ailments.
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Erroneous characterization of and inadequate evaluation of hypertension. The MOC makes no mention that his hypertension was classified erroneously as "mild and controlled" in the IMC and NARSUM. The Oxman report provides a professional medical opinion that rebuts this diagnosis. He provided professional medical literature in his appeal on the effect of stress on some individuals suffering from hypertension; however, it was not discussed anywhere in the AO or MOC.
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Failure of NARSUM's "present conditions" paragraph to meet regulatory requirements. The MOC makes no concession that the NARSUM's "PRESENT CONDITIONS" paragraph did not conform to regulatory requirements by failing to explain how each specific ailment, and/or combination thereof, limited his ability to perform his duties.
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Erroneous characterization of correspondence with the PEB. The MOC on page 5 states, "the applicant forwarded a 21 December 1998 memorandum of appeal to the PEB," thereby implying that he corresponded directly with the PEB. He never forwarded anything directly to the PEB, but always delivered his correspondence to the PEBLO or someone in his office.
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Failure of PEB to consider rebuttal statement. The MOC makes no mention of the PEB's deciding his appeal without his rebuttal statement and more than half his medical records, although it had an obligation and responsibility to ensure his packet was complete. The ABCMR seemingly affirmed a PEB review of his rebuttal statement and additional enclosures, implying that the PEB president's 29 December 1998 letter to him documented the PEB's review of his rebuttal. Evidence is clear that the PEB rendered a decision on his appeal without ever seeing his 21 December 1998 rebuttal and all his medical records.
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Errors related to the USAPDA and the PDB. The MOC on page 5 stated that the USAPDA "during the period 4-6 January 1999 … conducted another review and approved the fit for duty determination," and, "the Physical Disability Branch closed the case on 11 January 1999 with a letter to the applicant." He stated the USAPDA letter to him was dated 5 January 1999 and therefore it could not have had his case for review on 6 January 1999. He stated that the USAPDA never considered his rebuttal statement before it wrote the 5 January 1999 letter, and, by not returning the case to the PEB, violated the regulation. The statement that the PDB sent him its 11 January 1999 letter is a blatant error. He was not an addressee. Its memorandum was sent to the commander of the MTF.
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Misleading and inaccurate depiction of his concurrence with MEB findings. The MOC on page 9 notes that he concurred with the MEB findings and recommendations, but failed to mention his considerable efforts, and failure, to have all corrections noted by him at the time, made before the entire packet was forwarded to the PEB.
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Erroneous application of presumption of fitness rule. The MOC on pages 8-9 discusses the application of the presumed fit for duty rule; however, this rule did not apply to him because he had not submitted paperwork for voluntary retirement at the time of his MEB, and was not within 12 months of mandatory retirement. The ABCMR's application of the presumption rule is wrong. The PEB and the ABCMR were precluded from applying that standard. Moreover, there was no evidence of his continued performance of duty raising a presumption of fitness after the MEB in the fall of 1998, since there was no OER from 1 October 1998 through 1 June 1999, showing that he was performing adequately for the last nine months of active service. The ABCMR, therefore, cannot produce any evidence that he performed his duties adequately up to the date of the PEB's finding of fit for duty in December 1998 or his retirement to support the PEB or its decision.
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Erroneous regulatory citations. The MOC on page 7 cites Army Regulation 40-501, paragraphs 3-3a and 3-3b(1). Those citations could not be found in the 1998 regulation.
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Incomplete characterization of comments about retention on active duty. The MOC on page 9 stated: "Although applicant stated that he expected continued service through 2004, … he stated on two occasions that he did not desire to continue on active duty." The ABCMR analysis, however, provided no context for those comments. It was clear that his intention to remain on active duty until 2004 preceded the rapid decline in his health, not after it. The ABCMR failed to mention his rebuttal of the statement attributed to him by his primary care physician on his referral to the orthopedic clinic. Placed in proper context, the statements, referred to in the MOC, no doubt were concomitant with his fairly rapid decline in health.
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Erroneous characterization of errors in MEB. The MOC on page 9 stated, "Any administrative errors are not considered fatal flaws since the applicant concurred with the findings and recommendation of the MEB and was found fit for duty." He stated that carried to its logical conclusion, the statement is absurd, and questions if the MEB had stated that he had a benign tumor that was really malignant would his concurrence make the error moot. He stated that there were substantive errors, in that the doctors involved in his MEB failed to conduct proper examinations and to write comprehensive reports of examinations, limiting the PEB's ability to make an informed and fair decision.
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Erroneous quoting and characterization of IG response. The MOC on page 6 gave much weight to the MTF IG response to his IG complaint in which the MTF commander allegedly said that any inconsistencies in his MEB "were not of such a nature to establish an unfitting medical condition or to significantly affect the board's overall findings." The ABCMR misquoted the IG's letter by substituting "MEB's overall findings," for "board's overall findings" in its MOC. The commander is talking about the findings of the PEB not the MEB. Further, the ABCMR avoided any mention of his claim that the commander exceeded his authority in making a determination of fitness or unfitness for any medical condition.
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Incomplete and erroneous characterization of AO. The MOC on page 6 notes that the Army Review Boards Agency medical advisor provided an advisory opinion which found that none of the twelve diagnoses listed in the MEB was specifically unfitting; however, the MOC said nothing of the absence of any discussion in the AO about the overall effect of all or some of his ailments, about the lack of a review of his military and postretirement medical records, about the lack of any discussion about the two postretirement medical reports included in his appeal to the ABCMR, about the quality of the MEB examinations and reports, and about the erroneous application of Army Regulation 40-501. The medical advisor relied only on the highly flawed MEB NARSUM to reach his conclusion that he had no unfitting condition. Both the AO and consequently the ABCMR, failed to consider the entire record available to them.
15. In paragraph 4 of his PAAR, the applicant discusses other amendments that should be made to his record. He discusses his officer evaluation reports, and the problems that he experienced with his rating officials. He stated that the OER with a through date of 30 September 1998 lacked any probative value in determining his fitness. He commented on the relatively stress free environment of his position, the PEB's failure to consider the overall effect of his ailments and its acceptance of a defective NARSUM, and the USAPDA's failure to fulfill its regulatory oversight function.
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He again talked about the ABCMR's lack of discussion about the allegation of the PEB's failure to consider the overall effect of ailments.
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He continued by discussing the USAPDA's failure to fulfill his original FOIA/PA request and PEB's lack of performance standards for judging fitness. He requested that his record be amended to show that the PEB and ABCMR adjudicated his case without delineating specific and common tasks that he must have been able to perform in comparison with his residual functional capacity, to reach their conclusion of fit for duty.
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He stated that the PEB failed to provide a rationale for its decision, underscoring its caprice and arbitrariness, and that the ABCMR avoided any discussion of his claim that the PEB failed to provide a rationale for its decision.
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In discussing the VA ratings, the ABCMR in its MOC on page 6 used the word "now" to describe his disability ratings, implying that the severity of his condition became worse after he retired. He stated that the implication was untrue, as evidenced by his 80 percent disability rating effective on the first day of his retirement.
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He stated that the PEB and ABCMR failed to consider pain as an unfitting factor, and should have discussed this factor. Pain should have been considered as required by applicable directives.
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He continued by commenting on the ABCMR's erroneous interpretation of overcoming the presumption rule, stating that the ABCMR made a grave error in its MOC on page 9 when citing this rule.
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He stated that the MOC made no mention of the false and prejudicial comment by a PEB member, "looks like a pre-retirement physical."
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He commented on the PEBLO's statement concerning the PEB and NARSUM, reiterating that the PEBLO stated that Major "O" wrote all NARSUM "PRESENT CONDITIONS" paragraphs as he wrote his.
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He stated that he attempted to enlist the aid of the hospital patient advocate to speed up an appointment with a cardiologist.
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He stated that his primary care physician failed to refer him for an evaluation concerning his complaints of depression.
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He commented on the erroneous etiology of his pre-syncope ailment. He discussed the failure of the NARSUM and the DA Form 3947 to characterize his ailments in accordance with the regulation.
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He discussed the DOD instruction and Army regulation on total disability rating, together with the SSA disability award.
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The applicant discussed the denial of his request for a formal hearing, by the PEB, the USAPDA, and the ABCMR.
16. As part of his PAAR, the applicant provides one attachment (the Oxman report) with exhibits 1A through 1Z; and 49 enclosures.
17. Doctor Reed S. Oxman, on 8 December 2001, provided an 8-page commentary and analysis of the medical documents sent by the applicant. He stated that a preponderance of the documents, especially the physical examination reports and their resultant NARSUM contained a number of shortcomings and deviations from that of accepted standard medical procedures, greatly reducing their utility and or usefulness as a significant part of any disability proceeding. He stated that in other documents, the physicians demonstrated no interest in ensuring that their patients received adequate, if not even more than just adequate, diagnosis and medical care, let alone consistently provide accurate descriptions of their functional impairments in a fitness examination. The utility of those reports to act as the basis for accurate and fair disability determinations was clearly and convincingly compromised. Those final reports did not meet the minimum Armed Forces Policies for making a final and obviously crucial disability determination. The majority, if not all, the physicians involved failed to measure joint ranges of motion (ROM), failed to document the instrument(s) they used to measure the joint(s) ROM, failed to discuss the presence and degree of pain and to then refer the patients, such as the applicant, for evaluation for appropriate specialists. They failed to make any significant or at least standard effort to determine the etiology of a patient's ailment or complaint, and failed to then discuss the effect(s) of these ailments, and on the patient's ability to work a fulltime job. The documents reviewed pertained to the applicant, but could be extrapolated to patients in general, since several physicians at various times were involved in the applicant's evaluations and corresponding treatments.
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The doctor criticized the applicant's orthopedic surgeon for an incomplete evaluation of the applicant's lower back, and for his diagnosis of his lower back impairment. He stated that the applicant probably suffered from degenerative disc disease, probably at L3-S1 with mild to moderate spondylosis and radicular pain while on active duty in 1998. He extended his critical remarks to that doctor's measurements of his other injured joints.
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He stated that the applicant had multiple cardiovascular risk factors that placed him in a high-risk category for a heart attack and/or stroke.
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He stated that the applicant's elevated hypertensive blood pressure readings could not be classified as mild and controlled, as stated by the doctor from the Internal Medicine Service.
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He stated that the applicant's consistently moderately high blood pressure readings in 1997, 1998, and 1999, indicated that he was a prime candidate for referral into a biofeedback or other such program to see if he could learn to relax and lower his blood pressure in stressful situations. There was no such referral. The consultation should have discussed the effect of stress on the applicant's hypertension. Doctor Oxman stated that his consistently high systolic pressure and high pulse pressure would have been noted in relation to his hypertension. The preponderance of evidence indicated that the applicant should avoid stressful situations.
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He stated that more of an effort should have been made to determine the etiology of the applicant's pre-syncope and syncope, rather that merely attributing it to bradycardia.
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He noted that the applicant had complained of suffering from depression on three occasions from August 1997 until March 1999, and faulted the applicant's primary care physician for not referring him to a specialist for evaluation.
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The doctor also mentioned the fact that the applicant never met the writer of the NARSUM, and since that doctor never examined him, the NARSUM's "PHYSICAL EVALUATION" paragraph reflected the above-mentioned shortcomings and deficiencies of the referenced examinations and consultations.
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He stated that the most significant defect was the total absence of any discussion of the functional impairments resulting from the applicant's multiple ailments.
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The doctor also stated that there were other errors of omission and commission in the NARSUM – the failure to list test results, which indicated a valvular, heart ailment, the failure to indicate his cavus foot ailment, and the understatement of the applicant's high readings in his lipid profile results. Doctor "O" also simply listed that the applicant had low back pain, an incomplete and inaccurate understatement.
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He stated that within a reasonable degree of medical certainty, the examinations and reports were incomplete and inaccurate. He stated that the preponderance of evidence indicates that the change in his psychological and medical condition from 1997, where he reported his health as excellent, to 1998, where he reported it as being marginal, and, according to the records had limited physical capability, was most likely attributable to a fairly rapid deterioration of the established chronic condition which he suffered.
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He stated that he reserved the right to expand and or alter his expressed opinions would he be presented later with any additional information.
18. Exhibits to the Oxman report show that he was treated for problems with his left foot in June 1979. A 20 May 1980 report indicated that he had operations on his feet in 1976 and 1977 in which calcaneal spurs were removed and plantar fascia was released. A 9 July 1981 medical report indicated that he was diagnosed with tendonitis of the flexor hallucis longus (muscle of his great toe) and a periostitis of the ostibialis externum.
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An 18 April 2001 VA medical report for arteries, veins, feet, heart, hypertension, neuro disorder, miscellaneous and spine, gave a diagnostic impression of benign peripheral vascular disease by incidental carotid ultrasound, asymptomatic; history of valvular heart disease on cardiac exam, benign, absent except for murmur; status post left shoulder surgery with an abduction limited from 0 to 100 degrees, forward flexion from 0 to 100 degrees, internal and external rotation from 0 to 90 degrees, with no laxity of joints, and no evidence of fatigability nor incoordination; left elbow surgery, epicondylitis with range of motion and no evidence of fatigability or incoordination; degenerative joint disease and broad-based disk herniation at L5-S1, with no evidence of fatigability nor incoordination; bilateral plantar fasciitis, mild to moderate, with no evidence of fatigability, nor incoordination; tarsal tunnel syndrome of the right foot, which demonstrated no evidence of fatigability, nor incoordination; meralgia paresthetica (numbness and tingling and paresthesias), not prone to exacerbations; mental neuropathy, with a residual pain syndrome and hypertension, relatively well controlled. The report indicated that there was no evidence of weakness or instability in any of the joints examined.
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An 18 April 2001 VA medical report for his lumbar spine, feet, left shoulder, and left elbow provided a diagnostic impression of degenerative joint and disc disease lumbosacral spine with chronic low back and lower extremity pain; status post surgical release of extensor tendons for treatment of lateral epicondylitis left elbow with residual pain and restriction of motion of the elbow; status post surgical arthroscopy for rotator cuff tear and glenoid labral abnormality with residual pain and restriction of motion; status post right tarsal tunnel release with significant residual symptoms; status post bilateral heel spur resection with recurrence of heel spur symptoms; soft tissue inflammatory process medial aspect right second toe with minor pain. The examination physician stated that the combination of conditions would impair any physical activities involving bending, lifting, prolonged standing, sitting, and walking; however, the applicant would be able to do sedentary work for a full 8-hour day as long as he could periodically change position.
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An 18 April 2001 VA medical report for his left elbow provided an impression of medial epicondylitis, with persisting symptoms; recurrent lateral epicondylitis; and restricted motion. The examining physician stated that his condition would cause a mild degree of impairment of function with stressful use of the left upper extremity.
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He was examined by a VA physician on 18 April 2001 for meralgia paresthetica (a disease marked by burning, prickling, pain, numbness, etc. in the outer surface) of the left thigh and plantar digital neuritis of the right second toe. He was diagnosed as having interference and restriction of activities due to pain secondary to meralgia paresthetica and interference with function and activities due to pain secondary to the right second toe neuralgia.
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A 7 February 2000 interpretation of a radiology report of the applicant's lumbar spine indicated that the vertebral bodies were in normal alignment, that generalized mild-to-moderate spondylosis was present; and that sclerotic facet joint changes were noted bilaterally at L5-S1, more marked on the right. The impression given was degenerative changes of the lumbar spine. The radiologist indicated an abnormality, and that attention was needed.
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A 7 February 2000 interpretation of a radiology report of the applicant's feet indicated that the applicant had mild DJD (degenerative joint disease) at interphalangeal joints and first metatarsophalangeal joint bilaterally; a plantar calcaneal spur bilaterally; otherwise, the visualized bony structures were grossly unremarkable. The radiologist indicated a minor abnormality.
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A 7 February 2000 interpretation of a radiology report of the applicant's left shoulder indicated mild degenerative changes of the acromioclavicular joint, a minor abnormality.
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A 7 February 2000 interpretation of a radiology report of the applicant's left elbow indicated that findings suggested mild degenerative changes of the posterior humeral ulnar joint, a minor abnormality.
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A June 1998 CT scan report indicated DJD at L3-S1.
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On 10 August 1998 a physiotherapist indicated that the applicant was suffering from sciatica produced by mechanical deformation of structures in the lumbar spine, referring pain to his buttocks and posterior thighs.
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Laboratory tests conducted at Landstuh Regional Medical Center on 6 August 1998 showed high cholesterol and triglyceride readings.
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A 29 April 1998 echocardiogram report gave an impression of aortic sclerosis, and a mild AI (aortic insufficiency), otherwise normal.
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A radiological examination conducted on 21 April 1998 of the carotids indicated mild athrosclerotic changes with plaque seen in both carotid bulbs; no evidence of hemodynamicly significant stenosis; poor visualization of flow in distal right ICA which was probably secondary to technical factors, with any further work-up based on clinical suspicion.
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Charts and medical reports show the applicant's stress EKG results for blood pressure for 1983, 1997, 1998, and 1999; a 1983 electrocardiographic record; and treadmill exercise testing reports.
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The applicant underwent a radiologic examination on 25 August 1998. The impression given was a normal myocardial perfusion scintiscan.
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Included are EKG reports on tests conducted from 20 April 1998 to 21 April 1998.
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Pages from a 26 September 2001 medical report from the Delaware Disability Determination Service provided the history of the applicant's conditions, and the results of a physical examination. The applicant highlighted his blood pressure reading, and the statement that, "I was surprised to see that his right arm is stronger, and his right hand is also stronger grip that his left…"
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A 7 July 2001 page from a Philadelphia VA report showed that the applicant had highlighted the medications that he was taking, Valsartan with Hydrochlorthiazide, Simvastatin, and Vitamin C; and his blood pressure readings, 161/84 and then a 194/80. That page indicated that the applicant's symptoms of dizziness and near syncope were less frequent and less severe since leaving the service, that he continued to exercise regularly and that he maintained a high level of cardiovascular fitness, that he has not had syncope or dizziness during exercise, and has not noted sudden drops in his heart rate. He has noted a rapid slowing of heart rate from its peak after the end of exercise, indicating excellent cardiovascular fitness.
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A 3 August 2001 neurology consultation report showed that the consulting physician stated it seemed evident that the applicant's pre-syncopal episodes were probably due to orthostatic hypotension (a fall in blood pressure associated with dizziness, syncope, and blurred vision occurring upon standing or when standing motionless in a fixed position), in the setting of sinus bradycardia (slowness of the heart beat); and that a tilt table test (as requested) was unlikely to be helpful.
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Provided is a copy of a medical record initiated by a cardiologist at Landstuhl on 9 March 1999, in which the applicant highlighted a medication he was taking. That record indicated that the applicant described episodes of light headiness and pre-syncope.
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Medical records of 10 August 1998 document peripheral vascular disease, that no further evaluation indicated at present, pre-syncopal episodes, false positive exercise treadmill test, and mild hyperlipidemia, among other conditions. Other medical documents from Landstuhl note his cholesterol problem, his pre-syncope, and his blood pressure, the readings which he took at his home.
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A 10 March 1999 report of medical examination shows that the applicant was medically qualified for retirement with a physical profile serial of 2 3 3 1 1 1. That report listed his various medical conditions, to include DJD left shoulder and left elbow, right tarsal tunnel and bilateral fasciitis, chronic low back pain, post operation scars to the left elbow, right ankle, right and left heel, left anterior iliac crest, and left shoulder. It noted his hypertension, peripheral vascular disease, pre-syncopal episodes, history of positive exercise test, hyperlipidemia, right mental neuropathy, left meralgia paresthetica, valvular heart disease (aortic sclerosis and mild aortic insufficiency), pulmonic sclerosis, mild pulmonic stenosis, mild left atrial enlargement. In the report of medical history that the applicant furnished for the examination, he stated that his health was marginal. He indicated various past or current medical problems, to include frequent trouble sleeping, and periods of unconsciousness. He stated that he did not know whether he did or had suffered from depression or excessive worry.
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A 10 August 1998 report of medical examination for the purpose of an MEB makes reference to an orthopedic report, x-ray, CT scan, and physical therapy reports, and notes other medical conditions. That report does not indicate his physical profile serial.
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Included is a 26 August 1997 periodic report of medical examination which indicates that the applicant was medically qualified for duty with a physical profile serial of 1 1 1 1 1 1. In the report of medical history that the applicant furnished for the examination, he stated that his health was excellent, that he had or had had dizziness or fainting spells, a head injury, high or low blood pressure, painful or "trick" shoulder or elbow, recurrent back pain, foot trouble, frequent trouble sleeping, and depression or excessive worry. That report indicated that the applicant had a history of dizziness while under stress, a history of vague chest discomforts and labile hypertension, history of MTs fracture of both feet, no sequela, that he had DJD L5-S1 and recurrent low back pain, a history of surgery to his left elbow (epicondylitis) and limited extension in the joint, a history of left rotator cuff repair, right ankle, tarsal tunnel syndrome, corrective surgery, and excessive worries, the last two words highlighted by the applicant.
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A 19 April 2001 mental health assessment gave a diagnosis of adjustment disorder with mixed features. That report indicated that the applicant admitted feelings of anxiety and depression related to issues surrounding his military retirement and the ongoing inquiries regarding decisions made at that time. He believed that his reputation had been maligned and hoped for removal of certain letters, which remained on record. A 20 June 2001 psychiatric report diagnosed the applicant with adjustment disorder with depression.
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A 21 September 2001 medical record prepared by the Delaware Disability Determination Service, concerning his complaint that he was diagnosed with anxiety and depression, indicated a diagnosis of major depressive disorder, recurrent, moderate, rule out severe. That record indicated that the applicant had a problem with his chain of command, beginning apparently in 1997, when it did not support him in conflict with a black female first sergeant. The record indicated that the applicant felt that the Army had betrayed him.
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In a 21 March 2001 letter the VA informed him that his evaluation for service connected meralgia paresthetica, left thigh was increased to 10 percent, for plantar digital neuritis, right second toe increased to 10 percent, that his left elbow condition, remained at 10 percent, and that his right tarsal syndrome was at 10 percent.
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A 12 May 2000 VA rating decision shows that the applicant received a 40 percent service connected disability rating for lumbosacral strain and sprain; a 20 percent rating for residuals, left shoulder repair, major; a 10 percent rating for residuals, left elbow condition, major; a 10 percent rating for hypertension; a 10 percent rating for mental neuropathy due to implants; a 10 percent rating for right plantar fasciitis; a 10 percent rating for left plantar fasciitis; a 10 percent rating for right tarsal tunnel syndrome; a zero percent rating for meralgia, paresthetica, left thigh; and a zero percent rating for plantar digital neuritis, right second toe.
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On 13 October 2001 the Social Security Administration notified the applicant that he was entitled to monthly disability benefits beginning in April 2000. That agency indicated that the applicant had become disabled under their rules on 1 June 1999.
19. Enclosure 1-11 of Exhibit 1 of the applicant's PAAR is well indexed, and includes copies of pages from Army Regulation 635-40 and Army Regulation 40-501, information from the 2001 worldwide PEBLO conference, a MEDCOM training guide on disability processing, VA disability worksheets, a copy of DOD instructions concerning joint range of motion (ROM) measurements, and almost 300 pages on joint motion measurements, orthopedic assessments, and fundamentals of orthopaedics. Of note is a copy of a 20 August 1998 DA Form 3348 (Physical Profile) indicating the applicant's physical profile serial of 2 3 3 1 1 1, because of tarsal tunnel syndrome and plantar fasciitis, mild arthritis left elbow, left lateral thigh numbness, and right jaw numbness. The applicant could do no jumping and no sit-ups. He could do pushups on his own. He could not shave, but his beard had to be neatly maintained, less than 1/4 inch. He could run at his own pace and distance, do unlimited walking, bicycling, and swimming. His commanding officer indicated that his profile required a change in his specialty and duty assignment.
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Also included is an informal note to an individual, presumably his supervisor or commander, in which the applicant stated that he had been notified that he had to appear before a MOS/Medical Retention Board (MMRB) on 4 August 1998 as a result of permanent physical profiles that he had received. He stated that one of the requirements for the board was a letter from his commander/supervisor on worldwide deployability. He stated that he did not believe that he was worldwide deployable because of his permanent physical profile of 3 3 2 2 1 1, which included a permanent shaving profile. He stated that he thought that the shaving profile made it self-evident that he would be eliminated from many jobs. He stated that the memorandum should be terse and to the point, and recommended a memorandum to the president of the MMRB, stating that he was not worldwide deployable in a field environment, and recommending that he be placed before the MEB/PEB.
20. In enclosures 12-49 of Exhibit 1 of the applicant's PAAR, he provides a copy of items concerning range of motion and back pain, official publications relating to syncope, heart disease, hypotension and syncope, orthostatic hypotension, bradycardia, and psychiatric and behavioral aspects of cardiovascular disease. He provides extracts from various DODI on analogous rating of syncope to epilepsy, presumption of fitness, VASRD, and total disability ratings. He provides extracts of Army Regulation 635-40. He provides information papers on the physical disability evaluation system. He provides information concerning the officer evaluation rating system, a copy of his OER for the 12 month period ending on 30 September 1998, and a copy of his support form, on which on 28 September 1998, he stated that he had no counseling dealing with his overall performance with his rater during the rating period, never received a copy of his rater or senior rater's support forms, and did not receive any information about the new rating system until 17 April 1998.
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He provides copies of correspondence and documents concerning matters relating to problems with members of his chain of command over adverse actions on an NCO. He includes, among other documents, a copy of a 13 January 1998 memorandum to the DOD Inspector General Defense Hotline, in which he complained of the efforts of Defense Intelligence Agency (DIA) leadership above his rater of wrongfully influencing the punishment meted out to his unit's first sergeant, and the decision of the DIA leadership to leave that NCO on station and to send her on an unneeded TDY. He indicated that he had been threatened with relief, and that officers senior to him had maligned his reputation.
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He provides two letters of support from two senior officials, one dated 21 January 2002, the other, 9 February 2002, in which both stated that they were aware of the turmoil in the [applicant's] unit caused by DIA officials. Both stated that neither the applicant's rater, a SES (Senior Executive Service) official, nor his senior rater, a brigadier general, ever visited the unit.
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He provides a 4 February 1999 memorandum to the PEBLO giving input to the doctors who will be doing his narrative summary. He provided an explanation of his impairments to help them put everything in perspective.
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He provides a publication on depression from the National Institute of Mental Health.
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He provides another item from the 2001 worldwide PEBLO conference concerning the conclusions of an MEB – each diagnosis listed must be annotated to indicate whether it is a condition that meets or falls below retention standards. If the condition falls below retention standards, the relevant paragraph must be included with the diagnosis.
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He provides a case summary, which purports to show the difficulty of establishing proof of a disease or impairment under the provisions of the Social Security Act, that a claimant must prove inability to perform a substantial gainful activity.
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He provides a medical record prepared by a cardiology consult, who indicated that the applicant had a history of pre-syncope, but no real syncope and no history of chest pain. That doctor indicated that a test showed episodes of bradycardia, but the rate varied. There was no evidence for aortic stenosis or aortic insufficiency. His echo showed mild aortic valve sclerosis and pulmonary stenosis with minimal aortic insufficiency. The impression given was sinus bradycardia probably due to mild sick sinus syndrome, hypertension, and no evidence for significant valvular heart disease.
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He states that he is receiving an 80 percent disability rating from the VA for ten separate ailments with are service connected, and that he still had some cardiac and cervical spine issues to be resolved. He provides a list of his medical problems and their effect on his ability to work.
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He provides a 9 March 1999 medical record from a podiatrist who diagnosed his condition as right second toe pain secondary to plantar digital neuritis from subluxed toe, pronation and pressure.
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He provides a copy of an e-mail response from the USAPDA legal advisor, who stated that there was no specific performance standards that had to be met for particular military branches, MOSs, or ranks, and that each case was unique, and using DODI 1332.38 and Army Regulation 635-40, each case was decided based upon the rank, position, career status, and medical impairment unique to that soldier.
21. Reference g through k, Tabs 2 through 6 of his PAAR includes documents concerning the denial of his PAAR and his appeal of that denial. On 17 April 2002 the Army Reserve Personnel Command notified him that his request concerning changes to his record was denied, because his concerns were not a proper basis under the Privacy Act. He was informed that the amendment procedures did not permit challenges of an event in a record that actually occurred, and that judgmental decisions must be challenged before the ABCMR. In his appeal, he stated in effect, that the physical disability evaluation system and this Board made a decision adverse to him based on factual errors in the record. He stated that he did not request a change in the decision of the PEB or the ABCMR, but rather requested 41 specific amendments to the record on which the decisions of both boards were based; and, that to meet the requirements of the Privacy Act, the Army must render a ruling on each individual amendment request, since it was Army personnel who generated all the factual information and concomitant judgments in the record. He stated, that for example, there were conflicting medical reports in the record, those generated by Army physicians and those generated shortly after his retirement by VA and SSA contract physicians, as well as by a private neurosurgeon; and that both sets of reports and diagnoses could not be correct. The ones generated by Army physicians violated Army regulations for the conduct of physical examinations and report writing, and the Army is obligated under the Privacy Act to determine which reports accurately described his ailments.
22. Reference l – Tab 7 is the applicant's 22 April 2002 letter to a Doctor Frame, a VA cardiologist, requesting a clarification for the rating board in the Wilmington Regional Office of the cardiology Compensation and Pension examination conducted on 8 June 2001, and Doctor Frame's response. That examination was requested to clarify discrepancies between examinations and test reports conducted in the military and subsequent VA cardiologists. Two cardiologists reviewed his medical reports and provided a consensus evaluation. The applicant, apparently in disagreement with some of the conclusions reached as a result of that examination, provided Doctor Frame a discussion concerning his ailments, asked the doctor to respond to numerous questions concerning his conditions, and provided the doctor 19 enclosures to his letter, to include some of his military medical records.
23. Reference m – Tab 8 are Social Security Administration physical and mental functional capacity assessments and other documents, dated in October 2001, used to document the Social Security Administration's disability determination. Of note, is a statement that the applicant's affective disorder appeared to stem from difficulties he experienced in the Army when he felt unsupported by the chain of command. A note also indicated that the applicant had depression, but had good concentration. The determination made was that the applicant was disabled.
24. Reference n – Tab 9 is a report of an 11 July 2002 C&P examination report for mental disorders, which indicated that the applicant had some stressful situations, one in 1990 when he was involved in some legal cases related to personal issues; in 1997, when a friend of his committed suicide and his wife's mother and aunt passed away; and again, in 1998, when he felt that he was not supported by his chain of command in a matter concerning a black female first sergeant, when he was threatened to be fired. His condition was diagnosed as major depression, recurrent.
25. Reference o – Tab 10 shows that the applicant was awarded a 70 percent disability rating for a nervous condition, and a combined disability rating of 100 percent. Also included is his notice of disagreement to the VA rating decision.
26. Reference p – Tab 11 is the applicant's 28 May 2002 submission to the VA, with 20 enclosures, documenting service connection for his nervous condition, and the problems that he had with his chain of command.
27. Reference p – Tab 12 are copies of Social Security Administration rulings.
28. In the processing of this request, an advisory opinion was obtained from the legal advisor to the Army Review Boards Agency. The legal advisor stated that the ABCMR was not an Access and Amendment Refusal Authority (AARA) authorized to take action on PAARs pertaining to records created or maintained outside the Army Review Boards Agency. He stated that as the Board determined in the previous MOC, it did not appear that the applicant had shown any substantive error that would materially effect the decision of the appropriate authorities to direct that the applicant be retired for longevity of service, based upon his application; and that it appeared that the appropriate authorities processed his request for voluntary retirement in accordance with the applicable rules. The legal advisor stated that the ABCMR, under the provisions of the Privacy Act, could correct errors that itself created, but could not invoke the PA amendment authority to alter other records not properly maintained by the ABCMR – the argument that because the applicant disagreed with the judgment of a certain physician whose conclusions were incorporated into the MOC, the ABCMR is obligated to amend the health record, is specious. The PERSCOM legal opinion regarding the application of the PA (Privacy Act) amendment authority to matters of opinion or judgment, included in the application is correct.
•
The legal advisor stated that if the previous MOC contained material errors, the ABCMR should act to amend those errors – with the caveat that none of the errors cited by the applicant for correction under the PAAR authority would have a material effect on the manner of the applicant's retirement.
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The legal advisor stated that the section of the directive that the applicant quoted concerning the opportunity to take a longevity retirement rather than undergo physical disability separation did not apply to the applicant's circumstances. He was found fit, chose to apply for longevity retirement, and then fell under the presumption of fitness. The Army never proposed to separate him for unfitness.
•
The legal advisor recommended that the application be treated as a request for reconsideration, and that any errors in the MOC that are corrected by their recognition in the new action became moot as errors under the PAAR.
29. In his 5 May 2003 response to the advisory opinion, the applicant stated that he did not expect the ABCMR to correct records that were not under its control, but must consider the information in its deliberations on the merits of his request. He stated, however, that the ABCMR should have a correct record before it for reconsideration. The applicant takes exception to the legal advisor for usurping the ABCMR function by concluding that he had not shown substantive error or substantive injustice related to his retirement for longevity rather than disability; and stated that the legal advisor was wrong about his request because inherent in it was his appeal for the Board to find that he was indeed unfit for duty at the time of his retirement. The applicant disagrees with the legal advisor in his interpretation of the rules concerning longevity retirement or physical disability separation. He stated that if the PEB had found him unfit, he could have retired for longevity, with a portion of his retired pay excluded from his taxable income.
•
He stated that the expert opinions of the other physicians provided to the Board, must be weighed against the judgments of the MEB physicians and the finding of the PEB that he was fit for duty.
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He stated that all that he expected from this Board, which he is entitled by law, is a fair examination and discussion of all the evidence of record, not naked conclusions unsupported by evidence and misstatements of fact and regulations, as stated in the original MOC. He stated that he hoped the Board's results would include various considerations, explanations, analysis, and discussion – that he be provided with a rational, detailed explanation, which discussed all t he evidence, both pro and con, for any Board decision. He stated that the law entitled him to no less.
CONCLUSIONS:
1. There are material errors in the 20 September 2001 MOC. This document amends those errors as indicated herewith.
•
Error related to the number of ailments rated by the VA (page 2 of MOC). The MOC indicated eight different diagnoses, and although in his original request to the Board, he referred to pages 3-7 of Exhibit 4, which shows only five diagnoses, the applicant's attachments to his request were available to the 20 September 2001 Board. A 12 May 2000 VA rating decision shows service connected disability ratings for ten different diagnosis; consequently, the 20 September 2001 MOC is changed to show ten different diagnoses. His request to add his latest letter to the VA to his official records goes without saying. All records submitted are part of his official records.
•
Errors and incomplete information related to physical profile. The physical profile issued on 4 June 1998, and signed by his commander, Major "S," on 7 July 1998, does show that officer did recommend a change in his duty assignment because of his beard; therefore, that portion of page 2 of the 20 September 2001 MOC that states, "All three of the physical profiles issued show that the unit commander had determined that no change in MOS was required," is changed to read, "Two of the … was required. The profile issued on 4 June 1998 indicating no facial hair shaving shows that his commanding officer indicated on 7 July 1998 that he required a change in his duty assignment because of his beard." The wording in paragraph 2 on page 9 of the MOC, "All three of the physical profiles issued between April and June 1998 were annotated … the restrictions provided by the profile, " is changed to read, "Two of the physical profiles issued between April and June 1998 were annotated … the restrictions provided by the profile. The profile issued on 4 June 1998 indicating no facial hair shaving shows that his commanding officer indicated on 7 July 1998 that he required a change in his duty assignment because of his beard."
•
The applicant's assertion that the statement on page 4, "As a result of the MEB consults and MEB summary, a physical profile was approved on 31 August 1998, … " is incorrect because neither the consults nor the NARSUM had the dates filled out, is accepted. Consequently, the words, "As a result of the MEB consults and MEB summary, " are deleted from the portion of that statement.
•
The applicant's assertion that the statement on page 3 of the MOC, "mild hyperlipidemia (high cholesterol) controlled by medication, " is incorrect because nowhere does it say that the ailment was under control, only that he was taking medication for it and needed to be monitored, is accepted. Therefore, that phrase on page 3 should read, "mild hyperlipidemia treated with medication and needed to be monitored."
•
The applicant's assertion that the statement on page 5 of the MOC, "During the period of 4-6 January 1999 the PDA conducted another review …," is incorrect because the USAPDA letter to him was dated 5 January 1999; therefore, it could not have had his case for review on 6 January 1999. That contention is accepted; consequently, the statement on page 5 should read, "During the period 4-5 January 1999 the PDA …."
•
The applicant's assertion that the statement on page 5 of the MOC, "The Physical Disability Branch closed the case on 11 January 1999 with a letter to the applicant," is incorrect, because the memorandum was sent not to him but to the commander of the MTF, is accepted. The statement should read, "The Physical Disability Branch closed the case on 11 January 1999."
•
The presumption of fitness rule cited in the next to last paragraph on page 8, and the first sentence of paragraph 3 on page 9 is applicable to any voluntary request for retirement; however, that rule should not have been applied as inferred in paragraph 3 on page 9 relative to his MEB/PEB process. The applicant's contention that the rule was erroneously associated with the MEB/PEB process is accepted.
•
The applicant's assertion concerning erroneous regulatory citations, in that Army Regulation 40-501, paragraphs 3-3a and 3-3b(1), as cited in the next to last paragraph on page 7 of the MOC, is correct. That paragraph is incorrect. The cited paragraphs did not exist at the time of his request.
•
The Board accepts the applicant's assertion that the MOC erred citing "the MEB's overall findings," when the reference was to "the board's [meaning the PEB] overall findings."
2. The omissions noted by the applicant in the 20 September 2001 MOC are not disputed. For instance, no mention was made that the Army directs its physicians who perform MEB and physical disability examinations to use the VA Physician's Guide for Disability Evaluation Examination, nor was there mention in the MOC of his history of pre-syncopal episodes associated with bradycardia, as indicated in the applicant's NARSUM. The MOC, however, does not require amendment under 10 U.S.C. Section 1552 or under the authority of the Privacy Act, simply because matters concerning the applicant's case, which the applicant considers relevant, were not included in the MOC. The fact that some or all of the information contained in the applicant's submission was not cited in the MOC, does not suggest nonconsideration by the Board, nor do any omissions constitute material error.
3. Nor does the MOC require amendment because of the applicant's contentions that adequate coverage was not given to his medical condition and his medical ailments, that the MOC, in instances cited by the applicant, dealt in generalizations, that it did not cite violations by medical personnel of regulatory requirements, that it did not provide the proper context for statements attributed to the applicant, and that the MOC erroneously characterized errors made in documents. The fact that the applicant is not satisfied with the subjective phrases and comments contained in the MOC and the analysis made, is not tantamount to material error requiring amendment under the above cited rules.
4. Neither the material errors noted, nor their corrections, had any material effect on the manner of the applicant's retirement, or on the decision made by the 20 September 2001 Board. The amendments do not change the results of that Board, but are made simply to correct the record. Furthermore, the Board is not bound to correct any errors the applicant contends were made in records not created by this Board. As noted in the advisory opinion, the Board does not have the authority under the PAAR to alter records not maintained by the ABCMR. This Board, however, accepts and considers all records submitted, and makes an administrative decision based on its subjective judgment. The applicant's statements, to include his contentions of errors in his record, are considered, along with all other documents, statements, statutes, directive, etc., in reaching its decision.
5. The Board notes that in some instances regulatory procedures might not have been followed in their entirety in the applicant's disability processing. Nonetheless, his contentions that the failure to adhere to procedures resulted in defective, inaccurate, and incomplete reports of little probative value in a disability evaluation, and notwithstanding the Oxman report, are simply untrue. The fact that physicians did not do everything according to Hoyle, in conducting their physical examinations or in preparing the reports of those examinations, did not and does not make the applicant unfit. By the same token, mistakes made in his disability processing by the PEB and the USAPDA, did not affect his medical condition, and did not make him unfit.
6. This Board has no requirement or responsibility to rule on his PAAR, except for that portion of his PAAR pertaining to records created by this Board. The Board is only charged to consider individual applications, and direct or recommend correction of records to remove an error or injustice.
7. The Board accepts the applicant's contention that the presumption of fitness rule cannot be applied in the applicant's case, at least not in connection with his physical disability processing. The Board notes, however, that the PEB did not apply the presumption of fitness rule in his case. Nonetheless, because his service was not interrupted by any physical disability, and there is no evidence, and the applicant has not provided any, to show that he could not continue to reasonably perform his duties because of a physical disability, he is not entitled to physical disability retirement or separation. His contention that there was no OER that documented that he performed his duties adequately for the last nine months of his service until his retirement, or his contention that the ABCMR could not produce evidence, other than his mere presence of duty, that he performed his duties adequately, is specious. Regarding the first, the lack of an OER does not construe inadequate service or inadequate performance of duties. He continued to serve after having voluntarily requested retirement. In the second, the applicant has it backwards – the ABCMR does not produce evidence to support a position; the onus is upon the applicant to prove his points. The applicant applied for retirement. He was medically qualified for retirement. His request was approved.
8. The Board also takes note that in August 1997 the applicant stated that his health was excellent. Shortly thereafter, in the fall of 1997 he began to have problems with members of his chain of command concerning his first sergeant; and, less than a year later he was referred to a MMRB because of his various permanent physical profiles. In August 1998 he stated that his health was marginal. The Board also notes, that his commanding officer, Major " S," indicated his profiles for his tarsal tunnel syndrome, plantar fasciitis, left lateral thigh numbness, and mild arthritis to his left elbow did not require a change in his specialty or duty assignment; that officer recommended a change in his duty assignment only because of his beard. That same officer, on 20 August 1998, stated that the applicant was able to perform his duties, albeit with numerous profiles.
9. The applicant was determined to be physically fit by a PEB in December 1998 and physically fit for retirement as noted in his March 1999 report of physical examination. Despite his numerous contentions and the documentation that he has provided, the Board is not convinced otherwise.
10. In view of the foregoing findings and conclusions, the applicant's records should be changed as indicated in paragraph 1 above.
RECOMMENDATION:
1. That the 21 September 2000 Memorandum of Consideration in the applicant's case be amended as indicated in paragraph 1 of the conclusions.
2. That so much of the application as is in excess of the foregoing be denied.
BOARD VOTE:
__MKP __ __WTM _ __TEO _ GRANT AS STATED IN RECOMMENDATION
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
___Margaret K. Patterson_____
CHAIRPERSON
INDEX
| CASE ID | AR2002074935 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 20030729 |
| TYPE OF DISCHARGE | |
| DATE OF DISCHARGE | |
| DISCHARGE AUTHORITY | |
| DISCHARGE REASON | |
| BOARD DECISION | GRANT |
| REVIEW AUTHORITY | |
| ISSUES 1. | 108.00 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
AF | PDBR | CY2009 | PD2009-00033
The PEB found the CI unfit for both conditions, rated 10% each, and he was medically separated with a combined disability rating of 20%. Knee Condition . Other Conditions .
ARMY | BCMR | CY2006 | 20060008074
The applicant provides counsel arguments and all associated documents, to include copies of her Medical Evaluation Board (MEB), Physical Evaluation Board (PEB), and supporting service medical records. If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations. U.S. Army Physical Disability Agency Policy/Guidance Memorandum Number 13, dated 28 February 2005, provides guidance for rating...
AF | PDBR | CY2009 | PD2009-00237
Whether or not related to the back condition, any of these conditions would need to be in themselves unfitting for the Board to recommend them for additional rating. That rating decision stated, ‘Your service medical records do not show any treatment for or diagnosis of depression while in service.’ His physical profile was S1. There is no evidence that any of them were clinically active during the MEB and none were covered by the physical profile or Commander’s statement.
AF | PDBR | CY2010 | PD2010-00377
After due deliberation, considering all of the evidence, the Board recommends a service disability rating of 20% for the cervical (neck) condition. The Board determined therefore that none of the stated conditions were subject to service disability rating. The PEB disability description specified that there was ROM limited by pain and that the PEB used the PT exam (which was closer to the date of separation) as their rating exam.
AF | PDBR | CY2011 | PD2011-00666
Left Shoulder Condition . ROM exams by both the service and VA show non-compensable limitation of motion, but ample evidence of degenerative change and painful motion to justify a minimal compensable rating under code 5003. Right Shoulder Condition .
AF | PDBR | CY2013 | PD-2013-01352
The right knee chondromalacia condition was listed on the permanent profile dated 3 March 2004, along with the right ankle condition. BOARD FINDINGS : IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication.As discussed above, PEB reliance on the USAPDA pain policy for rating chronic right ankle pain was operant...
ARMY | BCMR | CY2009 | 20090012832
The applicant requests correction of his records to show all the conditions that were listed on his Medical Evaluation Board (MEB) are rated. The reflux disease was rated at 10 percent and his psychiatric conditions were also rated. Army Regulation 635-40 establishes the Army PDES 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 or her office, grade, rank, or...
AF | PDBR | CY2013 | PD-2013-02197
It is limited to those conditions determined by the PEB to be unfitting for continued military service and those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.The rating for the unfitting thoracic musculoskeletal condition is addressed below.The requested bilateral knee condition, lumbar spine condition, left hand ulnar nerve dysfunction and hypertension (determined to be not unfitting by the PEB) are also addressed below.The...
AF | PDBR | CY2012 | PD 2012 00968
The MEB also identified and forwarded one other condition for PEB adjudication.The Informal PEB adjudicated “chronic low back pain with radiculitis”and “bilateral plantar fasciitis” as unfitting, rated 10% and 0%. The CI was then medically separated. At the time of the MEB orthopedic NARSUM examination on 25 March 2002,the CI reported his plantar fasciitis pain had gone away due to not running, ruck-marching or prolonged standing since he received the L2 profile in July 2001.
AF | PDBR | CY2009 | PD2009-00098
The Physical Evaluation Board (PEB) adjudicated the back condition (rated 10%) and OSA (rated 0%) as unfitting. The neurology addendum and the MEB physical, both within two months of the VA examination, documented a normal gait. Other Conditions .