IN THE CASE OF:	  

		BOARD DATE:	        16 October 2008

		DOCKET NUMBER:  AR20080009020 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, correction of his 24 February 2005 Physical Evaluation Board (PEB) to show he was medically disabled instead of fit for duty, assign a disability rating, and recommend that he be placed on the permanent disability retired list (PDRL). 

2.  The applicant defers his statement to counsel. 

3.  The applicant submits additional documentary evidence through counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, the PEB reconsider the seriousness of the medical treatment the applicant underwent and assign a 20 percent rating for his mitral valve reconstruction, 10 percent for migraine headache, 20 percent for his left shoulder pain, and 10 percent for disfigurement from severe scarring.  

2.  Counsel states that: 

	a.  the applicant was serving on active duty as a Judge Advocate in Germany in March 2004 when he underwent open heart surgery for mitral valve repair caused by endocarditis, an acute infection of the heart caused by bacteria entering the blood system;

	b.  the applicant’s case was reviewed by the Regional Vaccine Healthcare Center (VHC) of the Portsmouth Naval Center whose report concluded that this condition is presumed to have resulted from dental procedures.  He suffered for two months while in Germany and was subsequently referred to a German cardiologist who conducted open heart surgery on 14 May 2004.  During the surgery, infections were excised from the outside surface of the heart and severe damage to his mitral valve was repaired.  This required the placement of an annuloplasty ring for the purpose of maintaining a natural shape motion and flexibility of the valve;

	c.  after the surgery, the applicant slowly recovered, but was left with a significant surgical scar to his chest.  He eventually returned to casual duties after his return to the United States, but continued to have abnormal heart activity and was placed on a permanent profile.  His Officer Evaluation Report clearly shows he was unable to complete the Army Physical Fitness Test (APFT);

	d.  the applicant also had a history of migraine headaches during his military service.  This began in June 2004 with a frequency of 2-3 times a month, characterized by blurry vision and the requirement to rest in a dark room.  He was not provided with any medications for those headaches.  He continues to have these headaches today on a frequency of 4 per year;

	e.  the applicant’s pre-existing left shoulder condition was permanently worsened as a result of his military service.  It appears that the heart surgery may have aggravated his left shoulder as the surgeon had to wrench the left side of his body open to gain access to the heart; and

	f.  in March 2005, the applicant was unfit for duty, was on a permanent profile, and was unable to complete the APFT.  When exercising, he experienced shortness of the breath and an increased heart rate.  This coupled with his headaches, the plastic valve prosthesis in his heart, and his embarrassing scar arose as a direct result of his military service. 

3.  Counsel provided the following additional documentary evidence in support of the applicant’s request:

	a.  Applicant’s self-authored statement, dated 11 April 2008;

	b.  Regional Vaccine Healthcare Center, Portsmouth, Virginia, Clinical Summary, dated 17 March 2006;

	c.  DA Form 3349 (Physical Profile), dated 10 January 2005; and

	d.  DA Form 67-9 (Officer Evaluation Report), for the period April 2005 to April 2006.
CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant’s records show he was appointed as a second lieutenant in the U.S. Army Reserve on 7 July 1986 and was subsequently appointed in the Louisiana Army National Guard (LAARNG) and executed an oath of office on 7 November 1986.  He was promoted to captain on 12 October 1993.

3.  On 26 June 1994, the applicant entered active duty and subsequently completed the Judge Advocate General (JAG) Officer Basic Course in September 1994.  He was honorably released from active duty for completion of required service on 31 January 2000.

4.  The applicant’s records show he was assigned to a legal support organization in New Orleans, Louisiana, and was promoted to major on 27 March 2000.

5.  On 22 February 2004, the applicant was ordered to active duty in support of Operation Enduring Freedom and was assigned to the Legal Services Office, JAG Team, Fort Sam Houston, Texas, and attached to Headquarters, U.S. Army Europe (USAREUR), Wurzburg, Germany.  He was honorably released from active duty for completion of required active service on 13 April 2005.

6.  On an unknown date in March 2004, while deployed to Germany, the applicant started to have severe chills and a fever.  A blood test was conducted and he was diagnosed with acute endocarditis requiring mitral reconstruction.  He was admitted to a German hospital in April 2004 and underwent surgery in May 2004.  His illness was determined to be in the line of duty (LOD).

7.  On 7 January 2005, a Medical Evaluation Board (MEB) convened at Fort Sam Houston, Texas, and after consideration of clinical records, laboratory findings, and physical examinations, the MEB determined the applicant suffered from medical conditions related to mitral valve repair with permanent plastic ring; endocarditis requiring mitral valve repair; medically acceptable migraine headache; medically acceptable left shoulder (existed prior to service); and medically acceptable gastro esophageal reflux.  The MEB recommended the applicant be referred to a PEB.  The applicant agreed with the findings and recommendations of the MEB.  He also indicated he desired to continue on active duty. 

8.  On 10 January 2005, the applicant was issued a permanent profile due to his illness.  The profiling officer cited his mitral valve repair.  The profile shows a numerical designator of "1" under all factors of the applicant's six-factor functional capacity (PULHES), indicating the applicant was considered to possess a high level of medical fitness and, consequently, medically fit for any military assignment throughout.   

9.  On 24 February 2005, a PEB convened at Fort Sam Houston, Texas, and based on the review of the objective medical and personnel evidence of record and considering the physical requirements for reasonable performance of duties required by his grade and military specialty, the PEB found the applicant fit for duty.  He had no physical profile and achieved 11 metabolic equivalents (METS) on exercise testing on 5 January 2005.  The PEB recommended the applicant be returned to duty as fit.  The applicant concurred with the findings and recommendations of the PEB. 

10.  On 10 August 2006, the U.S. Army Human Resources Command, St. Louis, Missouri, issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).  This letter notified the applicant that he had completed the required years of service and would be eligible for retired pay upon application at age 60.  

11.  On 8 September 2006 and subsequent to the applicant's voluntary request to be transferred to the Retired Reserve, Headquarters, 90th Regional Readiness Command, North Little Rock, Arkansas, published orders 06-251-00028, reassigning the applicant to the Retired Reserve, effective 1 October 2006.

12.  In his self-authored statement, the applicant states the following:

	a.  he gives a brief summary of his military background and his call to active duty.  He then goes on to say that the ARNG diagnosed him with mitral valve prolapsed (leakage in the intake valve of the heart), also known as a heart murmur, and that it did not affect his military performance;

	b.  upon arrival to Germany, he experienced the worst case of fever and chills and with help, he was treated at a military treatment facility that suspected he had the flu.  He continued to have fevers and chills and he was subsequently referred to a local German hospital where he underwent front chest open heart surgery that repaired the valve.  During recovery, he continued to feel pain in a previously injured shoulder that he thinks was aggravated by his surgery, and he also experienced migraine headaches; and

	c.  after a lengthy and painful recovery period, he returned to Fort Benning, Georgia, and was transferred to Fort Sam Houston, Texas, and after a period of treatment and/or rehabilitation, he was released back to his USAR unit.  While at that unit, he took the APFT several times, but his run time was clearly impacted and he had to carry a special device that monitored his heart rate.  His OER initially incorrectly showed him as failing the APFT, but was later corrected to show he was on a medical profile.  He eventually received his 20-year letter and applied for retirement.

13.  An advisory opinion was obtained on 21 August 2008, in the processing of this case.  The legal advisor to the U.S. Army Physical Disability Agency (USAPDA) stated the following:

	a.  the applicant's MEB, dated 20 January 2005, listed the applicant's diagnosis of mitral valve repair with permanent plastic ring; endocarditis, left shoulder stabilization, migraine headache, and gastro esophageal reflux.  The MEB also found that the applicant's mitral valve repair with permanent plastic ring allowed him to perform 12 METS and was without profile limitations.  The applicant concurred with his MEB findings on 24 January 2005.  Furthermore, the 24 February 2005 informal PEB found the applicant fit.  He, again, concurred with the findings on 7 March 2006; and 

	b.  the Army disability system is a performance based system and the fact that a Soldier may have a condition that does not meet medical retention standards does not equate to a findings of unfit.  The applicant's physical profile was all "1" with no duty restrictions.  His commander's letters and his OER indicated excellent duty performance with no restrictions.  There was no evidence upon which a PEB could have used to find the applicant unfit for a field grade JAGC position.  The issues related to possible future restrictions, treatment, or causation, are all immaterial to the applicant's fitness for duty.  The applicant did not provide any performance or medical evidence in 2005 which would support his claim of a PEB error.  The PEB's findings were clearly supported by a preponderance of evidence.  They were not arbitrary or capricious, and were not in violation of any statue, directive, or regulation.  The legal advisor recommended no change to the applicant's records. 

14.  The applicant was furnished a copy of this advisory opinion on 18 August 2008.  He did not concur and submitted a rebuttal on 16 September 2008 as follows:

	a.  the LOD event was the Army's fault and that he kept going to medical treatment facilities for several weeks letting "them" know that he was ill and they kept doing the blood tests incorrectly resulting in the aggravation of illness.  After the medical malpractice, open heart surgery became the only option.  He now has a permanent exemption from the small pox vaccination because of his LOD event.  Additionally, the advisory opinion does not address the fact that he could not pass the APFT indicates that he was not fit for duty, and that he elected to request retirement because he was going to be separated for not passing his APFT; and

	b.  he now has a big scar on his chest and a plastic ring inside his heart, and cannot get civilian health insurance.  Although he can get Veterans Administration (VA) health care; however, he does not reside close to a VA facility.  Additionally, he now gets winded when he walks up stairs or does yard work, which should not be the case for someone at his age.  If the Army applied the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) to him, he would get a 50 percent rating from the Army that would qualify him for a medical retirement, and with respect to the retroactivity issue, he thinks since his LOD event took place in 2004, he would be covered by the retroactive application of any new policy;

15.  Army Regulation (AR) 635-40, governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of a physical disability.  This regulation applies to the Active Army, the Army National Guard and the U.S. Army Reserve.  Paragraph 3-2b of this regulation provides for retirement or separation from active service.  This provision of regulation states that disability compensation is not an entitlement acquired by reason of service incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  The regulation also states that, when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement creates a presumption that the Soldier is fit.

16.  AR 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the Department of Veterans Affairs Schedule for Rating Disabilities.  Department of Defense Instruction 1332.39 and AR 635-40, Appendix B, modify those provisions of the rating schedule inapplicable to the military and clarify rating guidance for specific conditions.  Rating can range from 0 to 100 percent, rising in increments of 10 percent.

17.  Chapter 61, Title 10, U.S. Code provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The US Army Physical Disability Agency, under the operational control of the Commander, US Army Human Resources Command (USAHRC), Alexandria, VA, is responsible for operating the Physical Disability Evaluation System (PDES) and executes Secretary of the Army decision-making authority as directed by Congress in Chapter 61, 10 USC, and in accordance with Department of Defense (DOD) Directive 1332.18 and Army Regulation 635-40.  
Soldiers enter the Physical Disability Evaluation System four ways:  

   a.  Referred by a Medical Evaluation Board (MEB).  When a Soldier has received the maximum benefit of medical treatment for a condition that may render the Soldier unfit for further military service, the medical treatment facility (MTF) conducts a MEB to determine whether the Soldier meets the medical retention standards of AR 40-501, chapter 3.  If the Soldier does not meet medical retention standards, he or she is referred to a Physical Evaluation Board (PEB) to determine physical fitness under the policies and procedures of          AR 635-40; 

	b.  Referred by the MOS/Medical Retention Board (MMRB).  The MMRB is an administrative screening board the chain of command uses to evaluate the ability of Soldiers with permanent 3 or 4 medical profiles to physically perform in a worldwide field environment in their primary military occupation specialty.  Referral to a MEB/PEB is one of the actions the MMRB Convening Authority may direct; 

	c.  Referred as the result of a fitness for duty medical examination.  When a commander believes a Soldier is unable to perform MOS-related duties due to a medical condition, the commander may refer the Soldier to the MTF for evaluation.  If evaluation results in a MEB, and the MEB determines that the Soldier does not meet medical retention standards, the Soldier is referred to a PEB; and 

	d.  Referred as a result of HQDA action.  The Commander, US Army Human Resources Command (USAHRC), upon recommendation of The Surgeon General, may refer a Soldier to the responsible MTF for medical evaluation as described in (3) above.  USAHRC also directs referral to a PEB when it disapproves the MMRB recommendation to reclassify a Soldier.

18.  Army Regulation 40-501, chapter 7, physical profiling, provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES):  P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric.  Numerical designator 1 under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  Numerical designators 2 and 3 indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty.  The individual should receive assignments commensurate with his or her functional capacity.  Numerical designator 4 indicates that an individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited.  The numerical designator 4 does not necessarily mean that the individual is unfit because of physical disability as defined in Army Regulation 635-40.

19.  Profiles may be either temporary or permanent.  A temporary profile is given if the condition is considered temporary, the correction or treatment of the condition is medically advisable, and correction usually will result in a higher physical capacity.  Soldiers on active duty and RC Soldiers not on active duty with a temporary profile will be medically evaluated at least once every 3 months at which time the profile may be extended for a maximum of 6 months from the initial profile start date by the profiling officer.  A profile is considered permanent unless a modifier of "T" (temporary) is added.  If the profile is permanent, the profiling officer must assess if the Soldier meets retention standards in accordance with chapter 3, AR 40-501.  Those Soldiers on active duty who do not meet retention standards must be referred to an MEB as per chapter 3.  A permanent profile may only be awarded or changed by the appropriate profiling officer.

20.  Title 10, U.S. Code, Section 12731a is the temporary special retirement qualification authority.  This provision of law permits that, upon request, a member of the Selected Reserve may be transferred to the Retired Reserve if he or she:  (1)  has completed at least 15, but less than 20, years of qualifying service and (2) no longer meets  the qualifications for membership in the Selected Reserve solely because of unfitness due to physical disability.  This provision does not apply to any member whose disability resulted from intentional misconduct, willful neglect, or willful failure to comply with standards and qualifications for retention or was incurred during a period of unauthorized absence.  Title 10 was amended by the 106th Congress to extend the period of eligibility for this special retirement benefit from 1 October 1991 through 30 September 2001.

21.  Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating at least 30 percent.  Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rating at less than 30 percent.  

22.  Title 38, U.S. Code, sections 1110 and 1131, permit the Department of Veterans Affairs (VA) to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish error or injustice in the Army rating.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career.  The DVA does not have authority or responsibility for determining physical fitness for military service.  The DVA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. As a result, these two Government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 

DISCUSSION AND CONCLUSIONS:

1.  Physical evaluation boards are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.  

2.  The applicant sustained an illness that was determined to be “In Line of Duty.” He subsequently underwent an MEB which recommended he be given a PEB.  He concurred with this recommendation.  The PEB considered him for mitral valve repair with permanent plastic ring, endocarditis, left shoulder stabilization, migraine headache, and gastro esophageal reflux.  The PEB found him to be fit for further military service and recommended his return to duty.  Again, the applicant concurred with the findings and recommendations of the PEB.

3.  The applicant now believes he should have received an evaluation that showed he was unfit for duty, a 50 percent disability rating, and a medical retirement, but he has provided no evidence to support this belief or to refute the PEB rating.  The PDES provides that the mere presence of a medical impairment does not, in and of itself, justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may be reasonably expected to perform because of office, grade, rank or rating.  

4.  An award of a DVA rating does not establish error in the rating assigned by the Army's disability evaluation system.  Operating under different laws and its own policies, the DVA does not have the authority or the responsibility for determining medical unfitness for military service.  The DVA awards ratings because of a medical condition related to service (service-connected) and affects the individual's civilian employability.  

5.  The applicant’s physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the recommendation of the PEB that he be separated with severance pay.  There is no error or injustice in this case.

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  In view of the circumstances in this case, there is insufficient evidence to grant the requested relief.  The applicant has not shown error, injustice, or inequity for the relief he requests.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  __X_____  __X_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



															XXX
      _______ _   _______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080009020



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080009020



11


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1