BOARD DATE:	  20 October 2010

		DOCKET NUMBER:  AR20100011712 


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 reconsideration of the Board's denial of his request for a medical retirement.  In his request for reconsideration he also requested incapacitation pay.

2.  The applicant states the Ohio Army National Guard (OHARNG) caused permanent damage to his heart and vascular system by not following pertinent Army regulations.  Specifically:

   a.   he was transferred to the Retired Reserve without passing a cardio-vascular screening or without receiving a discharge physical examination;

   b.  evidence shows that his commander never received the notification that he had failed the cardiovascular screening; therefore, he (his commander) did not counsel him about the threat to his health;

   c.  his treadmill report (stress test) that showed he denied any chest pain or shortness of breath does not indicate that he didn't have cardiovascular problems; and

   d.  he questions the loss of his cardiovascular test.

3.  The applicant provides a copy of: 

* His Form SSA-1099-SM (Social Security Benefit Statement)
* A letter to him, dated 22 November 2005, which denied his claim of $103,752.10 under the Federal Tort Claims Act
* Page 2 of an undated Standard Form (SF) 88 (Report of Medical Examination) 
* Civilian medical documents, dated 16 October 2003

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080015688, on 18 August 2009.

2.  After having prior service in the U.S. Navy, U.S. Navy Reserve, Regular Army, and U.S. Army Reserve, the applicant enlisted in the OHARNG on 1 July 1992.  At the time of his enlistment in the OHARNG, the applicant was 40 years old.  He was promoted to the rank/grade of staff sergeant (SSG)/E-6 on 18 September 1995.

3.  On 15 January 1999, the applicant was issued a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).

4.  On 6 June 1999, the applicant underwent a periodic medical examination.  The results of Phase I of the Cardiovascular Screening Program (CVSP) and copies of his SF 88, SF 93 (Report of Medical History), and DA Form 5675 (Health Risk Appraisal) are not available for review.

5.  On 6 July 1999, the applicant submitted a request to be reassigned to the Inactive National Guard for 1 year.  His request was approved on 13 July 1999.

6.  An OHARNG memorandum, dated 9 August 1999, informed the applicant that he was not cleared for Phase I of the over-40 CVSP.  The memorandum was submitted through the Commander of Headquarters and Headquarters Troop, 2nd Squadron, 107th Cavalry Regiment.  The Phase I cardiovascular screening identified a need for further medical work-up.  He was advised that he must undergo Phase II of the CVSP with a suspense date of 9 November 1999 (90 days).  The memorandum indicated that the applicant had been given a temporary profile for 90 days to complete Phase II of the CVSP and to defer the Army Physical Fitness Test (APFT).  During this time he could attend inactive duty training, but he could not be placed on any type of active duty orders until he was cleared.  A copy of this memorandum was also forwarded to the 216th Engineer Battalion, 416th Engineer Group, and the 16th Engineer Brigade.

7.  On an unknown date, the applicant was given a temporary physical profile.  The DA Form 3349 (Physical Profile) is not available for review.

8.  On 15 January 2000, the applicant was notified that a Qualitative Retention Board (QRB) would convene on 8 May 2000.  He was advised that his DA Form 2-1 (Personnel Qualification Record), documents from his Military Personnel Records Jacket (MPRJ), and his QRB checklist would be forwarded to his unit for review.

9.  On 15 May 2000, the applicant was informed that the QRB had recommended him for continued retention in the OHARNG.

10.  The applicant provided two Noncommissioned Officer (NCO) Evaluation Reports for the periods ending October 1999 and October 2000 which indicate he did not take the APFT during these rating periods.

11.  On 5 July 2000, he was given a treadmill test by a civilian physician at the Cardiology Associates of Cincinnati, OH.  The treadmill report indicated the applicant was able to exercise on a standard Bruce protocol for a total of 13 minutes and 1 second.  His heart rate went from 74 to a maximum of 156 beats per minute corresponding to 90 degrees maximum predicted heart rate.  In addition, the treadmill report indicated the applicant had denied any chest pain or shortness of breath and his electrocardiograph was negative for ischemia [a condition in which the blood flow (and thus oxygen) is restricted to a part of the body] at a heart rate of 156 beats per minute.

12.  The applicant's DA Form 4970-E (Medical Screening Summary - CVSP), dated 9 September 2000, shows the following risk factors were not identified on his DA Form 4970-E:

   a.  smoking history, and
   
   b.  blood pressure, electrocardiogram, serum cholesterol, high-density lipoprotein, fasting blood sugar, and cholesterol ratio.

Item 10 (Cardiovascular Test - Treadmill) included the handwritten entry, "passed."  The results on the DA Form 4970-E indicated the cardiovascular test in item 10 revealed significant findings.  The DA Form 4970-E also indicated that additional medical assessment and treatment rested with the physician and all evaluative tests and recommendations would be placed in the applicant's outpatient medical record.

13.  In an undated affidavit from Dr. S____, he identified himself as a lieutenant colonel in the OHARNG at the time of the applicant's cardiovascular screening.  He stated he reviewed the applicant's Phase I and Phase II cardiovascular screenings in September 2000.  During this time, he had no role in administering Phase II screenings.  His only role was reviewing those results.  To the best of his knowledge, he never reviewed the applicant's Phase II screening.

14.  In an undated affidavit from Master Sergeant H____, he described his duties involving managing the over-40 CVSP.  He pointed out that Phase I of the CVSP consisted of SF 88, SF 93, and DA Form 4970-E.  He explained that once the reviewing doctor found that a Soldier had failed Phase I of this process, a letter was sent to the Soldier and his unit of assignment explaining that the Soldier had failed Phase I and was required to undergo Phase II (treadmill testing) at government expense at a Federally-contracted civilian medical facility.  He further explained that if the Soldier failed Phase II testing, another letter was sent to the Soldier and his unit explaining that the Soldier failed Phase II and that he/she would need to contact his/her personal/family doctor to complete Phase III consisting of nuclear cardiology at his/her own expense.

15.  In an undated affidavit from Staff Sergeant U____, he identified himself as the full-time Health Service Technician for the OHARNG during the period the applicant received Phase I of the CVSP.  He described his duties as the Health Service Technician in regard to the CVSP.  He indicated that he would put a cover sheet on the physicals needing Phase II screening for Dr. S____'s review.  He would flag Soldiers who failed, preventing any orders to active duty from being published.  The Soldier then had 180 days to respond or he/she would be processed for discharge.  Staff Sergeant U____ stated he had no recollection of any response from the applicant or any reason to think he was not apprised of the results of his CVSP.

16.  A Report of Operation, dated 16 October 2003, shows the applicant underwent open heart surgery for coronary artery disease with left ventricular aneurysm.

17.  The applicant provided a memorandum for record, dated 27 July 2006, from an OHARNG operations officer.  The operations officer indicated that he was the Commander of Headquarters and Headquarters Troop, 2nd Squadron, 107th Cavalry Regiment from June 1998 to January 2000 at which time the applicant was assigned to the unit.  To the best of his recollection, he did not receive the results of the applicant's CVSP while he was in command or receive a memorandum, dated 9 August 1999, notifying the applicant of the failure.
18.  On 15 April 2009, the applicant was honorably discharged from the Army National Guard and he was transferred to the U.S. Army Reserve (USAR) Control Group (Retired) under the provisions of National Guard Regulation
600-200 (Enlisted Personnel Management), paragraph 8-27u.  At the time of his discharge, he had completed 27 years, 3 months, and 7 days of total service for pay.

19.  In the processing of the applicant's original request, a staff advisory opinion was obtained from the National Guard Bureau.  In consultation with the Surgeons Office, the National Guard Bureau recommended disapproval of the applicant's request to change his retirement.  The advisory opinion stated the applicant underwent a periodic medical examination on 6 June 1999 and the results revealed he failed Phase I of the CVSP based on established risk factors.  A notice of failure was contained in a memorandum, dated 9 August 1999, through the unit commander.  The failure of Phase I triggered a requirement for a more extensive Phase II of the CVSP.  The applicant completed Phase II of the CVSP on 7 July 2000 and the results indicated he passed the required tests, clearing him for continued service.  The advisory opinion referenced Army Regulation
40-501, paragraph 1-5a(1), which states, "medical examiners will report as 'medically acceptable' all individuals who meet the medical fitness standards established for the particular purpose for which examined."

20.  The advisory opinion described the CVSP conducted by the Army National Guard.  It was stated that the process was used to determine if the Soldier was medically capable of performing duties without aggravation of existing physical defects or medical conditions.  The advisory opinion stated that no doctor/patient relationship is established and ongoing care is not provided to the Soldier.  The advisory opinion also referenced Army Regulation 40-501, chapter 2, paragraph 2a, which states, "The purpose of the standards contained in this chapter is to ensure that individuals medically qualified are (1)  free of contagious diseases…; (2) free of medical conditions or defects…; (3) medically capable of satisfactorily completing required training; (4) medically adaptable to the military environment…; and (5) medically capable of performing duties without aggravation of existing physical defects or medical conditions."

21.  A copy of the advisory opinion was forwarded to the applicant for possible rebuttal.  The applicant agreed with the fact that he received a periodic medical examination on 6 June 1999.  However, he argued that the OHARNG did not notify him of his failure [of Phase I of the CVSP] so he could seek appropriate care from his family physician.  He cited specific arguments regarding the OHARNG's failure to notify him.  He also referenced the memorandum from Captain P____ and the affidavit from Staff Sergeant U____.  On 7 July 2000, his 

training NCO told him that he had to take a stress test for his over-40 physical before leaving for annual training, which was the next day.  He alleged that this was in direct disregard of Army regulations.  He stated that the 7 July 2000 date is 180 days after he failed Phase I of the CVSP.  He also alleged that if the OHARNG had followed all Army regulations, he would have been sent to the medical evaluation board for discharge in December 1999 when he returned from his unit.  On his stress test, it had a handwritten entry "passed" and indicated he had "significant findings."  He provided information regarding misread stress tests and described several examples.

22.  The applicant iterated the purpose of the CVSP which is conducted by the Army National Guard as a process to determine if a Soldier meets medical fitness standards.  He emphasized that aggravation of existing defects or medical conditions was the perfect example of why it was so important to notify the Soldier of his/her failure of the CVSP.  The applicant alleged that these tests provide the Soldier with information that could prevent heart attacks and heart disease, which is the leading cause of death for men in the United States.  He referenced information from the American Medical Society.  While the Army National Guard does not provide a doctor/patient relationship, it does have a moral and legal obligation to provide pertinent medical information that allows the Soldier to proceed to his/her family physician for further evaluation.  This medical information is pertinent for the Soldier to relay the information to his physician so together they can decide the best course of action to prevent further damage to the Soldier's health and heart.

23.  Army Regulation 40-501, paragraph 8-26, states that the CVSP is required as part of the periodic health assessment for all Active Army, Army National Guard, Army National Guard of the United States, and U.S. Army Reserve (Selected Reserve) Soldiers age 40 and older.  Cardiovascular screening will be done every 5 years unless otherwise clinically indicated.  The CVSP begins with a Level 1 [levels are also referred to as phases] evaluation.  The Level 1 cardiovascular evaluation is conducted to determine the cardiovascular risk based on the presence of independent risk factors indentified.  The Level 1 evaluation will consist of (1) medical history to include family and smoking history; (2) medical records review; (3) blood pressure; (4) fasting lipid profile, including total cholesterol, low-density lipoprotein, high-density lipoprotein, and triglycerides; (5) electrocardiogram; (6) fasting blood glucose; (7) height and weight; and (8) calculation of a Framingham 10-year risk percentage.

24.  Army Regulation 40-501, paragraph 8-26, also states that Reserve component Soldiers will be referred to their own medical provider outside of the military system for any further follow-up evaluation, treatment, and so forth.  The 

Soldier will provide copies of any records (pertaining to their medical management) from their civilian medical provider for inclusion in their military medical health record.  For those Soldiers with a Framingham 10-year risk score of greater than 15 percent, a history of coronary heart disease or a coronary heart disease risk equivalent (peripheral arterial disease, abdominal aortic aneurysm, symptomatic carotid artery disease and diabetes), they must undergo a Level II evaluation.

25.  Army Regulation 135-381 (Incapacitation of Reserve Component Soldiers) provides the standards of eligibility for medical care, continuation of pay (incapacitation pay), and physical disability separation for Reservists and Guardsmen.  Paragraph 4-1 states that to be eligible for incapacitation pay reservists and guardsmen must be unable to perform normal military duty or show a loss of nonmilitary income, the individual must be disabled “while so employed,” and the disabling condition must have been incurred or aggravated while in a duty or travel status.

26.  Coronary artery disease (CAD) is the most common type of heart disease. It is the leading cause of death in the United States in both men and women.
CAD happens when the arteries that supply blood to heart muscle become hardened and narrowed.  This is due to the buildup of cholesterol and other material, called plaque, on their inner walls. This buildup is called atherosclerosis.  As it grows, less blood can flow through the arteries.  As a result, the heart muscle can't get the blood or oxygen it needs.  This can lead to chest pain (angina) or a heart attack.  Most heart attacks happen when a blood clot suddenly cuts off the heart's blood supply, causing permanent heart damage.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was not notified of the results of the Phase I CVSP test; therefore, he did not take action which would have prevented his subsequent heart attack and cardiovascular problems.

2.  Incapacitation pay is essentially the workman's compensation for the Army Reserve and ARNG.  It continues a Reservist's pay when the Reservist is incapacitated from performing their normal military duties or civilian occupation due to an injury or illness incurred or aggravated on a duty status.

3.  The applicant's cardiovascular problems, and resultant heart attack, is a disease process.  The buildup of cholesterol and plaque in a person's arteries is 

a process that takes years.  As such, it is difficult, if not impossible, to show that cardiovascular disease was incurred while on a duty status for Reservists and Guardsman who are not on extended active duty.

4.  While the applicant may have had cardiovascular problems while in the ARNG, there is no evidence or indication that he incurred or aggravated that condition while on a duty status.  

5.  While it is certainly unfortunate that the applicant has experienced health problems, his cardiovascular problems were not caused by the ARNG.  Incapacitation pay is not given to Reservists who are disabled from conditions they incurred in their civilian capacity.

6.  As such, whether or not the applicant was given a separation physical examination, provided his CVSP results, or counseled have no bearing on his entitlement to incapacitation pay.

7.  As such, the applicant is not entitled to incapacitation pay.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ___x____  ____x___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  In regard to his request for a medical retirement, 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 to amend the decision of the ABCMR set forth in Docket Number AR20080015688, dated 18 August 2009.

2.  In regard to his request for incapacitation pay, 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.




      __________x______________
               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)                                         AR20100011712



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ABCMR Record of Proceedings (cont)                                         AR20100011712



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