IN THE CASE OF:	  

		BOARD DATE:	    8 March 2011

		DOCKET NUMBER:  AR20100011789 


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 reversal of his Physical Evaluation Board (PEB) findings of “fit for duty,” as it relates to his cardiac implant (pacemaker) and associated symptoms of dizziness, fatigue, and constant headaches.

2.  The applicant states, in effect:

   a.  his primary care physician believes the preponderance of evidence supports that it was one sided to have the PEB result in a finding of “fit for duty.”

   b.  the Dewitt Army Hospital and PEB liaison officer (PEBLO) failed to follow procedures regarding his right to due process in the Medical Evaluation Board (MEB) and PEB processing;

   c.  he had many complaints regarding the medical treatment he received or lack thereof following the cardiac implant he received;

   d.  he believes his PEB was actively undermined by Dewitt Army Hospital.  He states his referral to a Tricare Network Provider was denied and his appointment was cancelled;

   e.  the impartial medical review that was performed during the PEB process was neither approved by the "DCCS" nor submitted to the informal PEB for review and as a result it was not accepted by the PEB as evidence to support an unfit determination;

   f.  in accordance with Department of Defense Instructions 1332.38, a
member may be determined unfit as a result of the “overall effect” of two or more impairments even though each of them, standing alone, would not cause the member to be referred to the disability evaluation system or be found unfit because of physical disability; 

   g.  the PEB was incorrect in that he has not had the benefit of full medical care or evaluation for the existence of other conditions or on-going medical issues related to his case; and

   h.  his ability to perform in his highly stressful job as a quartermaster officer,
career progression, and his ability to attend training, or professional development opportunities, and to deploy may be impacted by his current medical condition.

3.  The applicant provides:

* statement of chronological events
* self-authored statement
* reassignment order
* multiple medical record document extracts

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military record shows he initially enlisted in the Florida Army National Guard (FLARNG) on 28 June 1984 and continued to serve until he was honorably released on 27 May 1985 and transferred to the United States Army Reserve (USAR), in the rank of private first class (PFC).

2.  On 28 August 1985, the applicant enlisted in the USAR and continued to serve until he was discharged on 10 May 1990, for the purpose of commissioning.

3.  On 11 May 1990, the applicant was appointed a Reserve commissioned officer in the rank of second lieutenant (2LT)/O-1 and he was assigned to the quartermaster branch.

4.  On 28 July 2004, the applicant was issued his Notification of Eligibility letter for Retired Pay at Age 60.  He was promoted to the rank of major.

5.  On 25 February 2008, he was ordered to active duty in support of Operation Enduring Freedom.  He served in the area of concentration (AOC) of 90A (Logistics) as a Logistics Chief, Department of Defense Criminal Task Force, Fort Belvoir, United States Army Criminal Investigation Command (USACIDC).
6.  On 28 December 2008, the applicant had a syncopal (fainting) episode while at home and he experienced another episode on his way to the hospital.  He arrived at DeWitt Army Community Hospital where he had recurrent syncopal episodes resulting in an air transfer to Walter Reed Army Medical Center (WRAMC).

7.  On 29 December 2008, the applicant underwent a successful implantation of a permanent pacemaker.  His record shows at the time of his discharge from WRAMC there was no clear etiology for his heart blockage.

8.  On 3 February 2009, the applicant was to have been honorably released from active duty by reason of completion of required active service and transferred to the USAR Control Group, (Individual Mobilization Augmentee).  Army Human Resources Command (AHRC) Orders Number A-02-904038, dated 5 February 2010 retained the applicant active duty to participate in the Reserve component warriors in transition medical retention program for completion of medical care and treatment.

9.  On 13 February 2009, the applicant’s Primary Care Manager:

* found him fit for duty
* recommended that he be released from active duty to rejoin his unit
* indicated he met medical retention standards per Army Regulation 40-501 and Army Regulation 40-400
* stated he may need to perform his duties within the limits of a physical profile

10.  A DA Form 7652 (Physical Disability Evaluation System (PDES) Commander’s Performance and Functional Statement), dated 4 March 2009, shows in Section III A, Item 4, that the applicant’s commander recommended he be retained.

11.  On 21 August 2009, an MEB diagnosed the applicant with:

* A third Degree A-V Block
* Permanent Pacemaker Implantation 
* Headaches
* Dizziness
* Allergic Rhinitis
* Confluent and Reticulate Paillomatosis
* Pseudofolliculitis Barbae
* Male infertility
* Mild Obstructive Sleep Apnea
* Ventral Hernia
* Left Ganglion Cyst
* Sciatica
* Tender Keloid Scar
* Onychomycosis
* Hypertension

12.  The “Third Degree A-V Block” and “Permanent Pacemaker Implantation”
diagnoses were found to be medically unacceptable while the remaining diagnoses were determined to be medically acceptable.

13.  On 28 September 2009, the applicant agreed with the MEB findings and recommendation that he be referred to a PEB.

14.  On 5 November 2009, a PEB convened at Washington DC, to consider the applicant's case.  Based on a detailed review of the evidence of record, the PEB concluded the applicant’s permanent pacemaker implantation did not have any functional impairment which prevented satisfactory performance of duty.

15.  On 9 December 2009, a formal PEB also concluded the applicant’s permanent pacemaker implantation did not have any functional impairment which prevented satisfactory performance of duty.  The applicant was represented by counsel.

16.  On 21 December 2009, the applicant non-concurred with the formal PEB findings and recommendation.  The applicant's counsel indicated:

       a.  the decision was contrary to the medical evidence, several errors occurred in the processing of the applicant's case, and the board denied the applicant due process;

       b.  the formal PEB relied upon a faulty commander’s statement and an
Officer Evaluation Report (OER) that primarily rated the applicant during the period prior to the pacemaker implantation and while he was on convalescent leave;

       c.  although the applicant’s commander recommended that he be retained on active duty, the commander:

           (1)  never observed the applicant work in his military AOC.
   
           (2)  was not aware of his Table of Allowances or Table of Distribution and Allowances position and whether the applicant’s medical condition/limitations affected the unit accomplishing its mission.

           (3)  had no first or second hand knowledge of the facts necessary to support his opinion to retain the applicant.

   d.  the applicant’s primary care manager who also authored the MEB
narrative summary (NARSUM) was determined to find the applicant fit for duty based on her own misperceptions of the medical evidence despite an inspector general (IG) complaint that rescinded her request for the applicant’s release from active duty; 

   e.  an independent medical review that found the applicant’s ongoing symptoms of dizziness, fatigue, and headaches made him medically unacceptable to continue in uniform was never produced in advance of the formal PEB;

   f.  the MEB and PEB failed to address some of the regulatory requirements 
for patients who have undergone pacemaker surgery because Army Regulation 40-501, paragraph 3-24 and 25 states that implant recipients must be provided a trial for duty period if they are asymptomatic;

   g.  under the 2008 National Defense Authorization Act, current Department of Defense guidance for patients with implanted pacemaker devices are to be placed on the temporary disability retired list (TDRL); and

   h.  given the medical evidence presented at the formal PEB and the numerous regulatory violations, the applicant's findings of fitness should be overturned.

17.  On 12 January 2010, the President, PEB responded to the applicant’s formal PEB rebuttal and indicated:

   a.  the formal PEB did not rely upon a faulty commander’s statement and
OER before rendering a fitness determination;

   b.  the formal PEB considered the following medical evidence:

        (1)  electrocardiogram exam dated 27 April 2009, which showed normal sinus rhythm with nonspecific T changes.

        (2)  cardiology exam dated 7 August 2009 which noted no recurrent episodes of pre-syncope and revealed a properly functioning pacemaker with
5 percent (%) atrial and <1 % ventricular pacing requirements.

       (3)  DA Form 3349 (Physical Profile) which documents the applicant’s ability to perform all the functional activities required of a Soldier except deployability and the ability to move with a fighting load at least two miles (the profile did not prevent the applicant from running two miles or performing sit-ups).

   c.  the medical evidence provided by the applicant to the formal board dated
22 September 2009 (impartial medical review) was not submitted to the MEB or approved by the DCCS;

   d.  Department of Defense Instructions 1332.28, E4.6.1.9 does not address TDRL placement.  It addresses referral to the PDES; and 

   e.  the Washington DC PEB affirmed the decision of the formal PEB and
forwarded the entire case to the U.S. Army Physical Disability Agency (USAPDA) for review.

18.  On 22 January 2010, the Chief, Operations Division, USAPDA, noted the applicant’s disagreement with the PEB's formal decision, reviewed his entire record, informed him that his case was properly adjudicated by the PEB, and advised him that the rules that govern the PDES were correctly applied in making a determination.  

19.  On 27 January 2010, the applicant’s Primary Care Manager again found him fit for duty and recommended his REFRAD to rejoin his unit.

20.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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 rating.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  Separation by reason of disability requires processing through the PDES.

21.  Chapter 4 of the same regulation contains guidance on processing through the PDES, which includes the convening of an MEB to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  If the MEB determines a Soldier does not meet retention standards, the case will be referred to a PEB.  The PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  The PEB investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  It also evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  Finally, the PEB makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

22.  Department of Defense Instruction (DODI) 1332.38, dated 14 November 1996 and updated 10 July 2006, Subject:  Physical Disability Evaluation, provides the policy, assigns responsibilities, and prescribes procedures for retiring or separating Soldiers because of physical disability; making administrative determinations for Soldiers with service-incurred or service aggravated conditions; and authorizing a fitness determination for members of the Read Reserve who are ineligible for benefits because the condition is unrelated to military status and duty.

23.  Enclosure 4 (E4) of DODI 1332.38 provides a listing, mainly by body system, of medical conditions and physical defects which are cause for referral into the PDES.  It shows "cardiac arrhythmias and/or pacemakers in paragraph E4.6.2.3 and "post operative or other invasive procedures involving the heart, pericardium, or vascular system" in paragraph E4.6.1.9 and indicates these conditions are reasons for referral to an MEB.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was not properly processed through the Army PDES and that he should have been found unfit for duty based on his permanent pacemaker implantation and subsequent symptoms of dizziness, fatigue, and headaches.

2.  By regulation, the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of the physical disability with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  Only unfitting conditions or defects or those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.


3.  The applicant's third degree heart block was successfully treated by a pacemaker, and the pacemaker imposes very few restrictions on his physical activities.

4.  The evidence of record confirms the applicant was properly processed through the Army's PDES and he received all appropriate appellate reviews.  Further, the evidence shows that during the appellate process, all the medical issues and conditions raised by the applicant were properly evaluated and addressed by medical officials, and that the PEB had all of the medical records and evidence available and fully evaluated and considered the applicant's issues prior to rendering its final evaluation.  The USAPDA also had all of the available medical evidence and fully vetted the applicant's rebuttal during its final appellate review of the case, as evidenced by the USAPDA affirmation of the formal PEBs decision which also confirmed that decision was not based on a faulty commander’s recommendation of “fit for duty” and a dated OER.

5.  The applicant through his counsel contends that under 2008 National Defense Authorization Act (NDAA), current Department of Defense guidance for patients with implanted pacemaker devices is to be placed on TDRL for a minimum of     18 months.  In reality, the NDAA does not address pacemakers and DODI 1332.38.E4.6.1.9 only provides the reasons for referral to an MEB.

6.  In view of the above, the applicant's request should be denied.

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.




      ___________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)                                         AR20100011789



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ABCMR Record of Proceedings (cont)                                         AR20100011789



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