BOARD DATE:	  25 January 2011

		DOCKET NUMBER:  AR20100016158 


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 her records to show an increased disability rating percentage to 100 percent (%).
 
2.  The applicant states the new documentation provided by the Department of Veterans Affairs (DVA), dated 27 April 2010, reflects a clear and unmistakable error was found in the evaluation of cardiomyopathy with implantation of automatic implantable cardioverter defribrillator with scar and an evaluation of 100% was established from 14 May 2008.

3.  The applicant provides:

* a DVA Rating decision, dated 27 April 2010
* a DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 13 May 2008

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned a second lieutenant (2LT)/O-1 in the U.S. Army Reserve (USAR) on 29 January 1988.  She was subsequently promoted to major (MAJ)/O-4 on 19 June 2002.   

2.  The applicant's medical evaluation board (MEB) proceedings are not available for review. 


3.  A DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 
28 January 2008, shows an informal PEB found the applicant physically unfit due to dilated cardiomyopathy confirmed by echocardiogram in October 2007 with an ejection fraction between 30% and 35%, Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) Code 7020, 60%.  The disability description on the DA Form 199 states:

   a.  A resting multigated acquisition (MUGA) scan in October 2007 calculated left ventricular ejection fraction as 69%.  However, the MUGA scan is of only limited accuracy due to the large number of ectopic beats, 34% were rejected (normal less than 10% rejected beats).  Dr. Gorman, a cardiologist, indicates telephonically on 28 January 2008 after reviewing the applicant's record that her ejection fraction based upon echocardiogram is more accurate than that based upon MUGA scan in this case.  In November 2006, a dual chamber pacemaker/defibrillator was implanted as a precaution.  A recent cardiology evaluation found that the defibrillator has not discharged.  Rated for evidence of cardiac dilatation.  The applicant's condition is chronic and stable.  Although she has continued to perform administrative duties satisfactorily, her physical profile prevents any form of Army Physical Fitness Test and most functional activities.

	b.  The MEB diagnosis of left knee pain was not unfitting, not rated.

   c.  The informal findings were reconsidered based on the echocardiogram of October 2007, 16 October 2007 MUGA scan, and the telephone contact with cardiologist.  The PEB found the applicant's current impairment was best described and rated as above.  The DA Form 199, dated 9 January 2008, was superseded.

4.  The PEB recommended a combined rating of 60% and that the applicant be permanently retired.  Apparently the applicant concurred with the findings of the PEB and waived a formal hearing.  

5.  On 13 February 2008, the U.S. Army Physical Disability Agency approved the informal PEB's findings and recommendations.

6.  On 13 May 2008, the applicant was retired by reason of permanent disability with a disability rating percentage of 60%.

7.  In support of her claim, the applicant provided a DVA Rating decision, dated 27 April 2010.  The rating decision states, in pertinent part, "A clear and unmistakable error is found in the evaluation of cardiomyopathy with implantation of automatic implantable cardioverter defibrillator with scar and an evaluation of 100% is established from May 14, 2008."
8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  

9.  The VASRD is the standard under which percentage rating decisions are to be made for disabled military personnel. The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  Once a Soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD.  These percentages are applied based on the severity of the condition.

10.  The VASRD states, in pertinent part, that VASRD Code 7020 (Cardiomyopathy) is rated at:

* 10% when workload of greater than 7 METs [metabolic equivalents] but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; continuous medication required
* 30% when workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or x-ray
* 60% when more than one episode of acute congestive heart failure in the past year, or; workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30% to 50%
* 100% when chronic congestive heart failure, or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30%

11.  Title 38, U.S. Code, sections 310 and 331, permits the DVA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The DVA, however, is not required by law to determine medical unfitness for further military service.  The DVA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention was carefully considered.  However, it appears she concurred with the findings and recommendation of the PEB.

2.  No evidence shows her heart condition (with an ejection fraction between 
30% and 35%) met the criteria for a higher rating of 100%.  Since there is insufficient evidence to show the applicant’s disability was improperly rated by the PEB, there is no basis for granting the applicant's request.

3.  The rating action by the DVA does not necessarily demonstrate an error or injustice on the part of the Army.  The DVA, operating under its own policies and regulations, assigns disability ratings as it sees fit.  

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)                                         AR20100016158



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ABCMR Record of Proceedings (cont)                                         AR20100016158



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