IN THE CASE OF:	  

		BOARD DATE:	  31 May 2011

		DOCKET NUMBER:  AR20100020168 


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 the decision of the Physical Evaluation Board (PEB) be changed.    

2.  He states he/his:

* didn’t have a family medical history of heart disease
* medical board had no cardiologist to sustain his family history of heart disease
* didn’t concur with the PEB decision

3.  He provides no additional documents.

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.  On 23 October 2004, the applicant underwent a physical examination for enlistment.  His DD Form 2808 (Report of Medical Examination) indicates his heart and upper extremities were normal.  The examining physician determined the applicant was qualified for service with a physical profile of 111111.  His DD Form 2807-1 (Report of Medical History) is not available.  

3.  The applicant enlisted in the Regular Army on 3 November 2004.  

4.  On 26 September 2006, he was evaluated by a Medical Evaluation Board (MEB).  After consideration of clinical records, laboratory findings, and physical examination, the MEB found that the applicant had coronary heart disease, status post coronary artery intervention x5 with four stents.  Hyperlipidemia [an increase in the amount of fat, such as cholesterol and triglyceride, in the blood] was listed as an additional diagnosis that didn’t cause the applicant to fall below retention standards.  During the processing of his MEB, he indicated he did not desire to continue on active duty under Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  On 28 September 2006, he agreed with the findings and recommendation of the MEB.  He was referred to a PEB.  

5.  On 29 November 2006, a formal PEB determined he was physically unfit due to coronary heart disease (atherosclerosis), onset of symptoms of chest pain in 2004, catheterization (September 2005) disclosed multivessel coronary atherosclerosis with complete occlusion of the left descending and right circumflex arteries requiring stenting.  The PEB recommended he be separated from the service without disability benefits.  

6.  The PEB found that his unfitting condition existed prior to entitlement to basic pay and his disability had increased only to the extent of its accepted normal and nature progression; therefore, there was no permanent service aggravation.  Because his condition was not service incurred or permanently aggravated, he was ineligible for disability compensation and was therefore separated without disability benefits.  In addition, the PEB proceedings indicated that the applicant’s condition listed as medical board diagnosis number two was determined to meet retention standards by the Medical Treatment Facility.  

7.  On 1 December 2006, he didn’t concur with the findings and recommendations of the PEB but elected not to submit a statement of rebuttal.  He acknowledged that if he didn’t submit a statement explaining his reasons for disagreement, his case would be forwarded for final disposition action without review of his case by the U.S. Army Physical Disability Agency.

8.  The applicant was honorably discharged on 28 January 2007 under the provisions of Army Regulation 635-40, paragraph 4-24b(4), by reason of physical disability, existed prior to service, PEB.  He had completed 2 years, 2 months, and 26 days of total active service.

9.  His service record is void of medical documents which indicate whether or not he had a family history of heart disease.  

10.  His Department of Veterans Affairs (VA) Rating Decision, dated 13 November 2009, shows his evaluation of coronary artery disease, status myocardial infarctions x2, status post multiple stent placement, was increased from 30 percent (%) disabling to 60% (previous rating decision, dated 24 August 2007).  

11.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System 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.  Paragraph 3-3 (Conditions existing before active military service) states that according to accepted medical principles, certain abnormalities and residual conditions exist that, when discovered, lead to the conclusion that they must have existed or have started before the individual entered the military service. 

12.  The U.S. Department of Health and Human Services, National Institutes of Health website states that the exact cause of atherosclerosis isn’t known.  However, studies show that atherosclerosis is a slow, complex disease that may start in childhood.  It develops faster as you age.  

13.  Title 38, U.S. Code, sections 1110 and 1131, permits the 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 an error or injustice in the Army rating.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s service record is void of evidence and medical documentation which supports his contention that he didn’t have a family medical history of heart disease.

2.  He was evaluated by an MEB on 26 September 2006.  He agreed with the findings and recommendations of the MEB and he indicated he did not desire to continue on active duty under Army Regulation 635-40.  His service record is void of evidence which indicates he was unable to perform his duties due to his heart condition at the time of his MEB.  

3.  A formal PEB found him unfit for military service for coronary heart disease and recommended he be separated without disability benefits.  As a result, he was honorably discharged under the provisions of Army Regulation 635-40, paragraph 4-24b(4), by reason of physical disability, existed prior to service, PEB.   He didn’t concur with the findings.  He was afforded the opportunity to submit a statement of rebuttal, but he declined.  

4.  The PEB determined that his unfitting medical condition (coronary heart disease) existed prior to entitlement to basic pay.  Because his condition was not service incurred or permanently aggravated, he was ineligible for disability compensation and was therefore separated without disability benefits.  

5.  He has provided no evidence which shows that his disability processing was in error or unjust or that his condition was improperly evaluated.  Therefore, it has been determined that his discharge by reason of physical disability without  entitlement to disability benefits was proper and correct at the time and there is no basis for granting his request.  

6.  Although he was granted service-connection (60%) for coronary artery disease, the rating action by the VA does not necessarily demonstrate an error or injustice on the part of the Army.  The VA, 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.

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)                                         AR20100020168





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ABCMR Record of Proceedings (cont)                                         AR20100020168



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