IN THE CASE OF:	  

		BOARD DATE:  4 October 2012

		DOCKET NUMBER:  AR20120004069 


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 correction of his military records to show that he was retired due to a physical disability instead of discharged due to permanent physical disability. 

2.  He states his current discharge is unjust because his medical history includes multiple episodes of paroxysmal atrial fibrillation as well as supraventricular arrhythmias which were all documented within a 1-year period.  

3.  He adds that the Department of Veterans Affairs (VA) Schedule for Rating Disabilities (VASRD) Code 7010 states that paroxysmal atrial fibrillation or other supraventricular tachycardia with more than four episodes per year as documented by electrocardiography (ECG) or holter monitor is rated at 30%.  He was only rated at 10% by the Army.  

4.   The applicant also states that in 2005 he was placed on the Temporary Disability Retired List (TDRL) and given a rating of 30% disability.  In 2006, he was directed to be evaluated again at the VA medical center in Temple, TX.  He was informed that while on the TDRL he would have annual medical evaluations; however, he was only evaluated once between 2005 and 2010.  

5.  His concern is during the time he was referred to the VA medical center for healthcare and was forgotten about and then was hastily evaluated by the medical evaluation board (MEB) and given an inaccurate rating of 10%.  This rating was given just 6 months before his 5-year deadline on the TDRL. 

6.  He believes he is eligible for at least 30% disability from the Army per VASRD Code 7010. 

7.  The applicant provides:

* a copy of his medical records from the period 4 October 2004 through 
   16 May 2005
* ECG test results for the period 4 October 2004 through 16 May 2005
* holter monitor studies for the same period

CONSIDERATION OF EVIDENCE:

1.  He enlisted in the Regular Army on 18 September 1997.  After completion of training, he served in military occupational specialty 14J (Early Warning System Operator) and obtained the rank of sergeant/E-5. 

2.  The applicant provided medical records which show he was administered a ECG test on 4 October 2004 and the results showed an abnormal reading with atrial fibrillation with rapid ventricular response.  

3.  On 9 December 2004, he was admitted as an inpatient at Brooke Army Medical Center.  He was diagnosed with atrial fibrillation, essential hypertension, abnormalities of the peripheral vascular system, and other specified disorders of the kidney and ureter.  He was tested using a transthoracic echocardiography, computerized tomography scan with abdomen/pelvis contrast, and a renal angiography.  

4.  On 10 December 2004, he underwent left heart cardiac catheterization, coronary arteriography using two catheters, angiocardiography of left heart structures, and aorotography.  He was released on 11 December 2004 and continued to receive follow-up medical care for his condition. 

5.  A Holter ECG Tabular Summary beginning on 11 May and ending on 12 May 2005 shows nine major episodes were detected.  

	a.  Eight episodes of irregular SV (stroke volume) rhythm greater than 
80 beats per minute were observed at a maximum rate of 86 BPM (beats per minute).

	b.  One episode of non-sustained V Tachs (Ventricular Tachycardia)  was observed.  The maximum rate was 75 BPM. 

6.  The physical evaluation board (PEB) and MEB results from 2005 are not available for the Board's review; however, his records contain a copy of Headquarters, III Corps and Fort Hood, Orders 173-0265, dated 22 June 2005.  These orders show he was released from assignment and duty because of physical disability incurred while entitled to basic pay and under conditions that permitted his placement on the TDRL.  He was placed on the retired list on 
25 August 2005 and given a 30% disability rating.  

7.  Accordingly, his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was retired on 24 August 2005 after completing 7 years, 11 months, and 7 days of net active service.

8.  A review of his record shows that on 19 January 2010 an informal PEB was convened to reconsider the applicant's medical condition.  The DA Form 199 (PEB Proceedings) shows:

   a.  This board found the applicant continued to have palpitations and they increased after his medication was stopped earlier in 2009.  His medication was restarted due to the recurrence of symptoms.  
   
   b.  His latest 24-hour holter monitor (date not shown) revealed an asymptomatic episode of atrial fibrillation.  
   
   c.  The PEB also noted since the VASRD criteria are not based on symptoms but on frequency of documented episodes, his case was rated at 10% for one to four episodes that were documented in the past year.
   
   d.  Based on the TDRL examination, the PEB found that the applicant remained unfit to reasonably perform duties required by previous grade and MOS.  His condition was considered sufficiently stable for final adjudication.  
   
   e.  It was also noted that since his disability rating was less than 30% and he had less than 20 years of service as computed under Section 1208, Title 10, U.S. Code, the law requires he be separated from the service with disability severance pay as changed by the National Defense Authorization Act of Fiscal Year 2008. 

9.  His record contains a memorandum from Headquarters, U.S. Army Medical Department Activity, Fort Hood, TX, subject:  Failure to Elect, dated 16 February 2010.  This document shows he failed to make an election within  the prescribed time limits and his case was forwarded in accordance with Army Regulation 
635-40 (Physical Evaluation for Retention, Retirement, or Separation) for further processing.  
10.  The applicant's record contains a United States Postal Service (USPS) Track and Confirm receipt which indicates an initial notice was left on 29 January 2010 and the PEB results were delivered to the applicant's address in Killeen, TX on 
3 February 2010.   

11.  The PEB results as shown on 19 January 2010 were approved by the Secretary of the Army on 19 February 2010.   

12.  Department of Defense Instruction (DODI) 1332.39 and Army Regulation 635-40, Appendix B, modify those provisions of the VASRD inapplicable to the military and clarify rating guidance for specific conditions.  Ratings can range from 0 to 100 percent, rising in increments of 10 percent.

13.  Section 4.104-6 of the VASRD provides information regarding the cardiovascular system.  The ratings shown in the Code of Federal Regulations (CFR) for 7010 Supraventricular arrhythmias is depicted in the table below:

7010 Supraventricular arrhythmias:
Rating
Paroxysmal atrial fibrillation or other supraventricular tachycardia, with more than four episodes per year documented by ECG or Holter monitor
30%
Permanent atrial fibrillation (lone atrial fibrillation), or; one to four episodes per year of paroxysmal atrial fibrillation or other supraventricular tachycardia documented by ECG or Holter monitor
10%
14.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.  Section 1203, provides for the physical disability separation with severance pay of a member who has less than 20 years service and a disability rated at less than 30 percent.

15.  The frequently asked questions (FAQ) section of the U.S. Army Physical Disability Agency (USAPDA) webpage shows the following information:

	a.  Question:  How long can I stay on the TDRL?
		Answer:  The law requires that a final determination be made before the 5th anniversary of placement on the TDRL; however, the individual may be removed at an earlier date whenever a periodic examination discloses that a medical condition has stabilized for rating purposes.  

	b.  Question:  How often will I have to undergo a physical examination?

		Answer:  An individual is required by law to undergo physical examinations at least once every 18 months; however, examinations may be rescheduled with greater frequency if deemed necessary by medical/disability authorities.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was inaccurately rated by a PEB in 2010, which reduced his disability rating from 30% to 10%.  His contentions have been noted.  

2.  His 2005 PEB proceedings were not available for the Board's review; however, official documentation shows he was placed on the TDRL and given 30% disability.  It is reasonable to presume that rating was based on ECG and holter monitor tests which took place during the period 2004 through 2005 which showed at that time he had more than four episodes per year during that period. 

3.  He contends that after his placement on the TDRL he was only evaluated once between 2005 and 2010 for his condition.  The USAPDA FAQ section states the law requires the individual to undergo physical examinations at least once every 18 months.  Although he states he was forgotten about and pushed to the VA medical system for care, the DA Form 199 shows the PEB granted him 10% disability for one to four episodes that were documented during that previous year.  

4.  The applicant also contends that his case was hastily evaluated before his 
5-year period ended.  The USAPDA webpage also shows that a determination will be made before the end of the 5-year period whenever a periodic examination shows the individual's medical condition has stabilized for rating purposes.  The evidence shows he was mailed a copy of the 2010 PEB results but he failed to make an election showing his concurrence or non-concurrence.  If he disagreed with the decision of the PEB, he had an opportunity to submit an appeal; however, he did not reply and the results of the PEB were approved by the Secretary of the Army on 19 February 2010.  

5.  In accordance with the applicable law, he was removed from the TDRL and discharged by reason of physical disability with a rating of 10%.  He has not submitted sufficient evidence or a convincing argument to show the findings of the PEB were unjust or in error and there is the presumption of government regularity in his case.  

6.  In view of the foregoing, he is not entitled to the requested relief. 

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)                                         AR20120004069





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ABCMR Record of Proceedings (cont)                                         AR20120004069



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