BOARD DATE:	  11 October 2012

		DOCKET NUMBER:  AR20120004997 


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:

The applicant defers to counsel. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant be found unfit for duty and medically separated from the U.S. Army pursuant to Army Regulation 40-501 (Standards of Medical Fitness) and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  He further requests that the applicant be rated for disability pursuant to the Department of Veterans Affairs Schedule for Rating Disabilities as soon as possible. 

2.  Counsel states the applicant was referred to a medical evaluation board (MEB) in October 2010 and was then referred to a physical evaluation board (PEB).  The narrative summary (NARSUM) drafted by Captain Hil-- explicitly detailed the applicant's disease and the functional limitations it imposes on his ability to perform his duty as an anesthesiologist.  Despite Captain Hil--'s conclusion that the applicant did not meet retention standards pursuant to Army Regulation 40-501, the PEB found the applicant was fit for duty.

	a.  The applicant's current physical profile fails to incorporate any of the functional limitations detailed in the NARSUM.  His condition is progressively worse and is documented in his updated magnetic resonance imaging and neurosurgeon visits from January 2012.

   b.  The applicant's medical condition fails to meet retention standards in accordance with Army Regulation 40-501, chapter 3-39 and 3-41e(1)(2) and Army Regulation 635-40, chapter 3-13.  He is unable to perform the duties of his office, grade, rank, and specialty within the limits of his current physical profile.
   
   c.  The applicant has a rare and complicated spine disease (congenital spinal stenosis and flatback) with multilevel herniated discs.
   
   d.  The applicant was inappropriately found fit for duty by the PEB because their findings significantly deviated from the October 2010 NARSUM.  The only reasonable and logical conclusion that can be drawn from Captain Hil--'s NARSUM and the observation of Major Ki-- is that continued military service would compromise the health of the applicant.     

3.  Counsel provides a 9-page memorandum explaining the applicant’s circumstances and the rationale for his request plus a list of documents provided with his application.

CONSIDERATION OF EVIDENCE:

1.  After attending the Uniformed Services University of the Health Sciences as a U.S. Army Reserve Medical Services Corps second lieutenant, he was appointed a captain in the Medical Corps (MC) on 21 May 2005.  He was promoted to the rank of major effective 21 May 2011.

2.  An MEB NARSUM, signed by Captain Hil-- detailed the applicant's spinal condition and other medical conditions.  It indicates that a prognosis for the applicant's further military service was extremely poor based on the progressive worsening of his disease and his inability to perform all common warrior tasks.  He was not expected to make significant improvements over the course of the next year but instead experience progressive worsening with ensuing disability.  Surgical intervention was considered inevitable and likely to occur with the next 5-10 years.  The conclusion was that the applicant failed to meet retention standards in accordance with Army Regulation 40-501 and his referral to a PEB for further adjudication was recommended.

3.  On 30 November 2010, an MEB at Brooke Army Medical Center evaluated the applicant for:

* lumbar spondylosis with degenerative disc disease (DDD), congenital spinal stenosis and radiculopathy, Army Regulation 635-40, paragraphs 3-39c and 3-41e(1) and (2), Department of Veterans Affairs (VA) diagnosis: multilevel DDD of the lumbar spine with disc herniations at L4-5 and L5-S1 resulting in lumbar spinal stenosis and loss of normal lumbar lordosis with symptoms of flat back syndrome (existed prior to service)
* absent left Achilles reflex, medically acceptable
* mild obstructive sleep apnea, medically acceptable
* insomnia, medically acceptable
* circadian rhythm sleep disorder, medically acceptable
* obsessive compulsive personality disorder, medically acceptable
* generalized anxiety disorder, medically acceptable 

4.  The MEB referred him to a PEB.  He non-concurred with the MEB's findings and recommendation.  He submitted an appeal.  His appeal letter, dated 5 December 2010, included the following statements:
	
	a.  The diagnosis lists multiple diseases/injuries that were erroneously grouped under one category.

   b.  Second, the permanent physical profile generated as a result of the MEB was vastly different from the one generated by Dr. Hil---, MEB physician at Carl R. Darnall Army Medical Center, specifically 5a, 5b, and 5j.
   
5.  He submits a second letter of appeal in response to the rebuttal to his first letter of appeal.  He indicated there were more levels of disc herniations than that indicated by the modified MEB results.  He also asked that lumbar facet syndrome be added in the diagnosis section.  Upon review the MEB was not changed.

6.  A DA Form 199 (PEB Proceedings) shows his PEB was convened on 18 February 2011.  His proceedings for processing under the Physical Disability Evaluation System (PDES) show the board recommended that he be returned to duty.

	a.  The PEB proceedings state his back pain had not interfered with the performance of his duties as an anesthesiologist and pain management specialist.  He had problems with his back since 2000 but reports worsening in the last year.  He has congenital spinal stenosis, degenerative disc disease and multiple disc herniations in the lumbar spine (MEB diagnoses 1-2).  However, he was working 55 hours a week and had been "taking call" although that had aggravated his pain.  His commander's memorandum reports that he provides excellent care and recommends retention even with the restrictions placed on him.

	b.  MEB diagnoses 3-8 met retention standards per the DA Form 3947 and were found by the PEB not to be unfitting either independently or in combination with any other conditions as a review of the case file supported that they were not a significant limitation on the applicant's ability to perform his specialty.

	c.  The DA Form 199 further stated in accordance with Department of Defense Instruction 1332.38, paragraph E3.P3.4.2, a medical officer in any grade shall not be determined unfit because of physical disability if the officer can be expected to perform satisfactorily in an assignment appropriate to his or her grade, qualifications, and experience.  Thus, the inability to perform specialized duties or the fact that the officer has a condition which is cause for referral to a PEB, is not justification for a finding of unfitness.

7.  A DA Form 3349 (Physical Profile), dated 15 March 2011, shows he had medical conditions of low back pain and obstructive sleep apnea.  The form shows he did not meet retention standards in accordance with Chapter 3 of Army Regulation 40-501.  The form further stated the applicant was found physically fit to perform duties of his office, grade, rank, and specialty within the limits of his profile according to Physical Disability Agency memorandum, dated 4 March 2011. 

8.  He submits a Standard Form (SF) 600 (Health Record - Chronological Record of Medical Care) completed in conjunction with a doctor's visit for a painful lower back on 10 November 2011.

9.  He also submits SF's 600 related to his back conditions which were completed by Dr. T--- and Dr. W--- in January 2012.

10.  He submits a memorandum by Major Ki-- which was written for the purpose of documenting his medical conditions and indicating the understanding of his limitations by his command chain.

11.  Army Regulation 40-501 governs medical fitness standards to include those for retention, separation, and physical profiles.

12.  Army Regulation 635-40 establishes the 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.

   a.  Paragraph 3-1 contains guidance on the standards of unfitness because of physical disability.  It states the mere presence of 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 physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.
   
   b.  Paragraph 3-13 states that MC officers will not be found to be unfit by reason of physical disability if they can be expected to perform satisfactorily in an assignment appropriate to their grade, qualifications, and experience.
   
   c.  General officers and MC officers not processing for retirement by reason of length of service at the time of their referral into the disability system, may not be retired or separated for physical disability until a recommendation therefore by the Secretary of the Army is approved by the Assistant Secretary of Defense (Health Affairs).
   
13.  Department of Defense Instruction 1332.38, paragraph E3.P3.4.2, states a medical officer in any grade shall not be determined unfit because of physical disability if the member can be expected to perform satisfactorily in an assignment appropriate to his or her grade, qualifications, and experience.  Thus, the inability to perform specialized duties or the fact the member has a condition which is cause for referral to a PEB is not justification for a finding of unfitness.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's counsel's contentions have been carefully considered.  An MEB and PEB considered whether the applicant's medical conditions rendered him fit or unfit for duty based on the requirements of the duties he was reasonably expected to perform because of his office, grade, and rank.

2.  The fact that Captain Hil-- found the applicant did not meet the retention standards of Army Regulation 40-501 is not the deciding factor in this case since the standards for fitness are different for physicians and general officers.  Any finding of unfit must be approved by the Secretary of the Army.  Physicians do not even have to be able to perform the duties of their MOS, if the Army can utilize them in another capacity as a physician.  Therefore, the PEB found him fit for duty.

3.  In the applicant's case the Army has agreed to accommodate the limitations of his physical profile.  He is fit for the Army's purpose.  As such, there is no evidence of an error or injustice.

4.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20120004997



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ABCMR Record of Proceedings (cont)                                         AR20120004997



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