DEPARTMENTOFTHE NAV
BOARD FOR CORRECTION OF NAVAL RECORD

Y

S

2 NAVY ANNE

X

WASHINGTON DC 20370-510

0

JRE
Docket No:  
19 February 2002

6977-01

This is in reference to your request for further consideration of your application for
correction of your naval record pursuant to the provisions of title 10 of the United States
Code, section 1552.

A three-member panel of the Board for Correction of Naval Records, sitting in executive
session, reconsidered your application on 25 October 2001.
injustice were reviewed in accordance with administrative regulations and procedures
applicable to the proceedings of this Board. Documentary material considered by the Board
consisted of your application, together with all material submitted in support thereof, your
naval record and applicable statutes, regulations and policies. In addition, the Board
considered the advisory opinion furnished by the Director, Naval Council of Personnel
Boards dated 5 February 1999, a copy of which is attached.

Your allegations of error and

After careful and conscientious consideration of the entire record, the Board found that the
evidence submitted was insufficient to establish the existence of probable material error or
injustice. As it did during its initial review of your application, the Board substantially
concurred with the comments contained in the advisory opinion. The Board was not
persuaded that you are entitled to an increased disability rating for diabetes mellitus, or to
disability ratings for any additional conditions.

The Board rejected your contention to the effect that competent medical authority determined
that all of the conditions listed your medical evaluation board
the Physical Evaluation Board (PEB)  
supported by the medical records. ” The Board noted that it is the function of an MEB,
which is composed entirely of physicians, to report on the state of health of the service
member who is the subject of the MEB, and to recommend referral of the member to the
PEB in appropriate cases. An MEB is prohibited from making fitness determinations, and its
recommendations are subject to review by its convening authority. The determination of
whether a not the service member is unfit for duty and, if found unfit, entitled to disability

.unilaterally reversed the findings that were clearly

. . ”

 

(MEB) were unfitting, and that

benefits administered by the Department of the Navy, is vested in the Secretary of the Navy
acting through the PEB, which is composed of both line and medical officers. In those cases
where the PEB determines that a member is unfit for duty, it will indicate which condition or
conditions are unfitting, those which contribute to the unfitting condition, those which are not
unfitting, and those which are not considered disabilities under the laws administered by the
Department of the Navy. Obviously, there is no requirement that all conditions reported on
by the MEB be found unfitting. The order in which conditions are listed in the MEB report
is of little import to the ultimate disposition of the case.

The Board concluded that the initial findings made by the Record Review Panel (RRP) of the
PEB, although erroneous in part, were more accurate than any the subsequent findings made
in your case. The RRP determined that you were unfit for duty because of three conditions
, and were not aggravated by your service.
which existed prior to your entry on active duty  
It was clear to the Board that you were unfit for duty because of diabetes mellitus, which
was neither incurred in nor aggravated by your service, and therefore was not rated.

In this
regard, it noted that in early 1991, you entered on what was originally scheduled to be a
brief period active duty. You had a long history of diabetes, which you apparently made
little effort to control.
determining that the diabetes mellitus worsened beyond natural progression following your
entry on active duty. The Board disagreed with the determination of the RRP that the
bronchitis and cardiovascular conditions were unfitting, as there is no indication in the
available records, or in anything submitted by you, that your ability to perform the duties of
your office, grade, rank or rating was materially impaired by the effects of either condition.
The precise diagnosis of your pulmonary condition was not considered significant because
regardless of the diagnostic label chosen, the effects of the condition were not unfitting.

You

should note that it is your burden to demonstrate to the satisfaction of the Board that your
pulmonary and cardiovascular conditions were unfitting at the time of your placement on the
Temporary Disability Retired List, and that it is not the Board
’s responsibility to establish
that they did not render you unfit for duty.

The Board concluded that the hearing panel of the PEB which considered your case on 11
June 1992 properly deducted a 20% existed prior to entry factor from the rating for diabetes
mellitus. The Board rejected your statement that
reduction”, as that percentage reduction was not mandated by the provisions of the Disability
Evaluation Manual then in effect. It is clear that the Director, NCPB, gave you substantial
benefit of the doubt in substituting a 10% deduction, thereby for the more appropriate 20%
deduction recommended by the hearing panel of PEB.
The Board also noted that it would
have been appropriate for the Director, NCPB, to have made an additional deduction because
of your failure to follow medical advice to lose weight.

‘I... the DEM provided for only a 10%

 

The Board agreed that the advisory opinion contains erroneous information concerning the
number of days you were hospitalized in August 1993. It appears that the Director, NCPB,
misread your hospital discharge summary, and considered the period between the date when
the discharge summary was dictated and when it was typewritten as the dates of your

2

hospitalization The Board did not consider that to be a particularly significant error.
Although you were hospitalized for five days, rather than two, in all likelihood you were
hospitalized for that period because of such factors as of your age, body weight, blood lipid
levels, subjective complaints, and extensive medical history, rather than the actual severity of
your condition. You were accorded extremely careful and extensive observation and
evaluation to rule out a heart attack or other serious cardiac condition, but, as you know, no
significant clinical findings were made during that period of hospitalization.
an exercise thallium study completed the following month also failed to show significant
cardiovascular disease. The Board rejected any suggestion that the Director, NCPB
intentionally misstated the number of days you were hospitalized in order to minimize the
significance of your condition. The Board noted, notwithstanding your assertion to the
contrary, that exercise thallium imaging reports show only a very small ischemic zone, which
was described by a cardiologist on 15 September 1993 as of 
The subsequent determination that you were in functional class 3 under the 
Herat Functional Classification  
American 
your unsubstantiated subjective complaints.

patient”[sic] criteria appears to have been based on

The results of

“minimal clinical significance.”

“New York

The Board found it significant that the physician reported that your

The recommendation that you be retained on the TDRL, which was made by the physician
who conducted your final periodic medical evaluation, was advisory in nature, and not
binding on the PEB.
diabetes was under excellent control, and that you had arteriosclerotic heart with insignificant
single vessel disease of the circumflex and stable angina pectoris.
there was no requirement that the PEB provide  “supporting rationale” for a decision to
permanently retire a service member, rather than continuing him on the TDRL. As your
cardiovascular condition was not considered unfitting, however, your cardiac status would
have had no bearing on the decision of the PEB to recommend that you be permanently
retired rather than retained on the TDRL.

The Board also noted that

The fact that the VA assigned you a disability rating for cardiovascular disease is not
probative of error or injustice in your naval record, because the VA assigns disability ratings
without regard to the issue of fitness for military duty, whereas the military departments rate
only those conditions which render a service member unfit for duty.
As the PEB did not
find your cardiovascular condition unfitting, there is no validity to your statement that the
evidence 
the rating guidelines ” in evaluating it.

” . ..indicates clearly and unequivocally that it was the Navy that failed to following

Your contention that the diabetes mellitus was unstable and progressively worsening is not
substantiated by the available records. As noted above, the report of your final periodic
examination report indicates that the diabetes was in excellent control at that time. Although
there are many conditions and symptoms which can be associated with diabetes, you have not
demonstrated that all of the symptoms and conditions which you attribute to your diabetes are
actually related to that condition.
Furthermore, there is no evidence that your condition was
getting progressively worse prior to your permanent retirement.
classified as obese was considered by the Board; however, it is clear that you were obese,

Your objection to being

3

and that your inability to control your weight was a major contributing factor in the
development of many of your medical conditions.

In view of the foregoing, your application has been denied.
members of the panel will be furnished upon request.

The names and votes of the

It is regretted that the circumstances of your case are such that favorable action cannot be
taken. You are entitled to have the Board reconsider its decision upon submission of new
and material evidence or other matter not previously considered by the Board.
In this
regard, it is important to keep in mind that a presumption of regularity attaches to all official
records. Consequently, when applying for a correction of an official naval record, the
burden is on the applicant to demonstrate the existence of probable material error or
injustice.

Sincerely,

W. DEAN PFEIFFER
Executive Director

Enclosure

4

DEPARTMENT OF THE NAVY
NAVAL COUNCIL OF PERSONNEL BOARDS

BUILDING 36 WASHINGTON NAVY YARD

901 

M STREET SE

WASHINGTON, DC 20374-502

3

From:
To:

Director,
Chairman,

Naval Council of Personnel Boards
Board for Correction of Naval Records

Subj:

COMMENTS

AND RE

E OF

Ref:

(a) BCNR 
(b)  SECNAVINST  

ltr  JRE DN:

1850.4C

5724-97 of 10 Mar 98

IN REPLY REFER  

TO

5420
Ser:
5 Feb 99

99-010

This responds to reference (a) for information to show

1.
whether or not Petitioner should be retired by reason of
physical disability with an increased combined rating, to
reflect his coronary artery disease and bronchitis, as well as
to reconsider the findings of the Physical Evaluation Board
rating for his diabetes mellitus.
In  our final analysis, w
find the Petitioner
Physical Evaluation Board
history and medical records have been thoroughly reviewed in
accordance with reference  

’s request warrants no increase to th

(b)  and are returned.

(PEB)  ratings

.

 

e

e

The Petitioner's case

2.

The facts in Petitioner's case are noted as follows:

a.

Petitioner's request errs in that it appears to approach

Petitioner appears to respond to Category 3 placement of

whereas the opposite is
the member is presumed to be

PEB decisions as if the presumption were that all of his
referring history were 'unfitting'
mandated by regulation, viz.,
'fit.'
his Bronchitis and Single Vessel Coronary Artery Disease as if
such represented an adverse finding, when, in fact, it is
equivalent to a finding of 'fit' relative to these conditions
and, hence,
that the original RRP, also,
Petitioner's diagnostic conditions together under Category 1.

erred in bracketing all of

not adverse.

However,

it is apparent, in retrospect

b.

In reference to the question of why Petitioner's cardiac

and pulmonary conditions found not unfitting at the time of his
initial PEB adjudication and placement on the TDRL, reference  
Petitioner's original 14 February 1992 Medical Evaluation Board
(MEB),

which referred his case to the PEB indicated the following:

(a),

Disease was

(1) Clearly indicated that Petitioner's Coronary Artery

"CLINICALLY INSIGNIFICANT" with a history of  

"some

Subj:

E O

vague substernal chest pressure when he did attempt to exercise...
[TREADMILL RESULTS recorded in his Health Record] stopped at 107%
of the maximum predicted heart rate due to fatigue and some mild
dizziness...no specific chest discomfort...reading of the treadmill
showed equivocal evidence for inferolateral  
catheterization on 11 December 
insignificant 40%
of the Cardiologist 

coronary lesion in the circumflex.
was...clinically  insignificant."

1991,showed  a single vessel,

ischemia...full  cardiac

Impression

(2) A   25  March 1992

~~SURREBUTTAL"  by Commander Donald L.
"CDR  Fisher was brought on active

agent.._first

MC, USNR, indicated,

he stated he was unable to exercise due to chest pain.

Calebaugh,
duty with Diabetes on an oral hypoglycemic  
referred...Internal Medicine Clinic in March 1991 where his glucose
mg%...He  was obese and told to diet and exercise...September
was 270 
1991;
complaint was taken  
insisnificant...Since  that' time  I have encouraged...exercise
progressively and lose weight...has not been successful...had
discussed the initiation of insulin therapy several times
earlier...but  this was rejected until he learned it would
potentially increase his disability  
correlation to the diary he simultaneously kept  
clinicallv  insisnificant...the potential for secondary gain is so
great that his symptoms need to be considered circumspect...."

seriously...catheterization...clinicallv

and.,.considered

rating.&  Holter monitor...had no

This

C .

Though listed, erroneously, as the lead history on

the body of the MEB largely limited its

aforementioned MEB,
clinical significance to an honorable mention under the Review of
Systems paragraph.
not prevent a robust performance on his treadmill test, as noted
above.

it is clear that his bronchitis did

Moreover,

Reportedly,

Petitioner was placed on the TDRL on 13 December
Petitioner's BCNR request includes subsequent health record

3.
1992.
entries relevant to the conditions in contention.
symptoms of either less than separately unfitting severity or not
sufficiently 
the retrospective determination that they, indeed, rendered him
unfit at the time of placement.
The following details are
provided:

close,to  the time of TDRL placement as to result in

They indicate

a.

Regarding pulmonary issues, the need for clinical

attention did not occur until over 1 year later, and, even, then,
no significant/unfitting degree of impaired functioning is noted.

2

,

Subj:

COMMENTS AND RECOMMENDATIONS IN THE CASE  

Op

b.

Regarding cardiac issues:

a follow-up Thalium-201 exercise test

(1)

On 13 September 1993,

"CONSISTENT WITH A VERY SMALL APICAL ISCHEMIC ZONE,

Petitioner was admitted for 1 day to the Veterans
Affairs Medical Center, Salem,
VA, on 24 August 1993 with an
admitting diagnosis of "Unstable Angina" and an uneventful work
up.
result was
PROBABLY OF MINIMAL CLINICAL SIGNIFICANCE."
subjective history,
noting
ISCHEMIC AREA IN THE DITAL [sic] ANTEROLATERAL WALL}, described
exercise tolerance as  
Veterans Affairs (DVA) medical evaluation has concluded that
Petitioner's cardiac-based disability is considerable.

"A SMALL (10% OF TOTAL LEFT VENTRICULAR AREA) PARTIAL

a similar test on 2 November 1995, while

Nonetheless,

l'Goodl'.

the Department of

Despite Petitioner's

(2)

Petitioner's DVA Rating Decision on 24 July 1996,
"Current

indicated continued obesity and goes on to state,
symptoms of the veteran's coronary artery disease are limited
exertional angina.
cardiovascular examination and the coronary artery disease has
been described as mild with only mild ischemia indicated."

The veteran has undergone significant

(3) A subsequent DVA decision, on 20 October 1997, to

raise Petitioner's rating for his coronary artery disease appears
to have been based on a more liberal interpretation of his
subjective history,
not done.

so that repeat objective exercise testing was

(4)

Petitioner's coronary artery disease/angina might

s

  TDRL ,

Even so, thi

and at the time of his finalization by th

The lack of objective/testing evidence of increasing

it appeared to be stable with symptoms largely subjective i
.

well be viewed as having been the product of his unfitting,
nominally service aggravated Diabetes Mellitus.
condition was not separately unfitting at the time of hi
placement on the
PEB ,
nature
cardiac disease appears to have continued since then.
objective parameter that did seem to increase over time is his
weight which was recorded at  
TDRL evaluation on 25 July 1994 and subsequently on 30 November
1994.
up to that time.
Since 18 September 1991, {when he was 30-351bs
over his ideal body weight (IBW) for his 'large frame', repeatedly
counseled to lose weight,
over his IBW.

This would appear that his weight never fell below  

his weight had increased to  
’s inability to dea

2481bs,  {on a 

Unfortunately

Petitioner

l

,

s

e
n

The one

5'11"  frame), at his

2401bs

50+  pounds

3

.

,

Subj:

AND RECOMMENDATIONS

IN

OF COMMANDER

effectively with this {Category 4) condition, likely, has had mor
to do with any cardiac symptom increase
Diabetes than any active duty service contribution to thes
Existed Prior to Entry (EPTE) conditions

.

, or refractoriness of hi

e

s

e

The Petitioner's records and documentation support the

4.
conclusion that he was properly awarded a medical retirement for
his "UNFITTING" conditions.
I find no evidence of prejudice,
unfairness,
case,

or impropriety in the adjudication of Petitioner's
bi denied.

and therefore recommend that his petition  

4