MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:.

	BOARD DATE:            20 May 1999                 
	DOCKET NUMBER:   AR1999022335

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Ms. Deborah L. Brantley		Analyst	

  The following members, a quorum, were present:

	Mr. Ernest M. Willcher		Chairperson	
	Mr. Hubert O. Fry, Jr.		Member	
	Ms. Margaret V. Thompson		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, that his 1995 Physical Evaluation Board results be overturned and that he be granted “full and complete disability benefits.”

APPLICANT STATES:  His heart attack was “clearly incurred and permanently aggravated during military service” and that had his Medical Evaluation Board (MEB) and Line of Duty (LOD) investigation been done in a more timely fashion he would have been medically retired with full benefits.  He notes that the MEB was not conducted until a year after the attack, while the LOD and incapacitation issues were not resolved until more than 3 years after the September 1993 heart attack.

EVIDENCE OF RECORD:  The applicant's military records show:

He was commissioned as a USAR officer in 1977 and served on active duty as a member of the Active Guard/Reserve program between 1981 and 17 September 1993.

On 19 September 1993 he was ordered to 12 days of active duty for annual training as a member of the 810th Quartermaster Detachment.  According to a 
1 October 1993 Statement of Medical Examination and Duty Status report, the applicant complained of chest pains on 24 September 1993 and was transported to the VA Medical Center in Albuquerque, New Mexico.  The statement noted the applicant’s condition was “considered to have been incurred in line of duty” and there was no requirement for a formal line of duty investigation.

In December 1994, the applicant’s request for extension of incapacitation pay was returned to his unit noting that a “formal” line of duty investigation was required “when an injury occurs as a result of a possible prior medical condition or under strange or doubtful circumstances.”  Ultimately, by April 1996, after numerous administrative reviews, it was determined that the applicant’s “injury” was incurred in the line of duty.

On 13 December 1994 the applicant underwent a Medical Evaluation Board which noted his primary complaint as “atypical chest pain.”  The medical summary noted the applicant was first seen at William Beaumont Army Medical Center “due to atherosclerotic heart disease 1 year after his myocardial infarction.”  It noted the applicant was a sedentary male who has had continued chest pain episodes despite medical therapy and that “since his heart attack, specially in the last 5 months, he has had episodic chest pain” brought on by stress, anxiety, and exertion.  The summary noted the applicant “has not returned to duty since his myocardial infarction in September 93 until late Aug on direction of this physician.”  The evaluating physician noted the applicant was “currently performing his MOS” and that his “current condition does not limit performance of his MOS, but would significantly impact on his ability to perform and pass a physical training test.”  The summary went on to note the applicant’s prognosis “is overall stable, although the natural history of atherosclerotic heart disease is that it can suddenly worsen” and indicated that it would be difficult for the applicant to obtain medical insurance and that “subtle mental status changes” may also “affect his ability to perform his duties and future employment.”  The evaluating physician indicated that the applicant’s “back pain is probably his most limiting symptom.  He cannot stand or stoop for very long.”  

The MEB concluded the applicant suffered from (1) atherosclerotic heart disease, (2) mild anoxic brain damage, subtle post arrest personality changes, (3) hypercholesteroemia…now well controlled, (4) chronic low back pain…showing no disc left radicular pain and left leg weakness chronic, and (5) asymptomatic gall stones.  The summary noted the applicant would require yearly follow-up with cardiology service and was rated “Class 2b” according to the New York Heart Association Therapeutic Classification (meaning his prognosis was good with therapy and his ordinary physical activity need not be restricted, but he was advised against severe or competitive physical efforts).  Although the MEB noted that the applicant would require a “P-3” profile for physical training at his own pace, and a regular diet, he was none the less referred to a Physical Evaluation Board for evaluation.

On 14 February 1995 a Physical Evaluation Board (PEB) found the applicant unfit for continued service because of “arteriosclerosis heart disease with anterior MI interrupted by PTCA” on 24 September 1993 (MEB diagnosis 1 and 2).  However, the board concluded the condition existed prior to his entry on active duty for training and as such noted he was not eligible for disability compensation and recommended he be separated without disability benefits.  The board also noted that the remaining MEB diagnoses (3 through 5) were not unfitting and therefore not ratable.

The applicant objected to the findings and recommendation of the PEB in an 
8 May 1995 statement.  He reminded the board that he had spent more than 12 years on active duty just one day prior to reporting for active duty for training and indicated, in effect, that the board may not have been completely aware of his unique situation.  The applicant indicated that in October 1994 the VA had granted him a combined disability rating of 40 percent with independent ratings of 30 percent for “status Post Myocardial Infarction” and 10 percent for his cervical condition and lumbosacral strain.  He noted that he felt he deserved at least a rating of 50 percent or better from the PEB with “full benefits.”  The applicant also stated that “should the PEB again be compelled not to grant me disability benefits I would request that they at least find me “fit for duty” in order for me to continue my reserve career.”  He indicated that he originally signed a statement that he did not wish to continue on active duty but did not realize at the time that the statement would also release him from his reserve duty as well.

On 18 May 1995 a PEB “informally” reconsidered the applicant’s previous PEB and concluded that there was “insufficient evidence that you have physical impairments that preclude the satisfactory performance of duty by a soldier of your grade and MOS” and recommended he be returned to duty.

As of a 1997 VA rating document, the applicant’s “entitlement to service connection for myocardial infarction is established at 30 percent disabling.”

Army Regulation 635-40 states that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury, rather, it is provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

Army Regulation 635-40 also states that in order for soldiers of the Reserve Component to be compensated for disabilities incurred while performing duty for 30 days or less there must be a determination by the PEB that the unfitting condition was the proximate result of performing duty.  This determination is different from the line of duty determination, which establishes whether the soldier was in a duty status at the time, the disability was incurred and whether misconduct or gross negligence was involved.

Army Regulation 40-501 states, in effect, that coronary heart disease associated with myocardial infarction is grounds for referral to a MEB.  However, “policies for trial of duty” apply and the trial of duty will be for 120 days.  It notes that prior to commencing the trial of duty period an MEB will be accomplished in all cases.  Upon completion of the trial of duty period, an addendum to the MEB will be completed.  An addendum, to the MEB by a cardiologist or internist will include the individual’s interim history, present condition, prognosis, and the final recommendations.

Army Regulation 635-40 notes that ratings of 100 percent may be assigned when more than sedentary employment is precluded, a 60 percent rating assigned when more than light manual labor is precluded as indicated by a N.Y functional class III heart (patients with cardiac disease resulting in marked limitation of physical activity, they are comfortable at rest.  Less than ordinary physical activity causes fatigue, palpitation, dyspnea, or anginal pain) and a 30 percent rating is appropriate when more than ordinary manual labor is precluded by a N.Y. functional class II heart (ordinary physical activity results in fatigue, palpitation, dyspnea, or anginal pain).

Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent. 

Title 10, United States 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.

Title 38, United States Code, sections 310 and 331, 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 error or injustice in the Army rating.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's employability.  Accordingly, it is not unusual for the two agencies of the Government, operating
under different policies, to arrive at a different disability rating based on the same impairment.  Furthermore, unlike the Army the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  While the Board concurs with the applicant that his disability processing and final line of duty determination certainly exceeded acceptable standards for timely processing the facts indicate that ultimately the applicant’s myocardial infarction did not render him unfit for continued service.  The Board notes that his MEB concluded that the applicant’s most limiting symptom was his back pain but that he was “currently performing his MOS” and that while his condition would impact on his ability to perform and pass a physical training test it did not limit his performance of duty in his specialty.

2.  Even if the applicant had been referred to an MEB in a more timely fashion, according to Army Regulation 40-501 he would have been placed in a 120 day trial of duty period.  Assuming the MEB would have been scheduled in late October of or early November 1993 and the 120 day trial of duty period commenced shortly thereafter, his final MEB would not have been rendered until April or May 1994 at the earliest.  As it is the MEB was finalized in December 1994, only 6 months later than it would have under normal procedures.

3.  The fact that an injury was determined to have occurred in the line of duty is not, in and of itself, a basis for a determination that the injury is “unfitting” but merely a conclusion that the injury occurred while the individual was in a duty status and was not the result of misconduct.
4.  While the Board sympathizes with the applicant’s frustrations regarding his disability processing the real issue is whether or not he can continue to reasonably perform his military duties.  There is no evidence that such is the case and the Board notes that the applicant himself indicated that if he could not be medically retired with at least a 50 percent disability rating then he wanted to be found fit which tends to support a conclusion that the applicant himself thought he could continue to perform his military duties.

5.  A rating action by the VA does not necessarily demonstrate any error or injustice by the Army.  The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit.  Any rating action by the VA does not compel the Army to modify its reason or authority for separation.

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__emw__  __hof___  ___mvt__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999022335	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990520	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1. 108.00		
2.		
3.		
4.		
5.		
6.