BOARD DATE: 29 September 2011 DOCKET NUMBER: AR20110004214 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 reevaluation of his disability retirement due to several diagnosed serious new medical conditions that were incurred or discovered at the time of his disability retirement. 2. He states that while he was still in an active Reserve status he had major complications with a service-connected injury. He was permanently blind in his right eye. Additionally, he was diagnosed with a hole in his heart (from birth) and a blood condition (which existed in 2007 during his service-connected knee surgery). These conditions were not diagnosed during the Medical Evaluation Board/Physical Evaluation Board (MEB/PEB) process, although they did exist. 3. He also states that on 8 December 2010, he underwent surgery on his left foot. On 5 January 2011, he reported to the Nellis Air Force Base (AFB) emergency room in Nevada for blindness in his right eye. He was informed that he had Central Retina Vein Occlusion. Initial diagnosis was a blood clot from his foot surgery. On 10 January 2011, he was admitted to the Nellis AFB hospital for chest pains and shortness of breath. A nuclear stress test of his heart came back abnormal. On 23 January 2011, he underwent a PET (Positron Emission Tomography) Scan by a civilian doctor and he was diagnosed with a hole in his heart and a blocked valve. He was treated during his career for a heart problem. 4. He further states that on 1 February 2011, he was referred to an oncologist for possible hypercoagulable blood. After testing he was found to have a homozygous PAI-1 gene mutation and a C677T single mutation. Both of these diagnoses will increase the risk of blood clots. He contacted the Madigan MEB (Fort Lewis, WA) prior to his retirement date and he was told to file his DD Form 149 (Application for Correction of Military Record). 5. He provides: * Various chronological records of medical care * Various civilian medical documents CONSIDERATION OF EVIDENCE: 1. With prior U.S. Army Reserve (USAR) enlisted service, the applicant was appointed in the USAR as a warrant officer on 18 September 1998. On 26 November 2003, he was issued a memorandum from the U.S. Army Reserve Personnel Command, St. Louis, MO, subject: Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter). 2. In a memorandum from the U.S. Army Physical Disability Agency (USAPDA), Washington, D.C., subject: Permanent Physical Disability Retirement, dated 9 December 2010, the USAPDA advised the applicant that in accordance with their findings and recommendation he had been found to have a disability and he would be permanently retired with a 30 percent (%) disability rating percentage. 3. Orders D 343-02, issued by the USAPDA, dated 9 December 2010, released the applicant from the USAR under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), effective 13 January 2011 by reason of permanent physical disability and placed him on the Retired List. 4. His complete service medical records are not available for review with this case. He provides multiple chronological records of medical care, dated between June 1981 and April 1996, related to lumbar muscle strain, chest pain, diagnoses, and treatment. 5. He also provides multiple medical records, dated in January 2011, related to his blindness in the right eye and assessment of a hypercoagulable state with PAI-1 gene mutation and a C677T single mutation and right retinal vein occlusion. 6. In the processing of this case, an advisory opinion was obtained from the USAPDA, dated 3 June 2011. The advisory official stated the applicant had an MEB completed in June 2010. His listed conditions of chronic low back pain and bilateral foot pain were the only two conditions that were found not to meet medical retention standards. His conditions of sleep apnea, hearing loss, gout, bilateral knee osteoarthritis, and left shoulder joint degenerative changes were all found to meet medical retention standards. Only the low back pain and right foot condition were considered to have been incurred in the line of duty. The advisory official further stated: a. that an informal PEB convened on 27 September 2010. The PEB found the applicant unfit for his back and right foot pain and recommended permanent disability retirement at 30%. The applicant initially requested a formal hearing; however, on 1 December 2010, after discussing the case with his assigned legal counsel, he withdrew his request and accepted the PEB’s findings and recommendation. His retirement was scheduled for 13 January 2011. b. that prior to the applicant’s disability retirement he had surgery on his left foot in a non-military facility. The surgery was not related to any line of duty condition. Afterwards he experienced symptoms of deep venous thrombi (DVT) which resulted in damage to his right eye. Based on this incident further examination revealed that the applicant had a congenital heart defect and that he had had a long history of previous non-service related circulatory and heart associated problems. The information regarding those subsequent problems was provided to the Military Treatment Facility (MTF) and the USAPDA for consideration regarding whether the applicant’s case should be returned to the MTF for additional review and/or treatment. c. the MTF’s review indicated that the applicant’s new conditions were not service-related or incurred in the line of duty, were not compensable through the military disability system, and his conditions were not treatable in the MTF. A review of the facts regarding those new conditions was also reviewed by the USAPDA and it was determined that the MTF’s position was correct and that none of those new conditions would be compensable, none were incurred while entitled to basic pay, and none were incurred in the line of duty. Accordingly, the applicant was allowed to retire as originally scheduled. d. that for Soldiers not on active duty orders of over 30 days, the standard criteria for disability compensation is that the condition must have been incurred in the line of duty (Title 10, U.S. Code, section 1204 through 1206). The applicant’s additional conditions were not in the line of duty and were not caused by any disability that had been found to be unfitting and compensable by the PEB. Accordingly, since these new conditions were all non-duty related conditions, there was no authorization for additional review or return to the MTF. e. that it was unfortunate the applicant had experienced those additional medical problems. However, those conditions had not been determined to be in the line of duty and were clearly not service-incurred or connected. The official recommended no change to the applicant’s military records. 7. On 9 June 2011, a copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal. In his rebuttal, dated 16 June 2011, he stated: a. that the majority of injuries/illnesses he has been diagnosed with were directly related to service- connected findings. The surgery referred to in the memorandum was for the heal spur found during his examination on 26 February 2010. The heal spurs were directly related to the Pes Planus and knee injuries sustained during his career. b. that although the blood clot that caused him to lose sight in his right eye was not diagnosed during his active duty tours, it was clearly validated as shown in 2007 when he had surgery on both knees for the arthritis that is identified in the MEB/PEB findings. He was diagnosed with DVT which is directly related to this blood condition. He has been told that specific tests are not done to check for this type of condition; therefore, it is not uncommon they did not find out until recently. c. that during his 31 years of service he sustained many injuries and illnesses that were not reported as “line of duty” due to them being unknown or not being severe at that time. As he has gotten older he is now feeling the effects of those injuries. He is perplexed at how the Army cannot/will not take into consideration they did not report every accident or injury because the mission had to be completed. After receiving his retirement orders it took less than 3 hours for someone to pass judgment on three severe medical issues. This does not make sense. 8. 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 office, grade, rank, or rating. Paragraph 3-2(2) states the following presumptions will apply to physical disability evaluation: any disease or injury discovered after a Soldier entered active service, with the exception of congenital and hereditary conditions, was not due to Soldier’s own intentional misconduct or willful neglect and was incurred in the line of duty. 9. Army Regulation 635-40, paragraph 3-3, provides 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 military service. Examples of these conditions include hereditary and congenital conditions. DISCUSSION AND CONCLUSIONS: 1. The evidence shows the applicant’s medical conditions of chronic low back pain and bilateral foot pain were the only two conditions that were found not to meet medical retention standards and were considered to have been incurred in the line of duty. A PEB found the applicant unfit for his back and right foot pain and recommended permanent disability retirement at 30%. The applicant initially requested a formal hearing, but after discussing the case with his assigned legal course, he withdrew his request and accepted the PEB’s findings and recommendation. 2. He contends that his hole in his heart (from birth) and blood condition should have been rated by the PEB. The evidence shows that an examination revealed he had a congenital heart defect and had a long history of previous non-service related circulatory and heart associated problems. An MTF’s review determined that these conditions were not service-related or incurred in the line of duty; therefore, they were not compensable through the military disability system and were not treatable in the MTF. 3. The available evidence confirms that the applicant's conditions he now contends should have been considered were congenital conditions and thus not rateable. There is no evidence of error or injustice in his physical evaluation process for these medical conditions. The applicant has failed to show through the evidence submitted with his application that these other conditions were improperly not considered. 4. His contentions do not demonstrate error or injustice in the disability rating assigned by the Army, nor error or injustice in the disposition of his case. In view of the foregoing, there is no basis for granting him 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) AR20110004214 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110004214 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1