IN THE CASE OF: BOARD DATE: 6 October 2016 DOCKET NUMBER: AR20150008803 BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ___x____ ___x____ ___x____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 6 October 2016 DOCKET NUMBER: AR20150008803 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by referring his medical records to a Medical Evaluation Board (MEB) for review of his post-service diagnosis of systemic capillary leak syndrome (SCLS). In the event the MEB determines that his SCLS existed during his active duty service and did not meet retention standards, these proceedings serve as the authority to afford him further review under the Integrated Disability Evaluation System to determine if this condition is unfitting and, if it is found unfitting and compensable, to correct the records effecting his separation as applicable and pay him any monies he may be due as a result. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to amending his Physical Evaluation Board proceedings by adding SCLS as an unfitting condition without benefit of the review described above. _____________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. IN THE CASE OF: BOARD DATE: 6 October 2016 DOCKET NUMBER: AR20150008803 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 DA Form 199 (Physical Evaluation Board (PEB) Proceedings) by adding systemic capillary leak syndrome (SCLS) as an unfitting condition and adjusting the final percentage of his disability to reflect this added condition. 2. The applicant states: a. Based on a review of his medical history by Duke Medical Center Immunology and a specialist at the National Institutes of Health (NIH), indicators of SCLS went back to January 2008 while he was stationed at Fort Benning, GA. b. He was diagnosed with rhabdomyolysis in Jan 2010 while he was on temporary duty at Fort Huachuca, AZ. There were indicators in 2012-2013 while he was at Fort Bragg, NC, prior to being medically evacuated to Duke Medical Center. c. His current diagnosis is completely different and is more consistent with his medical history than those medical issues that were the reason for his Medical Evaluation Board (MEB) and are listed on his DA Form 199. d. If the medical treatment would have been allowed to continue until a final diagnosis was made, this would have greatly affected the way the MEB and the PEB were conducted and would have clearly stated what the disability was and would have also affected his final disability rating by changing his discharge to a medical retirement rather than separation with severance pay. 3. The applicant provides copies of his DA Form 199, DD Form 214 (Certificate of Release or Discharge from Active Duty), and 50 pages of medical records. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 29 August 2001. 2. The applicant's MEB proceedings are not available for review in this case. 3. On 24 March 2014, an informal PEB found him unfit to perform the duties of his rank and military occupational specialty due to ischemic heart disease, status post-acute myocardial infarction, ventricular dysfunction and cardiogenic shocks; PEB referred as status post-acute myocardial infarction, ventricular dysfunction and cardiogenic shock, rated at 10 percent. 4. The PEB also found that the following conditions were not unfitting and met retention standards: * chronic allergic rhinosinusitis * hypertension * chronic intermittent myalgia and myofascial spasm s/p rhabdomyolysis with chronic proteinuria * chronic left knee strain with iliotibial band syndrome * chronic left hip trochanteric bursitis with iliotibial band syndrome 5. The DA Form 199, Section VI (Instructions and Advisory Statements), contains the following statements: a. This case was adjudicated as part of the Integrated Disability Evaluation System (IDES) under the 19 December 2011 Policy and Procedure Directive-type Memorandum (DTM) 11-015. b. The specific Veterans Affairs Schedule for Rating Disabilities (VASRD) codes to describe the Soldier's condition and the disability percentage was determined by the Department of Veterans Affairs (VA) and is documented in DVA memorandum dated 19 March 2014. The disposition recommendation was determined by the PEB based on the VA disability rating proposed and applicable statutes and regulations for the Physical Disability Evaluation System (PDES). 6. The PEB recommended his separation with entitlement to severance pay. On 24 March 2014, the applicant concurred with the PEB findings and waived a formal hearing of his case. He did not request reconsideration of his VA ratings. 7. On 30 June 2014, he was discharged accordingly. 8. During the processing of this case, and advisory opinion was obtained from the U.S. Army Physical Disability Agency (USAPDA). It states: a. The applicant contends that the diagnosis listed on his MEB – acute myocardial infarction, ventricular dysfunction and cardiogenic shock – is not correct and that it should have been SCLS. He requests that this new diagnosis be found to be unfitting and rated by the VA as a part of the IDES process. b. On 27 November 2013, the applicant's MEB was completed with the above noted diagnosis being the only one which did not meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3. All other conditions listed met the medical retention standards. The MEB diagnosis was the result of military and civilian medical treatment records and the VA's Compensation and Pension exam. The applicant concurred with the MEB's findings on 10 December 2013. c. On 24 March 2014, an informal PEB found the applicant unfit for the listed MEB diagnosis and applied the VA's IDES-provided rating of 10 percent and recommended separation with severance pay. On 31 March 2014, the applicant concurred with the PEB's findings and waived his right to a formal hearing. On 30 June 2014, the applicant was separated from the military. d. The applicant claims in his petition for correction of his military records that he received a new diagnosis of SCLS in April 2014. However, the documents provided by the applicant in support of his petition indicate that the new diagnosis was in April 2015. e. The PEB's findings are currently correct based upon the official medical findings provided in the MEB. Should those medical findings be determined by military medical officials to have been incorrect, the military medical officials would need to provide a new MEB with appropriate corresponding findings related to Army Regulation 40-501, chapter 3; physical profile restrictions; and Narrative Summary documentation. If said new diagnosis is considered/found unfitting, a new VA rating evaluation for the new condition would have to be provided by the VA disability rating activity site. f. The PEB's present findings are correct unless the official medical findings listed in the MEB are officially changed. It is recommended that the case file be forwarded to Office of The Surgeon General (OTSG) with a request to review and reconsider the MEB's previous findings. Should the diagnosis be changed, OTSG must complete an updated MEB based on the applicant's condition as it was in 2014 with the prognosis based on the Soldier's present condition. 9. The advisory opinion was provided to the applicant to allow him the opportunity to submit comments or a rebuttal. He responded and provided a timeline of his symptoms and treatment. He also clarified that he never stated he was diagnosed with SCLS in 2014, as the USAPDA contends. 10. An advisory opinion was also obtained from the U.S. Army Medical Department Activity, Fort Carson, Colorado. It states: a. It appears that the diagnosis for which the Soldier was medically boarded was incorrect. This is not due to any fault on the part of the MEB since the correct diagnosis was not determined until 2015 and took referral to the NIH. b. Refer the Soldier to another MEB based on the correct diagnosis. If the MEB decides the new condition fails medical retention standards and the PEB finds it unfitting, the disability rating assigned will determine whether the Soldier is medically separated or retired. 11. The advisory opinion was provided to the applicant to allow him the opportunity to submit comments or a rebuttal. He responded and expressed his concurrence with the advisory opinion. 12. The applicant provided several pages of medical records. These records suggest that the applicant's SCLS symptoms existed during his active duty service. REFERENCES: 1. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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. It provides for MEB's which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501. Disability compensation is not an entitlement acquired by reason of a service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. a. Paragraph 3-1 provides that 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 member reasonably may be expected to perform because of his or her office, rank, grade, or rating. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated. b. Paragraph 3-5 states the percentage assigned to a medical defect or condition is the disability rating. A rating is not assigned until the PEB determines the Soldier is physically unfit for duty. Ratings are assigned from the VASRD. The fact that a Soldier has a condition listed in the VASRD does not equate to a finding of physical unfitness. An unfitting or ratable condition is one which renders the Soldier unable to perform the duties of his or her office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of his or her employment on active duty. There is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. 2. Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment, retention, and separation (including retirement.) Chapter 3 provides the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for the individual in paragraph 3-2, below. These medical conditions and physical defects, individually or in combination: * significantly limit or interfere with the Soldier's performance of duties * may compromise or aggravate the Soldier's health or well-being if the Soldier remains in the military – this may involve dependence on certain medications, appliances, severe dietary restrictions, frequent special treatments, or a requirement for frequent clinical monitoring * may compromise the health or well-being of other Soldiers * may prejudice the best interests of the government if the individuals were to remain in the military service 3. 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 rating of at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. 4. Directive-type Memorandum (DTM) 11-015, dated 19 December 2011, explains the IDES and states: a.  The IDES is the joint Department of Defense (DOD)-VA process by which DOD determines whether wounded, ill, or injured Service members are fit for continued military service and by which DOD and the VA determine appropriate benefits for Service members who are separated or retired for a Service-connected disability. The IDES features a single set of disability medical examinations appropriate for fitness determination by the Military Departments and a single set of disability ratings provided by the VA for appropriate use by both departments. Although the IDES includes medical examinations, IDES processes are administrative in nature and are independent of clinical care and treatment. b.  Unless otherwise stated in this DTM, DOD will follow the existing policies and procedures promulgated in DOD Directive 1332.18 and the Under Secretary of Defense for Personnel and Readiness Memoranda. All newly-initiated, duty-related physical disability cases from the Departments of the Army, Air Force, and Navy at operating IDES sites will be processed in accordance with this DTM and follow the process described in this DTM unless the Military Department concerned approves the exclusion of the Service member due to special circumstances. Service members whose cases were initiated under the legacy DES process will not enter the IDES. c.  Upon separation from military service for medical disability and consistent with Board for Corrections of Military Records (BCMR) procedures of the Military Department concerned, the former Service member may request correction of his or her military records through his or her respective Military Department BCMR if new information regarding his or her service or condition during service is made available that may result in a different disposition. For example, a veteran appeals the VA’s disability rating of an unfitting condition based on a portion of his or her service treatment record that was missing during the IDES process. If the VA changes the disability rating for the unfitting condition based on a portion of his or her service treatment record that was missing during the IDES process and the change to the disability rating may result in a different disposition, the Service member may request correction of his or her military records through his or her respective Military Department BCMR. d.  If, after separation from service and attaining veteran status, the former Service member desires to appeal a determination from the rating decision, the veteran has 1 year from the date of mailing of notice of the VA decision to submit a written notice of disagreement with the decision to the VA Regional Office of jurisdiction. DISCUSSION: 1. The applicant was processed through the IDES and received a 10 percent disability rating. He was subsequently discharged with severance pay. 2. The PEB conclusion suggests the disabilities considered by the PEB were properly rated in accordance with the VASRD and the applicant was found unfit for duty for his unfitting condition, as it existed at the time of his PEB hearing. 3. After his discharge, new relevant medical findings surfaced that potentially could have altered the outcome of the PEB and the final disability rating he received. 4. Based on the foregoing and based on the advisory opinions provided, his records may be reconsidered by an MEB to determine if the applicant's latest diagnosis existed at the time of his active duty service and to determine if such condition rendered him unfit for the performance of his duties. In the event the MEB's medical findings are officially changed, his records would continue through the IDES process for final adjudication of any revised findings. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150008803 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150008803 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2