ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 21 May 2019 DOCKET NUMBER: AR20160018237 APPLICANT REQUESTS: reconsideration of his previous request to be medically discharged from the Army. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 294 (Application for a Review by the Physical Disability Board of Review (PDBR) of the Rating Awarded Accompanying a Medical Separation from the Armed Forces of the United States) * The Burch Law Firm LLC Authored Letters * Exhibit One - Discharge Certificate, Summary of Military Assignments and Medical History * Exhibit Two – Medical and Hospital Reports * Exhibit Three – Statement of Medical Examination * Exhibit Four – Travel Orders * Exhibit Five – Physical Profile * Exhibit Six – Thallium Stress Test * Exhibit Seven – Medical Evaluation Board (MEB) Addenda * Exhibit Eight – Physical Evaluation Board (PEB) Proceedings * Exhibit Nine - Certificate of Discharge * Exhibit Ten – Temporary Disabled Retired List (TDRL) Examination * Exhibit Eleven – Letters from Dr. x * Exhibit Twelve – PEB Findings and Recommendations * Exhibit Thirteen – Rebuttal of PEB Findings * Exhibit Fourteen – Reply to Rebuttal of PEB Findings * Exhibit Fifteen – Non-Concurrence to Rebuttal to PEB Findings * Exhibit Sixteen – Removal from TDRL * Exhibit Seventeen – TDRL Proceedings * Exhibit Eighteen – Hospital Records * Exhibit Nineteen – Letter from Dr. x * Exhibit Twenty - Letter from Dr. x * Exhibit Twenty One – Veterans Affairs (VA) Disability Findings * Exhibit Twenty Two - Title 38: Schedule for Rating Disabilities * * TDRL Evaluation by X, MD, MAJ/MC * Letter from DrX * Surgical Operative Report (X, MD) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100000325 on 17 August 2010. 2. The applicant states that he suffered from coronary artery disease and the PEB found him fit for duty. He states his illness is service-related and he was discharged from the U.S. Army Reserves (USAR) because he was unfit for duty. The Army’s PEB erred in finding him fit for full duty despite his coronary artery disease. He states he was denied a medical discharge. 3. The applicant provides: a. The Burch Law Firm LLC authored Letters, which state in effect, records clearly show that he was unfit for further military service when he was discharged from the USAR due to coronary artery disease. His command found him unfit for service and referred him to the PEB. However, the PEB erred in finding him fit for full duty just two- months after quadruple bypass surgery. Following the PEB finding, he was involuntarily discharged despite being unfit for continued service. Within four months of his discharge, the Department of Veterans Affairs (VA) found him to be 100% disabled for the same disability. This matter has not been considered on the merits and the error to the applicant’s discharge record results in a significant injustice to this former service member. Following a massive heart attack while on active duty and placement on the Army's Temporarily Disabled Retirement List (TDRL), the applicant was found "fit for duty" by the Army's PEB two months later, in May 2000, he was determined to be unfit for further duty by his reserve unit's Commanding Officer due to his ongoing coronary condition. He was transferred to the Individual Ready Reserves (IRR). Seven weeks before discharge from the USAR, the applicant suffered recurrence of his acute coronary condition and underwent surgery. He was later discharged from the USAR and the VA rated him 100% for his disability. The applicant seeks a reevaluation of his discharge. He believes it was an error to be found fit for duty based on his condition. He feels he is entitled to a medical retirement based on his condition. The applicant filed a petition with the PEB in reference to a cerebral hemorrhage. Given the severity of his condition he should not have been found fit for duty. The applicant receives service-connected disability benefits from the VA, but request medical retirement benefits from the Army. He cannot establish Survivors Benefits for his spouse through VA, so he wants his disability pension to be able to transfer to his spouse. A synopsis of the applicant’s military career is supplied, followed by the details surrounding the medical incident on 20 May 1997, when he suffered a massive heart attack a. b. Exhibit One - Discharge Certificate, Summary of Military Assignments and Medical History, which states the applicant was discharged from the Army on 31 December 2005 and shows a record of his military service and health history. His line of duty illness, sustained around 19 May 1997 was a heart attack while working at the military treatment facility at Babenhausen, Germany. He had angioplasty and stenting completed before being placed at the medical hold at Keller Army Community. He was found unfit for duty on 7 January 1998 and placed on the TDRL with 30% disability. On 10 February 2000, he was removed from the TDRL and assigned to IRR. A fit for duty determination was initiated on 25 September 2002, and he was found not fit for duty. On 3 March 2004, he had a PEB and was found not fit for duty. On 10 November 2005, he had a Quadruple Coronary Artery Bypass done because of Acute Coronary Disease and Congestive Heart Failure. On 30 December 2005, he was honorably discharged at the mandatory removal date at 60 years old. c. Exhibit Two – Medical and hospital reports, dated 6 March 1997, which states the applicant complained of a burning sensation one hour before arriving at the hospital. The electrocardiogram showed recent posterior wall infarction. He completed treatment and transferred for a coronary angiogram. It was recommended that the applicant be medically boarded. d. Exhibit Three – Statement of Medical Examination, dated 14 July 1997, which states where the incident took place and that the applicant was seeing patients when he suffered a heart attack, while on active duty. e. Exhibit Four – Travel orders, dated 17 July 1997, which states that on 23 July 1997, the applicant was released and assigned to Keller Army Community Hospital. f. Exhibit Five – Physical profile, dated 21 September 1997, which states the applicant could not take an Army physical fitness test (APFT) due to coronary artery disease, acute myocardial infarction with cardiac arrest and coronary angioplasty with stenting. g. Exhibit Six – Thallium stress test, dated 18 November 1997, which states his total exercise time was 6 minutes and 10 seconds. The study showed evidence of ischemia of the apical wall. h. Exhibit Seven –MEB addenda, dated December 1997, which states the applicant still had residual effects of his heart attack and was not allowed to take an APFT. His case was referred to the PEB for final disposition. i. Exhibit Eight –PEB Proceedings, dated 7 January 1998, which states that his condition prevents satisfactory performance of his duty. He was found unfit and recommended for 30% disability. a. j. Exhibit Nine - Certificate of Discharge, dated 31 December 2005, which states his active duty time and location of separation. It also states his retirement as honorable and temporarily disabled. k. Exhibit Ten –TDRL Examination, dated 6 May 1999, which states he has slow deterioration. l. Exhibit Eleven – Letter from Dr. X, dated 17 May 1999, which states he has been the applicant’s health provider since 22 August 1997. He also states that the applicant is on a low cholesterol diet and take nitroglycerin for angina. Physical exertion is indicated as contra-indicated. m. Exhibit Twelve – PEB Findings and Recommendations, dated 23 February 2000, which states that the applicant is to be removed from the TDRL, and the PEB no longer finds him unfit for duty. The applicant did not concur with the findings. n. Exhibit Thirteen – Rebuttal of PEB Findings, dated 5 March 2000, which states that the applicant strongly disagreed with the findings. As a survivor of an acute myocardial infarction with shock and ventricular fibrillation, enroute to the hospital and being given thrombolytic therapy and subsequent coronary angioplasty with stenting made him consider that he is no longer an asset to the active reserve component of the army. After confiding this latest PEB correspondence with his reserve unit commander and his cardiologist, he was advised by both of them that if he wished to have a longer life, he should be medically retired from the service. o. Exhibit Fourteen – Reply to rebuttal of PEB Findings, dated 23 March 2000, which states that his rebuttal contained nothing that the PEB already considered and that his own cardiologist noted that he attained 10.1 metabolic equivalents (METS) during normal exercise with no symptoms. The entire case including the rebuttal was forwarded to the Physical Disability Agency for review. p. Exhibit Fifteen – Non-Concurrence to Rebuttal to PEB Findings, dated 4 April 2000, the U.S. Army Physical Disability Agency (USAPDA) found that his case was properly adjudicated by the PEB which correctly applied the governing rules. The findings and recommendations are supported by substantial evidence and are therefore affirmed. q. Exhibit Sixteen – Removal from TDRL, dated 10 April 2000, which states that the applicant was removed from the TDRL and found to be physically fit. r. Exhibit Seventeen – TDRL proceedings, dated 25 September 2002., which states that the applicant does not meet the retention standards. a. s. Exhibit Eighteen – Hospital records, dated November 2005, which states the applicant had left heart catheterization, left ventriculogram and selective coronary angiography. t. Exhibit Nineteen – Letter from Dr. X, dated 7 March 2006, which states that the applicant should be medically retired or transferred to the Retired Reserve Status. u. Exhibit Twenty - Letter from Dr. X , dated 26 July 2006, which states the applicant has a chronic deteriorating condition of atherosclerotic cardiovascular disease which was complicated by a heart attack, stroke and congestive heart failure. v. Exhibit Twenty One –VA Disability Findings, dated 13 February 2007, which states that the applicant received 100% rating from the VA for coronary artery disease status post myocardial infarction and history of four vessel coronary artery bypass graft on 24 April 2006. He also received a 10% rating for cerebral hemorrhaging. w. Exhibit Twenty Two - Title 38: Schedule for rating disabilities, which states that he received 100% rating for Valvular heart disease, Arteriosclerotic heart disease (Coronary artery disease), congestive heart failure, and coronary bypass surgery. x. TDRL Evaluation by X___, MD, MAJ/MC, dated 25 September 2002, which states that his condition prevented satisfactorily duty performance. y. Letter from Dr. X , dated 17 May 1999, which states the applicant has a chronic deteriorating condition of atherosclerotic cardiovascular disease which was complicated by a. heart attack, stroke and congestive heart failure. There is no way that he can secure and follow a substantially gainful occupation considering his health condition and age factor. He has already resigned or retired from his full-time job effective 1 August 2006 and been awarded his long-term disability benefit by the Social Security Administration since 10 May 2006. z. Surgical Operative Report (X , MD), dated 10 November 2005, which states he has a long history of coronary disease and ad a prior stent procedure. Recently he had increase in angina catheterization demonstrates severe triple vessel disease with ejection fraction of 35%. The patient was transferred for urgent revascularization by Dr. X __. 4. A review of his service records shows: a. He was appointed as a Reserve commissioned officer of the Army and executed an oath of office on 12 September 1981. b. He entered active duty on 29 November 1996. a. c. On 20 May 1997, while serving in Germany, the applicant suffered a posterior wall myocardial infarction. On 14 July 1997, an informal LOD investigation determined that the applicant's myocardial infarction was incurred in the LOD. d. An MEB, dated 15 September 1997, determined the applicant's post-acute posterior myocardial infarction with successful revascularization "meets AR 40-501, chapter 3-21." The applicant disagreed with the MEB's findings and recommendations and appealed the report. On 3 December 1997, his appeal was considered and the report of the board was returned for reconsideration. e. On 4 December 1997, the MEB determined he did not meet retentions standards due to his physical limitations and referred the case to a PEB. On 17 December 1997, he agreed with the board's findings and recommendations. f. On 7 January 1998, the PEB found him physically unfit for further service and recommended a combined rating of 30% for the residuals of myocardial infarction and recommended that he be placed on the TDRL with reexamination in 1999. g. On 24 February 1998, he was retired and placed on the TDRL. h. On 6 May 1999, he underwent a TDRL examination. He was found not to have stabilized yet and he was to undergo a follow-up examination in 15 months. The applicant concurred with this report. i. On 23 February 2000, the USAPDA notified him that an informal PEB had reviewed his most recent medical examination, he was found fit for duty in his current grade and the recommendation was that he be removed from the TDRL. He was also advised of his options. j. On 5 March 2000, he submitted a rebuttal stating he disagreed with the PEB's findings, he was unable to perform the duties of a Soldier due to his medical conditions, and he should be medically retired. k. On 4 April 2000, the USAPDA advised him that the PEB's findings were supported by substantial evidence. His rebuttal had been reviewed and it did not contain any new substantive medical information. The PEB's findings were affirmed he was determined to be fit for duty. l. On 10 April 2000, USAPDA notified the applicant he had been found fit for duty and removed from the TDRL. m. On 7 May 2000, he responded to the USAPDA notification by indicating he would resume his USAR affiliation within 90 days of his removal from the TDRL. He reentered the IRR. a. n. On 15 August 2000, he suffered a stroke and was hospitalized for evaluation and treatment. o. On 12 October 2001, he submitted a statement that outlined his physical limitations. He also requested an evaluation, and that he be returned to the TDRL. p. On 25 September 2002, an evaluation report shows the applicant's medical condition was determined not to meet retention standards and he was considered unfit for duty due to coronary artery disease. q. A Non-Duty Related PEB, dated 3 March 2004, shows the applicant was found to be physically unfit due to coronary artery disease with chest pain and stroke with residual balance problems and difficulty ambulating. The applicant concurred with these findings. r. In November 2005, he suffered a second heart attack that further worsened his overall medical condition. The damage to his heart required quadruple coronary bypass surgery. s. His orders D-10-533444 reflect that on 31 December 2005, he was honorably discharged from the USAR under the provisions of AR 135-175 (Army Nation Guard & Army Reserve Separation of Officers). He completed 14 years, 7 months and 2 days of inactive service, and 1 year, 10 months and 11 days of active service. t. On 13 February 2007, the VA awarded the applicant "service connection for coronary artery disease status post myocardial infarction and four vessel coronary artery bypass graft" with a 100% disability rating. He was also awarded 0% service connection for hypertension, 10% for a cerebral hemorrhage, and 0% for psoriasis all effective 24 April 2006. Additionally, the rating decision shows the VA considered his two heart attacks and his stroke were secondary to his hypertension. u. The applicant previously submitted a request for permanent disability retirement, on 17 August 2010 which was denied in full by the board. 5. In the processing of this case, the Army Review Boards Agency senior medical advisor/ psychologist reviewed the applicant's case and rendered an advisory opinion on 8 March 2017. The Army Review Board Agency’s (ARBA) medical advisor opined: a. The applicant’s medical conditions were duly considered during medical separation processing. b. A review of the available documentation found no evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case. a. 6. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal. On 6 April 2017, the applicant’s attorney provided a response, stating the applicant’s medical condition should have been reviewed prior to his discharge, but was not. Thus, the Army Reserve command was unaware of his quadruple bypass surgery and the residual effects occurring just 7 weeks prior to his discharge. On his final discharge date December 31, 2005, the applicant was 100% disabled due to his coronary artery disease a disability which arose in the line of duty. 7. By regulation, AR 635-40, coronary heart disease associated with myocardial infarction, angina pectoris, or congestive heart failure due to fixed obstructive coronary artery disease or coronary artery spasm are causes for referral to an MEB. The policies for trial of duty, profiling, and referral to an MEB and a PEB apply. The trial of duty will be for 120 days for a myocardial infarction with normal coronary artery anatomy. 8. By regulation, AR 135-175 (Army Nation Guard & Army Reserve Separation of Officers) reserve officers may be discharged from their status as reserves of the army for attaining maximum allowable age. BOARD DISCUSSION: After review of the application and all evidence, the Board determined relief is warranted. The applicant’s contentions, medical concerns, and the medical advisory opinion were carefully considered. Based upon the preponderance of evidence, the Board agreed the applicant’s medical concerns were not fully addressed when he was allowed to transfer to the USAR, and subsequently had a stroke. Notwithstanding the medical advisory opinion, the Board concluded his record should be referred to the OTSG for a medical discharge consideration. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant amendment of the ABCMR's decision in Docket Number AR20100000325 on 17 August 2010. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by referring his records to The Office of the Surgeon General for review to determine if he should have been discharged or retired by reason of physical disability under the Integrated Disability Evaluation System (IDES). a. In the event that a formal physical evaluation board (PEB) becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB. All required reviews and approvals will be made subsequent to completion of the formal PEB. b. Should a determination be made that the applicant should have been separated under the IDES, these proceedings will serve as the authority to void his administrative separation and to issue him the appropriate separation retroactive to his original separation date, with entitlement to all back pay and allowances and/or retired pay, less any entitlements already received. 2. The Board further determined that the warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains changing his t of discharge without evaluation under the IDES. 5/31/2019 X CHAIRPERSON Signed by: 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Army Regulation (AR) 40-501 (Medical Services – Standards of Medical Fitness) governs regulation governs Medical fitness standards for enlistment, induction, and appointment, including officer procurement programs, Medical fitness standards for retention and separation, including retirement, Medical fitness standards for diving, Special Forces, Airborne, Ranger, free fall parachute training and duty, and certain enlisted military occupational specialties (MOSs) and officer assignments. It also governs Medical standards and policies for aviation, Physical profiles, and Medical examinations. 2. AR 635-40 (Physical Evaluation for Retention, Retirement or Separation), 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. If a soldier is found unfit because of physical disability, this regulation provides for disposition of the soldier according to applicable laws and regulations. a. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform. b. The VA Schedule for Rating Disabilities (VASRD) is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. Because of differences between Army and VA applications of rating policies, differences in ratings may result. Unlike the VA, the Army must first determine whether or not a Soldier is fit to reasonably perform the duties of his office, grade, rank, or rating. Once a Soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD. These percentages are applied based on the severity of the condition at the time of separation. 3. AR 135-175 (Army Nation Guard & Army Reserve Separation of Officers) provides policy, criteria, and procedures for the separation of officers of the Army National Guard of the United States (ARNGUS) and the United States Army Reserve (USAR). Chapter 4, states reserve officers may be discharged from their status as reserves of the army for attaining maximum allowable age. 4. 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. 5. Title 10, USC, section 1203, provides for the physical disability separation of a 1. member who has less than 20 years of service and a disability rating of less than 30 percent. 6. Title 38, USC, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual’s medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. //NOTHING FOLLOWS//