APPLICANT REQUESTS Reconsideration of the denial of his

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					ABCMR Memorandum of                           AC94-07468A
Consideration (cont)

APPLICANT REQUESTS: Reconsideration of the denial of his
application for correction of his military records wherein he
requested that his placement on the permanent disability retired
list (PDRL) on 1 May 1973 be voided and that his name be placed on
the temporary disability retired list (TDRL) on 1 May 1973 with the
diagnosis of coronary heart disease, mild to moderate, functional
class II, added to his existing rating. He also requests that it
be shown that he was retained on the TDRL until 1 May 1983, receiving
periodic medical evaluations, with his percentage of disability being
increased in conjunction with those examinations, and that his name
be placed on the PDRL on 1 May 1983 with a percentage of disability
which would adequately compensate him for his disabilities at that
time.

APPLICANT STATES: In his original application, that if he had
undergone catherization while he was on active duty, his coronary
heart disease would have been detected and included in the
disabilities for which he received a rating. Also, his name should
have been placed on the TDRL, not the PDRL, since his hearing loss
had not stabilized at the time of his retirement. He had submitted
a letter in his behalf from a medical expert opining that his coronary
heart disease had existed at the time of his placement on the PDRL.
 Another letter from an expert medical source explains that the
applicant’s hearing loss is quite unusual, that it had not stabilized
at the time of his placement on the PDRL, and that the prudent course
of action at that time, if the true nature of his hearing loss had
been known, would have been to place his name on the TDRL.

In his request for reconsideration, he amends his request from
placement on the TDRL for 10 years to 3 years and placement of his
name on the PDRL upon completion of that time, with a combined rating
which would compensate him for the disabilities he had at that time.
 He contends that since the expert medical opinions he had submitted
in support of his application had not been referenced in the Board’s
Memorandum of Consideration (MOC), the Board did not take those
opinions into consideration when it denied his request. He also
contests dates used in the Board’s MOC and reiterates that he should
have been rated for coronary artery disease when his name was placed
on the PDRL. He outlines the inadequacies and fallacies he perceives
in the advisory opinion obtained by the Board from the Office of
The Surgeon General (OTSG) in the processing of his application.
The applicant again requests a formal hearing, maintaining that only
a formal hearing will allow for him to adequately present his case


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ABCMR Memorandum of                           AC94-07468A
Consideration (cont)

and to explain the hardships his premature placement on the PDRL
has caused.

NEW EVIDENCE AND/OR INFORMATION: In support of his request the
applicant submits three letters from physicians which state that
he suffered from coronary artery disease and that his hearing loss
was not stable when his name was placed on the PDRL. He also submits
clinical records in an attempt to support those contentions.

EVIDENCE OF RECORD: The applicant’s military records were
incorporated in the MOC prepared during the original review of his
case.

The Board denied the applicant’s original application in a MOC (COPY
ATTACHED) on 12 July 1995.

On 10 April 1970, while serving in the rank of lieutenant colonel,
a Physical Evaluation Board (PEB) found the applicant physically
unfit due to impairment of auditory acuity, rated 20 percent
disabling, due to intervertebral disc syndrome, rated 10 percent
disabling, and due to diabetes mellitus, rated 10 percent disabling,
for a combined rating of 40 percent.

The applicant requested, and was granted, continuation on active
duty. On 18 June 1971 and on 18 June 1972 the applicant was given
officer efficiency reports in which he was rated in Part VII,
Demonstrated Performance of Present Duty, as “Performance of this
duty equaled by very few officers, a ranking of next to best on a
six block scale. On 30 April 1971 the applicant was promoted to
pay grade
0-6.

On 26 February 1973, while serving in the rank of colonel, a second
PEB found the applicant physically unfit due to impairment of auditory
acuity, bilateral, rated 20 percent disabling, due to intervertebral
disc syndrome, moderate, rated 20 percent disabling, and diabetes
mellitus, mild, rated 10 percent disabling, for a combined rating
of 40 percent disabled.

On 30 April 1973 the applicant reached his mandatory removal date
under the maximum service policy in effect at that time and was
honorably released from active duty. His name was placed on the
PDRL the following day, rated 40 percent disabled.


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ABCMR Memorandum of                          AC94-07468A
Consideration (cont)


In the processing of the applicant’s request for reconsideration,
advisory opinions were obtained from the OTSG, who stated that the
applicant’s hearing loss was, in fact, stable at the time of his
retirement, and remained relatively constant until 1976, 3 years
after his retirement. As for the applicant’s coronary artery
disease, the OTSG accepted the opinion of the physicians who wrote
on the applicant’s behalf that the applicant was unfit under the
provisions of Army Regulation 40-501, paragraph 3-21,
arteriosclerotic disease (associated with myocardial insufficiency
(congestive heart failure), repeated anginal attacks, or objective
evidence of myocardial infarction) on the date his name was placed
on the PDRL.

Also obtained in the processing of the request for reconsideration
was an advisory opinion from the Physical Disability Agency (PDA).
 The PDA stated that the finding by the applicant’s PEB that his
hearing condition was stable enough to rate did not imply that the
rating could not have gone up or down in the future. Army Regulation
635-40 states that a rating was permanent or may be permanent when
the defect had stabilized to the extent that the compensable
percentage rating, with reasonable expectation, would remain
unchanged during the 5-year period following separation, or if, based
upon accepted medical principles, the defect was of such a nature
that accurate assessment could not be made of its permanent degree
of severity or percentage rating. The PDA reasoned that in view
of the fact that the applicant’s hearing remained rated at 20 percent
for 2 years, and since it remained essentially unchanged for 3 years
after his retirement, it was not unreasonable to conclude the
applicant’s hearing loss was stable for rating purposes. The PDA
adds that even if the unique nature of the applicant’s hearing loss
had been known at the time of his rating, it would still have been
given a permanent rating since an accurate assessment could not have
made of its permanent degree of severity. As for the applicant’s
coronary artery disease, the PDA states that the applicant was
referred to an MEB based on his pending mandatory release from active
duty, not because of any physical defects or inability to perform
his duties. To the contrary, the physical conditions for which the
applicant was medically retired were all identified in his original
MEB. In the 2 years following his original MEB, his officer
evaluation reports depicted an officer who was fully capable of
performing his duties. He was also promoted to pay grade 0-6 during
that time. As such, his coronary artery disease would not have been


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ABCMR Memorandum of                           AC94-07468A
Consideration (cont)

found to be physically unfitting if it had been diagnosed by his
MEB.

Also obtained in conjunction with the applicant’s request for
reconsideration was an advisory opinion from the Medical Advisor,
Army Review Board Agency, who stated that there was no error in the
applicant’s medical board proceedings in 1973 based upon the
knowledge and technology available at that time.

Army Regulation 635-40 states that while a member may have medical
conditions or physical impairments ratable under the Veterans
Administration Schedule for Rating Disabilities, he will not be
retired or separated because of those conditions or impairments
unless they render him unfit because of physical disability. This
regulation also states that the continuous performance of duty by
a member whose service may soon be terminated for reasons other than
physical disability gives rise to a presumption of fitness which
may be overcome if the evidence established (a) that the member,
in fact was physically unable to perform the duties of his office,
rank, grade, or rating even though he was improperly retained in
that office, rank, grade or rating for a period of time, or (b) acute,
grave, illness or injury or other deterioration of physical condition
that occurred immediately prior to or coincidentally with the
member’s separation for reasons other than physical disability
rendered him unfit for further duty.

Title 10, U.S. Code, section 1202, was changed by the Department
of Defense Authorization Act, 1986, Public Law 99-145, section 513,
627-628 (1985). Prior to the passage of that law, only those soldiers
who were temporarily disabled could be placed on the TDRL. That
law expanded the scope of the TDRL to include those soldiers whose
disabilities were permanent if the disability was not stable in
degree.

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

1. The applicant’s hearing loss remained stable from the date of
his PEB on 10 April 1970 to his second PEB on 26 February 1973, as
evidenced by the 20 percent rating he received for that condition
by both boards. The applicant’s hearing was next tested on 19 June


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ABCMR Memorandum of                           AC94-07468A
Consideration (cont)

1975 and found to have deteriorated only by three decibels in his
right ear and three decibels in his left ear. This history supports
the finding by his 1973 PEB that his hearing had stabilized for the
purpose of permanent rating.

2. Even if the applicant’s request were to be granted, that his
records be corrected to show that his PEB diagnosed his hearing loss
as a unique and unusual condition which could not be accurately
assessed, regulations would require the PEB to assign the condition
a permanent rating.

3. The above contentions notwithstanding, placing him on the TDRL
as he has requested would be in contravention with title 10, U.S.
Code, section 1202, in effect at that time. The applicant’s hearing
loss is obviously permanent, which prohibited his placement on the
TDRL.

4. As for rating the applicant’s coronary artery disease, his
records do not indicate in any way that he was unable to perform
the duties of his grade or specialty. Therefore, even if he had
been diagnosed as having that condition, it could be reasonably stated
that he would not have received a compensable rating for it.

5. Only the Board is empowered to grant a formal hearing to an
applicant. Although the applicant’s desire to have his case
considered by a formal board is understandable, in view of the lack
of merit of his contentions, it would serve no useful purpose.

6. 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

                        DENY APPLICATION



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ABCMR Memorandum of                AC94-07468A
Consideration (cont)




                       Karl F. Schneider
                       Acting Director




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