B-155753, JAN. 28, 1965

B-155753: Jan 28, 1965

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U.S.A.R.: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 25. WHILE HOSPITALIZED FOR GOUTY ARTHRITIS SAID TO HAVE RESULTED FROM AN INJURY SUSTAINED ON AUGUST 12. THE RECORD SHOWS THAT YOU WERE ORDERED TO ACTIVE DUTY TRAINING FOR THE PERIOD JULY 31 TO AUGUST 16. YOU FELL AND INJURED YOUR RIGHT KNEE AND THAT LATER THAT SAME DAY YOU AGAIN INJURED YOUR RIGHT KNEE WHEN YOU WERE THROWN AGAINST THE DASH OF A JEEP IN WHICH YOU WERE RIDING WHEN THE JEEP BOUNCED ACROSS DEEP RUTS. IT IS FURTHER DISCLOSED THAT YOU WERE HOSPITALIZED FOR THAT INJURY AT WOMACK ARMY HOSPITAL. THAT UPON DISCHARGE FROM THE HOSPITAL YOUR DISABILITY WAS DIAGNOSED AS GOUT. THAT YOU WERE REHOSPITALIZED FOR THE PERIOD FROM MARCH 27 THROUGH MAY 16.

B-155753, JAN. 28, 1965

TO MAJOR LOUIS D. MARCHETTE, 0958104, U.S.A.R.:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 25, 1964, REQUESTING REVIEW OF SETTLEMENT OF OUR CLAIMS DIVISION, DATED NOVEMBER 18, 1964, WHICH DISALLOWED YOUR CLAIM FOR PAY AND ALLOWANCES FOR THE PERIOD JANUARY 31 THROUGH MARCH 15, 1964, WHILE HOSPITALIZED FOR GOUTY ARTHRITIS SAID TO HAVE RESULTED FROM AN INJURY SUSTAINED ON AUGUST 12, 1959, WHILE ON ACTIVE DUTY TRAINING.

THE RECORD SHOWS THAT YOU WERE ORDERED TO ACTIVE DUTY TRAINING FOR THE PERIOD JULY 31 TO AUGUST 16, 1959; THAT ON AUGUST 1, 1959, YOU TURNED YOUR ANKLE CAUSING YOU TO LIMP AND SUSTAIN SOME PAIN IN YOUR RIGHT KNEE; THAT ON AUGUST 12, 1959, YOU FELL AND INJURED YOUR RIGHT KNEE AND THAT LATER THAT SAME DAY YOU AGAIN INJURED YOUR RIGHT KNEE WHEN YOU WERE THROWN AGAINST THE DASH OF A JEEP IN WHICH YOU WERE RIDING WHEN THE JEEP BOUNCED ACROSS DEEP RUTS. IT IS FURTHER DISCLOSED THAT YOU WERE HOSPITALIZED FOR THAT INJURY AT WOMACK ARMY HOSPITAL, FORT BRAGG, NORTH CAROLINA, FROM AUGUST 12 THROUGH NOVEMBER 9, 1959; THAT UPON DISCHARGE FROM THE HOSPITAL YOUR DISABILITY WAS DIAGNOSED AS GOUT, RIGHT KNEE AND LEFT ANKLE PRECIPITATED BY INJURIES SUSTAINED WHILE ON ACTIVE DUTY; THAT YOU WERE REHOSPITALIZED FOR THE PERIOD FROM MARCH 27 THROUGH MAY 16, 1961, AT THE U.S. ARMY HOSPITAL, FORT JACKSON, SOUTH CAROLINA, WITH THE SAME DIAGNOSIS; THAT YOU WERE AGAIN REHOSPITALIZED AT THE LATTER HOSPITAL FROM JANUARY 31, 1964, THROUGH MARCH 15, 1964, AND THAT ALTHOUGH YOU WERE PAID FULL PAY AND ALLOWANCES FOR THE FIRST TWO PERIODS OF HOSPITALIZATION, AGGREGATING 136 DAYS, PAYMENT FOR AN ADDITIONAL 44 DAYS OF THIS LATER PERIOD--- THE BALANCE OF THE PERIOD OF SIX MONTHS ALLOWED BY LAW FOR WHICH BASIC PAY AND ALLOWANCES IS AUTHORIZED DURING THE PERIOD OF HOSPITALIZATION OR REHOSPITALIZATION--- HAS BEEN REFUSED BASED ON THE DETERMINATION ISSUED BY THE ADJUTANT GENERAL BY ORDER OF THE SECRETARY OF THE ARMY ON MARCH 20, 1964, THAT THE GOUT FOR WHICH YOU WERE HOSPITALIZED ON JANUARY 31, 1964, DID NOT RESULT FROM THE INJURY INCURRED ON AUGUST 12, 1959.

FOLLOWING YOUR INJURY IN AUGUST 1959 A FINDING WAS MADE AT THE LOCAL LEVEL IN NOVEMBER 1959 THAT THE DISEASE FROM WHICH YOU WERE THEN SUFFERING (GOUT) WAS INCURRED IN LINE OF DUTY AND WAS PRECIPITATED BY THE INJURIES DESCRIBED ABOVE. YOUR REHOSPITALIZATION IN 1961 WAS APPROVED ON THE BASIS OF YOUR ORIGINAL LINE-OF-DUTY FINDING. WHEN YOU WERE AGAIN REHOSPITALIZED IN JANUARY 1964, ANOTHER INVESTIGATION WAS MADE AT THE LOCAL LEVEL AND IT WAS FOUND THAT THE DISABILITY FOR WHICH YOU WERE AUTHORIZED HOSPITALIZATION HAD BEEN INCURRED IN LINE OF DUTY. HOWEVER, THE ACTION TAKEN BY THE ADJUTANT GENERAL UPON FORMAL REVIEW OF THE DETERMINATION WAS AMBIGUOUS IN THAT WHILE THE LINE-OF DUTY FINDING WAS APPROVED, IT WAS HELD THAT THE GOUT FOR WHICH YOU WERE HOSPITALIZED IN JANUARY 1964 DID NOT RESULT FROM THE INJURY YOU INCURRED ON AUGUST 12, 1959. SUBSEQUENTLY, IN 5TH INDORSEMENT OF JUNE 24, 1964, THE SURGEON GENERAL EXPRESSED THE OPINION THAT THE DISEASE EXISTED PRIOR TO THE TOUR OF ACTIVE DUTY AND THERE IS NO EVIDENCE TO SUPPORT A CLAIM OF PERMANENT AGGRAVATION. THE TEMPORARY EXACERBATION WHICH OCCURRED ON YOUR SHORT TOUR OF ACTIVE DUTY IN 1959 WAS CONSIDERED BY THAT OFFICIAL TO BE IN LINE OF DUTY FOR THAT ATTACK ONLY AND NOT FOR SUBSEQUENT EXACERBATIONS. THE LATTER WERE VIEWED BY HIM AS BEING THE NATURAL PROGRESSION OF THE BASIC DISEASE.

SECTION 3722, TITLE 10, U.S.C. PROVIDES IN PERTINENT PART AS FOLLOWS:

"/A) UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, THE FOLLOWING PERSONS ARE ENTITLED TO THE BENEFITS OF SUBSECTION (B):

(1) EACH RESERVE OF THE ARMY, AND EACH OFFICER WHO HAS NO REGULAR OR RESERVE APPOINTMENT AND WHO IS INJURED, OR CONTRACTS A DISEASE, IN LINE OF DUTY WHILE ON ACTIVE DUTY IN TIME OF PEACE.

"/B) SO FAR AS ANY BENEFIT NAMED IN THIS SUBSECTION IS NOT PROVIDED FOR HIM UNDER SECTION 3721 OF THIS TITLE, ANY PERSON NAMED IN SUBSECTION (A) IS ENTITLED TO---

(1)THE HOSPITALIZATION, REHOSPITALIZATION, AND MEDICAL AND SURGICAL CARE IN A HOSPITAL AND AT HIS HOME APPROPRIATE FOR THE TREATMENT OF HIS INJURY OR DISEASE UNTIL THE RESULTING DISABILITY CANNOT BE MATERIALLY IMPROVED BY FURTHER HOSPITALIZATION OR TREATMENT;

(2) THE BASIC PAY AND ALLOWANCES, WHETHER IN MONEY OR IN KIND, TO WHICH HE WAS ENTITLED AT THE TIME WHEN THE INJURY WAS INCURRED OR THE DISEASE CONTRACTED, DURING THE PERIOD OF HIS HOSPITALIZATION OR REHOSPITALIZATION, BUT NOT FOR MORE THAN A TOTAL OF SIX MONTHS AFTER THE END OF HIS PRESCRIBED TOUR OF DUTY OR TRAINING; * * *.'

THE APPLICABLE REGULATIONS ARE CONTAINED IN PARAGRAPH 20-26, ARMY REGULATIONS 37-104. REGULATIONS GOVERNING LINE-OF-DUTY DETERMINATIONS ARE CONTAINED IN ARMY REGULATIONS 600-140, PARAGRAPH 7 OF WHICH SETS FORTH THE REQUIREMENTS FOR INVESTIGATION. AT THE TIME OF YOUR INJURY INVESTIGATION AT THE LOCAL LEVEL APPEARS TO HAVE BEEN PROPER UNDER THE PROVISIONS OF PARAGRAPH 7B (2) TO THE EFFECT THAT FORMAL INVESTIGATION IS NOT REQUIRED OF INJURIES NOT LIKELY TO RESULT IN PERMANENT DISABILITY OR CLAIM AGAINST THE GOVERNMENT. YOUR REHOSPITALIZATION IN 1961 WAS APPROVED UNDER THE LOCAL DETERMINATION. HOWEVER, AT THE TIME OF YOUR SECOND REHOSPITALIZATION IN JANUARY 1964, A FORMAL INVESTIGATION WAS CONDUCTED AND A DETERMINATION WAS MADE BY DEPARTMENT OF THE ARMY AUTHORITY TO THE EFFECT THAT THE GOUT FROM WHICH YOU ARE SUFFERING WAS NOT THE RESULT OF THE INJURY YOU INCURRED ON AUGUST 12, 1959. WE ARE WITHOUT AUTHORITY TO QUESTION SUCH DETERMINATION. WE ALSO FEEL THAT IT WOULD NOT BE PROPER FOR US TO ATTEMPT TO SUBSTITUTE OUR JUDGMENT IN THIS MATTER FOR THAT OF THE SURGEON GENERAL.

THE CONDITIONS UNDER WHICH MEDICAL CARE IS AUTHORIZED FOR MEMBERS NOT ON ACTIVE DUTY CONTAINED IN PARAGRAPH 11B, ARMY REGULATIONS 40 101, INCLUDE, AMONG OTHERS, THAT WHERE INDIVIDUALS ARE ADMITTED TO OR TREATED AT A MEDICAL TREATMENT FACILITY DURING A PERIOD OF DUTY FOR DOUBTFUL LINE-OF- DUTY CONDITIONS, AN INVESTIGATING OFFICER SHALL BE APPOINTED TO CONDUCT A LINE-OF-DUTY INVESTIGATION. SHOULD A RECOMMENDED LINE-OF-DUTY DETERMINATION BE MADE AT THE LOCAL LEVEL, MEDICAL CARE WILL CONTINUE TO BE FURNISHED AFTER DATE OF EXPIRATION OF ACTIVE DUTY. IF THIS RECOMMENDED DETERMINATION SHOULD BE REVERSED BY THE "FINAL APPROVAL AUTHORITY," THE INDIVIDUAL WILL BE FURNISHED MEDICAL CARE WITHOUT CHARGE REGARDLESS OF LINE-OF-DUTY STATUS, FROM THE DATE OF EXPIRATION OF ACTIVE DUTY TO THE DATE OF NOTIFICATION TO THE INDIVIDUAL OF THE FINAL APPROVED LINE-OF-DUTY DETERMINATION.

ASSUMING THAT YOU WERE NOT NOTIFIED PRIOR TO YOUR RELEASE FROM THE HOSPITAL THAT THE DISEASE FOR WHICH YOU WERE HOSPITALIZED IN JANUARY 1964 WAS NOT CONTRACTED IN LINE OF DUTY, THE FURNISHING OF MEDICAL CARE WITHOUT EXPENSE TO YOU WAS PROPER UNDER THE REGULATIONS. HOWEVER, THE DETERMINATION THAT YOUR SECOND REHOSPITALIZATION WAS SOLELY FOR THE TREATMENT OF A DISEASE WHICH YOU CONTRACTED PRIOR TO THE PERIOD OF ACTIVE DUTY AND NOT AS A RESULT OF INJURY YOU SUFFERED WHILE ON THAT DUTY PRECLUDES THE PAYMENT OF BASIC PAY AND ALLOWANCES FOR THIS PERIOD AS FOR REHOSPITALIZATION FOR A DISEASE INCURRED IN LINE OF DUTY.

ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM WAS PROPER AND IS SUSTAINED.

CONCERNING YOUR BELIEF THAT YOUR CASE SHOULD BE REVIEWED TO GIVE FULL CONSIDERATION TO THE MEDICAL ASPECTS TO WHICH YOU REFER AND THAT YOU SHOULD BE PERMITTED "TO APPEAR BEFORE THE BOARD SO THAT THIS COMPLICATION CAN BE CLEARLY UNDERSTOOD," YOU ARE ADVISED THAT THIS IS A MATTER FOR CONSIDERATION BY THE DEPARTMENT OF THE ARMY. ANY INQUIRY AS TO THIS MATTER SHOULD BE ADDRESSED TO THE ADJUTANT GENERAL, DEPARTMENT OF THE ARMY, WASHINGTON, D.C., 20315.