MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           13 May 1999
	DOCKET NUMBER:   AC98-06696
				   AR1999022916

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mr. David H. Keller		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor Jr.		Chairperson	
	Mr. Samuel Calderon		Member	
	Mr. Kenneth L. Wright		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That he be placed on the Temporary Disability Retired List (TDRL) due to his medical condition at the time of separation.

APPLICANT STATES:  That the VA awarded him a service connected disability rating for Hodgkin’s Disease, noting a history of prior treatment while in the Army. That a service connected rating was also granted for removal of his spleen while in military service.  He encloses a copy of the VA rating decision to support his request.

COUNSEL COUNTENDS:  Counsel offered no evidence or argument beyond that submitted with the application.

EVIDENCE OF RECORD:  The applicant's military records show:

He enlisted 14 June 1989.  On 13 June 1994, while serving in Germany, he was medically evacuated to Walter Reed Army Medical Center (WRAMC), Washington, DC.

While in Germany, the applicant had a posterior auricular node biopsy with a presumptive diagnosis of Stage B3 nodular sclerosing Hodgkin’s Disease.  A staging laparotomy, to include removal of the spleen, was performed.  All the tissue slides obtained in Germany were reviewed by the Armed Forces Institute of Pathology.  This review revealed there was no evidence of Hodgkin’s Disease. The applicant was discharged from WRAMC with a final diagnosis of reactive lymphadenopathy and status post splenectomy.  He was reassigned to Fort Hood, Texas, where he served the remainder of his military service.

The applicant was honorably separated on 26 May 1995 at normal expiration of term of service.  He had 5 years, 11 months and 13 days of creditable service.

Subsequent to separation, the VA awarded the applicant a 30 percent disability rating for Hodgkin’s Disease, determined to be service connected, and an additional 30 percent rating for splenectomy, also determined to be service connected, for a total combined disability rating of 50 percent.

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade or rating because of disability incurred while entitled to basic pay.

Army Regulation 635-40, Physical Evaluation for Retention, Retirement, or Separation, paragraph 3-1, provides that the mere presence of an 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.

Paragraph 3-2b(1) of the regulation provides that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

Paragraph 3-2b(2) further provides that when a member is being separated by reason other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she is scheduled for separation or retirement creates a presumption that he or she is fit. This presumption can be overcome only by clear and convincing evidence that he or she was unable to perform his or her duties for a period of time or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit

Title 38, United States Code, sections 310 and 331, permits the VA to provide treatment and to award compensation for disabilities which were incurred in or aggravated by active military service.

In the processing of this case, an advisory opinion (COPY ATTACHED) was obtained from the staff medical advisor.  The Board was advised that Army Regulation 40-501 states that anyone with a lymphoid or blood forming neoplastic condition, such as Hodgkin’s Disease, is to be referred for a medical evaluation board (MEB).  That the probable result of an MEB and physical evaluation board (PEB) would have been placement of the applicant on the TDRL.

A second advisory opinion (COPY ATTACHED) was obtained from the Army Physical Disability Agency (USAPDA).   It was opined that the foregoing opinion is not supported by the discharge medical summary from WRAMC, which revealed that, after the laparotomy and removal of the spleen was performed, there was no evidence of Hodgkin’s Disease.  That the evidence in this case does not support the applicant’s request nor does it indicate an error or injustice occurred.

The foregoing medical opinions were mailed to the applicant on 13 October 1998 for his comment and possible rebuttal.  He failed to respond within the 30-day time limit afforded him by this agency.

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 was discharged from the hospital (WRAMC) in September 1994 with no evidence of Hodgkin’s Disease.  He was returned to duty at Fort Hood, Texas, where he continued to serve without interruption by any unfitting medical impairments.

2.  The applicant’s military service was not interrupted by physical disability.  Notwithstanding the presence, or possible presence, of various medical conditions, there is no evidence of record, nor has the applicant provided sufficient evidence, which would indicate that he suffered from any medical condition of such severity that he was rendered unable to reasonably perform the duties of his office, rank, grade or rating.

3.  The foregoing is supported by the USAPDA advisory opinion.

4.  The fact that the VA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish physical unfitness for Army purposes.

5.  An award of a VA rating does not establish entitlement to medical retirement or separation from the Army.  Operating under different law and its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military service, awards ratings because a medical condition is related to service (service-connected) and affects the individual’s civilian employability.  Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.

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

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-06696/AR1999022916	
SUFFIX		
RECON		
DATE BOARDED	19990513	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	145.00	
2.	110.00	
3.		
4.		
5.		
6.