MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:    

	BOARD DATE:           14 April 1999
	DOCKET NUMBER:   AC97-11727
			 	   AR1999023449

	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. Kenneth Aucock		Analyst	

  The following members, a quorum, were present:

	Ms. Karen L. Wolff		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Thomas B. Redfern, III		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:  In effect, physical disability retirement.  

APPLICANT STATES:  He should have received a 30 percent disability rating from the Army.  He thought that he had been medically discharged, and did not understand what the 20 percent disability rating meant when he was taken off the temporary disability retirement list (TDRL), as he was already receiving benefits from the VA.   

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

The applicant entered the Army in April 1985 and was released from active duty in March 1988.  On 8 November 1988 he reenlisted for four years, and after serving a tour of duty in Germany, and in Saudi Arabia, he was reassigned to Fort Campbell, Kentucky in December 1991.  

The applicant was examined on 18 October 1993.  A medical evaluation board (MEB) indicates that the applicant was assaulted and beaten on 4 April 1992.  He was taken to the Blanchfield Army Community Hospital emergency room at Fort Campbell, found to have bilateral tibia fractures and a C2 odontoid fracture and was transported to Vanderbilt Hospital in Nashville.  He was diagnosed as having an open right tibia fracture, for which he underwent surgery.  He was also diagnosed as having a left closed tibia fracture.  He had a fibular head avulsion fracture on the left side.  The bone fragments in the left tibia were rotated and tenting the skin.  He underwent surgery also on his left tibia.  The applicant developed a left compartment syndrome and a fasciotomy was done to relieve this syndrome.  He was diagnosed as having a left peroneal nerve palsy and was unable to dorsiflex the foot and had numbness over the top of the foot.  He was diagnosed as having an odontoid fracture and was stabilized with a halo vest.  He was then transferred back to Fort Campbell for further rehabilitation.  

While at Fort Campbell, he was suspected of having an osteomyelitis with a full thickness skin loss, and was transferred to Eisenhower Army Medical Center at Fort Gordon, Georgia.  While there, he was diagnosed as having a subdural hematoma, an infected tibial fracture, a type III odontoid fracture, bilateral lateral collateral ligament injuries with left being greater than right, a posterior cruciate ligament injury, a resolved left leg compartment syndrome, and left peroneal nerve palsy.   He underwent various treatments and surgery at Fort Gordon, to include a Hickman catheter and continuation of the halo vest.  He was then returned to Fort Campbell.  The halo vest was continued for three months.  He  underwent physical therapy for neck rehabilitation, and underwent surgery and treatment for his right and left tibia.  It was suspected that the applicant had continue osteomyelitis in his left tibia as a cause for the recurrent drainage and he was sent to the Eisenhower Army Medical Center on 14 September 1993.  The doctors at the Eisenhower Army Medical Center recommended no further surgery.  The applicant’s peroneal palsy had improved; however, he still had some residual deficits.  The applicant reported that he had loss of sensation around the incision in his right leg and his right leg would ache when the weather changed.   The applicant stated he had significant weakness in his left leg which required him to use a cane.  He also stated that his left leg would ache when the weather changed.  He reported that his left big toe would lock in a flexed position, and he had to manipulate it to get it out of the locked position.  He reported decreased sensation on the top of his left foot, decreased motion in his neck and stated that his neck would crack and pop, and that he would have pain and aching when the weather changed.  He stated that his left leg would ache intermittently and that he was unable to take more than 4-5 steps without the use of a cane.  He stated that he got frequent or severe headaches, an itching sensation on the left side of his ear from time to time, and cramps in his legs.  He stated that he had frequent indigestion, that he has had gonorrhea and urinary tract infection approximately five years ago.  He stated that he had trouble sleeping, depression, or excessive worry.  He stated that he had loss of memory or amnesia from his head injuries.       

The applicant’s condition was diagnosed as left tibia fracture with osteomyelitis, unfitting; left peroneal nerve palsy, unfitting; right tibia and fibula fractures, not unfitting; C2 odontoid fracture, unfitting; status post subdural hematoma with residual memory loss, not unfitting for duty at that time; avulsion of the fibula head, left side, not unfitting at that time; posterior cruciate ligament injury, healed, not unfitting; status post left leg compartment syndrome, resolved with residual muscle weakness in the left lower extremity, unfitting; and status post acute renal failure which was secondary to Gentamycin, now resolved, not unfitting.  The MEB recommended that the applicant be referred to a PEB for adjudication and disposition.

The applicant’s PEB proceedings are not available; however, the applicant was placed on the TDRL on 28 April 1994 with a 30 percent disability rating.  

A VA rating decision of 7 June 1994 indicates that the applicant received a service connected disability rating of 40 percent for fracture of the left tibia with avulsion of left fibula head, left leg compartment syndrome and injuries to lateral collateral and posterior cruciate ligaments; 20 percent for osteomyelitis;              10 percent for fractures of the right tibia and fibula; 10 percent for left peroneal nerve palsy; 10 percent for C-2 odontoid fracture; 10 percent for subdural hematoma with memory loss and headaches; zero percent for placement of Hickman catheters; and zero percent for hiatal hernia with gastroesophageal reflux.  Service connection for acute renal failure and for adverse effects of gentamicin was denied.  The combined disability rating awarded was 70 percent.

In an 11 January 1995 VA rating, the aforementioned service connected disability ratings did not change.  A 28 July 1995 rating increased to 20 percent the service connected rating for fractures of the right tibia and fibula.  The evidence did not indicate stabilization of the disabilities and could be subject to improvement.     

On 6 June 1996 a PEB described the applicant’s condition as a left tibial fracture with osteomyelitis – well healed with no evidence of osteomyelitis in the last       18 months, with a recommended disability rating of 10 percent; and a left peroneal nerve palsy manifested by inability to extend his left big toe above neutral, with a recommended disability rating of 10 percent.  The PEB determined that a rating of 20 percent more accurately reflected the current degree of severity of his condition and considered his condition to have improved so as to be ratable at less than 30 percent.  The PEB determined that the applicant was physically unfit, recommended a combined rating of 20 percent, and separation with severance pay.  On 3 July 1996 the applicant concurred and waived a formal hearing of his case.  The PEB proceedings were approved on    8 July 1996.  On 16 July 1996 the applicant was removed from the TDRL because of permanent physical disability.  He was entitled to severance pay with a 20 percent disability rating.    

In a 19 May 1997 VA rating decision, the applicant received a combined            80 percent service connected disability rating for those disabilities previously considered and rated by the VA.  Service connection for vision problems, bleeding gums, testicular pain, increased urination and fainting, hair loss, node swelling, dry cough, exposure to nerve gas, post traumatic stress disorder (PTSD), personality changes and depression, acute renal failure, and adverse effects of gentamicin, were denied. 

In the processing of this case an advisory opinion was obtained from the physical disability agency (USAPDA).  That agency stated that the evidence did not support the applicant’s request that he receive a 30 percent disability rating.  The informal PEB made a recommendation consistent with the criteria under the VA schedule for rating disabilities, and the applicant has not provided any evidence to the contrary.  That agency stated that the applicant was properly rated under the appropriate disability code, and that the findings of the physical evaluation board (PEB) were supported by substantial evidence.  The USAPDA recommended that the applicant’s request be denied.  The applicant was furnished a copy of this opinion for his information and possible rebuttal.  He has failed to respond.

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 office, rank, grade or rating because of disability incurred while entitled to basic pay.

Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.
Title 38, United States Code, sections 310 and 331, 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.

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

1.  The applicant's disability was properly rated in accordance with the VA Schedule for Rating Disabilities.  His separation with severance pay was in compliance with law and regulation.  The foregoing conclusion is supported by the opinion from the Physical Disability Agency.

2.  Continuation on the Temporary Disability Retired List or permanent retirement was precluded since the applicant had completed less than 20 years service and had a combined disability rating of less than 30 percent.

3.  The applicant's contentions do not demonstrate error or injustice in the disability rating assigned by the Army, nor error or injustice in the disposition of his case by his separation from the service.

4.  The rating action by the VA does not necessarily demonstrate any error or injustice in the Army rating.  The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit.  Any rating action by the VA does not compel the Army to modify its rating.

5.  The VA 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, the applicant'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 him for VA benefits based on an evaluation by that agency.

6.  An award of a VA rating does not establish entitlement to medical retirement or separation.  The VA is not required to find unfitness for duty.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected.  Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.

7.  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

____klw_  __aao___  __tbr___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC97-11727/AR1999023449	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990414	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(DENY 	
REVIEW AUTHORITY		
ISSUES         1. 108.00		
2.		
3.		
4.		
5.		
6.