MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            24 March 1999     
	DOCKET NUMBER:   AC97-11369
				   AR1999023535

	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:

	Mr. James E. Vick		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. Allen L. Raub		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:  Physical disability retirement.  

APPLICANT STATES:  That were he to attempt to reenlist in his present condition, he would be turned away because he has extreme difficulty running, he cannot maintain his balance in the dark, and he is an asthmatic, under doctor’s care with a prescription inhaler.  The VA has determined incomplete paralysis in both legs and chronic lumbosacral strain with muscular asymmetry, both directly related to Hodgkin’s disease.  His lifting abilities are limited and he has a permanent and a total disability rating from the VA. 

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

The applicant enlisted in the Army for four years on 20 November 1989 and was assigned to Fort Knox, Kentucky for training.  On 19 September 1990 he was admitted to the Air Force medical center at Wright Patterson Air Force Base, Ohio, for evaluation of a thoracic spinal mass with lower extremity weakness.  He had various treatments and tests while hospitalized and on 12 October 1990 was deemed stable for transfer to subsistence elsewhere with a diagnosis of nodular sclerosing Hodgkin’s disease stage 4B with thoracic cord.  He was instructed to follow-up for completion of his 6 month course of chemotherapy.  

The applicant was referred to a physical evaluation board (PEB), and on              7 January 1991 that board stated that the applicant’s medical and physical impairment prevented reasonable performance of his duties, however, his current condition was not sufficiently stable for a final adjudication.  He was found to be physically unfit with a recommendation that he be placed on the temporary disability retired list (TDRL) with a 100 percent disability rating.  The applicant concurred and waived a formal hearing of his case.  He was placed on the TDRL with a 100 percent rating effective 7 January 1991.  

A PEB met on 11 February 1992 and determined that the applicant’s condition had not improved and retained him on the TDRL. 

The applicant was reexamined on 30 June 1993.  That examination indicated that the applicant had completed chemotherapy in March 1991, after which a reevaluation showed no evidence of Hodgkin’s disease.  He did , however, have a significant neurological deficit, had difficulty walking and had loss of proprioception in the lower extremities.  During the last two years he had gradual improvement in his sexual function, however, this has not returned completely to normal.  He has significant difficulty stumbling if he tries to run.  He cannot walk in the dark, and cannot walk with his eyes closed.  There has been no recurrence of his Hodgkin’s disease in the spine and no change in the anatomical appearance of his spine or spinal cord.  He had had no recurrence of his Hodgkin’s disease while being evaluated at the VA hospital.  He was basically without symptoms except for his neurological disorder.   
On 26 July 1993 the applicant received a neurology consultation.  The impression was no evidence of significant residual neurological deficit.  He was fit for duty from a neurological standpoint.  He was currently free of his Hodgkin’s disease, however, he had a probability of 30-40 percent of having recurrence during his lifetime.  He also had a risk of late complications of radiation therapy and his chemotherapy to include leukemia, lung cancer and other malignancies.  He had a risk of developing a myocardiopathy secondary to his adriamycin therapy and lung function disorders secondary to his bleomycin therapy.  He had a significant neurological symptom due to his compressive myelopathy, which had improved since the initial onset.  He had a significant problem getting around in the dark, which would greatly impede his ability to function as an active military member.  His degenerative disk disease was causing no difficulty.  He was referred to a PEB for disposition.  On 24 September 1993 the applicant stated that he had been advised of the medical findings of his periodic physical examination and concurred with the information contained therein.

On 21 October 1993 a PEB determined that the applicant’s condition had improved to the point that there was no functional impairment that precluded satisfactory performance of his duty, and considered him fit for duty in his grade and MOS.  The PEB recommended that he be returned to duty as fit.  The applicant did not concur, waived a formal hearing, but attached an appeal, in which he stated in effect, that he felt that the physical demands of his MOS would be too strenuous both physically and mentally; and that after having the tumor in his back and the never damage in his lower extremities, he would have a hard time with physical training; and that due to the nerve damage in his legs and feet, he would have difficulty walking in the dark.    

On 18 November 1993 the PEB informed that applicant that his appeal had been considered and his case reviewed, however, the board adhered to the original findings and recommendations of the informal hearing.  The PEB did state that, contrary to his statement that he would have problems with the physical rigors of military life and that he would have problems with ambulating at night due to neurological deficits, the medical board specifically stated that there was no evidence of significant residual neurological deficit and that he was fit for duty from a neurological standpoint.  The PEB stated that he did have problems walking at night, however, the board considered that and determined that it would not preclude the adequate performance of the preponderance of his duties.  Because he was asymptomatic for Hodgkin’s disease and was able to do most of the tasks associate with his grade and MOS, the board felt he was fit for continued service.  He was informed that his case, with his appeal, would be forwarded to the Army Physical Disability Agency for further processing.  The recommendation of the PEB was approved by the Secretary of the Army on      13 December 1993.

On 11 February 1994 the applicant was removed from the TDRL.  His command was notified that he would be afforded the opportunity to reenlist in the Regular Army or the Army Reserve, and that if reenlistment was declined the applicant would be placed in the appropriate reserve category until completion of his reserve obligation.   The applicant’s records contain no information of a response.

A 5 June 1996 VA rating decision continued the applicant’s 40 percent service connected disability rating for Hodgkin’s disease with mid thoracic spinal cord compression with right lower extremity myelopathy; and continued his 40 percent rating for left lower extremity myelopathy due to Hodgkin’s disease.  He was granted a 10 percent rating for chronic lumbosacral strain with muscular asymmetry for a combined 70 percent disability rating. 

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.

Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

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, it is concluded:

1.  The applicant was referred for a re-evaluation on 30 June 1993 for Hodgkin’s disease, and was found basically without symptoms except for his neurological disorder.  A neurology consultation on 26 July 1993 found no evidence of significant residual neurological deficit.  He was found fit for duty from a neurological standpoint.  The applicant concurred in the medical findings of his physical examination.  On 21 October 1993 a PEB determined that his condition had improved to the point that he had no functional impairment that precluded satisfactory performance of his duty, found him physically fit for duty, and recommended that he be returned to duty as fit.  On 5 November 1993 the applicant appealed that determination, stating that the physical demands of his specialty would be too strenuous both physically and mentally.  On                     13 December 1993, his appeal, in effect, was denied.  The medical evidence of record indicates that the applicant was medically fit for duty. The applicant has submitted no probative medical evidence to the contrary.

2.  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 Department of the Army purposes.

3.  The award of VA compensation does not mandate disability retirement or separation from the Army.  The VA, operating under its own policies and regulations, may make a determination that a medical condition warrants compensation.  The VA is not required to determine fitness for duty at the time of separation.  The Army must find a member physically unfit before he can be medically retired or separated.

4.  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.

5.  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.

6.  Since the applicant's medical condition was not medically unfitting for retention at the time in accordance with Army Regulation 40-501, and he was found fit for duty, there was no basis for medical retirement or separation.

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

__jev___  ___rwa__  ___alr__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC97-11369/Ar1999023535	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990324	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1. 108.00		
2.		
3.		
4.		
5.		
6.