MEMORANDUM OF CONSIDERATION

IN THE CASE OF:        

BOARD DATE:            11 July 2000
DOCKET NUMBER:   AR2000035273

	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. Carl W. S. Chun		Director	
	Mr. Gerald E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond J. Wagner		Chairperson	
	Mr. John Saputo		Member	
	Mr. Roger Able		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: Reconsideration of his application to correct his records by awarding him physical disability retirement.

APPLICANT STATES:  In effect, that his medical problems rendered him unfit for duty.  He contends that the statement from the surgeon who evaluated his knees in 1994 and the Department of Veterans Affairs (VA) evaluations confirm this fact. 

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of his case on 4 June 1997 (COPY ATTACHED).

The applicant submits copies of his 1995 and 1998 VA disability evaluations.  These examinations show that the applicant was originally granted a 10% disability rating for degenerative arthritis of the left knee and a non-compensable disability rating for the right knee.  This was reevaluated in 1995 with a granting of 10% disability ratings for flat feet and arthritis of the left shoulder with non-compensable disability rating for hearing loss and temporomandibular junction syndrome for a combined 30% disability rating.  The 1998 VA records are incomplete but show evaluations for service-connection for right hip and low back conditions.  In the applicant’s personal statement he indicates that he is currently in receipt of a combined 40% disability rating.

He also submits a statement from the surgeon who evaluated his knee prior to his release from service.  The surgeon’s statement indicates that he disagrees with the interpretation of the applicant’s knee condition as expressed in the advisory opinion obtained during the Board’s prior review.  He states that the findings were misinterpreted as to the nature, severity and prognosis of the condition.  The doctor affords the opinion that, as the applicant’s knee condition prevented him from performing the physical fitness requirements without pain, swelling and further damage to his knee, he should have been processed for medical separation or retirement.  He does not know why he did not refer the applicant to a medical evaluation board. 

These documents were not available to the Board previously and constitute new evidence that requires Board review.

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.

Army Regulation 635-40, paragraph 3-2b(2), as amended, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties 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.

The Army Physical Disability Agency (USAPDA) has noted in advisory opinions in similar cases, that confusion frequently arises from the fact that the Army and the VA use different rating systems.  While both use the Veterans Administration Schedule for Rating Disabilities (VASRD), not all of the general policy provisions set forth in the VASRD apply to the Army.  The Army rates only conditions determined to adversely effect the individual’s ability to perform assigned duties.  Physical disability separation pay or retirement compensates the individual for loss of a career.  The VA, on the other hand, may rate any service-connected impairment, in order to compensate the individual for loss of civilian employability or social functioning.  The USAPDA has also pointed out that military disability ratings are based upon the degree to which a medical condition effects the ability to perform duty and not upon the diagnosis or name attached to the condition.  By way of comparison, the VA can and does rate an individual simply for the existence of a diagnosis or condition.  An example is a compensable rating for pain. The Army could rate the same painful condition only if it impaired the soldier’s ability to perform assigned tasks.

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 statement from the applicant’s surgeon is informative as to the nature of the applicant’s medical problem; however, it does not demonstrate that the applicant was unable to perform his assigned duties.  Inability to perform unmodified physical training and testing do not equate to physical disability.

2.  The law and regulations state that to be separated for physical disability a soldier must be physically unable to perform their assigned duty.  The presence of a medical condition that was acquired or aggravated while entitled to basic pay does not necessarily require a medical evaluation board or qualify an individual for physical disability.  There is no indication that the applicant was unable to perform his assigned duties.

3.  The Board is convinced that, had the applicant entered the physical disability evaluation system, a physical evaluation board would have found him fit because he was performing his assigned duties.

4.  The medical evidence presented fails to overcome the presumption of fitness. 

5.  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.  The award of a VA compensation rating does not mandate change of, nor demonstrate an inequity in a military disability determination.  The VA, operating under its own policies and regulations, may make a determination that a medical condition warrants compensation, but 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. 

6.  The overall merits of the case, including the latest submissions and arguments, are insufficient as a basis for the Board to reverse its previous decision.

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

__RJW__  ___JS___  __RA___  DENY APPLICATION

   Carl W. S. Chun
    Director, Army Board for Correction 
      of Military Records

INDEX

CASE ID	AR2000035273	
SUFFIX		
RECON	 	
DATE BOARDED	20000711 	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	108.01	
2.	108.02	
3.		
4.		
5.		
6.