MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           13 June 2002
	DOCKET NUMBER:   AR2001062372

	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	
	Ms. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Celia L. Adolphi		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. Donald P. Hupman, Jr.		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 his disability rating be increased to 60 percent.

APPLICANT STATES:  That he was granted a 30 percent disability rating on      1 June 1994.  The Department of Veterans Affairs (VA) increased his rating to 60 percent on 20 August 1993.  He provides his Board proceedings of 11 May 1994 (docket number AC93-09473) and a 9 June 1998 VA Rating Decision as supporting evidence.

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

A medical evaluation board (MEB) referred the applicant to a physical evaluation board (PEB) on 29 September 1987 with diagnoses of Meniere’s syndrome, temporomandibular joint syndrome, and chronic headache.  On 1 December 1987, a formal PEB found him physically unfit by reason of “Tinnitus and vertigo…following air flight in October 1985…without medically substantiated staggering or observed increase in symptomatology by head motion during board proceedings; rated as chronic labyrinthitis.”  The PEB recommended he be separated with severance pay at a 10 percent disability rating.  On 25 February 1988, he opted to decline disability severance pay in favor of being transferred to the Retired Reserve with entitlement to apply for retirement benefits upon reaching age 60.  He was transferred to the Retired Reserve effective 6 October 1988.

A VA document dated 18 August 1992 showed the applicant was awarded a 30 percent rating for Meniere’s disease effective 30 October 1985.  The applicant applied to the Board to correct his records to show he was retired by reason of a physical disability.  On 19 April 1994, the Board was advised by the U. S. Army Physical Disability Agency (USAPDA) that, notwithstanding the evidence presented, the PEB should not have changed the medical diagnoses of Meniere’s syndrome without returning the case to an MEB.  The USAPDA recommended his records be corrected to show he was permanently retired with a 30 percent disability rating under Veterans Administration Schedule for Rating Disabilities (VASRD) code 6205, Meniere’s syndrome, when the condition is mild with aural vertigo and deafness.  The Board corrected his records to show the PEB found him to be physically unfit by reason of Meniere’s syndrome and that the impairment was rated as 30 percent disabling and by showing that on            1 January 1988 he was permanently retired with a 30 percent disability rating.

The VA Rating Decision dated 9 June 1998 shows the evidence established that the applicant’s Meniere’s syndrome was well controlled and stable on medication prior to 20 August 1993.  VA treatment records of that date showed recent worsening of symptoms with severe vertigo attacks and symptoms poorly controlled by treatment.  His disability rating was increased to 60 percent effective 20 August 1993.  

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  The regulation defines “physically unfit” as unfitness due to physical disability.  The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  

The VASRD is the standard under which percentage rating decisions are to be made for disabled military personnel.  The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  Once a soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD.  These percentages are applied based on the severity of the condition.

Title 38, U. S. 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.  

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.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  The new rating action by the VA does not necessarily demonstrate an error or injustice in the Army rating.  The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit.  The Army applies disability ratings to a medical condition as it existed at the time the soldier is separated.  The 11 May 1994 Board corrected the applicant’s records to show he was retired by reason of a physical disability with a 30 percent disability rating effective         1 January 1988.  It was not until August 1993 that the applicant’s symptoms worsened and the VA increased his disability rating to 60 percent.

3.  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

__CLA__  __BJE__  __DPH___  DENY APPLICATION

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

INDEX

CASE ID	AR2001062372	
SUFFIX		
RECON		
DATE BOARDED	2002/06/11	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	108.02	
2.		
3.		
4.		
5.		
6.