MEMORANDUM OF CONSIDERATION

	IN THE CASE OF

	BOARD DATE:  8 March 2000
	DOCKET NUMBER:   AR1999029340

	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. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Ernest W. Lutz		Member	
	Mr. Elzey J. Arledge		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 three earlier applications to correct his records by showing that he was retired from active duty by reason of physical disability rather than separated for disability with severance pay.

APPLICANT STATES:  In effect, that the recent VA rating (COPY ATTACHED) for neurotic depression and post traumatic stress disorder (PTSD) demonstrates that he should have been medically retired because of this mental illness along with his other medical problems.  He also repeats his arguments that his case was mishandled and that there were numerous violations of Army Regulations in the handling of his case.  He states that it was the physician’s responsibility to completely document his physical condition regardless of whether it is an unfitting one or not.  He had been diagnosed with an eye disease 2 months before his physical but there was no mention of it.  This is a false statement and one of several errors.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in memoranda prepared to reflect the Board's three previous considerations.

The VA ratings are, technically, new evidence that requires Board consideration. They might, but not necessarily, point to error or injustice in the Army’s disability rating.  The VA documents provided show that they rated the applicant as 10 percent service connected for PTSD, tendon inflammation, and degenerative arthritis for an apparent total of 30 percent.

In his first application to this Board he claimed that the physical evaluation board (PEB) did not consider his flat feet which caused heel pain and would have increased his disability rating.  The Board’s consideration of that application noted that the PEB considered his left and right knee pain, left elbow pain, heel pain, corneal abrasions, and history of chest pain, but found the knee pain the only ratable conditions.

In his second application to this Board the applicant claimed that there were numerous errors in his disability processing and several medical conditions were omitted from his evaluation.  At that time the Board medical advisor noted that the evidence was repetitious to that available to the MEB and there was no evidence that these conditions negatively impacted his duty performance.

In the third application to this Board the applicant claimed that the Army had failed to diagnosis his arthritis which would have given him a higher disability rating.  This claim was based on new VA medical evidence that he had Rheumatoid Arthritis.  In reviewing this application the Board noted that the Army rated him on his ability to perform his mission, not on what diagnosis possibly effected his ability.

The Army Physical Disability Agency (USAPDA) has noted in advisory opinions in similar cases that confusion frequently arises from the fact that different rating systems are used by the Army and the DVA.  While both use the Veterans Administration Schedule for rating Disabilities (VASARD), not all of the general policy provisions set forth in the VASARD apply to the Army.  The Army rates only conditions determined to be physically unfitting, because they adversely effect the individuals ability to perform assigned duties, thus compensating the individual for loss of a career.  The DVA, 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 pain attached to the condition.  By way of comparison, the VA can and does rate an individual for pain in many instances.  The Army can only rate the same painful condition if it impairs 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 award of a VA compensation rating does not mandate change of nor demonstrate an inequity in a military disability rating.  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.  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.

2.  The fact that the VA, in its discretion, has awarded the applicant a higher 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.  Despite his claims of numerous unfitting conditions it is noted that the VA has only rated three service connected conditions above zero percent and none are shown for Rheumatoid Arthritis.

3.  The applicant’s contention that various regulations were misinterpreted or misapplied has already been considered.

4.  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.

5.  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

__RO___  __EL___  ___EA__  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

						

INDEX

CASE ID	AR1999029340	
SUFFIX		
RECON		
DATE BOARDED	20000308	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	108.04	
2.		
3.		
4.		
5.		
6.