APPLICANT REQUESTS:  That he be retired from active duty for physical disability at an appropriate percentage of disability.

APPLICANT STATES:  After his release from active duty, he immediately filed a claim with the VA and was awarded a 70 percent disability rating from that department.

In support of his application he submits copies of civilian medical reports containing the results of examinations he underwent after his separation from the Army.

EVIDENCE OF RECORD:  The applicant's military records were not provided to the Board.  The following information was derived from VA medical records and the residual file maintained by the Alaska Army National Guard (AKARNG).

He enlisted in the Regular Army on 7 March 1978, served continuously on active duty, was awarded the military occupational specialties of military police and corrections noncommissioned officer, and was promoted to pay grade E-6.

On 7 October 1983 the applicant was administered a medical examination.  At that time he was determined to be medically qualified for retention with a 111111 physical profile.  During that examination, the applicant stated that he had high blood pressure (hypertension) since 1980 for which he briefly took blood pressure medication.  His blood pressure was monitored for three days, with readings of 124/90, 140/80, and 130/84.

On 10 February 1988 the applicant was administered another medical examination.  During that examination, the applicant again stated that he had hypertension and added that he also suffered from a skin disease.

On 8 October 1991 the applicant was administered a medical examination for the purpose of determining his physical qualifications for drill sergeant school.  That examination determined that he was medically qualified for retention with a 111111 physical profile.  During that examination, the applicant’s blood pressure was monitored for five days, with a reading of 150/94 recorded on the report of examination.

On 20 July 1992, while stationed at Fort Richardson, Alaska, the applicant was honorably released from active duty at the expiration of his term of service and transferred to an AKARNG unit.

He remained assigned to his AKARNG unit as a guardsman not on active duty until 26 July 1993, the date he was honorably discharged due to his being medically unfit under the retention standards.

The VA awarded the applicant a combined 60 percent service connected disability rating from 21 July 1992.  That combined rating was derived from a 40 percent rating for lumbar disk disease, a 10 percent rating for sustained hypertension with headaches, a 10 percent rating for right leg shin splints, and a 10 percent rating for left leg shin splints.  That combined rating was later increased to 70 percent, adding a 10 percent rating for residuals of right knee injury, a 10 percent rating for residuals of left knee injury, a zero percent rating for a skin condition, and a zero percent rating for tonsillectomy.

Army Regulation 135-178 sets forth the basic authority for the separation of enlisted personnel in the USAR and ARNG.  Paragraph 12-1 prescribes the procedures for separating members for medical disqualification.  This paragraph requires a member who is determined to be medically disqualified for retention to be discharged or transferred to the USAR Control Group (Retired) (regardless of years of service), unless the member requests, and is granted, a waiver.

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 provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board.  Those members who do not meet medical retention standards will be referred to a physical evaluation board for a determination of the percentage of disability to be awarded.  This regulation also provided in pertinent part 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.

Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 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.  The policy under which the VA operates permits it to evaluate a veteran during the remainder of the veteran’s life time.  The amount of the rating depends upon the degree of disability on the date of evaluation.  Thus, a rating may fluctuate in either direction at any point in time and could range from a zero percent disability award to a 100 percent disability award. 

In the processing of this case an advisory opinion (COPY ATTACHED) was obtained from the Office of The Surgeon General (OTSG).  The OTSG stated that although the applicant was hypertensive while on active duty, that condition was mild, requiring only a brief period of medication and showing no evidence of significant end organ dysfunction secondary to hypertension.  Although the applicant’s medical records show that he complained of occasional headaches, there is no documentation which would lead to the conclusion that there was a clear relationship between the headaches and uncontrolled hypertension.  The OTSG continues that the applicant’s medical record also shows that he was treated for knee pain and “shin splints”, but both conditions appear to have been treated and resolved.  The OTSG explains that an x-ray taken by the VA confirms that his knee had healed and that “shin splints” healed with no permanent impairment.  The OTSG also notes that x-rays taken on 21 September 1992 showed a normal lumbar spine except for “slight sclerosis of the facets, L5-S1, representing mild degenerative change.”  However, the OTSG stated that condition is not medically disqualifying.  The OTSG recommends denial of the applicant’s request.

In response to the OTSG advisory opinion, the applicant submitted a rebuttal in which he claimed errors were contained in the opinion, that pertinent facts were omitted from the review, and that certain medical records are missing from his file.  The applicant continues that his hypertension was never controlled when he was in the Army and the OTSG’s determination that he was medically fit for duty is directly contradicted by his finding of medical disqualification by the AKARNG.  In support of his rebuttal he submits extracts from his medical records showing that he had been treated for back problems since he fell on ice on 24 March 1990, and showing his treatment history for his hypertension and his knees.

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, it is concluded:

1.  The applicant has not submitted any evidence nor is there any evidence of record which would indicate that he was unable to perform the duties of his grade and specialty when he was on active duty.  Without evidence that he could not perform the duties of a corrections noncommissioned officer, it must be presumed that he was physically fit for duty at that time.

2.  Therefore, the applicant was never determined to be sufficiently medically unfit while on active duty to be referred by his commander to the medical treatment facility for disability processing.  Absent this referral, the applicant was never determined to be physically unfit, therefore he was never processed through the disability system to determine eligibility for separation processing by reason of physical unfitness.

3.  The applicant had a history of hypertension dating back to 1980.  The fact that he successfully performed his duties for 12 years with that condition is indicative that it was not unfitting.  Likewise, there is no indication that the applicant’s back injury was unfitting in that he performed his duties for almost 2 years after that injury.  The fact that the applicant considered himself physically able to undergo strenuous drill sergeant training and on 8 October 1991, (11 years after he was diagnosed as being hypertensive and 2 years after his back injury) was determined medically qualified for that training, is clear evidence of his physical fitness.

4.  The applicant’s discharge from the AKARNG was for medical disqualification, not physical unfitness.  The one is not the same as the other.  A soldier must be found to be medically disqualified to be referred to a PEB, but that soldier is not necessarily determined to be physically unfit by the PEB.  Routinely, soldiers who have been found to be medically disqualified by a MEB are found to be physically fit by a PEB and retained on active duty.  However, a reservist or guardsman not on extended active duty must only be found to be medically disqualified to be subject to discharge.  As such, the Board does not accept his discharge from the AKARNG as evidence of physical unfitness while he was on active duty.

5.  In that the Department of the Army and the VA operate under different policies, a rating by one agency does not mandate a similar decision by the other agency.

6.  This Board accepts the fact that the applicant was not eligible for a disability rating from the Army at the time of his separation from active duty.

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

                       DENY APPLICATION




						Karl F. Schneider
						Acting Director