APPLICANT REQUESTS: That he be recalled to active duty for the purpose of having a Medical Evaluation Board (MEBD) conducted to determine his physical disability and to have a biopsy performed of his tongue.
APPLICANT STATES: He alleges entitlement to legal rights and entitlements concerning discrepancies in his medical examination; his administrative outprocessing; and about his living and working conditions.
EVIDENCE OF RECORD: The applicant's military and medical records show:
On 16 July 1976, with prior Navy and Army Reserve service, the applicant was placed on active status in the Army Guard/Reserve (AGR) Program, as a recruiter, MOS 00E.
On 6 May 1992, the applicant voluntarily requested retirement, effective 1 August 1992, based on length of service.
On 16 June 1992, a physical examination cleared him for separation. There were no unfitting conditions noted at the time.
On 31 July 1992, the applicant was honorably separated, under Army Regulation 635-200, chapter 12, for length of service. On 1 August 1992, he was placed on the Retired Reserve List. His Report of Separation indicates that he had 20 years, 2 months and 24 days of creditable service.
On 3 February 1993, a VA Rating Decision indicates he was awarded a service-connected disability rating of 30 percent, effective 1 August 1992, for (1) cervical spine radiculopathy, 10 percent; (2) migraine headaches, 10 percent; (3) left ulnar nerve entrapment, 10 percent; (4) PO residuals, scar, appendectomy, 0 percent; and, (5) cyst, right ear lobe, 0 percent.
On 16 August 1993, VA records show that the applicant had a biopsy of the base of the tongue 2 years prior (1991), which showed no cancer or lymphoma.
On 10 January 1995, a VA Rating Decision increased his service-connection for migraine headaches to 20 percent and his overall rating to 40 percent.
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 30 percent disabling.
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 individuals 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. 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 the aforementioned requirement.
2. The medical evidence of record indicates that he was medically fit for retention at the time of his separation, therefore, there is no justification for a MEBD. The applicant had previously had a biopsy of his tongue, which was found to be benign. The applicant has not submitted any probative medical evidence to the contrary.
3. In the absence of medical evidence to the contrary, it is presumed that the available service records are correct as presently constituted.
4. The rating action by the VA does not necessarily demonstrate any error or injustice in the Army rating. The VA assigns disability ratings as it sees fit. Any rating action by the VA does not compel the Army to modify its rating.
5. The VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agencies examinations and findings, as has already been noted.
6. In view of the foregoing, there is no basis for granting the applicants requests.
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
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