APPLICANT REQUESTS:  That the honorable discharge he received with Voluntary Separation Incentive (VSI) payment be corrected to a medical retirement.

APPLICANT STATES:  He had received a discectomy on the L5 and S1 discs in his lower back while he was on active duty.  After the operation he was told that he was fit for duty with physical profile limitations and did not warrant a medical board.  When applications for VSI began being accepted, his military physicians advised him to take the VSI payment and to apply to the VA for a disability rating.  Based on the overstrength status of his occupational specialty, he believed that it was in his best interest to accept his physician’s advice.  However, his back condition has not improved since his separation and he has been awarded a 30 percent disability rating from the VA.

EVIDENCE OF RECORD:  The applicant's military personnel and medical records show:

He enlisted in the Regular Army on 25 July 1978, was awarded the military occupational specialties of Chaparral/Redeye missile launcher repairer and cannon crewmember, was promoted to pay grade E-6, and was honorably discharged on 13 March 1989 in order to accept an appointment as a warrant officer.

He remained on active duty in his status as a warrant officer and was promoted to the rank of Chief Warrant Officer 2.  He was honorably released from active duty on 1 March 1993, at his own request, with a VSI payment of $50,494.60.

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 whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.  For example, a noncommissioned officer who receives above average evaluation reports and passes Army Physical Fitness Tests (which have been modified to comply with the individual’s physical profile limitations) after the individual was diagnosed as having the medical disqualification would probably be found to be fit for duty.  The fact that the individual has a medically disqualifying condition does not mandate the person’s separation from the service.  Fitness for duty, within the perimeters of the individual’s grade and military specialty, is the determining factor in regards to separation.  If the PEB determines that an individual is physically unfit, it recommends the percentage of disability to be awarded which, in turn, determines whether an individual will be discharged with severance pay or retired.

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while performing active or inactive (weekend drill) duty.

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.

In the processing of this case advisory opinions were obtained from the Office of The Surgeon General (OTSG) and the Physical Disability Agency (PDA).  The OTSG stated that a review of the applicant’s medical records by its neurosurgery consultant established that he had a long history of chronic lower back pain which culminated in a partial laminectomy and discectomy in July 1992.  The neurosurgery consultant stated that at the time of the applicant’s separation from active duty he appeared to have been experiencing significant residual symptoms of low back and left lower extremity pain secondary to his lumbar disc surgery.  The neurosurgery consultant stated that if pain persists over 6 months after a back surgery, a medical board is normally considered appropriate.  The neurosurgery consultant stated that the applicant did not meet the medical retention standards and, therefore, recommended approval of his application.  The OTSG orthopedic consultant also reviewed the applicant’s medical records.  The orthopedic consultant stated that the applicant was treated for right ankle sprain in 1988 and was given a temporary profile for right ankle lateral instability in 1989.  The orthopedic consultant stated that the applicant’s right ankle sprain was not medically disqualifying and, therefore, recommends disapproval of his request.

In the advisory opinion obtained from the PDA, the applicant’s post-operative history was reviewed.  It was noted that the applicant had developed an incisional seroma (a tumor-like collection of serum in the tissues) which cleared with treatment.  Following that, the applicant occasionally complained of pain in his back and tightness and weakness in his left leg during periodic follow-up visits.  The applicant then received physical therapy and was reported as doing well, with an annotation in his medical records that he was “cycling 30 miles on weekend.”  The PDA also notes that the applicant’s last two officer evaluation reports (OER’s) covering the period October 1991 through January 1993 depicted him as being fully able to perform his job despite his physical profile, and indicated that he was “outstanding” in every way, with recommendations made that he be given higher level schooling and be promoted.  In the applicant’s separation physical examination, it was noted that he experienced cramps and wore a back brace.  However, the applicant reported that he was in good health and had no recurrent back pain.  He was found medically qualified at that time with no profile limitations imposed.  The PDA stated that even if the applicant had been determined medically disqualified by a medical evaluation board, he would have been determined fit for duty by a physical evaluation board.  The PDA recommends disapproval of the applicant’s request.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1.  Although the applicant had reported having pain in his back after his operation, there is no indication that his back ever became physically unfitting.

2.  To the contrary, his medical records show that he was showing satisfactory progress in his recovery process, as evidenced by his being able to cycle for 30 miles.  He was also given outstanding evaluation reports after his operation and was determined medically qualified without any profile restrictions just prior to his separation.  Those facts clearly establish his ability to perform his duties with whatever residual problems he may have experienced from his operation.

3.  With the preponderance of the available evidence showing that he was physically fit, he did not meet the statutory requirements for a medical retirement.

4.  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