APPLICANT REQUESTS:  Physical disability retirement. 

APPLICANT STATES:  That his separation for physical disability be changed to retirement because of a 40 percent service connected disability rating by the VA.

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

The applicant entered on active duty on 7 June 1988 and served continuously until his discharge in 1994.  He attained the rank of Sergeant, served in Germany and in Saudi Arabia during Operation Desert Storm, and received numerous awards, including the Army Commendation Medal and the Army Achievement Medal.

A 16 June 1988 medical record indicates that the applicant had dislocated his right shoulder in a fall.  A 28 June 1988 medical record also records this injury, and stated that the applicant had a previous episode two years ago (in 1986).

On 5 May 1993 the applicant was given a temporary profile because of a seizure disorder.

A 3 June 1993 medical report from the Evans Army Community Hospital at Fort Carson, Colorado shows that the applicant had had a one year history of intermittent episodes of sharp right upper quadrant abdominal pain radiating to the right shoulder blade.  His condition was diagnosed as biliary dyskinesia (impairment of the power of voluntary movement, specifically, derangement of the filling and emptying mechanism of the gallbladder).

A 18 October 1993 medical report indicates that the applicant had complained of left back and shoulder pain.  His condition was diagnosed as muscle strain.

A 9 December 1993 report of medical history, duly signed by the applicant, makes no mention of a shoulder injury or shoulder dislocation.

On 22 December 1993 the applicant was awarded a permanent profile because of seizure disorder. 

Medical evaluation board (MEB) proceedings of 
13 February 1994 indicate that the applicant’s condition was diagnosed as seizure disorder, generalized and idiopathic, acne vulgaris (which existed prior to service), hypertension, laparoscopic cholecystectomy (surgical removal of the gallbladder) for biliary dyskinesia, and a shoulder dislocation, still symptomatic.  The MEB recommended that the applicant be referred to a Physical Evaluation Board (PEB).

A 23 February 1994 PEB found that the applicant was physically unfit to perform the duties required of a Sergeant in his specialty as an infantryman because of seizure disorder and recommended that the applicant be separated with a 10 percent disability rating.  The PEB considered the other conditions noted in the MEB diagnoses and found them to be neither unfitting nor ratable. 

On 20 April 1994 a formal physical evaluation board (PEB) determined that the applicant had seizure disorder, generalized and idiopathic, controlled by medication, with seizures reported in April 1993 (definite) and in May 1993 (probable).  The November 1993 seizure was not counted because the proper dose of medication was not taken.  The rating was for at least one major seizure in the past year. The PEB determined that he was unfit to perform the duties required of a Sergeant in his specialty as an infantryman and recommended that the applicant be separated with a 20 percent disability percentage.  The applicant concurred.

A 26 April 1994 record of medical care indicates that the applicant was self referred to preventive medicine.  His condition was diagnosed as seizure disorder, controlled with Tegretol, gastrointestinal complaints manifested by difficulty in digesting milk/milk products; receding hairline, hypertension, and a decreased libido.  The report indicates that the results of a medical evaluation board were pending.

The applicant was discharged on 19 May 1994 because of his disability.  He was awarded severance pay in the amount of $15771.60.  The applicant had 5 years, 11 months, and 
13 days of service.
On 14 October 1994 the VA awarded the applicant a 20 percent service connected disability rating for seizure disorder, generalized and idiopathic, a 20 percent rating for a right shoulder dislocation (minor), a 10 percent rating for hypertension, a zero percent rating for left plantar fasciitis and stress fracture, left calcaneus, and a zero percent rating for laparoscopic cholecystectomy, residuals. 

In the processing of this case an advisory opinion was obtained from the U.S. Army Physical Disability Agency (USAPDA) (COPY ATTACHED).  An official of that agency stated that the PEB had carefully reviewed the applicant’s seizure history and the evidence in his case, and the level of his seizure activity mandated a 20 percent disability rating.  That official stated that although the applicant’s past shoulder dislocation was mentioned in the MEB proceedings, that condition was not unfitting and not ratable.  He recommended that the applicant’s request be denied.

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 entitled to basic pay.

Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.

Army Regulation 635-40, appendix B, Army Application of the VA Schedule for Rating Disabilities, paragraph B-3f, provides that conditions which do not render a soldier unfit for military service will not be considered in determining the compensable disability rating unless the conditions contribute to the finding of unfitness. 

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.

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(s), it is concluded:

1.  The applicant was found physically unfit for military service solely because of his seizure disorder condition.  No other condition was found unfitting or contributing to the finding of unfitness.

2.  The applicant's seizure disorder was properly rated in accordance with the VA Schedule for Rating Disabilities.  His separation with severance pay was in compliance with law and regulation.  The foregoing is supported by the opinion from the Physical Disability Agency.

3.  The applicant's contentions do not demonstrate error or injustice in the disability rating assigned by the Army, nor error or injustice in the disposition of his case by his separation from the service.

4.  The rating action by the VA does not necessarily demonstrate any error or injustice in the Army rating.  The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit.  Any rating action by the VA does not compel the Army to modify its rating.

5.  An award of a VA rating does not establish entitlement to medical retirement or separation.  The VA is not required to find unfitness for duty.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected.  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.

6.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request. 

7.  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.

8.  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