MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 27 NOVEMBER 2001
         DOCKET NUMBER: AR2001056138

         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. Carl W. S. Chun		Director
Mr. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Lester Echols		Member
Mr. John T. Meixell		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)

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APPLICANT REQUESTS: In effect, physical disability retirement.

APPLICANT STATES: The applicant made no statement but deferred to counsel.

COUNSEL CONTENDS: That the applicant should receive a 100 percent service connected disability rating from the date of his discharge to date, and should receive all back benefits at the 100 percent rate less all benefits paid to date, plus interest and any other benefits that he is due.

Counsel states that the applicant sustained at least nine separate service connected physical and physiological injuries because of his service in Vietnam. Counsel lists those disabilities and the VA disability rating for each. Counsel states that the applicant has previously requested relief from Department of the Army, but has never received due consideration for correction of his VA benefits, nor received a hearing (formal or informal). Counsel states that despite the language of the 15 August 1995 letter from this agency, the applicant never received consideration by this Board. Counsel states that nevertheless, a review of the records show that the applicant is entitled to a 100 percent disability rating. The VA supports such a rating as evidenced by the medical records submitted. Counsel states that he has submitted a duplicate claim to the VA with all the appropriate documentation, and has asked the VA for the same relief. He attaches a 2 April 2001 copy of his letter to the VA.

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

The applicant applied to this Board for physical disability retirement on 7 January 1994; however, he was informed on 15 August 1995 that his original application to this Board had been previously considered and denied, and since he had not submitted any new material evidence, his request was not considered by the Board. On 6 September 1995 this agency informed a Member of Congress that notwithstanding the applicant’s contention that he never had any prior matter before the Board, records indicated that his initial application was denied by the Board on 24 September 1969. In a 25 February 1969 letter to the applicant, this agency informed him that he would be informed at the earliest practicable date concerning his application. Apparently, this applicant’s case was considered and denied in 1969; however, the case file is not available. Thus, a de novo review is required.

The applicant was inducted into the Army on 13 May 1966, completed training as an infantryman, and in October 1966 was assigned to an infantry unit in the 1^st Cavalry Division in Vietnam. On 20 June 1967, the applicant received

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fragmentation wounds to the head, chest, and left arm. He was evacuated to the 67^th Evacuation Hospital, where he received an operation on his skull. He was subsequently transferred to the 249^th General Hospital in Japan. A clinical record dated 6 July 1967 shows that x-rays and chest films revealed several metallic fragments over the head and chest area, but no retained bone fragments intracranially. It indicated that the applicant had done well in the hospital and was ambulatory. The record shows that several wounds that were open upon arrival were closed on the ward without difficulty. The applicant’s condition was diagnosed as fragment wounds of the head with post-operation left frontal craniectomy and, fragment wounds of the chest and back. He was transferred to Valley Forge Hospital where his condition was diagnosed as fragment wounds to the head with post-operative left frontal craniectomy, fragment wounds to the chest, and fragment wounds to the left arm and shoulder.

Radiograph reports dated 20 July 1967 show that the applicant had a defect in the left frontal area of the skull and several small metallic fragments overlying that area. He also had a smaller defect superior to that. There were two metallic fragments overlying the left parietal region. There was no evidence of any other fracture. There were three small metallic fragments overlying the left chest. The lungs were clear with no evidence of active pulmonary disease. The cardiac silhouette was within normal limits.

A 23 August 1967 clinical record diagnosed the applicant’s condition as fragment wounds to the head with postoperative left frontal craniectomy, healing; fragment wounds of the chest with retained foreign bodies; fragment wounds of the left arm and shoulder without artery or nerve involvement, healed; and defect of skull, left frontal area, measuring 2x3 1/2 centimeters, secondary to the first diagnosis. He received a physical profile of 3 1 1 1 1 1, and his duty was temporarily restricted because of his head injury.

The applicant’s DA Form 20 (Enlisted Qualification Record) shows that he was assigned to Fort Meade, Maryland, in September 1967, first as a team leader with a unit of the 6^th Armored Cavalry Regiment, and later on that month with the 526^th Military Police Company.

The applicant’s head condition was evaluated by neurosurgery at Walter Reed General Hospital in November 1967 for possible insertion of a plate. The examining physician indicated that the applicant’s wound was well healed, but they did not routinely do cranioplasties until a minimum of one year from the time of injury, and consequently requested that he return around 1 May 1968 for admission for cranioplasty.

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A 9 April 1968 radiograph report shows that the applicant had at least three metallic fragments [in his chest] measuring up to 6 mm in diameter overlying the left hemithorax. One of those appeared to lie within the puylmonary parenchyma near the upper division of the left pulmonary artery. A lower one might be in the pericardium. No active inflammatory disease was seen. There was a very slight bulge in the region of the aortic arch, but as no previous exams were available for comparison it was difficult to say whether it was significant. The diagnosis was that there was no definite radiographic evidence of disease. That report stated that there were multiple metallic fragments overlying the skull all of which appeared either placed within the bony structure of the cranium or in the scalp tissues.

A health record shows that the applicant was hospitalized at Walter Reed from
8 April 1968 to 25 April 1968 and underwent a cranioplasty. His hospital course was satisfactory and unremarkable and he was returned to duty with 2 weeks of convalescent leave. He received a profile of T-3 1 1 1 1 1. He was to be given a 1 1 1 1 1 1 after one month on temporary limitation duty.

A 2 May 1968 report of medical examination shows that the applicant was medically qualified for separation with a physical profile serial of T-3 1 1 1 1 1.
In the report of medical history that the applicant furnished for the examination he stated that his health was good. A 2 May 1968 radiographic report indicated that there were a few small metallic foreign bodies within the left hemithorax and several more in the overlying soft tissues. The lungs were clear and the heart appeared normal. There was no active pulmonary disease.

The applicant’s DD Form 214 is not available; however, orders published by Headquarters, Fort Meade, on 8 May 1968, show that the applicant was released from active duty not by reason of physical disability and assigned to the Army Reserve Control Group (Annual Training) on 10 May 1968.

A 22 May 1968 VA rating decision shows that the applicant received a 100 percent service connected disability rating pending a future examination. A 20 May 1969 VA rating decision shows that the applicant received a 30 percent rating for his skull defect, a 20 percent rating for residual of fragment wound of the left lung, 10 percent for facial scars, 10 percent for residuals of a fragment wound to the left forearm muscle group, 10 percent for residual of a fragment wound to the left clavicle, and zero percent for a chest scar of the fourth left rib, for a combined 60 percent disability rating.

The applicant was discharged from the Army Reserve on 12 May 1972.

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In a 9 June 1992 letter to a physician, a neurologist reviewed the applicant’s medical history. The applicant stated that during his recuperative period [after he was wounded] he had paralysis of the right side of his mouth, paralyzed right arm and inability to write except when using his left hand. His speech came back as did his use of his right arm. He went on to become a fire fighter and had over 19 years with the Syracuse Fire Department. The letter indicated that residuals from the incident included a tremulousness in his right hand, and that initially the applicant had stated that the tremor was 1 out of 10 in terms of severity and in the last year and a half had increased to maybe 4 out of 5. The applicant stated that he felt some forms of memory were disturbed, but had the ability to manage a number of complicated activities while working for the fire department in various capacities. He occasionally has short duration spinning vertigo type of spells no longer than 5-10 minutes each. He was unaware of ever having a seizure. A neurological examination revealed that the applicant was alert and oriented, and that all his systems were essentially normal. He did have a minimal pronator drift on the right arm and a tremulousness in both hands, but 2-3 times more significant on the right side. The neurologist stated that the applicant had minimal residual from his head trauma, but believed that the tremor was probably related to his head trauma and that his mild pronator drift was representative of the old injury. He indicated that further tests were required.

In a 6 July 1992 letter to an adjudication officer in Buffalo, New York, that same neurologist opined that the applicant’s tremor, episodic vertigo and subjective complaints of test taking difficulties arose as a result of his head trauma, and that a CT of his head did show areas of encephalomalacia (softening of the brain) from his head wounds.

A 16 April 1992 medical report indicates that the applicant was seen for a pre operation visit for his right knee and for tightness of his left shoulder. The applicant stated that he sustained a shrapnel injury in Vietnam and described posterolateral pain and soreness associated with his decreased motion and a grinding sensation. His pain increased with extremes of available motion and decreased with moist heat. He denied neck pain, numbness or tingling. An examination showed restricted internal rotation to L-5 versus T-12 on the opposite side and that he lacked 20 degrees of full abduction and 10 degrees of full forward flexion. His strength was 5 out of 5 except for external rotation which was 4+. He had positive impingement signs mainly in straight abduction. X-rays of his shoulder showed shrapnel and an osteoarthritic glenohumeral joint. The author of the medical report opined that his shoulder injury was wholly related to injuries sustained in Vietnam. An 11 May 1992 post operation examination revealed that the applicant’s knee was doing extremely well. His knee was non tender and all his wounds were healed. He had an extensive lateral meniscus tear, a deflated lateral meniscus cyst, and marked diffuse chondromalacia of his knee, and would not be allowed to return to work in his fire fighting job for approximately 8 weeks.
A 12 February 1993 neuropsychological evaluation concluded that the applicant’s history and behavioral observations were indicative of posttraumatic stress disorder (PTSD). In addition, his neuropsychological deficits gave clear evidence of a moderate degree of an organic mental disorder, not otherwise specified, with lateralized left brain dysfunction and particular problems in verbal fluency. He would also be expected to have difficulties in dealing with stress in a reflective manner, which would obviously have a serious negative impact on his job performance and level of interpersonal adjustment.

A 24 June 1993 employability assessment provided a review of the applicant’s previous medical examinations, and indicated that after more that 20 years as a firefighter with the city of Syracuse, the applicant was awarded disability retirement based on a knee injury incurred on the job. That assessment also stated that though his disability retirement was based on a knee injury, it was clear that the residuals of his service connected injuries – shoulder muscle injury, left and posttraumatic head wound with tremors and vertigo, argued against his functioning in the firefighter position. It noted that the applicant had been the recipient of awards for valor on two occasions and was held in high esteem by his peers and superiors for his professionalism and commitment to the fire service. It concluded that the applicant, as a result of service connected injuries which limited his physical, emotional, and interpersonal capabilities, was unable to engage in employment at the expected competitive level and that he was unemployable for any substantially gainful employment.

A 2 July 1993 medical report from St. Joseph’s Hospital indicates that the examining physician felt that the applicant was totally disabled because of his aggregate of mechanical and structural orthopedic problems; his moderate organic mental disorder characterized by depression, posttraumatic stress disorder with nightmares, insomnia, and day-time outbursts of anger, and moderate to severe impairment of interpersonal function; and because of his progressive, slow, and inexorable encephalomalacia physically characterized by a left cerebral shrapnel wound which led to loss of brain tissue, brain softening (which continues), resulting in episodic vertigo, right arm tremor and weakness that waxes and wanes, continuous and progressive inability to sort words, arrange logical thoughts, sequence actions, and retrieve newly learned data. The physician detailed the applicant’s ailments, and concluded that he was totally and permanently disabled and that his condition would worsen in time.

A 9 December 1993 VA rating decision awarded the applicant a combined 80 percent service-connected rating for his various disabilities; however, he was awarded a 100 percent evaluation due to his individual unemployability.

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On 20 December 1993, the Social Security Administration determined that the applicant was entitled to a period of disability commencing on 27 December 1991 and to disability insurance benefits beginning on that date.

An 8 May 1999 VA rating decision increased the applicant’s disability rating for his shoulder injury to 100 percent effective 5 December 1998 to 1 February 2000 following prosthetic replacement of a shoulder joint. Effective on 1 February 2000, a minimum of 20 percent evaluation was assigned. That evaluation was not considered permanent and was subject to a future review examination. On 20 June 2000, the applicant was notified that his left shoulder replacement remained at 20 percent disabling.

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.

Army Regulation 40-501 provides, in pertinent part, that performance of duty despite an impairment would be considered presumptive evidence of physical fitness.

Army Regulation 635-40 states in pertinent part that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

It goes on to say 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 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, it is concluded:

1. At the time of the separation physical examination, competent medical authority determined that the applicant was then medically fit for retention or appropriate separation. The applicant himself stated that his health was good at the time of his separation. Accordingly, the applicant was separated from active duty for reasons other than physical disability. Furthermore, his continued performance of duty raised a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with his separation.

2. The Board notes that the applicant was awarded a 100 percent service connected disability rating, pending further evaluation, by the VA shortly after his discharge, and a year later was awarded a 60 percent rating because of his disabilities; however, the record also shows that the applicant served as a fire- fighter in New York for over 20 years, only retiring in 1993, 26 years after his separation from the Army, because of a knee injury incurred while on the job.

3. The fact that the VA, in its discretion, has awarded the applicant a 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.

4. The VA 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. 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. Consequently, due to the two concepts involved, the applicant'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 him for VA benefits based on an evaluation by that agency.

5. The applicant did not have any medically unfitting disability which required physical disability processing. Therefore, there is no basis for physical disability retirement or separation.

6. Neither the applicant nor counsel has submitted probative evidence or 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 that 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

__AAO__ ___LE___ __JTM___ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001056138
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20011127
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	108.00
2.	177
3.
4.
5.
6.