MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 17 July 2001
         DOCKET NUMBER: AR2001057512

         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
Mrs. Nancy Amos		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Ms. Shirley L. Powell		Member
Mr. Donald P. Hupman, Jr.		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: That his discharge for physical disability be changed to a medical retirement.

APPLICANT STATES: That the depression he had and still suffers from was not considered by his physical evaluation board (PEB).

COUNSEL CONTENDS: Counsel makes no additional contention.

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

He enlisted in the Regular Army on 9 November 1988. He completed basic training and advanced individual training and was awarded military occupational specialty 63G (Fuel and Electrical Systems Repairer).

The applicant’s medical evaluation board (MEB) narrative summary indicated that he complained of left groin symptoms in September 1989. It was also noted at that time that he had a varicocele. He was treated but continued to have persistent pain and discomfort. Because the discomfort was attributed to the presence of the varicocele, a spermatic vein ligation was performed on 4 December 1989. Persistent pain and discomfort persisted and he was diagnosed with a left testicular infarct as the result of the left spermatic vein ligation. He then underwent an elective left orchiectomy with concomitant left testicular prosthesis placement. The pain persisted. He was treated with medications, direct injections as well as an ilio inguinal nerve block and referred to the Psychiatric Service for biofeedback. His symptoms were not resolved. He was placed on a permanent profile with assignment limitations of no heavy lifting and no physical training.

The MEB referred the applicant to a PEB for intractable left testicular and left lower quadrant pain as a result of his surgery. On 13 May 1991, the applicant agreed with the MEB’s findings and recommendation.

On 8 July 1991, an informal PEB found the applicant unfit for duty by reason of intractable left testicular and left lower quadrant pain, rated as mild. Pain prevented him from performing his duty. He was given a disability percentage rating of 10 percent. He was originally rated under VA Schedule of Rating Disabilities (VASRD) code 8530 (paralysis of the ilio-linguinal nerve) but the code was later corrected to 8730 (neuralgia). On 18 July 1991, the applicant nonconcurred in the findings and recommendations and demanded a formal hearing. On 3 September 1991, he withdrew his request for a formal hearing and concurred with the findings of the informal PEB.

On 1 October 1991, the applicant was discharged with severance pay by reason of physical disability.

On 10 March 2001, the VA awarded the applicant a 30 percent disability rating for depression effective 12 April 2000. The rating decision noted that his service medical records showed that he was diagnosed with moderate depression in September 1990. The VA’s impression was that the applicant suffered from a depressive disorder, mild. The VA physician noted that he seemed to be mildly depressed secondary to his surgery and his concern that the surgery affected his ability to have sons.

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability. The regulation defines “physically unfit” as unfitness due to physical disability. The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.

The VASRD is the standard under which percentage rating decisions are to be made for disabled military personnel. The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. Unlike the VA, the Army must first determine whether or not a soldier is fit to reasonably perform the duties of his office, grade, rank or rating. Once a soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD. These percentages are applied based on the severity of the condition.

Title 38, U. S. 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. 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 this requirement.
2. The rating action by the VA does not necessarily demonstrate an error or injustice in the Army rating. The VA, operating under its own policies and regulation, assigns disability ratings as it sees fit. The VA is not required by law to determine medical unfitness for further military service in awarding a disability rating, only that a medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved (i. e., the more stringent standard by which a soldier is determined not to be medically fit for duty versus the standard by which a civilian would be determined to be socially or industrially impaired), an individual’s medical condition may be rated by the Army at one level and by the VA at another level,

3. The MEB made no finding that the applicant was unfit for duty due to depression, only that he had intractable left testicular and left lower quadrant pain which rendered him unfit for duty with subsequent referral to a PEB. He concurred in the MEB’s findings. This fits with the VA’s later findings that his depressive disorder was mild and related to his belief that his surgery affected his ability to have sons. This would cause him to be (or cause him to perceive himself to be) socially impaired, which the VA may consider in awarding its disability ratings. Such a belief would have no bearing on his ability to perform his duties as a soldier, however, and so the Army properly did not find his depression to be unfitting. It was his pain alone that resulted in his being unfit to perform his military duties.

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

__fne___ __slp___ __dph___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001057512
SUFFIX
RECON
DATE BOARDED	20010717
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	108.00
2.
3.
4.
5.
6.