IN THE CASE OF:	  

	BOARD DATE:	  19 June 2008

	DOCKET NUMBER:  AR20080002034 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests reconsideration of his earlier request to correct his military records to show that he was retired due to a medical disability.

2.  The applicant states he was medically discharged from the United States Army because the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB) could not find justification to rate his disability at 30 percent.  He contends that his condition has worsened since his discharge and wants the Board to consider new evidence.

3.  The applicant provides copies of his Department of Veterans Affairs (VA) Rating Decision, Physical Profile (DA Form 3349), requirements for military occupational specialty (MOS) 79R (Recruiter), Report of Neuropsychological Assessment, statements from himself; his spouse; other family members; supervisor, co-workers and employees; his pastor; VA representative, a former military supervisor, and friends. 

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070008077, on 29 November 2007.



2.  In a VA Rating Decision, dated 12 March 2007, the VA found service connection for the applicant’s cognitive disorder and rated it at 10 percent disabling.

3.  In a subsequent VA Rating Decision, dated 31 December 2007, the VA found service connection for the applicant’s cognitive disorder, personality change, mood disorder, and anxiety disorder status post hemorrhagic stroke and increased his medical condition to 30 percent disabling.

4.  The applicant has provided documentation showing that his MOS required a minimum profile of 1-3-2-2-2-1 and that his actual profile of 3-1-2-1-1-3 had exceeded the minimum standard.

5.  The Report of Neuropsychological Assessment dated March 2006 (ten of eleven pages provided), evaluated the applicant's level of cognitive functioning subsequent to a stroke that he suffered.  The diagnostic impressions were listed as: cognitive disorder not otherwise specified; personality change due to stroke, combined type; mood disorder due to stroke, with depressive features; and anxiety disorder due to stroke, with generalized anxiety.  The MEB that convened on 8 November 2006, considered all of these conditions.  The subsequent PEB found that only the anxiety disorder due to stroke, with generalized anxiety as unfitting.  The remaining conditions were not unfitting.

6.  The many letters of support discuss the difficulties and challenges that the applicant has acquired since his stroke.  They also talk to how his abilities have diminished and how he must now struggle with his medical condition.

7.  Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has an impairment rated at less than 30 percent disabling.  It further provides at section 1201, for the physical disability retirement of a member who has an impairment rated at least 30 percent disabling.

8.  Title 38, United States Code, sections 310 and 331, permit 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 physically unfit 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 AND CONCLUSIONS:

1.  The available evidence clearly shows that the applicant was medically disabled and was evaluated by an MEB and PEB.  The MEB found him medically unacceptable and referred him to the PEB.  The PEB found him unfit for military service and recommended separation with a 10 percent disability rating.  The applicant was counseled regarding his legal rights.  He concurred with the PEB findings.  Therefore, he was discharged with severance pay.

2.  The evidence shows that subsequent to his discharge, his medical condition worsened, as evidenced by the VA rating decisions in March 2007 and again in December 2007.

3.  An award of a VA rating does not establish entitlement to medical retirement or separation from the Army.  Operating under its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military duty, awards ratings because a medical condition is related to service ("service-connected") and affects the individual's civilian employability.  Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

4.  An award of a higher VA rating does not establish error or injustice in the Army rating.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at a different disability rating based on the same impairment.

5.  In view of the above, the applicant’s request should be denied.




BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X ___  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20070008077, dated29 November 2007.




       _    ___X____   ___
       CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20080002034





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ABCMR Record of Proceedings (cont)                                         AR20080002034



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