APPLICANT REQUESTS:  In effect, the applicant requests physical disability retirement.  

APPLICANT STATES:  That his discharge states that he received an honorable retirement from the Army, when in fact he was discharged from the temporary disability retired list (TDRL) to the permanent disability retired list, therefore
medically discharged.

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

The applicant served in the Army for 20 plus years until his placement on the TDRL in October of 1992. 

A 8 June 1977 medical statement indicates that the applicant had acute pain in his low back with some radiation into the buttocks.  The examining physician diagnosed his conditions as spondylolisthesis, grade I, bilateral, L-5, S-1. 

On 26 February 1979 the applicant was given a temporary physical profile of 1 1 T3 1 1 1, severely limiting his physical activity.  On 18 September 1981 that profile was determined to be permanent, and his condition was diagnosed as spondylolisthesis L-5—S1 neurosensory loss.  A profile record of 24 February 1983 indicated that the applicant had chronic low back pain secondary to mild spondylelisthesis less than 25 percent partial left S1 nerve root deficit.  A 28 February 1984 profile record provided the same diagnosis but indicated that the profile was temporary in nature.

A 18 February 1986 medical record indicates that the applicant had low back pain, and his condition was diagnosed as central herniation of L4 L5 nucleus pulposus without neurologic compromise, improved with epidural steroid injections; chest pain without thallium scan evidence of ischemic heart disease; hypertension, controlled.  The examining physician recommended that he be referred to a physical evaluation board (PEB).

A 26 February 1986 physical evaluation board determined that the applicant was fit for duty.  That finding was approved on 28 April 1986.    

A 8 April 1992 memorandum from the commander of the Portsmouth, Virginia Naval Hospital, to the commander of an Army company at Fort Lee, Virginia, indicates that the applicant underwent an instrumented L5, S1 lumbar fusion on 10 March 1992, with an expected recovery after surgery of 
6 to 9 months.  That official indicated that the applicant was scheduled to be discharged on 31 July 1992, but it would be appropriate to extend his discharge date for medical reasons for an additional six months.

On 8 July 1992 a medical board report at the Portsmouth Naval Hospital diagnosed the applicant’s condition as L5-S1 spondylolisthesis, status post L5-S1 fusion with simmons pedicle instrumentation and right iliac crest bone grafting with intermittent radiculopathy; early cataracts; multiple degenerative joint disease including elbows, knees, and spine with noted positive rheumatoid factor; chest pain with non-diagnostic but abnormal thallium treadmill, followed by coronary catheterization interpreted as normal; and chronic prostatitis.  The applicant indicated that he did not desire to submit a statement in rebuttal.  He was referred to a PEB for disability determination.

On 27 August 1992 a PEB determined that the applicant was physically unfit because of spondylolisthesis, status post L5-S1 fusion with simmon’s pedicle instrumentation and right iliac crest bone grafting with intermittent radiculopathy and degenerative joint disease of spine.  The other conditions noted by the medical board were considered not unfitting and not ratable.  The PEB recommended that the applicant be placed on the TDRL with a combined disability rating of 40 percent.  The applicant concurred in the findings and recommendations of the PEB. 

On 21 October 1992 the applicant was retired for physical disability and placed on the TDRL the following day.  He had 20 years, 3 months, and 22 days of service.

A 21 April 1993 report from the Portsmouth Naval Hospital shows that the applicant reported for a periodic physical examination.  His condition was diagnosed as essentially unchanged (from the diagnoses provided by the aforementioned medical board), except for worsening of the lumbosacral spine and evidence of disc space narrowing and instability at L2-3, L3-4 and L4-5 and worsening of his degenerative joint disease, particularly of the knees by increased crepitus and slight decreased range of motion and tenderness.  That report indicated that the applicant had not worked since placement on the TDRL.

A VA rating decision of 2 August 1993 awarded the applicant a 40 percent service connected disability for spondylolisthesis, status post L5-S1 fusion, with radiculopathy and degenerative joint disease; a 10 percent rating for cervical spine, degenerative joint disease; 10 percent for thoracic spine degenerative joint disease; 10 percent for chondromalacia, right knee; and 10 percent for chondromalacia, left knee.  Additionally, he was awarded zero percent ratings for various other service connected ailments.  His combined service connected disability rating was 60 percent. 

On 20 April 1994 the applicant was removed from the TDRL and permanently retired the following day with a 20 percent disability rating.

A VA rating decision of 31 August 1994 denied the applicant’s request for increased evaluation of his service connected disabilities and his entitlement to compensation at the 100 percent rate due to individual unemployability.  That rating indicated that the social security administration decision of 26 January 1994 indicates, giving the applicant reasonable doubt, that he met the requirements for disability benefits.  The presiding judge stated that there was not quire enough evidence to show that he actually met the requirements, but there was enough evidence to award benefits on the basis that he was functioning below the sedentary level in a recovery status.

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 1202, provides for the placement of a member on the Temporary Disability Retired List when the disability may be permanent.  Placement on the Temporary Disability Retired List requires that the member meet the criteria of Title 10, United States Code, section 1201.

Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.

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.


Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.

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:

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.

The applicant's disability was properly rated in accordance with the VA Schedule for Rating Disabilities.

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.


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