APPLICANT REQUESTS:  That his records be corrected to show that he was retired for a physical disability, rated at    30 percent.

APPLICANT STATES:  That he was originally rated at         30 percent, with 10 percent for his low back pain (LBP).

COUNSEL CONTENDS:  Counsel was silent on the issue.

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

On 5 August 1987, the applicant enlisted in the Regular Army for 4 years.  He completed his required training and was awarded military occupational specialty 11B (Light Weapons Infantryman).

In September 1987, while in basic training, he was involved in a training accident in which he sustained leg injuries.  He was issued a restrictive physical profile and continued training.  Throughout his active duty, he continued to receive temporary physical profiles for this problem.

In February 1988, trouble with his right foot began.  It was determined that he had intractable, plantar keratosis (IPK). 

On 5 October 1989, he was advanced to pay grade E-4.

On 26 February 1991, he underwent arthroscopy of the right knee.

On 29 May 1991, Medical Evaluation Board (MEBD) Proceedings indicate that he had (1) bilateral patellar subluxation with early patellofemoral arthrosis; (2) status post right knee arthroscopy with lateral release; (3) multiple right foot problems to include Morton’s neuroma, IPK of the fourth metatarsal head, and splay foot with bunion deformity; and, (4) status post excision of Morton’s neuroma, plantar comdylectomy of the forth metatarsal head, basal wedge osteotomy, and bunionectomy of the right foot.  His case was referred to a PEB, with the applicant’s agreement.

On 7 June 1991, PEB Proceedings indicate he was physically unfit for (1) bilateral patellar subluxation with early arthrosis; status post right knee arthroscopy with lateral release (MEBD Dx 1 & 2), 10 percent; (2)  status post Morton’s neuroma of right foot and bunionectomy right foot with residual pain on prolonged ambulation (MEBD Dx 3 & 4), 10 percent; and, (3) symptomatic low back pain, 0 percent.  The PEB recommended his separation, with a combined disability rating of 20 percent.  The applicant did not concur.

On 4 August 1991, he was granted an extension of his enlistment for the purpose of receiving treatment and a Physical Evaluation Board (PEB).

On 19 September 1991, a second PEB was held and the original was modified by changing number 3 to symptomatic low back pain with Grade I spondylolisthesia, and the disability percentage changed to 10 percent.  The PEB recommended he be permanently retired for disability with a 30 percent disability rating.  The applicant concurred with this recommendation.

On 11 December 1991, revised PEB Proceedings indicate that item number 3 is completely removed because a review of his record indicated that his symptomatic LBP was not unfitting and was, therefore, not ratable.  Separation with severance pay and a combined rating of 20 percent was recommended.  On 2 January 1992, the applicant indicated that he did not agree.

On 18 March 1992, formal PEB Proceedings indicate confirmation of the previous revised PEB.

On 18 March 1992, the applicant disagreed and indicated he would submit further documentation within the required time.

On 16 April 1992, the PEB indicated they fully considered all the evidence and upheld their decision as correct.


On 7 July 1992, the applicant was honorably discharged, in pay grade E-4, under Army Regulation 635-40, physical disability with severance pay.  He received severance pay in the amount of $11,700.  His Report of Separation indicates that he had 4 years, 11 months and 3 days of creditable service.

On 11 January 1993, a VA Rating Decision awarded the applicant a combined service-connected disability rating of 30 percent, effective 8 July 1992, for (1) right foot condition, 10 percent; (2) right knee condition, 10 percent; (3) back condition, 10 percent; and, (4) left knee condition, 0 percent.

On 6 February 1997, the US Army Physical Disability Agency (USAPDA) opined (COPY ATTACHED) that recommended denial of the applicant’s request.

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 (back 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.

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 30 percent disabling


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.  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.

2.  The applicant’s back condition was not found to be unfitting, therefore, it was not ratable.

3.  The rating action by the VA does not necessarily demonstrate any error or injustice in the Army rating.  The VA assigns disability ratings as it sees fit.  Any rating actin by the VA does not compel the Arm to modify its rating.

4.  The VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agencies examinations and findings.

5.  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