MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 01 AUGUST 2001
         DOCKET NUMBER: AR2001054605

         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
Ms. Deborah L. Brantley		Senior Analyst

The following members, a quorum, were present:

Ms. June Hajjar		Chairperson
Mr. Melvin H. Meyer		Member
Mr. Ernest W. Lutz, 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)

---

APPLICANT REQUESTS: In effect, that his Army disability percentage be increased.

APPLICANT STATES: His medical condition was misdiagnosed resulting in an incorrect disability percentage which was not a true reflection of his actual medical condition. He notes, in effect, that his Medical Evaluation Board (MEB) diagnosis, “chronic neck and back pain and polyarthralgia” based on Army Regulation 40-501, paragraph 3-41(e)1, was incorrect and should actually have been “intervertebral disc syndrome” based on Army Regulation 635-40, appendix B-39, thereby entitling him to a higher disability rating. In support of his application he submits highlighted copies of his MEB, medical evaluation addenda completed after his formal Physical Evaluation Board (PEB) but included as part of his appeal to the disability process, and extracts from Army Regulations 40-501 and 635-40.

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

He served in various military components, where he accumulated more than 9 years of active military service, before reenlisting and returning to active duty with the Army in December 1987.

According to his November 1999 MEB summary, the applicant sustained a back injury during an “airborne operation in approximately 1988-1989.” His DA Form 2-1 (Personnel Qualification Record) indicates that the applicant was initially assigned duties in specialty series 18C (Special Forces) but in May 1991 assumed duties in the administrative field (specialty series 71L). He was promoted to pay grade E-6 in specialty 18C in June 1989 and to pay grade E-7 in specialty 71L in October 1996.

His performance evaluation reports indicate he passed the Army’s Physical Fitness Test in 1989 and 1992, including one in April 1992. His evaluation report for the period ending in July 1992 indicates that he was issued a profile in May 1992 but that his profile did not “interfere with duty performance.” He again passed the Army’s Physical Fitness Test in September 1992 and May 1995.

The applicant’s 1996 and 1997 performance evaluation reports indicate he had a physical profile but that it did not interfere with the performance of his duties. By 1998 his rater noted that the applicant’s profile did not allow full performance of assigned duties.

In November 1999 the applicant underwent a MEB. The MEB summary noted the applicant had “been repeatedly diagnosed with muscle spasms, muscle



sprains and received various temporary profiles and sundry medications consisting of anti-inflammatories and muscle relaxers” since a parachute incident. He underwent a diskectomy in 1994 and in 1998 was operated on at Walter Reed Army Medical Center for “L4 and L5 laminectomies and L4-5 and L5-S1 interbody fusion with ray threaded bone cage utilizing autologous bone graft and bone bank bone putty.” The MEB summary noted that since the 1998 operation the applicant’s “symptoms have progressed to the point where ordinary daily activities…cause him great discomfort.” The applicant also indicated that he was experiencing neck pain, headaches and chronic low level, aching pain in and around his eyes, intermittent and severe pain in his joints, and that he was having problems negotiating stairs. The physical examination, conducted as part of the MEB, indicated that the applicant generally experienced pain at various degree points (ranging from 5 degrees to 20 degrees) during range of motion and flexion testing. The final MEB diagnosis was “chronic neck and back pain and polyarthralgias” which was “medically unacceptable” under the provisions of Army Regulation 40-501, paragraph 3-41(e)1. The applicant was referred to a PEB.

The applicant concurred with the findings and recommendation of the MEB.

An informal PEB, convened on 20 March 2000, found the applicant unfit for continued military service and recommended disability retirement with a 10 percent disability rating.

The applicant nonconcurred with the findings and recommendation of the informal PEB and demanded a formal hearing. As part of his nonconcurrence he submitted a rebuttal statement. In his statement he maintained that the informal PEB should have utilized several additional “VA disability codes” in calculating his disability rating. His rebuttal was considered but determined not to contain any “new substantive medical information not previously considered” and he was scheduled for a formal PEB, consistent with his earlier election.

The applicant’s formal PEB convened on 24 May 2000 and concluded the applicant was unfit for continued military service because of “chronic neck and back pain and polyarthralgias status post L4-5 laminectomy and L4-5 and L5-S1 interbody fusion.” The formal board noted the applicant “has constant severe pain which disrupts sleep and required frequent use of narcotic pain medications.” The formal PEB recommended a disability rating of 20 percent in accordance with the U.S. Army Physical Disability Agency’s pain policy and cited VASRD (VA Schedule for Rating Disabilities) code 5099-5003.

The applicant did not concur with the formal PEB. On 15 June 2000, however, the PEB affirmed its decision noting that the applicant had not provided “any new diagnosis or changes in [his] currently rated disability….”

Following the applicant’s formal PEB an addendum to his original MEB proceedings was prepared. The addendum noted that the “only apparent deficiency” in the original MEB summary was that “the diagnosis that was given” for the applicant’s multiple medical problems “was brief and did not detail all the problems.” The addendum indicated that the applicant had obtained “a consultation from Neurology and Orthopedics to have the diagnoses more detailed so he could better delineate the problems and to determine what his disability rating is.” The addendum noted “in summary” that the applicant has “moderate multi-level intravertebral disc disease primarily degenerative from the mid thoracic spine down to the lower thoracic spine.” The expanded diagnosis in the addendum noted, among other things, that the applicant suffered from degenerative arthritis in the lumbar and thoracic spine as demonstrated by MRI and x-rays and cervical disc degenerative arthritis with loss of range of motion of the cervical spine.

The U.S. Army Physical Disability Agency reviewed the “undated MEB addendum” and on 31 August 2000 concluded that while the addendum provided a “more detailed diagnoses” it did “not provide any different significant physical findings not already noted in the initial MEB.”

On 4 November 2000 the applicant was retired by reason of physical disability (rated at 20 percent) with 22 years, 4 months, and 14 days of active Federal service.

Army Regulation 635-40 states that a soldier is eligible for disability retired pay if he has a rating of less than 30 percent and has 20 or more years of active service for retirement. The percentage multiplier used to determine compensation benefits is either the total disability percent rating or 2.5 percent of the total years of service (including any fraction thereof, that is, 7 months equals 7/12 and disregard any fraction of a month). The higher percentage of the two, but not more than 75 percent, is used as a multiplier of the retired pay base. Although not in available records the applicant’s percentage multiplier used to determine compensation benefits was likely based on 2.5 percent of his total years of service (2.5 X 22 4/12^th) rather than his 20 percent disability rating because the service computation would have rendered the higher percentage.

Army Regulation 635-40 governs the evaluation for physical fitness of soldiers who may be unfit to perform their military duties because of physical disability. In pertinent part, that regulation states that in order to ensure all soldiers are physically qualified to perform their duties in a reasonable manner, medical retention qualification standards have been established in Army Regulation 40-501, chapter 3. Those standards include guidelines for applying them to fitness decisions in individual cases. Those guidelines are used to refer soldiers to a MEB.

Appendix B of Army Regulation 635-40 provides guidance on the Army’s application of the VASRD in assigning disability ratings for medical conditions determined by the Army to be unfitting. B-39 of that regulation discussed the application of VASRD code 5293 (intervertebral disc syndrome).

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. Because of differences between Army and VA applications of rating policies, differences in ratings may result. 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. Conditions which do not render a soldier unfit for military service will not be considered in determining the compensable disability rating unless they contribute to the finding of unfitness. When an unlisted condition is encountered, it is rated under a closely related disease or injury in which not only the functional, but the anatomical localization and symptomatology are closely analogous. When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number will be “built-up” using the first two digits from the part of the scheduled most closely identifying the part, or system, of the body involved. The last two digits will be “99” for all unlisted conditions.

VASRD Code 5293 applies to intervertebral disc (a disk-shaped piece of specialized tissue that separates the bones of the spinal column) syndrome (a set of symptoms which occur together) and provides for a disability rating up to 60 percent. Army Regulation 635-40 states that a rating of 40 or 60 percent disability will be predicated upon objective medical findings of neurological involvement. The weight to be attached to each objective sign for rating purposes will vary according to the confirmation by laboratory test results along with the co-presence of other confirmed objective signs as well as the presence of subjective symptomatology consistent with the diagnosis. Lesser ratings will begin with a 0 percent rating for chronic low back pain of unknown etiology. Demonstrable pain on spinal motion or discovery of back pain etiology will warrant a 10 percent rating unless paravertebral muscle spasms are also present, in which case a 20 percent rating will be awarded.

Army Regulation 635-40 states that VASRD Code 5003 is utilized by the Army to rate arthritis, degenerative, hypertrophic and pain conditions rated by analogy to degenerative arthritis. It provides for a rating of up to 20 percent. X-ray evidence of two or more major joints or groups of minor joints, plus occasional exacerbations of incapacitating symptoms may be rated at 20 percent. For rating purposes each segment of the spine (cervical, thoracic lumbar) and both sacroiliac joints together constitute groups of minor joints. The lumbosacral joint is a major joint. Appendix B-24 (5003-Arthritis, degenerative) notes that often a soldier will be found unfit for any variety of diagnosed conditions which are rated essentially for pain. Inasmuch as there are no objective medical laboratory testing procedures used to detect the existence of or measure the intensity of subjective complaints of pain, a disability retirement cannot be awarded solely on the basis of pain. Rating by analogy to degenerative arthritis as an exception to analogues rating polices may be assigned in unusual cases with a 20 percent ceiling, either for a single diagnosed condition or for a combination of diagnosed conditions each rated essentially for a pain value.

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. The Board notes that Army Regulation 40-501 is utilized to establish medical retention qualification standards while appendix B of Army Regulation 635-40 provides guidance on the Army’s application of the VASRD in assigning disability ratings for medical conditions determined by the Army to be unfitting. The notation of Army Regulation 40-501 in the applicant’s MEB proceedings was appropriate as it served as the basis to refer the applicant to the PEB. Had it been determined that the applicant met medical retention qualification standards he would not have been referred to a PEB.

2. The applicant’s contention that his medical condition was misdiagnosed because the MEB cited Army Regulation 40-501 vice Army Regulation 635-40 is without foundation. Physicians involved in the applicant’s disability processing determined that VASRD Code 5003 more accurately reflected the nature of the applicant’s disability than did VASRD Code 5293.

3. Notwithstanding the preceding conclusion, the Board notes that in order for the applicant to receive a rating of 40 or 60 percent under VASRD Code 5293 he would have required objective medical findings of neurological involvement. In the absence of such findings the highest rating he could have received would have been 20 percent. Additionally, the Board notes that the applicant’s multiplier for retired pay entitlement would still have been based on his years of service (2.5 X 22 4/12^th) rather than his disability rating unless he received the 60 percent disability under VASRD Code 5293, which his condition clearly did not warrant.

4. The medical evidence of record supports the determination that the applicant’s unfitting condition was properly diagnosed and rated at the time of his separation.

5. 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.

6. 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

__JH ___ __MHM _ __EWL__ DENY APPLICATION

                  Karl F. Schneider
                  Deputy Assistant Secretary
(Army Review Boards)

---

INDEX

CASE ID	AR2001054605
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20010801
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.
3.
4.
5.
6.