PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 1 August 2001
         DOCKET NUMBER: AR2001058304


         I certify that hereinafter is recorded the true and complete record of the proceedings 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:

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

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests, in effect, that his disability discharge with severance pay be changed to a medical retirement. He also requests that his Certificate of Release or Discharge from Active Duty, DD Form 214, for the period ending 29 May 1997 be corrected to show his correct service for that period.

3. The applicant states that his medical discharge processing overlooked the lower spinal compression/hernia injury. The thoracic compression injury was only part of the service-connected parachute accident and both spinal injuries should be combined for at least a 30 percent rating.

4. Counsel contends that it is important that the Board review the Physical Evaluation Board’s (PEB’s) findings, coupled with the VA medical records and any additional documentation before a final determination is made.

5. The applicant's military records are not available. Information contained herein was obtained from alternate sources.

6. After having had prior service (the applicant stated in the Navy; his last DD Form 214 shows he was awarded the Coast Guard Medal), he enlisted in the Regular Army on 5 May 1993.

7. In a 2 January 1996 statement to the PEB, Reynolds Army Hospital, the applicant stated that he injured his back in a parachute jump while in airborne school in 1993. He apparently was allowed to make one last jump, after which he was sent back to the 75^th Ranger Regiment. He was ill when he arrived, was hospitalized, and discovered to have pneumonia. Soon after his release from the hospital he was assigned to Fort Myer, VA. After about 3 months his back spasms and rib pain started again. He reinjured his back in January 1994. An MRI revealed a bulging disc at the T7-T8 level as well as disc narrowing at the L5-S1 level. He had lower back pain that caused shooting pains down his legs. Physical therapy had marginal success in alleviating his back pain. At the same time he was starting to realize a chronic spot of tenderness and pain at the area of the T7-T8 spine-rib head articulation. A dislocated rib head to the left of the T7-T8 area was suspected. The rib head was located and “popped” back into place. By summer 1995, he was feeling much better. He still had the chronic sore spot but the shooting pains from the tailbone were no longer happening very often. He was well enough to attend Officer Candidate School.

8. The applicant was discharged on 30 January 1996 by reason of completing Officer Candidate School and entered active duty as a second lieutenant on 31 January 1996. His commissioning physical examination is not available.

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9. The applicant was treated in May 1996 for thoracic spine pain. On 30 May 1996, he was administered right thoracic T6 and T7 zygapophyseal nerve blocks for chronic, severe thoracic spine pain. On 11 June 1996, it was noted that the applicant was experiencing upper and lower back pain, pain in the left upper extremity, and pain and numbness in both lower extremities. A memorandum dated 13 June 1996 from the Pain Clinic, Reynolds Army Community Hospital, Fort Sill, OK noted the applicant had been seen in the clinic since 9 May 1996. His chief complaint involved severe thoracic spine pain with occasional radiation around his chest wall toward his stomach. He also reported lower back pain with radiation down his leg to his knee as well as frequent headaches.

10. Medical Evaluation Board (MEB) proceedings were apparently begun in December 1996. On 17 December 1996, the applicant’s commander prepared a memorandum stating the applicant was incapable of reasonably performing his duties as a Field Artillery officer. He had been given a permanent 3 profile on 10 July 1996 for a pinched nerve in his lower back. (The profile is not available.)

11. The MEB narrative summary is not available.

12. On 17 March 1997, an informal PEB found the applicant physically unfit by reason of chronic thoracic spine pain with a 10 percent disability rating. The MEB had apparently listed five other diagnoses, which the PEB found to be not unfitting and not rated. The PEB recommended the applicant be separated with severance pay. The applicant apparently nonconcurred in the PEB’s findings and recommendation and rebutted the findings. The rebuttal is not available. The U. S. Army Physical Evaluation Board, Fort Sam Houston, TX reviewed his rebuttal dated 27 March 1997 and found that no change to the original findings was warranted. The applicant was informed that he had the right to a formal hearing. There is no evidence to show that he requested a formal hearing. On 10 April 1997, the U. S. Army Physical Disability Agency reviewed the applicant’s entire case file and his rebuttal and affirmed the PEB’s findings.

13. The applicant was discharged on 29 May 1997 for physical disability with severance pay. His DD Form 214, item 12a shows he entered active duty on 6 December 1992. This information is erroneous as he entered active duty on 31 January 1996 and his previous DD Form 214 showed he had been separated from an enlisted status on 30 January 1996.

14. An Initial Report from the Center for Pain Medicine, Lawton, OK dated 24 October 1996 indicates the applicant was seen on 9 October 1996 for a chief complaint of upper and lower back pain. It was noted that he also had a history

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of low back pain and an MRI suggesting changes at L5-S1. It was noted that the problem was not well addressed in his records, “probably because his thoracic pain is the major concern.” Complaints that day included his midback pain at about the T7 level. He also noted low back pain from the L5 area radiating down the posterior of both legs to knee level. A physical exam found midthoracic tenderness at T7. Paravertebral muscles were tight in the cervical, mid-thoracic and lower lumbar areas with some muscle tenderness but no distinct trigger points. No clear radicular signs were present in his lower back.

15. On 6 February 1997, the applicant was treated by the Comanche County Memorial Hospital for extreme pain in the thoracic spine.

16. It appears the applicant was initially granted compensation by the VA for low back pain with disc space narrowing, L5-S1 (10 percent) and herniated disc, thoracic spine (10 percent). This was changed/increased effective 30 May 1997 to low back pain with disc space narrowing, L5-S1 (40 percent); herniated disc, thoracic spine (10 percent); status post LeForte operation (10 percent); bone spurs, left and right feet (10 percent each); blepharitis (10 percent); residuals, left ankle sprain (10 percent); and residuals, cartilage damage, left knee (10 percent).

17. 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. Paragraph 3-1 states that despite any other provisions of this regulation, after a soldier has been enlisted, inducted, and appointed or commissioned, the soldier will not be declared physically unfit for military service because of disabilities known to exist at the time of the soldier’s acceptance for military service that have remained essentially the same in degree since acceptance. Appendix B prohibits pyramiding. Pyramiding is the term used to describe the application of more than one rating on any area or system of the body when the total functional impairment of that area or system can be reflected under a single code. All diagnoses that contribute to total functional impairment of any area or system of the body will be merged with the principal diagnosis for rating purposes.

18. The VA Schedule of Rating Disabilities (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

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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.

19. 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.

CONCLUSIONS:

1. There is an error on the applicant’s DD Form 214 for the period ending 29 May 1997. He entered active duty that period on 31 January 1996, not 6 December 1992.

2. There is not enough evidence available for the Board to make a determination regarding the applicant’s physical disability rating. The applicant’s medical records are not available, his commissioning physical examination is missing, the profile mentioned by his commander is missing, the MEB narrative summary is missing, and his rebuttal to the PEB findings is missing. In the absence of evidence to the contrary, the Board presumes that the PEB properly made its findings and recommendation and the final approval authority properly made its decision based upon the principles of pyramiding or other regulatory criteria.

3. In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1. That the applicant’s DD Form 214 for the period ending 29 May 1997 be corrected to show he entered active duty that period on 31 January 1996 and that all other periods of service in item 12 be adjusted accordingly.

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2. That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

__jh____ __mhm___ __ewl___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION



                           June Hajjar
                  ______________________
                  CHAIRPERSON

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INDEX

CASE ID	AR2001058304
SUFFIX
RECON
DATE BOARDED	20010801
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(GRANT)
REVIEW AUTHORITY
ISSUES 1.	100.00
2.	108.00
3.
4.
5.
6.