MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 25 OCTOBER 2001
         DOCKET NUMBER: AR2001058583

         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
Mr. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Mr. Raymond J. Wagner		Chairperson
Ms. Kathleen A. Newman		Member
Mr. Ronald E. Blakely		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)

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APPLICANT REQUESTS: Physical disability retirement with a 60 percent disability rating.

APPLICANT STATES: That she had a compression fracture from an injury that she received in Kuwait. That injury was not even looked at when she was discharged with a 20 percent disability rating.

She states that she received a 20 percent rating for chronic stress fractures/reactions in both of her legs. She fought to stay in the military and did not want to be discharged. She disagreed with the rating at the time of her discharge as she does now. In September 2000 the VA determined her to be 60 percent disabled. The Army overlooked the injury she received while a passenger in a military vehicle in Kuwait. She was found to have broken her upper thoracic spine, T-7 through T-9, in a compression type fracture. After weeks of pain, frustration, and complaining about the injury, her condition was diagnosed with compression fractures. She has received nothing for this permanent injury, has no insurance, and the VA hospital is too far to receive treatment. She cannot take time off from work to obtain the three times a week treatment that she needs. She has received medical care and was told not to work at all. She was receiving Medicare until her income disqualified her for this benefit. The VA has documented her condition, and it has worsened over time. It was found that her injury was not properly treated. She does not know what to do and believes that the military has left her out in the cold – they have broken their contract with her. Prior to her injury she planned on making the military her career. She is 24 years old and had 5 years of service. She is now limited in what she can do. She received a low disability rating and was informed by an official that she would lose if she appealed the rating, that the percentage of her disability rating would be lowered. She states that official told her to wait and work with the VA after she was discharged.

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

The applicant enlisted in the Army for four years on 2 April 1997.

A 4 August 1998 medical record shows that she was treated for pain in her lower back, and that the applicant stated that the pain was a result of an automobile accident in Kuwait. The record indicated that she said she had pain when she walked, laid down, and that she had pain in her lower spine when wearing a Kelvar [helmet]. That record indicated that she was pending a medical evaluation board (MEB) for chronic shin splints, and to continue her current profile.

A 27 April 1999 MEB narrative summary shows that the applicant sustained lower back pain after a motor vehicle accident in 1996 and entered the service status post normal vaginal delivery. That summary shows that she had another motor vehicle accident with ensuing upper back pain in Kuwait in 1998. She was found to have scoliosis of the thoracic spine. She was also evaluated for plantar fasciitis. That summary indicated that she sustained bilateral shin pain in her second week of basic training at Fort Leonard Wood, Missouri, complained of two weeks of pain during her fourth week of training, received treatment and physical therapy, and received a seven day profile, which was renewed. After coming to Fort Stewart, Georgia, she was seen and given a seven day profile. An x-ray showed a suspicious stress fracture in the right mid fibular. In August 1997 she was given a T3 profile for ninety days. That profile was renewed for the remainder of her military career. She was seen numerous times after that, both before, during, and after her transfer to Kuwait. While in Kuwait, on 21 March 1998, an MEB was recommended. On 1 May 1998 an MEB was initiated.

The summary indicated that she could do yard work, house work, stand less than fifteen minutes, walk less than one mile, and go shopping as long as she made frequent stops. She had difficulty walking up stairs and lifting her three year old daughter. She could not wear Kevlar, Flack jack, or load carrying equipment. She could not run, jump, march, etc. She could do administrative work. She did not meet the standards for retention in the Army. Her condition was diagnosed as stress reactions of bilateral tibial (relating to the shin bone) shafts, bilateral feet and the right knee. The summary indicated that she would be referred to a physical evaluation board (PEB).

The MEB proceedings and the physical evaluation board proceedings are not available.

The applicant was discharged on 15 August 1999 with disability severance pay in the amount of $8571.60. She had 2 years, 4 months, and 14 days of service.

A radiology consultation report from VA medical clinic in Alberquerque shows that she received a C-spine x-ray, front, back, and lateral views on 13 October 1999 because of a clinical history of whiplash. The report indicated that the alignment of her cervical spine was normal and there was no evidence of acute injury. She received a chest x-ray on that same date. The report indicated a normal chest. She received a knee x-ray, which showed a normal examination of the right and left knee.

A VA compensation and examination report of 27 October 1999 reveals that her condition was diagnosed as having a history of multiple ovarian cysts which was medically treated and, asymptomatic; bronchospasm associated with chest problems, with negative PFTs (pulmonary function tests); chronic neck pain following automobile accident - negative C spine x-rays; shin splints, i.e., stress fractures, both pretibial regions with residual tenderness; automobile accident causing compression fracture, thoracic seven and thoracic nine with chronic residual low back pain - negative chest x-ray, normal PFT and no present evidence of granulomatous disease; positive tuberculosis tine chest converted during military service with history of abnormal chest x-ray; chronic stress reaction in both legs, which referred to chronic pains in the legs with cramps and muscle tension; hip dysfunction, which referred to stiffness and discomfort in the right hip which appeared to be associated with back pain - negative radiologic exam of hips; no evidence of active granulomatous disease - likely history of previous granulomatous disease and no history available of any tuberculosis; spasm and muscle tension in both legs secondary to stress fractures; flat feet entirely asymptomatic; slight scoliosis of lumbosacral spine seen on x-ray; hearing loss; whiplash injury to the neck caused by automobile accident; tinnitus; bilateral knee discomfort likely associated with leg spasm, no x-ray abnormalities; lumbosacral strain, tenderness persisting over area of epidural injection; shortness of breath/bronchospasm associated with chronic cough and recurrent attacks of pneumonia.

A 14 August 2000 VA compensation and pension examination request shows that the applicant was receiving a 20 percent disability rating for limited motion in her lumbar spine, 10 percent for limited motion in cervical spine, and 10 percent each for her knee conditions. That request was made to clarify her T-spine compression fractures. It indicated that the examiner diagnosed compression fractures T-7 and T-9, but x-ray showed no disability. The results indicated that an EMG (electromyleograph) survey of LUE (left upper extremity) C5-C8 was done, that she had a history of a motor vehicle accident in Kuwait with whiplash and T-7 and T-8 compression fractures sustained, that she had fibromyalgia (muscle pain) type symptoms since then affecting the left face, shoulder, and arm, but not the hand or forearm. Her condition was described as probable fibromyalgia secondary to the initial trauma. It indicated that she might benefit from learning fibromyalgia self care program of prolonged icing, static stretching, paced exercise and activity with good body mechanics, among other recommendations. It indicated that her symptoms were due to fibromyalgia not of spinal origin.

A VA radiology consultation report shows that she had x-rays of her cervical spine on 12 March 2001 because of complaints of neck and shoulder pain. The report indicated a normal examination of the cervical spine.

A 12 July 2000 VA compensation and pension examination report shows that her condition was diagnosed as a thoracic spine injury with thoracic spine compression fractures. However, x-ray showed minimal compression T8-T9 with old compression fractures and degeneration at T8-T9. There was no evidence of disc herniation and no abnormality of the thoracic cord. Her radiologic exams of her cervical spine and lumbosacral spine and shoulders were negative. It indicated that It was likely that she had bursitis of her shoulders.

A 29 August 2000 VA rating decision corrected an earlier rating decision and awarded her a 10 percent disability rating for whiplash injury, 20 percent for compression fracture T7-8, 20 percent for lumbosacral strain, 10 percent for stress reaction left lower extremity, and 10 percent for stress reaction and possible stress fracture of the right tibia. Her combined rating was 60 percent.

In a 21 November 2000 letter to a Member of Congress (MC) the Physical Disability Agency stated that the MEB that the applicant had only diagnosed her for bilateral stress reactions, and that there were no spinal/back diagnoses listed, and that she had specifically indicated she had no spinal/back pain or problems. She agreed with the MEB findings. She was found unfit for further military service and awarded severance pay. She agreed with that decision and waived a formal hearing of her case. The Army rated her based on the severity of her one unfitting diagnosis at the time of her evaluation. That agency stated that the VA can rate all service-connected conditions regardless of whether they are unfitting for military service; however, the Army rates the soldier’s ability to perform military duties only. Consequently the ratings are frequently different with the VA ratings changing as the soldier’s condition changes, while the Army ratings are fixed.

An 8 June 2001 VA medical record shows that she was receiving a 60 percent disability rating for neck and back pain, that the applicant stated that her problem had been progressively getting worse. Her condition was diagnosed as chronic cervical pain (secondary to trauma). A review of her systems indicated that her cervical, thoracic and lumbar spine were nontender. There was a small palpable deformity at T-7. There was palpable tenderness of the right trapezius (muscle in back). Muscle strength was 5+ (great strength) in both upper extremities and both lower extremities. Her extremities were nondeformed and nontender. Her condition was diagnosed as chronic right shoulder pain and upper back pain.

Army Regulation 635-40 establishes the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. It provides for medical evaluation boards, which are convened to document a soldier’s medical status and duty limitations insofar as duty is affected by the soldier’s status. A decision is made as to the soldier’s medical qualifications for retention based on the criteria in AR 40-501, chapter 3. If the MEB determines the soldier does not meet retention standards, the board will recommend referral of the soldier to a PEB.

Physical evaluation boards are established to evaluate all cases of physical disability equitability for the soldier and the Army. It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of soldiers who are referred to the board; to evaluate the physical condition of the soldier against the physical requirements of the soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the soldier; and to make findings and recommendation to establish eligibility of a soldier to be separated or retired because of physical disability.

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 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.

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, 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.

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. Absent information to the contrary, the applicant received her 20 percent disability rating for stress reactions of bilateral tibial shafts, bilateral feet and the right knee, as indicated in the 27 April 1999 MEB summary. The applicant's disability was properly rated in accordance with the VA Schedule for Rating Disabilities and her separation with severance pay was in compliance with law and regulation.

2. Although the MEB summary shows that she had upper back pain and scoliosis of the thoracic spine as a result of an injury in a vehicle accident in . Kuwait in 1998, that condition was not determined to be medically unfitting. As indicated in the 21 November 2000 letter to a MC, the applicant herself stated that she had no spinal/back pain or problems, and that she agreed with the findings of the MEB, and the subsequent decision of the PEB to award her severance pay for her bilateral stress reactions.


3. An award of a VA rating does not establish entitlement to medical retirement or separation. The VA is not required to find unfitness for duty. Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated. Consequently, due to the two concepts involved, the applicant'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 her for VA benefits based on an evaluation by that agency.

4. 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 her case by her separation from the service. She has submitted neither probative evidence nor a convincing argument in support of her request. Consequently, there is no basis to for physical disability retirement.

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

__RJW__ __KAN __ __REB __ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001058583
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20011025
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.	177
3.
4.
5.
6.