MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 18 April 2002
         DOCKET NUMBER: AR2002066882

         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
Mrs. Nancy Amos		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Ms. Barbara J. Ellis		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)

---

APPLICANT REQUESTS: That his disability separation with severance pay be changed to a medical retirement.

APPLICANT STATES: That he was not rated under the correct Veterans Administration Schedule of Rating Disabilities (VASRD) code. He provides a VA Rating Decision showing the correct codes and that he is presently rated at 40 percent disabled.

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

He enlisted in the Regular Army on 21 January 1999.

A Medical Board Narrative Summary noted the applicant developed bilateral shin pain during the third week of his basic training. He was initially diagnosed with shin splints and treated with a course of rest, profile, and anti-inflammatory medications for two weeks. His pain increased and he also sustained an inversion injury to his right ankle during this time. X-rays were negative and he was thought to have an ankle sprain. He was sent on convalescent leave and
then placed in the Fitness Training Unit. His pain worsened over the next three months and began to involve both knees. X-rays of the right foot and left leg were normal. A bone scan showed no increased uptake in either the knees or the shins but did show some increased uptake in the right mid foot. He was felt to have chronic lower extremity pain secondary to stress reactions and he was referred to a Physical Evaluation Board (PEB).

Shortly after the Narrative Summary was dictated, the applicant stated that his chronic bilateral leg pain had subsided. An Addendum to the Medical Board Narrative Summary noted that his medical board was stopped and in September 1999 he resumed the running/walk program. He completed the 2-mile run on 20 October 1999 in 16 minutes and 50 seconds but during the run and since he had significant complaints of bilateral knee, leg, and left foot pain. He was also complaining of left foot plantar fasciitis and some pain about the right ankle. It was noted that all the applicant’s issues were addressed in his previous medical board except the left foot plantar fasciitis was not mentioned. X-rays of both knees were unremarkable. Both tibias demonstrated no signs of fracture and the right ankle demonstrated no osteophyte or posttraumatic changes. The left foot was negative as well. It was noted that his pain was slight and frequent at that time. He was diagnosed with bilateral lower extremity stress reactions, bilateral retropatellar pain syndrome, bilateral iliotibial band tendonitis, left foot plantar fasciitis, and status post inversion injury of the right ankle. He was referred to a PEB for an unfitting condition of bilateral lower extremity stress reactions. On 10 November 1999, the applicant agreed with the MEB’s findings and recommendation.

On 18 November 1999, an informal PEB found the applicant unfit for duty for a diagnosis of bilateral leg pain secondary to stress fractures, rated as slight/frequent, VASRD codes 5299 and 5003, with a 10 percent disability rating. On 19 November 1999, the applicant concurred with the informal PEB’s findings and waived a formal hearing of his case.

The informal PEB was approved on 22 November 1999.

On 6 December 1999, the applicant expressed his desire to nonconcur with the informal PEB findings. He stated that he repeatedly complained of extensive pain but all the paperwork says is “slight/frequent” pain. By a statement dated 9 December 1999, the applicant further stated he told the doctors that due to the plantar fasciitis of his left foot his left foot became numb after trying to walk for short distances but they refused to add this information to the summary or addendum.

On 14 December 1999, the U. S. Army Physical Disability Agency informed the applicant that his case had been approved on 22 November 1999 after he agreed with the informal PEB’s decision and waived a formal hearing. Since all reviews were final, his disability adjudication was considered final and he was no longer authorized a formal hearing.

On 2 February 2000, the applicant was discharged with disability severance pay.

The 4 June 2001 VA Rating Decision provided by the applicant decided that his stress reaction, right and left tibias, with iliotibial band tendonitis and retropatellar pain syndrome (VASRD code 5262) were appropriately evaluated as a single disability. It noted that objective medical findings were more persuasive than subjective complaints. Physical examination revealed that his posture and gait pattern were normal. His lower extremities evidenced no sign of abnormal weight bearing. Range of motion of both knees was normal and without pain. X-rays of both lower extremities were normal. His right leg disorder was chiefly characterized by a subjective complaint of knee pain and a slight clinically demonstrable reduced range of motion at the right ankle. His right knee was stable and muscle strength and range of motion were normal. The evidence did not show pain causing additional functional impairment beyond that so contemplated. His left leg disorder was chiefly characterized by a subjective complaint of knee pain and a slight clinically demonstrable reduced range of motion at the left ankle. Evidence showed there was no restricted motion in the left knee due to a tibia injury. His left knee was stable, muscle strength and range of motion were normal, and his gait pattern and posture were both normal.

The VA Rating Decision provided does not mention that the applicant is rated as 40 percent disabled.

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. 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. Paragraph B-24 discusses VASRD code 5003 (hypertrophic degenerative arthritis and pain conditions rated by analogy to degenerative arthritis). It states 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 analogous rating policies 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.

Department of Defense Instruction 1332.39, Application of the Veterans Administration Schedule for Rating Disabilities, combines VASRD codes 5003 through 5279 under the category Stress Fractures. It states that fracture of tibial and fibular malleoli are seldom displaced, may not require surgery, and except for offering some comfort, casts are not required. The most appropriate rating would be analogous to 5262, slight.

The VASRD gives code 5262, impairment of the tibia and fibula with slight knee or ankle disability, a 10 percent rating.

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.

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. 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 this requirement.
2. As both the Army’s Narrative Summary with Addendum and the provided VA Rating Decision noted, there were no objective findings in the applicant’s case. X-rays were normal and bone scans were normal except for revealing some increased uptake in the right mid foot. The applicant’s posture and gait pattern were normal, his lower extremities evidenced no sign of abnormal weight bearing, the range of motion of both knees was normal and without pain. It appears the Army rated the applicant for pain only, appropriately under VASRD 5003 as an exception to analogous rating policies. It appears to the Board, given the evidence of the Narrative Summary with Addendum and the provided VA Rating Decision, that the ceiling of 20 percent for pain was appropriately not given.

3. The rating action by the VA does not necessarily demonstrate an error or injustice in the Army rating. The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit. The VA is not required by law to determine medical unfitness for further military service in awarding a disability rating, only that a medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved (i.e., the more stringent standard by which a soldier is determined not to be medically fit for duty versus the standard by which a civilian would be determined to be socially or industrially impaired), an individual’s medical condition may be rated by the Army at one level and by the VA at another level or even rated under different codes.

4. 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

__fne___ __bje___ __reb___ DENY APPLICATION

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

---

INDEX

CASE ID	AR2002066882
SUFFIX
RECON
DATE BOARDED	20020418
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	108.02
2.
3.
4.
5.
6.