| Mr. Carl W. S. Chun | Director | |
| Mr. Lee Cates | Analyst |
| Mr. Fred N. Eichorn | Chairperson | |
| Mr. Melvin H. Meyer | Member | |
| Mr. Donald P. Hupman, Jr. | Member |
APPLICANT REQUESTS: That his records be corrected to show that he was retired for a physical disability.
APPLICANT STATES: That he disagrees with the PEB [Physical Evaluation Board] findings that he was only rated at 20 percent. He indicates the neck and back should have been rated under disability codes 5293 separately with a higher rating and that this is bound by Title 38, CFR (Code of Federal Regulations) when assigning rates of disability pursuant to Title 10, U.S.C. (United States Code). Hence the PEB has assigned the wrong diagnostic codes for neck and back. Once this is fixed, it will entitle him to retirement, not disability severance. He provides copies of his medical records less the Narrative Summary (NARSUM) and Medical Evaluation Board (MEB).
EVIDENCE OF RECORD: The applicant's available military records show:
During the period 7 September 1982 to 7 August 1986, he served on active duty in the Marine Corps.
On 3 August 1989, he enlisted in the Army. He completed his required training and was awarded military occupational specialty 31P (Microwave Systems Operator/Maintainer).
On 11 July 1994, he fractured his fibula in an airborne operation.
On 12 June 1998, he sustained a spinal fracture during a parachute landing in Normandy France during a ceremony reenacting the World War II parachute invasion of Normandy.
On 27 March 2000, PEB Proceedings indicates his disability as (1) neck and back pain, VA Codes 5299 and 5295, (MEB diagnosis 1, 2, 3, and NARSUM – not available), rated at 10 percent disabling and (2) left knee pain, VA Codes 5299 and 5003 ((MEB diagnosis 5, and NARSUM – not available), rated at 10 percent disabling. MEB diagnosis 4 was not unfitting and not rated. The board found him unfit for further military service and recommended his separation with severance pay at a rate of 20 percent.
On 31 March 2000, the applicant indicated that he concurred with the boards findings and recommendations and waived a formal hearing of his case.
On 23 May 2000, he was honorably discharged under Army Regulation 635-40, paragraph 4-24B(3), disability with severance pay. The amount of severance pay is not a matter of record. His DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 23 May 2000, indicates he had 14 years, 8 months and 22 days of creditable service.
On 26 October 2000, a VA Rating Decision indicates he was awarded a combined service-connected disability rating of 30 percent for (1) Insomnia as secondary to the spine and left knee condition, 10 percent; (2) Herniated nucleus pilosus at L4-5 with radiculopathy, right lower extremity and L3 compression fracture with residual traumatic arthritis, 10 percent; (3) Left knee condition, 10 percent; (4) Herniated nucleus pilposus, C3-4, with moderate myelomalacia of the spine condition, with headaches and right dominant upper extremity radiculopathy, 10 percent; and, (5) Fracture right fibula, 0 percent.
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 of service and a disability rated at less than 30 percent disabling.
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 the said medical condition reduces or impairs the social or industrial adaptability of the individuals 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. The evidence in this case does not support his contention that there was an error or injustice in his separation from active duty.
2. The fact that the VA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency. It does not, in itself, establish physical unfitness for Department of the Army purposes.
3. The applicant's disability was properly rated in accordance with the VA Schedule for Rating Disabilities based on reduction or impairment of the individual’s industrial adaptability. His separation with severance pay was in compliance with law and regulation.
4. 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.
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
_dph____ _fne____ _mhm___ DENY APPLICATION
| CASE ID | AR2002068709 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 20020716 |
| TYPE OF DISCHARGE | |
| DATE OF DISCHARGE | |
| DISCHARGE AUTHORITY | |
| DISCHARGE REASON | |
| BOARD DECISION | DENY |
| REVIEW AUTHORITY | |
| ISSUES 1. | 136 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
AF | PDBR | CY2010 | PD2010-01083
The goniometric evaluation of 45⁰ of thoracolumber flexion in the VA examination is consistent with a rating of 20% using the VASRD general rating formula for diseases and injuries of the spine. After due deliberation, considering all of the evidence, the Board recommends a separation rating of 20% for the back pain condition, coded 5241 for spinal fusion. The Board determined therefore that the neck condition was not subject to service disability rating.
AF | PDBR | CY2011 | PD2011-00778
Compression fractures (15% of L1 vertebral body compressed), anterior corner fracture of L4, compression deformities of T9-T11 and L1), degenerative changes of LS spine, straightened lordosis, and scoliosis documented on x-ray 20030227.§4.71a Rating2002 VASRD 529320% for moderate, recurring attacks (PEB)20% for moderate, recurring attacks2002 VASRD 529210% for slight10% for slight (VA assigned 40% for severe)2002 VASRD 8520Not applicable with 5293; 10% with 52922002 VASRD 528510% additional...
AF | PDBR | CY2012 | PD-2012-00349
The PEB adjudicated the HNP C5‐6 and C6‐7, right shoulder subacromial impingement syndrome and the RPPS left knee conditions as unfitting, rated 10%, 0% and 0% respectively, with application of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD) for the first two conditions and the US Army Physical Disability Agency (USAPDA) pain policy for the knee. The ROM was essentially normal on the NARSUM examination and, when documented, normal on other examinations. RECOMMENDATION: The...
AF | PDBR | CY2012 | PD2012 01518
SUMMARY OF CASE : Data extracted from the available evidence of record reflects that this covered individual (CI) was an active dutyAC2/E-5 (6902/Air Traffic Controller),medically separated for multilevel degenerative disk disease (DDD), lumbar and herniated nucleus pulposus (HNP), C5-C6, left. Since no evidence of functional impairment exists in this case, the Board cannot support a recommendation for additional rating based on peripheral nerve impairment at the time of separation from...
AF | PDBR | CY2011 | PD2011-00193
The PEB adjudicated the cervical herniated nucleus pulposus associated with intermittent pain despite no nerve impingement condition unfitting rated at 10% with application of the Veterans Administration Schedule for Rating Disabilities (VASRD). All evidence considered there is not reasonable doubt in the CI’s favor supporting addition of the right upper extremity radiculopathy condition as an unfitting condition for separation rating. I have carefully reviewed the evidence of record and...
ARMY | BCMR | CY2013 | 20130020093
He requests ratings for unfitting conditions that were not rated and injuries not evaluated at the time of his separation. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. He provided service medical records, dated 2000 to 2002, which show he was treated for: * left wrist pain no injury noted * low back pain * neck pain * shoulder pain 4.
ARMY | BCMR | CY2003 | 03096854C070212
The applicant requests physical disability retirement with a disability rating of 100 percent. A 30 August 1999 report of medical examination depicts the applicant's various medical conditions, to include bilateral weakness in arms/forearms, degenerative joint disease to his back, knees, and ankles, and bilateral ankle pain. The applicant had pain to his back, knee, right ankle, and left wrist, as a result of his various injuries; consequently, the PEB determined that he be rated as 20...
AF | PDBR | CY2013 | PD-2013-02323
Cervical spine MRI on 20 January 2005 noted lower cervical spine disc herniation with spinal stenosis and general degenerative disc disease.As noted above, a note in the STR indicated “EMG/NCS-no evidence of radiculopathy.”Notes in the STR near the date of separation noted continued neck pain with intact ROM and normal strength and sensation.At the MEB examination on 27 May 2004, (approximately 5 months prior to separation)the CI reported neck pain. RECOMMENDATION : The Board, therefore,...
AF | PDBR | CY2012 | PD-2012-00699
Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Army Board for Correction of Military Records. The PEB rated the condition 10% citing neck pain without radiculopathy, analogous to 5295 lumbosacral strain with characteristic pain on motion. Under the VASRD rules in effect at time of separation, with minimal tenderness, normal ROM of cervical spine, no radiculopathy, and...
AF | PDBR | CY2009 | PD2009-00077
Although the VA rating exam cited above would yield a 30% rating, no repeat rating decision is in evidence. The VA rating examination 11 months later did not provide full goniometric ROM measurements for the thoracolumbar spine, stating the CI was too unsteady to cooperate with them. In the matter of the chronic neck pain condition, the Board unanimously recommends a rating of 20% coded 5242 IAW VASRD §4.71a.