MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 10 OCTOBER 2002
         DOCKET NUMBER: AR2002073551

         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
Mr. Roger W. Able		Member
Mr. John T. Meixell		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 because of service incurred disabilities.

APPLICANT STATES: He was discharged from the Army with a disability rating of 10 percent and received severance pay. Subsequent to his discharge, the VA awarded him a 40 percent rating for his service connected disabilities, since increased to 60 percent.

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

The applicant entered on active duty on 16 February 1990, and was trained as an infantryman. On 13 March 1990 he was treated for an injury to his right ankle. On 20 April 1990 he was treated for chest congestion and knee pain. On 13 May 1997 presumptive findings of in line of duty were made for the left knee injury that he sustained on 20 April 1990, and for the right ankle injury he sustained on 13 March 1990.

The applicant was assigned to an infantry company in Germany in June 1990. He returned to the United States and in June 1994 was assigned to Fort Lewis, Washington.

In February 1996 the applicant strained his lower back while playing basketball during physical training at Fort Lewis. His injury was in line of duty.

A 30 April 1997 report of medical examination shows that the applicant had a physical profile serial of 1 1 3 1 1 1. In the report of medical history that the applicant furnished for the examination, he stated that he was not in good health, and that he had chronic ankle pain and chronic back pain, among other ailments.

A medical evaluation board (MEB) narrative summary shows that the applicant had a L5-S1 diskectomy in September 1996, had initial relief of symptoms after surgery; however, after returning to normal activities he had recurrence of his low back pain. The summary also shows that the applicant also complained of bilateral knee pain, right greater than left, and that the pain was anterior in nature, and was worse with strenuous activities. The pain had been present for several years. He also complained of bilateral recurrent ankle sprains, right worse than left, which began in basic training. The applicant stated that he had inversion injuries on the right side even when walking on normal terrain. The applicant stated that he gets Strep throat very easily, and that he had been treated for bronchitis/pneumonia. He stated that he had an infection when he was in Germany in 1992, which was treated with antibiotics. Orthopedic examination was conducted on the applicant, and laboratory and x-ray data were examined. The applicant’s condition was diagnosed as herniated nucleus pulposus of L5-S1 status post hemilaminectomy (surgical removal of one side of the vertebral lamina) and diskectomy (excision of an intervertebral disk); degenerative disk disease of L5-S1, mild, secondary to the first diagnosis; retropatellar pain syndrome, right knee; and bilateral chronic ankle pain and instability, right greater than left.

On 6 June 1997 the applicant’s commanding officer stated that the applicant was an outstanding NCO whose deterioration of health hampered his ability to conduct the majority of his tasks in his specialty. He stated that the applicant was not capable of holding a position within this specialty.

On 8 September 1997 the MEB recommended that the applicant be referred to a Physical Evaluation Board (PEB) because of his medical conditions. The findings and recommendation of the MEB were approved. The applicant concurred.

On 17 September 1997 a PEB determined that the applicant was physically unfit to perform the duties of his grade and specialty because of the diagnosis of his condition as status post hemilaminectomy and diskectomy of L5-S1 herniated disc with relief of radicular pain but persistence of low back and buttock pain (VA Code 5293). The PEB indicated that he had essentially normal range of motion of his back, negative SLR, symmetrical reflects, and no sensory loss. The Board found that the condition of his right knee and both his ankles were not unfitting and therefore not ratable. The Board recommended that the applicant receive a disability rating of 10 percent and that he be separated with severance pay. The applicant concurred and waived a formal hearing of his case.

The applicant was discharged on 3 November 1997 under the provisions of Army Regulation 635-40. He had almost 8 years of service.

On 17 December 1997 the VA awarded the applicant a 10 percent service connected disability rating for left ankle sprain; 10 percent for right ankle sprain; 20 percent for L5-S1 diskectomy; 10 percent for hemorrhoids; and zero percent for right retropatellar pain, left retropatellar pain, scar on right thigh, head injury residuals, residuals of an injury to his left middle finger, and residuals of an injury to his right hand. The VA noted that the applicant told the VA examiner that his right and left ankles twist easily, but he had fewer problems since he had been more sedentary. His combined disability rating was 40 percent.

On 25 August 2001 the VA increased the applicant’s disability rating for his L5-S1 diskectomy to 40 percent. The rating decision shows that the applicant complained of increasing radicular pain in his left lower extremity, and pain radiating into the right lower extremity with a lot of bending movement. His ratings for his right and left ankle sprains continued at 10 percent. He has a combined rating of 60 percent.


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.

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 38, United States Code, sections 310 and 331, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.

Congress established the VA Schedule for Rating Disabilities (VASRD) as the standard under which percentage rating decisions are to be made for disabled military personnel. Percentage ratings in the VASRD represent the average loss in earning capacity resulting from diseases and injuries. The ratings also represent the residual effects of these health impairments on civil occupations.

The VASRD states in pertinent part, that the rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determine the average impairment in earning capacity resulting from such disease and injuries and their residual conditions in civil occupations.

Diagnostic code numbers appearing opposite the listed ratable disabilities in the VASRD are arbitrary numbers for the purpose of showing the basis of the evaluation assigned and for statistical analysis by the VA, and extend from 5000 to a possible 9999. When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number will be “built up.” The first 2 digits will be selected from that part of the schedule most closely identifying the part, or system, of the body involved; the last 2 digits will be “99” for all unlisted conditions.

Army Regulation 635-40 states in pertinent part that not all of the general policy provisions of the VASRD apply to the Army, and that Section I of Appendix B replaces or modifies paragraphs of the VASRD.

VA Code 5293 shows ratings from 0 percent to 60 percent for intervertebral disc syndrome, with a 60 percent rating for pronounced and persistent symptoms; 40 percent for severe, and recurring attacks, with intermittent relief; 20 percent for moderate, recurring attacks; and zero percent for postoperative, cured.

Special instructions concerning intervertebral disc syndrome contained in Army Regulation 635-40 state that a 40 to 60 percent disability rating will be predicated upon objective medical findings of neurological involvement, and that less ratings begin with a zero 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.

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 applicant’s discharge with a 10 percent disability rating for his low back and buttock pain was proper. The applicant concurred with the PEB findings and recommendation. At the time of the applicant’s discharge there was no evidence of radicular pain or paravertebral muscle spasms. The VA, in awarding the applicant a disability rating for his diskectomy immediately after his discharge, did not indicate any radicular pain or muscle spasms. It wasn’t until 2001, almost four years after his discharge, that the applicant complained of increasing radicular pain, at which time the VA awarded the applicant an increase in his disability rating. The applicant’s right knee pain and bilateral ankle pain was found to be not unfitting by the PEB, and were not rated.

2. The rating action by the VA does not necessarily demonstrate any error or injustice in the Army rating. The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit. Any rating action by the VA does not compel the Army to modify its rating.

3. The VA 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, 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 him for VA benefits based on an evaluation by that agency. 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.

4. The applicant's disability was properly rated in accordance with the VA Schedule for Rating Disabilities as modified by the Army. His separation with severance pay was in compliance with law and regulation.

5. The applicant has submitted neither probative evidence nor a convincing argument in support of his request.

6. 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.

7. 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__ __RWA__ __JTM __ DENY APPLICATION

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

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INDEX

CASE ID	AR2002073551
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20021010
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.