MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 15 July 2003
         DOCKET NUMBER: AR2002079384

         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 L. Amos		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Ms. Margaret V. Thompson		Member
Mr. Eric N. Andersen		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: Reconsideration of his request to change his physical disability separation with severance pay to a physical disability retirement.

APPLICANT STATES: That prior to his physical evaluation board (PEB), the neurosurgeon stated that he had a herniated disc at the C6-7 level and that it was pinning the nerve root against the vertebrae. The PEB refused to add this diagnosis and told him he had to take it up with the Department of Veterans Affairs (VA).

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of his case on 21 October 1999 (AR1998012354).

The applicant more strongly argues that Army Regulation 635-40 states that a herniated disc with nerve involvement should be rated at 40 to 60 percent.

On 25 February 1997, the applicant was seen by a neurologist for a complaint of severe neck and shoulder pain.

On an unknown date but possibly during his medical evaluation board (MEB) examination on 7 August 1997, plain film x-rays of the applicant's cervical spine were normal, a magnetic resonance imaging (MRI) of the cervical spine revealed a tiny right paracentral/lateral recessed disc protrusion without significant canal or foraminal compromise. Nerve conduction studies and an electromyography (EMG) were normal.

On 29 December 1997, an MEB diagnosed the applicant with myofascial pain syndrome involving the right trapezius muscle, with a very small right lateral disc protrusion at the C6-7 level without any significant neuroforaminal (spinal opening for nerve passage) encroachment. (The National Institutes of Health Internet site medlineplus.gov states that myofascial pain syndrome is a chronic local or regional musculoskeletal pain disorder that may involve either a single muscle or a muscle group. The pain may be of a burning, stabbing, aching, or nagging quality. Where the individual experiences the pain may not be where the myofascial pain generator is located. The pathophysiology of myofascial pain remains somewhat of a mystery due to limited clinical research.)

On 12 January 1998, the applicant indicated to the PEB that a doctor at the Vascular Surgery Clinic found that his condition was a possible nerve impingement, not myofascial pain syndrome, with no evidence of a thoracic outlet syndrome as of yet. The applicant believed that a nerve root impingement, compression, or cervical disc herniation at the C6-7 level was a more appropriate diagnosis of his condition. He indicated that he had informed the doctor that he had numbness and a cold ache throughout his entire arm, tingling, as well as a loss of sustained strength in his right arm and a constant dull aching throb in his back with occasional shooting pains.

On 21 January 1998, the PEB determined the applicant's condition to be myofascial pain syndrome involving the right trapezius muscle and that, because of his back pain and physical profile restrictions, he was unable to perform his military duties. The PEB considered the diagnosis of a very small right lateral disc protrusion at the C6-7 level without any significant neuroforaminal encroachment as not unfitting and not rated.

On 18 February 1998, the chief of neurosurgery at Brooks Army Medical Center recommended inclusion of the applicant's herniated disc and right C7 radicular deficit in the MEB summary.

On 24 February 1998, the PEB informally reconsidered the applicant's case based on additional review of the medical evidence and found the applicant to be physically unfit due to myofascial pain syndrome, under VA Schedule of Rating Disabilities (VASRD) codes 5021 and 5003, with a disability rating of 20 percent. The PEB recommended his separation with severance pay. Again, the PEB determined the second diagnosis of the applicant's condition as not unfitting and not rated.

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 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. It states that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.

The 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 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.

VASRD code 5003 is degenerative arthritis; code 5021 is myositis (the National Institutes of Health Internet site medlineplus.gov states that all forms of myositis involve chronic, or persistent, muscle inflammation and most commonly affects muscles around the hips or shoulders). The VASRD states that myositis will be rated on limitation of motion of affected parts as degenerative arthritis.
VASRD code 5293 is intervertebral disc syndrome. It is given a 20 percent disability rating when moderate with recurring attacks; a 40 percent disability rating when severe with recurring attacks with intermittent relief; and a 60 percent rating when pronounced, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc with little intermittent relief.

Army Regulation 635-40, appendix B-39 states that a 40 or 60 percent disability rating will be predicated upon objective medical findings of neurological involvement. Deep tendon reflex asymmetry in the ankles, as manifested by an absent or diminished reflex, constitutes an important objective sign. Highly significant objective signs are loss of bladder or bowel control which are neurogenic in origin. Neurogenic male sexual dysfunction or neurogenic muscular atrophy in any one of the four extremities, lower or upper, are also significant objective signs. Lesser objective signs are those of muscular weakness and sensory loss along one aspect of an extremity as determined by pinprick testing. Detection of paravertebral muscle spasms on examination is significant. Objective signs of and findings of neurological involvement are often found in combination with objective symptoms such as pain. The weight to be attached to each objective sign for rating purposes will vary according to the confirmation by laboratory test results along with the co-presence of other confirmed objective signs as well as the presence of subject symptomatology consistent with the diagnosis.

Army Regulation 635-40, appendix B-24 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 (VASRD code 5003) 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 (DODI) 1332.39 (Application of the Veterans Administration Schedule for Rating Disabilities) states that, in view of the fact that 40 to 50 percent of the population have herniated discs which are asymptomatic, finding a herniated disc on an MRI does not necessarily imply the herniated disc is the primary cause of the pain. It states that ratings of 40 to 60 percent will be predicated upon objective neurological findings supported by laboratory data, such as EMG, nerve conductive studies, and flow and manometric studies for bowel and bladder involvement. The weight attached to each finding shall vary according to the co-presence of other findings.

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.

Title 10, U. S. 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.

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 Board has considered the applicant's contention that Army Regulation 635-40 states a herniated disc with nerve involvement should be rated at 40 to 60 percent. However, the Board concludes there is insufficient evidence to show he met the criteria to be awarded a 40 or 60 percent disability rating.

2. The Board notes that at the time of the applicant's PEB a doctor found that his condition was a possible nerve impingement. Nerve conduction studies and an EMG performed earlier were normal.

3. In addition, it appears to the Board that both Army Regulation 635-40 and DODI 1332.39 intend the 40 to 60 percent disability rating to be awarded when there are significant findings of nerve involvement (i.e., loss of bladder or bowel control which are neurogenic in origin, neurogenic male sexual dysfunction or neurogenic muscular atrophy in any one of the four extremities). This would correspond with the VASRD's rating scale, which awards code 5293 a 40 percent disability rating when severe with recurring attacks with intermittent relief and a 60 percent rating when pronounced, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc with little intermittent relief.

4. The Board notes the applicant told a doctor that he had a numbness and cold ache throughout his entire arm and tingling, as well as a loss of sustained strength in his right arm and a constant dull aching throb in his back with occasional shooting pains. However, these symptoms do not appear to the Board to fit the criteria of "pronounced" or "severe" symptoms.

5. The condition that primarily made the applicant unfit to perform his duties was pain. The Board concludes that he was therefore appropriately rated for pain, under VASRD code 5003, with a 20 percent disability rating. Even had his diagnosis been changed to intervertebral disc syndrome (VASRD code 5293) rather than myofascial pain syndrome, the Board concludes that he would have received no higher than a 20 percent rating. Furthermore, it was his pain, and not any neurological symptoms, that made him unfit for duty.

6. The Board acknowledges that the applicant's condition may worsen over time, or further studies may conclusively prove that he has a nerve impingement. However, the Army's rating was dependent on the severity of his condition at the time he separated. The VA has the responsibility and jurisdiction to recognize any changes in that condition over time by adjusting his VA disability rating.

7. The overall merits of the case, including the latest submissions and arguments, are insufficient as a basis for the Board to reverse its previous decision.

8. 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___ __mvt___ __ena___ DENY APPLICATION

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

---

INDEX

CASE ID	AR2002079384
SUFFIX
RECON
DATE BOARDED	20030715
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	108.00
2.
3.
4.
5.
6.