RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           19 AUGUST 2004
      DOCKET NUMBER:   AR2003099481


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Deborah L. Brantley           |     |Senior Analyst       |


      The following members, a quorum, were present:

|     |Mr. Fred Eichorn                  |     |Chairperson          |
|     |Mr. Curtis Greenway               |     |Member               |
|     |Mr. William Powers                |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his Army disability rating be
increased.

2.  The applicant states that he believes that his Army disability rating
is incorrect and states that he was “rushed into signing the 10% rating.”
He states that he was told it did not matter what the Army rating was
because the Department of Veterans Affairs would give him a higher rating.

3.  The applicant provides copies of his service medical records in support
of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant entered active duty on 21 September 2000.  His service
medical records indicate that he suffered from stress fractures to his feet
while undergoing training, and periodically sought medical treatment for
painful feet during his military service.  His service medical records also
indicate that he received treatment for blood in his stools, an ankle
sprain, and wrist pain, among other minor medical ailments.

2.  In April 2002 the applicant sought medical treatment for low back pain
following a road march.  In July 2002 his back condition was aggravated by
a motor vehicle accident.

3.  A September 2002 statement, authored by the applicant’s unit commander
noted that the applicant’s duty performance had been excellent but that
since the April 2002 incident his back condition had precluded full
performance of his duty requirements and that as of August 2002 a physical
profile severely limited his ability to perform duties associated with his
primary specialty (Fire Direction Specialist).

4.  On 9 October 2002 the applicant underwent a Medical Evaluation Board
(MEB).  His chief complaint was low back pain stemming from the April 2002
road march and subsequent motor vehicle accident.  During the MEB
evaluation, the examining physician noted that the applicant had “no
significant medical illness in the past” and that stress fractures of both
legs during basic training were “later resolved completely.”

5.  The MEB noted that the applicant’s extremities showed no swelling and
no limitation of movements.  Neurologically, he had a positive straight leg
rising on the left with tenderness in the lower lumbar vertebra.  While the
applicant did have diminished touch sensation posteriorly below the left
knee his “Waddell Test” was negative.  Range of motion of the low back
showed right and left side bends at 25 degrees, right and left rotation at
40 degrees, flexion at 110 degrees and extension of 15 degrees.  The
applicant had declined to undergo surgery to correct his condition.

6.  The MEB concluded that the applicant suffered from “spondylolisthesis
of the lumbar spine” and “herniated nucleus pulposus (L5/S1) with
radiculopathy, left lower extremity” and referred the applicant to a
Physical Evaluation Board (PEB).

7.  On 20 November 2002, more than 1 month after his MEB evaluation, the
applicant concurred with the findings and recommendation of the MEB.

8.  On 26 November 2002 an informal PEB concluded that the applicant
suffered from “chronic low back pain with sponylolisthesis on L5-S1
herniated nucleus pulposus, without significant neurologic abnormality.”
The PEB concluded that the applicant was unfit for continued military
service and recommended that he be discharged with entitlement to
disability severance pay.  His condition was rated at 10 percent by analogy
(5299) to Department of Veterans Affairs (VA) Schedule for Rating
Disabilities (VASRD) codes 5293 (intervertebral disc syndrome) and 5295
(lumbosacral strain).

9.  The reverse side of the PEB, which would have contained the applicant’s
concurrence or non-concurrence, is missing.  However, the absence of a
formal PEB indicates that the applicant concurred with the findings and
recommendation of the PEB and waived his entitlement to a formal hearing.

10.  On 4 February 2003, nearly 3 months after his PEB, the applicant was
honorably discharged by reason of physical disability.  He received more
than $6000.00 in disability severance pay.

11.  Army Regulation 635-40, which establishes the policies and procedures
for disability retirement or separation, states that the VASRD codes are
numbers used for showing the basis of the evaluation assigned and for
statistical analysis. In the selection of codes, injuries generally will be
represented by the number assigned to the residual condition on the basis
of which the rating is determined. When an unlisted disease, injury, or
residual condition is encountered, requiring rating by analogy, the
diagnostic code number is “built-up.”  The first two digits will be
selected from the part of the schedule most closely identifying the part,
or system, of the body involved.  The last two digits will be “99” for all
unlisted conditions.  When an unlisted condition is encountered, it is
rated under a closely related disease or injury in which not only the
functional, but the anatomical localization and symptomatology are closely
analogous.  There are no objective medical laboratory testing procedures
used to detect the existence of or measure the intensity of subjective
complaints of pain, and as such a disability retirement cannot be awarded
solely on the basis of pain.

12.  VASRD Code 5295 applies to lumbosacral stain and provides for a 10
percent disability rating when the area shows “characteristic pain on
motion.”

13.  VASRD Code 5293 refers to intervertebral disc syndrome and can be
rated anywhere from postoperative, cured (0 percent rating) to pronounced
with persistent symptoms comparable with sciatic neuropathy with
characteristic pain and demonstrable muscle spasm, absent ankle jerk, or
other neurological findings appropriate to the site of diseased disc, with
little intermittent relief (60 percent rating).

14.  The Army Physical Disability Agency (USAPDA) has noted in advisory
opinions in similar cases that confusion frequently arises from the fact
that the Army and the VA use different rating systems.  While both use the
Veterans Administration Schedule for rating Disabilities, not all of the
general policy provisions set forth in the VASARD apply to the Army.  The
Army rates only conditions determined to be physically unfitting, because
they adversely effect the individual’s ability to perform assigned duties,
thus compensating the individual for loss of a career.  The VA, on the
other hand, may rate any service-connected impairment, in order to
compensate the individual for loss of civilian employability or social
functioning.  The USAPDA has also pointed out that military disability
ratings are based upon the degree to which a medical condition effects the
ability to perform duty and not upon the diagnosis or name attached to the
condition.  By way of comparison, the VA can and does rate an individual
for pain in many instances.  The Army can only rate the same painful
condition if it impairs the soldier’s ability to perform assigned tasks.

15.  Army Regulation 635-40 also states that physical examination,
laboratory tests, x-rays, and other findings are not, in themselves,
ratable.  A rating for a disability must be based on demonstrable
impairment of function.

DISCUSSION AND CONCLUSIONS:

1.  Throughout the applicant’s disability processing, and during his
medical consultations leading up to his disability processing, his chief
complaint was low back pain.  That low back pain was the primary basis for
his 10 percent disability rating from the Army.  He has not presented any
new evidence, which was not available to the PEB at the time, which refutes
the fact that his primary impairment stemmed from his chronic low back
pain.

2.  The fact that the VA might subsequently grant a higher disability
rating is not evidence that the Army’s rating was in error or unjust.  The
VA, operating under its own policies and regulations, assigns disability
ratings as it sees fit.  Any rating action by the VA would not compel the
Army to modify its reason or authority for separation.

3.  While the applicant contends that he was rushed to accept the Army’s
disability rating, there is no indication in the record of the PEB
proceedings, nor has he provided any evidence to substantiate his
contention.  A period of nearly 4 months separated the applicant’s October
2002 MEB evaluation and his February 2003 discharge.

4.  In order to justify correction of a military record the applicant must
show, 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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__FE ___  __CG ___  ___WP__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.





            _____ Fred Eichorn________
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2003099481                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040819                                |
|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.                      |                                        |


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