RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            21 April 2005
      DOCKET NUMBER:   AR20040005245


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Fred N. Eichorn               |     |Chairperson          |
|     |Mr. Richard T. Dunbar             |     |Member               |
|     |Ms. Delia R. Trimble              |     |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 disability separation with
severance pay be changed to a medical retirement.

2.  The applicant states that evidence was not available at the time of the
Physical Evaluation Board (PEB) so he was not correctly evaluated.

3.  The applicant provides his DA Form 199 (Physical Evaluation Board (PEB)
Proceedings); an Operation Report dictated 29 May 2003; three radiologic
examination reports (two 1-page reports and one 2-page report) dated 6 July
2004; two magnetic resonance imaging (MRI) reports printed 25 June 2004; a
   2-page Statement of Attending Physician dated 22 June 2004; an
Assessment/Plan dated 22 June 2004; a medication printout dated 22 June
2004; an Addendum dated 25 June 2004; and a hand-written statement from the
applicant's wife dated 6 July 2004.

CONSIDERATION OF EVIDENCE:

1.  After having had prior service in the Army National Guard and U. S.
Navy, the applicant enlisted in the U. S. Army Reserve on 1 April 1993
(after having been honorably discharged from the Individual Ready Reserve
on 15 May 1990).  He was discharged on 31 March 1994 for the purpose of
enlisting in the Regular Army.  He was promoted to Specialist, E-4 on 14
June 2001 in military occupational specialty (MOS) 91W (Health Care
Specialist).

2.  An Addendum to Medical Evaluation Board (MEB) (only page 1 of 4 pages
available), date dictated 9 January 2003, indicated the applicant had
started having groin pain in 1995.  He apparently had an MEB or an
MOS/Medical Retention Board (MMRB) around that time and was found fit for
duty.

3.  An Addendum to MEB, date dictated 24 March 2003, noted the applicant's
chief complaints as right groin pain and low back pain.  The History of
Present Illness indicated that he did not complain of any lower extremity
radicular symptoms at that time and denied bowel or bladder complaints.  He
was diagnosed with (1) chronic right groin strain, pain slight and
frequent; and (2) mechanical low back pain, pain slight and frequent.

4.  An MEB Medical Record Report, date dictated 16 April 2003, indicated
the applicant's chief complaints were neck pain, low back pain, and right
groin pain.  It indicated he had undergone a C5-6 discectomy and cervical
fusion in October
2001.  A physical examination revealed some tenderness of the cervical
spine with full range of motion and a well-healed surgical scar.  The right
hip had full range of motion with associated pain.  There was increased
right groin pain with hip flexion against resistance.  A back examination
showed some tenderness in the lumbar area with range of motion within
normal limits.  A November 2002 lumbar spine MRI showed L4 to L5 left disc
protrusion and degeneration with minimal central narrowing, stable from
previous examination.  An April 2003 cervical spine MRI showed multilevel
cervical spondylosis with a stable disc protrusion at C3-4.

5.  The MEB Medical Record Report, date dictated 16 April 2003, listed the
applicant's diagnoses as (1) multilevel cervical spondylosis, post fusion,
pain slight and constant; (2) chronic right groin pain, pain slight and
frequent; (3) non-radicular low back pain, pain slight and frequent; (4)
elevated liver function tests, medically acceptable; and (5) allergic
rhinitis, medically acceptable.

6.  The DA Form 3947 (Medical Evaluation Board Proceedings), dated 9 May
2003 found the applicant unfit for diagnoses 1, 2, and 3 (of the five
diagnoses listed on the MEB Medical Record Report, date dictated 16 April
2003) and referred him to a PEB.  On 20 May 2003, the applicant signed the
DA Form 3947 agreeing with the MEB's findings and recommendation.

7.  On 27 May 2003, an informal PEB found the applicant unfit for duty due
to chronic neck pain due to multi-level spondylosis, status post fusion,
rated as slight/constant (10 percent); chronic low back pain, without
neurologic abnormality or documented chronic paravertebral muscle spasms on
repeated examinations with characteristic pain on motion (10 percent); and
chronic right groin pain rated as mild (zero percent).  He was recommended
for separation with severance pay and a 20 percent disability rating.

8.  On 29 May 2003, the applicant underwent a C3-C4 anterior cervical
discectomy and fusion.  The Indications section of the Operation Report
dictated 29 May 2003 provided by the applicant noted that his spondylosis
at C3-C4 had progressed to the point that it was impinging on the spinal
cord.  The Operation Report indicated that he had noted that the pain was
so severe he could not conduct any of his activities of daily living.

9.  On 4 June 2003, the applicant indicated his nonconcurrence with the
findings of the informal PEB and stated that additional information would
be available on 10 July 2003.

10.  On 11 June 2003, the U. S. Army Physical Disability Agency noted the
applicant's disagreement with the findings of the PEB and reviewed his
entire case.  Their conclusions were that his case was properly adjudicated
by the PEB which correctly applied the rules that govern the Physical
Disability Evaluation System and that the findings and recommendations of
the PEB were supported by the substantial evidence and were therefore
affirmed.

11.  On 31 July 2003, the applicant was honorably discharged with severance
pay due to disability.  His DD Form 214 (Certificate of Release or
Discharge from Active Duty) shows he entered active duty that period on 17
June 1991 (although his DA Form 2-1 (Personnel Qualification Record) shows
that he was not on active duty, except for 15 days of annual training,
while he was in the U. S. Army Reserve) and had completed a total of 14
years, 10 months, and 28 days of creditable active service.

12.  An MRI printed 25 June 2004 indicated there was mild spinal canal
narrowing noted at the C5 and C6 level; however, there was no significant
cervical spinal cord signal alteration.  Another MRI dated 25 June 2004
indicated an impression of generalized posterior disc bulges at L4-L5 and
L5-S1 levels; otherwise, no significant abnormality.

13.  The Assessment/Plan dated 22 June 2004 provided by the applicant
indicated assessments of diabetes mellitus, Type II, and neuromuscular
disorder.

14.  A Radiologic Examination Report dated 6 July 2004 indicated that
degenerative disk disease was seen in the applicant at the C4-5 disc level.

15.  The applicant's wife provides a letter in which she states that the
correct rating [for his neck pain] should have been severe pain with spinal
cord impingement.

16.  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.
 In pertinent part, it states that the mere presence of an impairment does
not, of itself, justify a finding of unfitness because of physical
disability.

17.  Army Regulation 635-40, appendix B, paragraph 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 to detect the existence of or measure the
intensity of subjective complaints of pain, a disability retirement cannot
be awarded only on the basis of pain.  Rating by analogy to degenerative
arthritis (VASRD code 5003) 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.

DISCUSSION AND CONCLUSIONS:

1.  On 20 May 2003, the applicant signed the DA Form 3947 agreeing with the
MEB's findings that his cervical pain was slight and constant, his right
groin pain was slight and frequent, and his back pain was slight and
frequent.

2.  On 27 May 2003, an informal PEB found the applicant to be unfit for his
neck, back, and groin pain for a combined rating of 20 percent.

3.  On 29 May 2003, in discussion with his doctor prior to undergoing a C3-
C4 anterior cervical discectomy, the applicant had noted that his pain was
severe. The Board notes that the Operation Report dictated 29 May 2003
indicated there was spinal cord impingement; however, there is no other
evidence of neurological symptoms.  The 24 March 2003 Addendum to MEB
indicated he did not complain of any lower extremity radicular symptoms at
that time and denied bowel or bladder complaints.  Later MRIs conducted in
June 2004, after his separation, indicated there was no significant
cervical spinal cord signal alteration or significant abnormality.

4.  In any case, in accordance with the governing regulation when a single
diagnosed condition or a combination of diagnosed conditions are each rated
essentially for pain, then the maximum rating that can be given is 20
percent.  Therefore, even if the applicant's pain had suddenly escalated
from "slight" to "severe," the PEB correctly evaluated and rated his
unfitting conditions.

5.  It is acknowledged that the applicant's condition has worsened since
his separation, possibly due to a later-diagnosed neuromuscular disorder.
However, the evidence of record shows that he was found to be unfit for
service due to pain, not due to any other condition.  Regrettably, there is
insufficient evidence on which to grant the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__fne___  __rtd___  __drt___  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 N. Eichorn_____
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040005245                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050421                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |108.02                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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