RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            2 September 2004
      DOCKET NUMBER:  AR2004101870


      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. Walter T. Morrison            |     |Chairperson          |
|     |Mr. William D. Powers             |     |Member               |
|     |Mr. Ronald J. Weaver              |     |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 that his disability separation with severance
pay be changed to a medical retirement.

2.  The applicant states that the Physical Evaluation Board (PEB) failed to
consider the medical findings that he had diminished tendon reflexes at the
ankles and failed to follow the guidance in Army Regulation 635-40,
paragraph  B-39 (Veterans Administration Schedule for Rating Disabilities
(VASRD) codes 5293 and 5295).  His disability award should have been no
less than 40 percent.

3.  The applicant provides an extract from Army Regulation 635-40, appendix
B with the first two sentences of paragraph B-39 highlighted; a copy of a
Consultation Sheet showing his deep tendon reflexes were asymmetric at the
ankle with 1+ on the right side and 2+ on the left side; and a medical
document dated 6 August 1999.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the Army Board for Correction of Military Records
(ABCMR) take jurisdiction of the applicant's request and evaluate the VA
medical records together with his service medical records to render a fair
and equitable decision.

2.  Counsel states that, where reasonable doubt should arise, all such
doubt should be resolved in the applicant's favor.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 11 December 1999.  The application submitted in this case is
dated 5 October 2003.

2.  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.  This provision of law allows the ABCMR
to excuse failure to file within the 3-year statute of limitation if the
ABCMR determines that it would be in the interest of justice to do so.  In
this case, the ABCMR will conduct a review of the merits of the case to
determine if it would be in the interest of justice to excuse the
applicant’s failure to timely file.

3.  While the applicant was a cadet at West Point, he developed severe low
back pain and sciatica.  He was diagnosed with an L5-S1 herniated nucleus
pulposus. He underwent an L5-S1 laminectomy and discectomy in November
1997.  He was able to resume all of his previous activities but continued
to have pain in his lower back with overactivity.

4.  The applicant was commissioned and entered active duty in 1998 as an
infantry officer.  While attending airborne training, he injured his back
during a jump.  He eventually completed training but his back pain
continued without any significant change.

5.  The applicant was referred to a Medical Evaluation Board (MEB) around
August 1999.  His Medical Board Summary indicates that at that time he
continued to have mainly activity-related low back pain but no obvious
radicular symptoms in the lower extremities.  Orthopedic evaluation showed
he ambulated with a normal gait and rose normally from a chair.  There was
no discrete tenderness to palpation about the back and no tenderness in the
sciatic notch.  Neurologically he had 5/5 muscle strength in the lower
extremities.  He had       2+ deep tendon reflexes on the left and of the
right patella but a 1+ right Achilles' deep tendon reflexes.  Sensation to
light touch was intact.  [Routine] laboratory results were normal.  He
continued to have mainly right-sided activity-related low back pain.  His
pain was minimal and occasional.

6.  The applicant was referred to a PEB with diagnoses of status post right
L5-S1 partial laminectomy and discectomy and chronic right-sided low back
pain secondary to diagnosis 1.  On 22 September 1999, he agreed with the
MEB's findings and recommendation.

7.  On 27 September 1999, an informal PEB found the applicant to be
physically unfit due to chronic back pain, without neurologic abnormality,
status post right L5-S1 discectomy (MEB's diagnoses 1 and 2) under VASRD
code 5295.  The PEB recommended he be separated with a 10 percent
disability rating.  On        29 September 1999, the applicant concurred in
the PEB's findings and recommendation and waived a formal hearing of his
case.

8.  On 11 December 1999, the applicant was separated for disability with
severance pay.

9.  In a letter to his Representative in Congress, the applicant noted that
the VA originally awarded him a 20 percent disability rating but corrected
it after his
condition rapidly deteriorated.  In July 2001, the VA awarded him a 100
percent disability rating.

10.  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.  It states that 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.

11.  Army Regulation 635-40, paragraph B-39a states that, for VASRD codes
5293 (intervertebral disc syndrome) and 5295 (lumbosacral strain), 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 and/or bowel control that are neurogenic in origin.  Neurogenic
male sexual dysfunction or neurogenic muscular atrophy in any one of the
four extremities would also be significant objective signs.  Lesser
objective signs are those of muscular weakness and sensory loss along one
aspect of an extremity.

12.  Army Regulation 635-40, paragraph B-39a goes on to state that all
laboratory test results from X-rays, EMGs (electromyography), nerve
conduction velocities, myelograms, CT (computed tomography) scans, and MRIs
(magnetic resonance imaging) are considered objective findings.  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 subjective
symptomology consistent with the diagnosis.

13.  Army Regulation 635-40, paragraph B-39b states that lesser ratings
will 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.

14.  DoDI 1332.39 (Application of the Veterans Administration Schedule for
Rating Disabilities) implements policies for rating disabilities of service
members determined to be physically unfit and who are eligible for
disability separation or retirement.  Paragraph E2.A1.1.19 (VASRD code
5293) states that intervertebral
disc syndrome involves a herniation of the nucleus pulposus with
impingement
on the nerve root resulting in irritation and a radicular distribution of
pain.  Paragraphs E2.A1.1.19.2 and E2.A1.1.19.3 state 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.  Paragraph E2.A1.1.19.4 states that surgical excision of a disc
without evidence of recurrent disc herniation at the same or different
level precludes the application of the 5293 code.

15.  DoDI 1332.39, paragraph E2.A1.1.20.1 (VASRD code 5295) states that a
zero percent rating shall be awarded for chronic low back pain of unknown
etiology.  Paragraph E2.A1.1.20.2 states that demonstrable pain on spinal
motion associated with positive radiographic findings shall warrant a 10
percent rating.  If paravertebral muscle spasms are also present, a 20
percent rating may be awarded.  Such paravertebral muscle spasms, however,
must be chronic and evident on repeated examinations.

16.  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.
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.

17.  The VASRD gives code 5293 a 60 percent rating when intervertebral disc
syndrome is pronounced, with persistent symptoms compatible with sciatic
neuropathy with characteristic pain and demonstrable muscle spasm or other
neurological findings appropriate to the site of the diseased disc; a 40
percent rating when it is severe with recurring attacks and intermittent
relief; and a         20 percent rating when it is moderate with recurring
attacks.

18.  The VASRD gives code 5295 a 40 percent rating when lumbosacral strain
is severe, with listing of whole spine to opposite side, positive
Goldthwaite's sign, marked limitation of forward bending in standing
position…or some of the above with abnormal mobility on forced motion; a 20
percent rating with muscle spasm on extreme forward bending or loss of
lateral spine motion; a 10 percent rating with characteristic pain on
motion; and a zero percent rating with slight subjective symptoms only.

19.  Title 38, U. S. Code, sections 1110 and 1131, permits the VA to award
compensation for a medical condition which was incurred in or aggravated by
active military service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contended that the provisions of Army Regulation 635-40,
paragraph B-39 were not complied with; however, he failed to note the
entire paragraph.

2.  It is acknowledged that the applicant's deep tendon reflex in the
ankles were asymmetrical; however, that was the only objective sign of
neurological involvement.  No other laboratory results found objective
signs of neurological involvement.  Orthopedic evaluation showed he
ambulated with a normal gait and rose normally from a chair.  There was no
discrete tenderness to palpation about the back and no tenderness in the
sciatic notch.  Neurologically he had  5/5 muscle strength in the lower
extremities.  Sensation to light touch was intact. Given that the
asymmetrical deep tendon reflex was the only sign of neurological
involvement, it appears that a minimal weight was properly given to that
finding.

3.  Given that the applicant's main complaint was that he continued to have
mainly right-sided activity-related low back pain, with the pain minimal
and occasional (but with the etiology of the pain known) and no
paravertebral muscle spasms present, it appears he was properly rated under
VASRD code 5295 with a 10 percent disability rating.

4.  It is acknowledged that the applicant was not given any of the other
laboratory tests (EMGs, nerve conduction velocities, myelograms, CT scans,
or MRIs) listed in Army Regulation 635-40.  However, given low back pain
was his main complaint at the time he separated and no other laboratory
results found objective signs of neurological involvement it appears there
was no medical indication for those additional tests.

5.  In addition, as there is no evidence of recurrent disc herniation, the
application of VASRD code 5293 was precluded by DoDI 1332.39.  Even if, for
the sake of argument, it were to be assumed that the applicant had a
recurrent disc herniation, a rating in excess of 10 percent for mild
lumbosacral strain would not have been warranted at the time in question.

6.  It is acknowledged that the applicant's condition has worsened since
his separation; however, the Army's rating is dependent on the severity of
his condition at the time he separated.  The VA has since rated the
applicant's disability at 100 percent.  Such rating action by the VA does
not necessarily demonstrate an error or injustice in the Army rating.  The
VA, operating under its own policies and regulations, assigns disability
ratings and even VASRD codes as it sees fit.  The VA also has the
responsibility and jurisdiction to recognize any changes in that condition
over time by adjusting a disability rating.
7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 11 December 1999; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
10 December 2002.  However, the applicant did not file within the 3-year
statute of limitations and has not provided a compelling explanation or
evidence to show that it would be in the interest of justice to excuse
failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__wtm___  __wdp___  __rjw___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




            __Walter T. Morrison__
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004101870                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040902                                |
|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.                      |                                        |


-----------------------
[pic]