RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 January 2006
      DOCKET NUMBER:  AR20050007386


      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:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. Rodney E. Barber              |     |Member               |
|     |Ms. Rea M. Nuppenau               |     |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 medical separation with severance pay
be changed to a medical retirement at pay grade E-5.

2.  The applicant states he received improper, insufficient medical
treatment while in the Army.  His pars planitis (decreased visual acuity)
continues; his nephrolithiasis (kidney stones) continues to occur and now
requires surgery; his lower back pain, which was improperly diagnosed and
never considered by the Physical Evaluation Board (PEB), is now properly
diagnosed as lumbar disc displacement with herniation and rated at 20
percent service-connected disabling by the Department of Veterans Affairs
(DVA).

3.  The applicant also states that, for a vast majority of his last four
years on active duty, he was on either temporary or permanent profiles
restricting his ability to properly maintain fitness.  At the time of his
discharge, he was a promotable E-4 but was flagged for his inability to
comply with the Army Weight Control Program.  He contends that inability
was due to the medical conditions that limited his ability to exercise.

4.  The applicant provides a 3 January 2003 letter to the Army Review
Boards Agency; his DD Form 214 (Certificate of Release or Discharge from
Active Duty) for the period ending 10 August 1998; a DVA Rating Decision
dated 9 March 2004; a copy of his service medical records; copies of DVA
medical records; and his physical disability proceedings.

CONSIDERATION OF EVIDENCE:

1.  After having had prior service (after which he had been awarded a 10
percent disability rating by the DVA for post-operative chondromalacia of
the left knee), the applicant enlisted in the Regular Army on 19 January
1994 in pay grade E-4. He completed basic training and advanced individual
training and was awarded military occupational specialty 45K (Tank Turret
Repairer).

2.  The applicant's service medical records show he was treated for
complaints of back pain in March 1989, August 1990, June 1992, October
1994, March 1996, and May 1997.  X-rays taken on 27 May 1997 showed small
spurs off the anterior aspect of L5.

3.  In his 3 January 2003 letter to the Army Review Boards Agency, the
applicant gave a chronological description of his complaints of and
treatments for back pain.  He noted, in part:

      20 May 1997 – diagnosed with paraspinal lower back strain, given
several medications, bed rest for one week, light duty profile for 30 days,
and physical therapy consult.

      4 June 1997 – took Medical Evaluation Board (MEB) examination, noted
was the fact he advised of recurrent back pain due to lifting limitation
caused by knee conditions, physician noted that symptoms had been resolved.

      10 August 1998 – PEB completed, lower back pain not considered.

      10 December 1998 – DVA denied service-connection for lower back pain,
no appeal filed based on lack of recurrence and lack of medical
justification as only routine, occasional soreness had been felt since
1997;

      12 September 2000 – continued to feel routine, occasional soreness
until this date when, while making a common, slight turning movement of the
upper torso, he felt a sharp, severe pain in his lower back that did not go
away.

4.  Statements, dated 25 August 1997 and 7 October 1997, from the
applicant's commander and his section noncommissioned officer in charge
(NCOIC), indicated the applicant had a few medical problems but the most
detrimental of those problems concerned his knees.  The applicant struggled
with managing the pain and swelling in his knees, and the condition of his
knees continued to deteriorate.

5.  The MEB Narrative Summary noted the applicant's chief complaint as
bilateral knee pain, right greater than left.  A past history of pars
planitis, PPD (purified protein derivative, a test to determine exposure to
tuberculosis)/tuberculosis exposure, and nephrolithiasis (for which he had
multiple episodes since 1993, the last in January 1996).  The Narrative
Summary indicated the applicant was referred to Urology as part of the MEB
process, which found him in good health without any need for intervention.
The MEB referred him to a PEB for diagnoses of (1) left knee traumatic
arthritis; (2) right knee medial and lateral meniscus tear status post
debridement; (3) nephrolithiasis; (4) pars planitis; and (5) history of
positive PPD.  On 2 December 1997, the applicant agreed with the MEB's
findings and recommendation.

6.  An MEB Addendum dated 16 December 1997 found the applicant's left knee
to be unchanged.  His right knee was found to have a posterior horn medial
mensical tear and chondromalacia of the medial femoral condyle.
Arthroscopy was to be performed in January 1998.

7.  By memorandum dated 30 March 1998, the PEB proceedings pertaining to
the applicant were discontinued because the 16 December 1997 MEB Addendum
indicated he was to undergo arthroscopy on his right knee in January 1998.
Apparently in response to this memorandum, the Department of Orthopedic
Surgery, on 14 April 1998, indicated the applicant had no complaints and
was doing well with rehabilitation.

8.  On 23 April 1998, a PEB found the applicant to be unfit for bilateral
knee pain, status post bilateral arthroscopy with mensical repair
(diagnoses 1 and 2), under Department of Veterans Affairs Schedule for
Rating Disabilities (VASRD) code 5003.  Diagnoses 3, 4, and 5 were found to
be not unfitting.  The PEB recommended the applicant be separated with
severance pay with a 20 percent disability rating.  Page 2 of the DA Form
199 (Physical Evaluation Board (PEB) Proceedings) is not available so it
cannot be determined if the applicant concurred with the findings of the
PEB or appealed the recommendation.

9.  Page 2 of a Report of Medical Examination, undated, indicated the
applicant was 5 feet, 5 inches in height and weighed 190 pounds and that he
was overweight in accordance with Army Regulation 600-9 and currently on
the weight control program.

10.  On 10 August 1998, the applicant was honorably discharged for
disability, with severance pay, in pay grade E-4.  He had completed a total
of 8 years,        8 months, and 22 days of creditable active service.

11.  On 10 December 1998, the DVA denied the applicant service connection
for a low back condition (but continued a 10 percent rating for a left knee
condition, awarded a 10 percent rating for a right knee condition, awarded
a zero percent rating for nephrolithiasis, and awarded a zero percent
rating for pars planitis).

12.  On 21 November 2001, the DVA awarded the applicant a 20 percent
disability rating for degenerative disc disease, lumbar spine effective
            21 November 2000.  On 9 March 2004, the DVA changed the
effective date of this rating to 11 August 1998.

13.  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.  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.  In each case, it is necessary to compare
the nature and degree of physical disability present with the requirements
of the duties the Soldier reasonably may be expected to perform because of
his or her office, grade, rank, or rating.

14.  Army Regulation 635-40 states that, once a Soldier is determined to be
physically unfit for further military service, percentage ratings are
applied to the unfitting conditions.  The fact a Soldier has a condition
listed in the VASRD does not equate to a finding of physical unfitness.  An
unfitting, or ratable condition, is one which renders the Soldier unable to
perform the duties of his or her office, grade, or rank in such a way as to
reasonably fulfill the purpose of his or her employment on active duty.
There is no legal requirement in arriving at the rated degree of incapacity
to rate a physical condition which is not in itself considered
disqualifying for military service when a Soldier is found unfit because of
another condition that is disqualifying.  Only the unfitting conditions or
defects and those which contribute to unfitness will be considered in
arriving at the rated degree of incapacity warrant retirement or separation
for disability.

15.  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.

16.  Title 38, U. S. Code, sections 1110 and 1131, permits the DVA to award
compensation for a medical condition which was incurred in or aggravated by
active military service.  The DVA, however, is not required by law to
determine medical unfitness for further military service.

17.  Until certain provisions of the law were changed in fiscal year 2004,
a common misconception was that veterans could receive both a military
retirement for physical unfitness and a DVA disability pension.  Under the
law prior to 2004, a veteran could only be compensated once for a
disability.  If a veteran was receiving a DVA disability pension and the
Board corrected the records to show the veteran was retired for physical
unfitness, the veteran would have had to have chosen between the DVA
pension and military retirement.  The new law does not apply to disability
retirees with less than 20 years of service and retirees who have combined
their military time and civil service time to qualify for a civil service
retirement.

18.  Army Regulation 600-9 establishes policies and procedures for the
implementation of the Army Weight Control Program.  Each Soldier is
responsible for meeting the standards prescribed in the regulation.
Overweight is defined as when a Soldier’s percent of body fat exceeds the
standard specified in the regulation.  Body fat composition will be
determined for personnel whose body weight exceeds the screening table
weight.  A Soldier will be flagged and enrollment in a weight control
program starts on the day the Soldier is informed by the unit commander
that he has been entered in a weight control program.  A medical evaluation
will be accomplished when a Soldier has a medical limitation. If health
care personnel discover no underlying or associated disease process is the
cause of the condition and the individual is classified as overweight, the
individual will be entered in a weight control program.

19.  Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions
(Flags)) states flags for weight control block attendance at full-time
civil or military schooling, promotion, assumption of command, and
reenlistment or extension.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his pars planitis continues, that his
nephrolithiasis continues to occur and now requires surgery, and that his
lower back pain is now properly diagnosed as lumbar disc displacement with
herniation and rated at 20 percent service-connected disabling by the DVA
have been considered.

2.  However, the rating action by the DVA does not necessarily demonstrate
an error or injustice on the part of the Army.  The DVA, operating under
its own policies and regulations, assigns disability ratings as it sees
fit.  The DVA is not required by law to determine medical unfitness for
further military service in awarding a disability rating, only that a
medical condition reduces or impairs the social or industrial adaptability
of the individual concerned.

3.  The applicant's commander and his section NCOIC had indicated the
applicant could not perform his military duties primarily because of his
knee conditions.  There was no indication that his visual problem or his
kidney stones hampered his ability to perform his duties.  As for his back
pain, the applicant himself stated, in his 3 January 2003 letter, that the
DVA noted in their               10 December 1998 decision that only
occasional soreness had been felt       since 1997 and he continued to feel
only routine, occasional soreness until       12 September 2000.
Therefore, there is insufficient evidence to show his back condition
rendered him unfit to perform his duties at the time of his separation.

4.  In addition, when a Soldier is found unfit for any variety of diagnosed
conditions which are rated essentially for pain, a maximum rating of 20
percent may be assigned, either for a single diagnosed condition or for a
combination of
diagnosed conditions each rated essentially for a pain value.  The
applicant had already received the maximum 20 percent disability rating for
bilateral knee pain. He could not have received a higher rating even if his
back pain had been considered.

5.  The applicant contends his inability to comply with the Army Weight
Control Program was due to the medical conditions that limited his ability
to exercise.  This argument has no merit.  Since the applicant was entered
into a weight control program, administrative regularity is presumed.
Therefore, it would seem that health care personnel discovered no
underlying or associated disease process was the cause of his condition.
Exercise is only one component of a weight control program.  Presumably,
health care personnel felt the applicant could control his weight by
calorie restriction.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__lds___  __reb___  __rmn___  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.




                                  __Linda D. Simmons____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050007386                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060112                                |
|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.                      |                                        |


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