RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        10 AUGUST 2006
      DOCKET NUMBER:  AR20050012318


      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. Curtis Greenway               |     |Chairperson          |
|     |Mr. James Gunlicks                |     |Member               |
|     |Ms. Peguine Taylor                |     |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 an increase in his Army disability rating
percentage.

2.  The applicant states, via his legal advisor, that since his discharge
in 2003 he has been diagnosed as trauma induced Charcot-Marie-Tooth
syndrome and that his condition has continued to get worse.  He states the
full extent of his disability was not appreciated at the time of his
discharge.  He maintains that recent medical documents are evidence which
would have warranted a higher percentage of disability if they had been
presented before his discharge.

3.  The applicant provides copies of medical treatment documents from the
Department of Veterans Affairs spanning the period December 2002 through
March 2005.  He also submits copies of his Department of Veterans Affairs
rating documents.

CONSIDERATION OF EVIDENCE:

1.  Records available to the Board indicate the applicant served an initial
period of active duty as a member of the Regular Army between 1980 and
1983.  Following his release from active duty he has been affiliated with
either the Army National Guard or the United States Army Reserve except for
a break in service between 1986 and 1991 and again for several months in
1992.

2.  In November 1998 he enlisted in the United States Army Reserve for a
period of 6 years.

3.  In May 1999 he complained of painful feet and sought medical attention.
 He was treated with shoe inserts and medication and given a temporary
physical profile. In November 1999 he was seen as an outpatient for chronic
low back pain and pain in his shoulder.  In January 2000 he missed his unit
drill because of his back pain.

4.  A 15 June 2000 statement notes the applicant performed his duties as a
member of the United States Army Reserve until March 2000 when he could no
longer perform drill because of his medical issues.

5.  In July 2000 the applicant was referred to a Medical Evaluation Board
(MEB) as a result of his inability to perform the duties of his military
specialty.  The MEB summary noted the applicant began experiencing low back
pain and some burning in his feet in April 1999 while deployed to Germany
in support of activities in Kosovo.  The summary noted the applicant’s
symptoms worsened over time and eventually were attributed to a disc
problem.  The summary also noted the applicant had initially injured his
right shoulder in 1982, underwent reconstructive surgery in 1998 and
ultimately received a disability rating of 30 percent from the Department
of Veterans Affairs.  The examining physician noted the applicant’s
persisted in noting significant low back pain, limitation of motion, and
burning sensation involving both lower extremities, and that the symptoms
persisted despite physical therapy and activity modification.  The
physician also noted the applicant had some persistent pain in his right
shoulder but noted good stability in spite of some numbness and tingling in
the right hand.  The physician recommended the applicant appear before a
Physical Evaluation Board (PEB).

6.  It is unclear if the applicant ever underwent a PEB as a result of the
July 2000 MEB recommendation.

7.  In November 2000 the applicant was seen by a neurologist who concluded
the applicant suffered from chronic mechanical low back pain secondary to a
military injury in 1999, degenerative disc disease and bulging disc, and
chronic right shoulder pain.

8.  In May 2001 members of the applicant’s chain of command noted his
medical conditions precluded deployment and hampered his ability to perform
his duties.  They recommended he be discharged.

9.  In October 2002 the applicant underwent another MEB.  The applicant’s
chief complaint during this MEB was low back, leg, and foot pain.  The
applicant indicated he had suffered from low back pain off and on since
1980 when he was on jump status.  He noted in 1999 while on annual training
in Germany, he developed the sudden onset of burning pain in his feet after
doing some heavy lifting and that over the next several days the pain
migrated to his lower back.  The examining physician noted his earlier
referral to the PEB but also stated that his proceedings met with several
delays during which he had several consultations.  She stated that the
applicant continued to have chronic low back pain and pain in his legs and
feet.  She noted his shoulder pain but stated there was no indication that
it caused any significant limitations on his military training or duties.
She indicated, as part of his past medical history, that the applicant also
suffered from depression and irritability but had no formal treatment in
mental health.

10.  The MEB summary noted the examining physician report noted tenderness
to pressure in the applicant’s shoulder, had good range of motion in the
shoulder, but that his lumbar spine was tender to pressure and that two of
the five Waddell signs were present.  Muscle strength was normal.  She
noted the applicant had not drilled with his unit since March 2000, was
unable to work because of his low back and lower extremity pain and had
received unemployment compensation from the Department of Veterans Affairs.
 His prognosis was stable.  She noted the applicant did not meet medical
retention standards because of his back and shoulder conditions.

11.  On 25 October 2002 the applicant nonconcurred with the findings and
recommendation of the MEB and submitted a rebuttal.  His rebuttal stemmed
from his desire to have his physical profile ratings increased.

12.  On 27 November 2002 an informal PEB concluded the applicant’s low back
pain precluded performance of his military duties and recommended
separation with a 10 percent disability rating.  His chronic shoulder pain
was rated at 0 percent.  The informal PEB recommended separation with
entitlement to severance pay, if otherwise eligible.  The applicant
nonconcurred and demanded a formal hearing.

13.  A formal PEB convened on 15 January 2003 and increased the applicant’s
low back pain condition to 20 percent and recommended separation with
entitlement to severance pay.  The applicant apparently disagreed although
his rebuttal was not in records available to the Board.  By April 2003 the
United States Army Physical Disability Agency concluded that the
applicant’s case had been properly adjudicated and that the additional
medical information submitted to the board provided no new evidence which
would have warranted increasing his disability rating.

14.  The applicant was discharged from the United States Army Reserve on
14 May 2003 with a disability rating of 20 percent.

15.  As background, Charcot-Marie-Tooth Disease (CMT) is the most commonly
inherited neurological disorder affecting approximately 150,000 Americans.
CMT patients slowly lose normal use of their feet/legs and hands/arms as
nerves to the area degenerate and the muscles in the extremities become
weakened because of the loss of use by the affected nerves.  CMT usually is
not life-threatening and almost never affects brain function.  It is
sometimes surgically treated, can vary in severity, even within the same
family, does not affect life expectancy, but has no cure.

16.  A consult report from 2004 notes that the applicant was a 43 year old
male with “probable” Charcot-Marie-Tooth Disease, and progressive lower
extremity weakness and disability.  A 2005 consult report also noted
Charcot-Marie Tooth Disease and that surgery was possible and triple
arthrodesis exist for the applicant but they would be down the road as
necessary.

17.  Other medical documents also noted the applicant continued to seek and
receive treatment for his low back and bilateral leg pain after his
discharge from the United States Army Reserve.  A May 2005 medical summary
noted his Charcot-Marie-Tooth Disease and chronic low back pain were both
presently stable.  Another report, dated in January 2005, indicated that
the physician was not entirely convinced the applicant suffered from
Charcot-Marie-Tooth Disease and that his disability was instead related to
his pain syndrome from his back injury and less related to a possible
hereditary neuromuscular disorder.

18.  Department of Veterans Affairs (VA) documents, provided by the
applicant, notes that he was originally awarded a 20 percent disability
rating for both the left and right lower extremity radiculopathy associated
with low back condition, degenerative disc disease.  In August 2004 those
ratings were both increased to 30 percent and the diagnosis was changed to
Charcot-Marie-Tooth Disease.

19.  Army Regulation 635-40, which establishes the policies and procedures
for the separation of Soldiers because of disability states that the
objectives of the disability system are to maintain an effective and fit
military organization with maximum use of available manpower, to provide
benefits for eligible Soldiers whose military service is terminated because
of a service-connected disability and to provide prompt disability
processing while ensuring that the rights and interests of the Government
and the Soldier are protected.  It notes that the overall effects of all
disabilities present in a Soldier whose physical fitness is under
evaluation must be considered.  The effect will be considered both from the
standpoint of how the disabilities affect the Soldier’s performance and the
requirements imposed on the Army to maintain and protect him or her during
future duty assignments.  A Soldier may be unfit because of physical
disabilities caused by a single impairment or physical disabilities
resulting from the overall effect of two or more impairments even though
each of them, alone, would not cause unfitness.  Findings with respect to
fitness or unfitness for military service will be made on the basis of the
preponderance of the evidence.  Thus, if the preponderance of evidence
indicates unfitness, a finding to that effect will be made.

20.  Title 10, United States 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.

21.  Title 10, United States Code, Section 1201, provides for the physical
disability retirement of a member who has at least 20 years of service or a
disability rated at least 30 percent.

22.  Army Regulation 635-40, also notes that 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.

23.  Title 38, United States Code, permits the VA to award compensation for
disabilities which were incurred in or aggravated by active military
service.  However, an award of a higher VA rating does not establish error
or injustice in the Army rating.  An Army disability rating is intended to
compensate an individual for interruption of a military career after it has
been determined that the individual suffers from an impairment that
disqualifies him or her from further military service.  The VA, which has
neither the authority nor the responsibility for determining physical
fitness for military service, awards disability ratings to veterans for
conditions that it determines were incurred during military service and
subsequently affect the individual's employability.  Accordingly, it is not
unusual for the two agencies of the Government, operating under different
policies, to arrive at a different disability rating based on the same
impairment.  Furthermore, unlike the Army the VA can evaluate a veteran
throughout his or her lifetime, adjusting the percentage of disability
based upon that agency's examinations and findings.

DISCUSSION AND CONCLUSIONS:

1.  The Board notes the applicant's chief complaint throughout his
disability processing was pain and the fact that his condition has now been
identified as a degenerative nerve disease does not change the underlying
basis for his separation from the Army.  As such, his Army disability
rating of 20 percent was appropriate.  A rating high enough to warrant
disability retirement is precluded when the primary basis for the unfitting
condition is pain.

2.  The fact that the applicant’s lower extremity condition now has been
diagnosed as a degenerative nerve disease does not serve as a basis to
increase his Army disability rating.  The medical evidence available to the
MEB and PEB at the time of the applicant’s disability processing remains
valid in spite of the fact that a subsequent diagnosis was made.

3.  Although the applicant has continued to experience problems since his
separation from the Army, or that he ultimately suffered additional
problems because of various medical conditions, is not evidence that any
error or injustice occurred in his Army disability processing.

4.  There is no evidence that the Army’s rating was in error or unjust.
The VA initially rated the applicant’s condition at only 20 percent, the
same rating as the Army.  However, a subsequent increase in the VA rating
would not necessarily demonstrate any error or injustice in the Army
rating.  The VA, operating under its own policies and regulations, assigns
disability ratings as it sees fit.  Any rating action by the VA does not
compel the Army to modify its rating.

5.  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 the aforementioned requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___CG __  ___JG __  __PT  ___  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.





                                  _____Curtis Greenway_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050012318                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060810                                |
|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.                      |                                        |


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