RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         24 August 2006
      DOCKET NUMBER:  AR20050013215


      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             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Jeanette R. McCants           |     |Chairperson          |
|     |Mr. Scott W. Faught               |     |Member               |
|     |Mr. Rowland C. Heflin             |     |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, reconsideration of his request that
his disability separation with severance pay be changed to a medical
retirement.

2.  In a letter to a Member of Congress, the applicant states, in effect,
that during its original review of his case, the Army Board for Correction
of Military Records (ABCMR) incorrectly assumed that he ignored the entire
wording of Army Regulation 635-40, paragraph B-39, when he in fact was the
one who provided an entire copy of the paragraph with his application.  He
further states that the information given in the ABCMR's finding regarding
neurological involvement was incorrect because it failed to acknowledge
that leg pain from a back injury is always neurological in origin.  He also
claims that the ABCMR indicated his main complaint was continued right-
sided activity related low back pain; however, leg pain was also part of
his chief complaint, as is documented on his SF 93, which the ABCMR
acknowledged in a separate paragraph.

3.  The applicant also claims that the ABCMR's comment that there was no
evidence of recurrent disc herniation prior to separation was also false,
as evidenced by the note in the clinical evaluation notes portion of the 9
August 1999 SF 88, which contains the abbreviation HNP, which means
herniated nucleus pulpous and R (circled) leg pain, which means right leg
pain.  He states that in other words, he had a herniated disc that caused
neurological pain along the longest nerve in the human body, the sciatic
nerve.  He claims the MRIs he received subsequent to discharge prove the L5-
S1 intravertebral disc was herniated at the time of his discharge, and that
impingement was upon the right sciatic nerve root.  He claims the final
diagnosis of this was obvious on 25 July 2001, when a doctor at the
Minneapolis Department of Veterans Affairs (VA), Medical Center discovered,
during a surgery, that a disc fragment was causing the nerve root to be
compressed superiorly and medically.  He claims at this point, it was
determined the 10 percent (%) disability rating assigned by the Physical
Evaluation Board (PEB) was incorrect.  He claims that while understanding
the difference between the VA and Army standards, the determination of the
more experienced doctors at the VA that neroulogical involvement was
present prior to his discharge, more weight should be given to their
opinion.

4.  The applicant also contests the Board's reliance on the statute of
limitations, in that the law allows three years from the date of discovery,
and the ABCMR's conclusion that he should have discovered the alleged error
on 11 December 1999 is inappropriate given he was never even given an MRI
after he showed clear signs of neurological involvement before discharge,
and it was only after surgery in 2001 was he fully able to demonstrate the
error fully.  Thus, it is only reasonable that the date of discovery should
be 25 July 2001.

5.  The applicant further contends that if the Army had correctly diagnosed
the neurological involvement in 1999, his sciatic nerve would not be
paralyzed as it is today.  Surgery would have been able to remove the
herniated disc before it damaged the sciatic nerve.  He states that he
placed trust in the physicians at Fort Benning, Georgia, and at the PEB
that a good faith effort would be made to fairly levy a rating.  By July
2001, that trust was proven to be misplaced and the errors laid naked as he
laid on the operating table in Minneapolis.  He claims that the condition
was so unstable that within 18 months after his discharge, his sciatic
nerve was completely paralyzed.  Furthermore, the ABCMR should have noted
that he was incapacitated from this injury, which also inhibited his
ability respond to anything.

6.  Additionally, the applicant states that as a separate but noteworthy
issue, the injury he received at West Point should have prevented him from
either being commissioned or attending the Airborne School when he
reinjured his back in the accident.  He claims the Army failed to follow
its own regulations used to protect Soldiers from hurting themselves.  He
states his injury could have been avoided had the Army simply enforced its
regulations.  The medical regulations that support the commissioning of
officers and the evaluation of candidates for Airborne School strictly
prohibit a candidate from service and training with the injury he had.  As
a result, he finds it interesting that the Department of the Army (DA) gets
to pick and choose which regulations it wants to enforce.

7.  The applicant provides the following documents in support of his
application:  Self-Authored Statement; Report of Medical History (SF 93),
dated 19 July 1998; SF 93, dated 16 August 1999; Extract of Physical
Examination, dated 9 August 1999; Operation Report, dated 25 July 2001; and
Compensation and Pension Exam Report (VA Form 2507), dated 2 October 2002.


CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were
summarized in the previous consideration of the applicant's case by the
Army Board for Correction of Military Records (ABCMR) in Docket Number
AR2004101870, on
2 September 2004.

2.  During its original review of the case, the Board acknowledged that the
applicant's deep tendon reflex in the ankles were asymmetrical; however, it
found that this was the only objective sign of neurological involvement,
and that no other laboratory results found objective signs of neurological
involvement.  Further, it concluded that the governing Department of
Defense (DOD) guidance precludes the application of VASRD code 5293.  It
also found that based on his main complaint of low back pain, it appeared
he was properly rated under VASRD code 5295.

3.  The applicant now provides copies of his medical records as new
evidence with his reconsideration request, and he claims the Board
improperly decided his case.

4.  In connection with the processing of the applicant's reconsideration
request, an advisory opinion was obtained from the Deputy Commander of the
United States Army Physical Disability Agency (USAPDA).  This official
states that a review of the packet submitted by the applicant was completed
and it revealed the ABCMR's original findings were complete and accurate.

5.  The USAPDA Deputy Commander further indicates that the applicant's
rebuttal letter provides no significant information that would require a
change to the PEB or ABCMR findings.  He further indicates that the
applicant's main complaint in his Medical Evaluation Board (MEB) was back
pain, and he attempts to refute this with an SF 93 note of leg pain;
however, that does not change the applicant's approval of the subsequent
MEB noting of back pain as his main problem.

6.  The USAPDA Deputy Commander also states that the applicant's physical
examination clearly supports the MEB conclusions.  The Narrative Summary
found all neurological findings (except pain) normal except for one minor
1+ right Achilles deep tendon reflex.  He further indicates the applicant's
pain was minimal and occasional.  There were no obvious radicular symptoms
in lower extremities, and the applicant concurred in all MEB comments and
offered no rebuttal or additions.  He indicates that the applicant also
fully accepted the PEB findings and waived his right to a formal hearing.
7.  The USAPDA official further states that the applicant is now alleging
error by the PEB and ABCMR and cites his higher VA award, an obscure August
1999 one line note of leg pain while running or lifting, and his subsequent
need for back surgery.  The note of leg pain in August 1999, before the MEB
findings were completed, does not provide any evidence that the applicant
had any "objective medical findings of neurological involvement".  A review
of all the physical and neurological findings listed, and approved by the
applicant, clearly shows that the substantial weight of the evidence did
not support any neurological findings that would have made the applicant
unfit for any neurological diagnosis.  Further, the governing DOD guidance
states that "Surgical excision of a disc without evidence of recurrent disc
herniation at the same level or a different level precludes the application
of the 5293 code".   Based on this, the applicant was rated in accordance
with codes 5299/5295 - Back pain, and was precluded from being rated for
"Intervertebral Disc Sydrome."

8.  In addition, the USAPDA Deputy Commander states the applicant's claim
that the "HNP" notation in August 1999 signified a present herniated
nucleus pulposus is simply incorrect.  It merely signifies that the
applicant has had a "HNP".  There is no evidence to suggest that at the
time of the applicant's MEB/PEB, and separation that he had an uncorrected
or recurrent HNP (See also approved MEB diagnosis-Post Surgery-which
confirms this).  In fact, the subsequent operation he had 2 years later
noted it was a recurrent "HNP", which implies that is was not an old
uncorrected HNP, but one that manifested itself later.  There is no
evidence to indicate that such recurrence occurred before the applicant was
separated.

9.  The USAPDA Deputy Commander concludes by stating that even if one could
show that there was some neurological involvement affecting the applicant's
leg(s) at that time, it would not have been independently unfitting.  All
the physical evidence in existence at the time revealed that the
applicant's physical strength and ability to ambulate effectively was not
substantially affected.  Finally, this official states that the
preponderance of the evidence supports the MEB and PEB findings.  There was
no material error injustice committed and all regulatory guidelines and
procedures were properly followed.

10.  On 16 August 2006, a rebuttal to the USAPDA advisory opinion, dated
17 July 2006, was received from the applicant.  He states, in effect, that
he waived his right to a formal PEB hearing based on his assumption that
the Army made a good faith effort to provide accurate information regarding
the medical findings; however this was not the case.  He claims that
medical examinations both before and after the MEB decision and before and
after his discharge indicate that radiating pain existed before discharge
from active duty.
11.  In his rebuttal, the applicant goes on to contest the USAPDA Deputy
Commander's statements regarding the notations in his medical record
regarding leg pain and his HNP condition.  He lists five medical treatment
record notations in support of his argument on this subject.  He further
outlines the VA treatment and findings on this matter that have taken place
since his separation, which he contends supports his contention that this
condition should have been evaluated and resulted in a disability rating
from the PEB.

12.  Army Regulation 635-40 establishes the Army Physical Disability
Evaluation System (PDES) and sets forth policies, responsibilities, and
procedures that apply in determining whether a Soldier is unfit because of
physical disability to reasonably perform the duties of his or her office,
grade, rank, or rating.  Paragraph 3-1 contains guidance on the standards
of unfitness because of physical disability.  It states, in pertinent part,
that the mere presence of 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 their office, grade, rank, or rating.

13.  Paragraph 3-5 of the PDES regulation contains guidance on rating
disabilities. It states, in pertinent part, that 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 warranting retirement or separation for disability.

14.  Title 38, United States Code, sections 1110 and 1131, permits the
Department of Veterans Affairs (VA) to award compensation for a medical
condition which was incurred in or aggravated by active military service.
The VA, however, is not required by law to determine medical unfitness for
further military service.

15.  The VA, in accordance with its own policies and regulations, awards
compensation solely on the basis that a medical condition exists and that
said medical condition reduces or impairs the social or industrial
adaptability of the individual concerned.  The VA can evaluate a veteran
throughout his lifetime, adjusting the percentage of disability based upon
that agency's examinations and findings.  However, these changes do not
call into question the application of the fitness standards and the
disability ratings assigned by proper military medical authorities during
the applicant’s processing through the Army PDES.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was not properly assigned a
disability rating based on a neurological condition he suffered from while
on active duty, and the supporting evidence he submitted were carefully
considered.  However, there is insufficient evidence to support this claim.


2.  By regulation, only the unfitting conditions or defects and those which
contribute to unfitness will be considered in arriving at the rated degree
of incapacity warranting retirement or separation for disability.  The
evidence of record confirms the applicant was properly processed through
the PDES.  All requirements of law and regulation were met, and the rights
of the applicant were fully protected throughout this process.

3.  The evidence also confirms the applicant concurred with the findings
and recommendations of both the MEB and PEB, and that these findings and
recommendation were subsequently approved for The Secretary of the Army,
and the applicant was discharged accordingly.

4.  The medical evidence now submitted by the applicant, with the exception
of the VA medical records documenting treatment subsequent to his
discharge, was available to and reviewed by the PEB during its
deliberations.  The VA treatment records now provided by the applicant,
which show he has subsequently been treated for a service connected
neurological condition, do not provide evidence that this condition was
unfitting for further service at the time he was processed through the Army
PDES.  Further, as noted in the USAPDA advisory opinion there was no
clinical evidence to support evaluation or rating of the condition in
question by the PEB.

5.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
provide any new medical evidence that would call into question the original
decision of the PEB.  As a result, there is an insufficient evidentiary
basis to support a change to his disability rating, or to support his
medical retirement at this time.

6.  The applicant is advised that while both the Army and the VA use the
VASRD, not all of the general policy provisions set forth in the VASRD
apply to the Army.  The Army rates only conditions that are determined to
be physically unfitting for further military service, thereby compensating
the individual for the loss of his or her military career.  The VA,
however, may rate any service connected impairment, thus compensating for
loss of civilian employment.
7.  In addition, the VA may award compensation solely on the basis that a
medical condition exists and that said medical condition reduces or impairs
the social or industrial adaptability of the individual concerned.  t can
also evaluate a veteran throughout his lifetime, adjusting the percentage
of disability based upon that agency's examinations and findings.  However,
any change in the disability rating granted by the VA would not call into
question the application of the fitness standards and the disability
ratings assigned by proper military medical authorities during the
applicant’s processing through the Army PDES.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JRM _  __SWF__  __RCH__  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 to amend the decision of
the ABCMR set forth in Docket Number AR2004101870, dated 2 September 2004.




                                  ____Jeanette R. McCants___
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050013215                           |
|SUFFIX                  |                                        |
|RECON                   |AR2004101870  / 2004/09/02              |
|DATE BOARDED            |2006/08/24                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1999/12/11                              |
|DISCHARGE AUTHORITY     |AR 635-40                               |
|DISCHARGE REASON        |Disability with Severance Pay           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  177  |108.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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