MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            3 March 1999                  
	DOCKET NUMBER:   AC98-09620
		                        AR1999016514

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mr. Ed Clark		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor		Chairperson	
	Mr. Edward Williamson		Member	
	Mr. Gary C. Miller		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That his military records be corrected by showing that he was placed in temporary disability retired list (TDRL) status, vice separation with entitlement to disability severance pay.

APPLICANT STATES:  That while serving on active duty he was diagnosed with severe Osgood-Schlatter's disease (painful enlargement of the tibia, just below the knee); and that he was awarded a 40 percent rating by the VA for the same medical condition "with a future examination since this disability may be subject to improvement.  Hence, I request consideration to be placed on the TDRL with a future review in compliance with regulatory guidelines."

EVIDENCE OF RECORD:  The applicant's military records show:

He entered active duty on 22 July 1993.  He served as an automated logistical specialist and attained pay grade E-4.

On 2 December 1996 an informal physical evaluation board (PEB) found him physically unfit by reason of bilateral knee pain due to patellar (kneecap) tendonitis and Osgood-Schlatter's disease.  The applicant concurred with the findings and recommendation of the PEB and waived his right to a formal hearing of his case.

On 28 January 1997, with 6 years and 7 days total active service, he was honorably discharged with entitlement to disability severance pay in the amount of $9,964.80.

A VA Rating Decision shows that he was awarded a combined 40 percent rating, effective 29 January 1997 for bilateral Osgood-Schlatter's disease.  He was awarded a zero percent rating for a skin condition and denied service connection for a low back condition and residuals of an upper respiratory infection.

On 22 September 1998 the Board was advised (COPY ATTACHED) by the Physical Disability Agency (USAPDA) that the applicant was properly rated 
20 percent disabled under VA Schedule for Rating Disabilities Code 5003; that a 40 percent rating requires occasional incapacitating exacerbations which were not present at the time of his PEB; and that the applicant's condition was stable for rating purposes.  Denial of the application was recommended.

On 24 September 1998 he was provided a copy of the advisory opinion and advised that he could submit a rebuttal within 30 days.  He did not respond. 

The American Medical Association Encyclopedia of Medicine describes 
Osgood-Schlatter disease as the painful enlargement of the bony prominence just below the knee caused by excessive, repetitive pulling of the quadriceps muscle.  "Osgood-Schallter disease usually clears up completely without treatment; if pain is severe the knee may be immobilized in a plaster cast."

Army Regulation 635-40, Physical Evaluation for Retirement, or Separation, paragraph 7-2, provides that an individual's name may be placed on the TDRL when it is determined that the individual is qualified for disability retirement under Title 10, United States Code, section 1201 (a rating of 30 percent or higher) but for the fact that his or her disability is determined not to be of a permanent nature and [is not] stable.  The TDRL will not be used for convalescence.  When an individual's correct rating is less than 30 percent, a rating will not be increased to 30 percent solely for the purpose of making an individual eligible for the TDRL.

Army Regulation 635-40, Physical Evaluation for Retirement, or Separation, Appendix B, Army Application of the VASRD, paragraph B-24, VASRD Code 5003, Arthritis, degenerative, hypertrophic and pain conditions rated by analogy to degenerative arthritis, provides that inasmuch as there are no objective medical laboratory testing procedures used to detect the existence of or measure the intensity of subjective complaints of pain, a disability retirement cannot be awarded solely on the basis of pain.  A maximum 20 percent rating by analogy to degenerative arthritis may be awarded as an exception in unusual cases, either for a single diagnosed condition or for a combination of diagnosed conditions each rated essentially for a pain value.  To do otherwise would be to combine pain ratings so as to achieve a percentage of disability that would result in erroneous disability retirement.

Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion, it is concluded:

1.  The applicant was determined to be physically unfit for further military service and properly rated 20 percent disabled by his PEB in accordance with the VASRD and Army Regulation 635-40, Appendix B, paragraph B-24.

2.  Absent a rating of 30 percent or higher, the applicant was not eligible for TDRL status.

3.  Applicant's contention, in effect, that absent the rigors of military service his medical condition will improve and his VA disability rating will be reduced and therefore he should be placed in TDRL status until this occurs is not a sufficient basis on which to grant his request.  Army Regulation 635-40, paragraph 
7-2, specifically provides that the TDRL will not be used for convalescence.
4.  An award of a higher rating by the VA 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 civilian employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different laws, regulations, and policies, to arrive at a different disability rating based on the same impairment.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

RVC ____  EW_____  GCM____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-09620/AR1999016576	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	YYYYMMDD	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.	108.05	
2.		
3.		
4.		
5.		
6.