MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            21 April 1999 
	DOCKET NUMBER:   AR1998012989

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. Gary F. Geraets		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 disability discharge be changed to a medical retirement.

APPLICANT STATES:  That his back condition should have been rated under diagnostic code 5293 and his other two major disabilities (depression and urticaria) should have been rated.

COUNSEL CONTENDS:  Counsel makes no contention.

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

He enlisted in the Regular Army on 15 May 1986.  He completed basic training and advanced individual training and was awarded military occupational specialty 68D (Aircraft Powertrain Repairer).  He served in Southwest Asia.

The applicant’s Non-Commissioned Officer Evaluation Report (NCO-ER) for the period ending September 1994 shows that he scored 291 (out of a maximum of 300 points) on his Army Physical Fitness Test (APFT) in May 1994 and that he was selected for the Post Boxing Team.  His Academic Evaluation Report for the period 4 October – 16 December 1994, for his attendance at the Basic Non-Commissioned Officer Course, showed he demonstrated superior physical fitness by scoring 300 on the APFT and that he demonstrated excellence in basic soldiering skills.

On 16 August 1995, the applicant received a physical profile because of mechanical low back pain.

On 15 September 1995, the applicant was evaluated by a Medical Evaluation Board (MEB) for a chief complaint of low back pain since October 1994 and right leg pain since 1991.  The MEB narrative summary noted that there were at least 19 recorded visits for medical care in regards to low back pain symptoms.  There were also visits since 1986 in regards to chronic urticaria that was either labeled as cholinergic urticaria or cold-induced urticaria.  An orthopedic consultation for the MEB noted the applicant had a four-year history of low back pain that was getting worse over the last year, particularly since last October.  It noted he had severe pain and was largely crippled by his back pain.  The pain was out of proportion to the physical findings but he was nevertheless incapacitated by it.  He was referred for a psychiatric consultation.  Orthopedics diagnosed him with disk bulge, mechanical low back pain and sciatica.  

The psychiatric consultation diagnosed him with an occupational problem and physical health problems and occupational dissatisfaction and recommended he be medically boarded based on his physical disabilities.

The MEB diagnosed the applicant with mechanical low back pain with broad-based disc bulge at L4/L5, no impingement on nerve roots; sciatica, right lower extremity; and chronic recurring urticaria either cholinergic or cold-exposure induced.  It was recommended he be referred to a Physical Evaluation Board (PEB).  The applicant agreed with the MEB’s findings and recommendation.

On 22 April 1996, a formal PEB found the applicant unfit to perform the duties required of a sergeant in his MOS by reason of mechanical low back pain, with a broad-based disc bulge at L4/L5, no impingement of nerve roots, but with episodic mild symptom of right sciatica at a disability rating of 20 percent, under VA code 5295.  His chronic recurring urticaria was found to be not unfitting and therefore not ratable. 

On 30 April 1996, the applicant nonconcurred and provided a rebuttal (SEE ATTACHED).  The Madigan Army Medical Center PEB addressed the applicant’s rebuttal.  In regards to a requested rating of 30 percent for cholinergic urticaria, a review of the applicant’s health record indicates onset of those symptoms within the first few months of service.  While troublesome, no restrictive profile was found in his medical records that mentioned that diagnosis or the need to restrict duty activities because of that diagnosis.  Therefore, a finding of unfitness was not believed appropriate.  His request for a rating of at least 40 percent to include diagnostic code 5293 and 5295, intervertebral disc syndrome was not appropriate in the absence of a ruptured disc.  Also, there was no evidence of impingement of any of the lumbar nerve roots.  The PEB noted that sciatica is a descriptive term for pain radiating down the leg and may have several different etiologies besides a ruptured disc, including spasm of back muscles (which was included in the rating).  After a careful review of his case, the PEB adhered to the original findings and recommendations of the formal hearing.

On 19 June 1996, the applicant was discharged, in pay grade E-5, under the provisions of Army Regulation 635-40, by reason of a disability with severance pay and a disability rating of 20 percent.  He had completed 10 years, 1 month and 5 days of creditable active service.

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.  The regulation defines “physically unfit” as unfitness due to physical disability.  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 purpose of his employment on active duty.  “Physically unfit” is synonymous with “unfit because of physical disability.”

Appendix B of Army Regulation 635-40 states that, as regards VA codes 5293, intervertebral disc syndrome and code 5295, lumbosacral strain, that a 40 or 60 percent disability rating will be predicated upon objective medical findings of neurological involvement.  Lesser ratings will begin with 0 percent 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.

The Department of Veterans Affairs Schedule for Rating Disabilities (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.  Unlike the VA, the Army must first determine whether or not a soldier is fit to reasonably perform the duties of his office, grade, rank or rating.  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.

The VASRD gives a disability rating of 20 percent for a diagnosis of lumbosacral strain with muscle spasm on extreme forward bending, loss of lateral spine motion unilateral, in standing position.  A rating of 40 percent would be appropriate if pain was severe, with listing of whole spine to the opposite side, positive Goldthwaite’s sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion.

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

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.

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

1.  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 submit evidence that would satisfy the aforementioned requirement.

2.  VASRD 5293 describes intervertebral disc syndrome with symptoms either persistent, severe and recurring or moderate and recurring that are compatible with sciatic neuropathy.  Army Regulation 635-40, appendix B states that a 40 or 60 percent disability rating will be predicated upon objective medical findings of neurological involvement.  Medical evaluation determined that while the applicant had mechanical low back pain with broad-based disc bulge at L4/L5, there was no impingement on nerve roots.

3.  Evidence in the applicant’s medical records indicated that he had symptoms of cholinergic urticaria within the first few months of service.  There is no evidence he ever had a profile for this condition nor that it ever made him unfit to perform his duties; therefore, he cannot be rated for this condition.

4.  The only evidence of depression in the applicant’s records occurred during his MEB.  There is no evidence he ever had a profile for this depression nor that it ever made him unfit to perform his duties; therefore, he cannot be rated for this condition.

5.  The VA operates under its own policies and regulation and assigns disability ratings as it sees fit.  If the applicant has not already done so, he should request the VA make a determination as to his disabilities/ratings.  However, any rating action by the VA would not compel the Army to modify its findings or ratings. 

6.  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

__CMF___  __SK____  __GFG___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1998012989	
SUFFIX		
RECON		
DATE BOARDED	19990421	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	108.01	
2.	108.02	
3.		
4.		
5.		
6.