MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           21 January 1999                   
	DOCKET NUMBER:   AC98-07503/AR1998013835

	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:

	Ms. Karen J. Newsome		Chairperson	
	Mr. Fred N. Eichorn		Member	
	Mr. John P. Infante		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:  In effect, that the reason for his discharge be changed to physical disability with severance pay and that CHAMPUS pay his past due medical bills.

APPLICANT STATES:  In effect, that he was an airborne infantryman.  He made numerous parachute jumps, including combat jumps, with no problems until one jump he made while at the Air Assault school in March 1992.  The wind caught his chute when he hit the runway and dragged him a distance.  Soon after he began to experience a sharp pain in his back.  He did not seek medical attention at first because he thought he was too young to have back problems.  He sought medical help in January 1993 and was diagnosed with pseudoarthosis.  In May 1993 he underwent a spinal fusion.  He was in a body cast for over a month.  Physical therapy gradually increased the amount of exercise he should have been able to perform, but by December 1993 he was placed on a permanent profile and his records were reviewed by a medical board.  That board determined his back pain was caused by a birth defect.  He was given two days to decide if he would concur or nonconcur.  He concurred because he was taught the Army takes care of its own.  He continued to have back problems and had to have surgery to correct the Army’s surgery.  The VA has rated him at 20 percent for his service connected back injury.

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

He enlisted in the Regular Army on 18 July 1990.  He completed basic training and advanced individual training and was awarded military occupational specialty 11B (Infantryman.).  He completed Basic Airborne training in November 1990.  He completed Air Assault training in April 1992.

On 10 May 1993, the applicant was discharged from the hospital after having a right L5-S1 lateral posteriolateral fusion performed.  The diagnosis was right L5-S1 pseudoarthrosis.

On 6 December 1993, the applicant was given a permanent physical profile due to status post low back surgery.  

On 3 January 1994, the applicant was evaluated prior to Medical Evaluation Board (MEB) proceedings.  The evaluation write-up, History of Present Illness, noted that “X-rays at that time revealed pseudoarthrosis at L5/S1.”

On 1 February 1994, a MEB diagnosed the applicant with failed back surgery with persistent low back pain and recommended referral to a Physical Evaluation Board (PEB).  The applicant agreed with the findings and recommendation.

On 11 February 1994, an informal PEB found the applicant had low back pain status post surgical fusion of L5/S1 vertebra and transverse processes and that it existed prior to his entry in the service (EPTS) without permanent aggravation by documented injury while on active duty.  The PEB recommended separation without disability benefits.  On 17 February 1994, the applicant concurred with the findings and recommendations of the PEB and waived a formal hearing of his case.

On 31 March 1994, the applicant was discharged, in pay grade E-4, under the provisions of Army Regulation 635-40, for a disability that existed prior to service. He did not receive severance pay.  He had completed 3 years, 8 months and     13 days of creditable active service and had no lost time.

In July 1994, a VA examination noted “…L5 is partially sacralized, with a pseudoarthrosis between the lateral mass of L5 .…”

On 31 March 1995, the VA denied service connection for the applicant’s back condition.

On 14 February 1996, the VA granted the applicant a 20 percent evaluation for his back condition.

In April 1997, a VA examination noted “…There is loss of disk height…consistent with degenerative disk disease….”

In the processing of this case, staff advisory opinions (COPIES ATTACHED) were obtained from the U.S. Army Physical Disability Agency (USAPDA) and the Medical Advisor to the Army Review Boards Agency.  The opinions contain no information, advice or recommendation which would constitute a basis for granting the relief requested.

The applicant did not submit a rebuttal to these opinions.

Dorland’s Illustrated Medical Dictionary, 26th edition, defines Pseudoarthrosis as “a pathologic entity characterized by deossification of a weight-bearing long bone, followed by bending and pathologic fracture with inability to form normal callus leading to existence of the “false joint” that gives the condition its name.”

Army Regulation 635-40 sets forth policies, responsibilities and procedures that apply in determining whether a soldier is unfit because of physical disability to reasonably perform his or her duties.  In pertinent part, it states that according to accepted medical principles, certain abnormalities and residual conditions exist that, when discovered, lead to the conclusion that they must have existed or have started before the individual entered the military service.  Examples of such conditions include congenital malformations and hereditary conditions.  Likewise, symptoms of chronic disease will be accepted as proof that the disease existed prior to entrance into active military service.
Title 10 U. S. Code, section 1203, provides that a member may be separated with severance pay if the disability was the proximate result of performing active duty.

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.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinions, 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.  The applicant was diagnosed with right L5-S1 pseudoarthrosis in May 1993.  
In July 1994, a VA examination noted “…L5 is partially sacralized, with a pseudoarthrosis between the lateral mass of L5 .…”  In April 1997, a VA examination noted “…There is loss of disk height…consistent with degenerative disk disease….”  Three different medical opinions determined that the applicant had a congenital condition.

3.  Severance pay is not authorized when the medical condition is determined to have existed prior to entry in service.

4.  The VA nonetheless awarded the applicant a 20 percent evaluation for his back condition.  The rating action by the VA does not necessarily demonstrate an error or injustice in the Army rating.  The VA, operating under its own policies and regulation, assigns disability ratings as it sees fit.  Any rating action by the VA does not compel the Army to modify its rating.

5.  Since the VA granted the applicant a 20 percent evaluation for his back condition effective 1 April 1994, recommend he apply to the VA for any further benefits that would help him with his CHAMPUS bills.

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

__KJN___  __FNE___  __JPI___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC9707503/AR1998013835	
SUFFIX		
RECON		
DATE BOARDED	19990121	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.