MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           2 December 1999                  
	DOCKET NUMBER:   AR1999018218

	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. Sherri V. Ward		Chairperson	
	Mr. Van B. Cunningham		Member	
	Ms. Barbara J. Ellis		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 physical disability rating be increased to at least 30 percent.

APPLICANT STATES:  That crucial medical evidence was not available for the physical evaluation board (PEB) to make an informed decision.  He requested an extension to complete a medical examination which would allow him to obtain evidence that would answer the PEB’s concern that his disability did not have a neurological basis in fact.  His request was denied.  That examination did establish that there is a neurological basis for his pain although it was classified as insignificant.  It further established left-sided pain although there was no evaluation of whether it was neurologically significant.  He has bilateral pain in his back and legs which cannot be ruled out as neurologically significant.  A radiological examination report dated April 1997 further supports a neurological basis for the pain he is experiencing.  In addition, the PEB failed to take in consideration his other medical conditions – his knees, elbows, asthma and severe allergies – in determining his disability rating.

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

He enlisted in the Regular Army on 6 September 1989.  He was awarded military occupational specialty 77F (Petroleum Supply Specialist).

A medical write-up shows the applicant injured his back in basic training in 1989 but it resolved and he did well until 1994.  At that time he fell out of the back of a vehicle and injured his back and right shoulder.  X-rays showed no bony injuries, he was given anti-inflammatories, and most of his pain and discomfort resolved although he had recurrent left-sided back spasms with activity at times.  In 1997 he re-injured his back and had increasing low back pain with prolonged sitting and standing as well as lifting.  An MRI revealed degenerative disc at L5-S1 with no HNP protrusions. 

An April 1997 radiologic examination showed the applicant had a unilateral left interarticular (situated between joint surfaces) process fracture (spondylolysis).  A September 1997 radiologic examination showed a decreased signal within the intervertebral discs at the L5-S1 and L4-L5 levels and a large disc extrusion at the L4-5 level with impingement upon the right L5 nerve root which appeared edematous.  

In July 1998, a medical evaluation board (MEB) noted the applicant’s significant allergies and sometimes allergic asthma for which he infrequently took Proventil inhaler when very symptomatic; he had a normal lower extremity neurologic examination; and he had a positive impingement with tenderness to palpation of his right shoulder with no obvious instability, 5/5 rotator cuff strength and full range of motion with some pain at full abduction.  The MEB diagnosed the applicant with mechanical low back pain and moderate and mild impingement syndrome of right shoulder and referred him to a PEB.

The applicant did not agree with the MEB’s findings and recommendation and requested continuation on active duty.  He noted in his 31 August 1998 appeal that although his profile limited him, his performance evaluation from his immediate command acknowledged the numerous ways he was successful and supportive of all missions, he was still capable of completing the Army Physical Fitness Test, and he still had the ability to fulfill the Army’s missions.

On 14 September 1998, an informal PEB found the applicant’s medical and physical impairment prevented his reasonable performance of duties as required by his grade and military specialty.  He apparently nonconcurred and a formal PEB was held on 15 October 1998.  The formal PEB also found the applicant unfit for duty and recommended his separation with severance pay with a 20 percent disability rating.  

The applicant nonconcurred with the findings and apparently requested an increase in his disability rating (his rebuttal is not available).  His request was denied on 29 October 1998 by the U. S. Army Physical Evaluation Board.  On    12 November 1998, the U. S. Army Physical Disability Agency affirmed the PEB’s findings.

On 16 November 1998, the U. S. Total Army Personnel Command denied the applicant’s request for continuation on active duty.

On 17 November 1998, an MEB addendum noted some additional symptoms – pain in his bilateral legs with the valsalva maneuver, no significant right neurologic symptoms, a complaint of some left-sided pain which goes from his back down his left-side to his left lateral calf, and bilateral anterior radiating leg pain occasionally.

The applicant’s non-commissioned officer evaluation report for the period July through December 1998 shows he received an “excellent” rating in the category Competence (duty performance; technical and tactical knowledge, skills and abilities).  He passed the APFT in October 1998.

On 16 January 1999, the applicant separated with severance pay.  He had completed 9 years, 4 months and 11 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. 

Appendix B-39 of that regulation discusses intervertebral disc syndrome.  It  states a 40 or 60 percent disability rating will be predicated upon objective medical findings of neurological involvement.  Deep tendon reflex asymmetry in the ankles, as manifested by an absent or diminished reflex, constitutes an important objective sign.  Highly significant objective signs are loss of bladder and or bowel control which are neurogenic in origin.  Neurogenic male sexual dysfunction or neurogenic muscular atrophy in any one of the four extremities are also significant objective signs.  Lesser objective signs are those of muscular weakness and sensory loss along one aspect of an extremity as determined by pinprick testing.  Detection of paravertebral muscle spasms on examination is significant.  Lesser ratings will begin with a 0 percent rating for mechanical low back pain.  Demonstrable pain on spinal motion 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. 

The VASRD gives a disability rating of 60 percent for intervertebral disc syndrome when the syndrome is pronounced, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, with little intermittent relief; 40 percent when syndrome is severe with recurring attacks and intermittent relief; and 20 percent when moderate with recurring attacks.  

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.

Title 38, U. S. 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.  The VA, however, is not required by law to determine medical unfitness for further military service.  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.  Consequently, due to the two concepts involved, an individual’s medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

In the processing of this case, an advisory opinion was obtained from the medical advisor to the Army Review Boards Agency (SEE ATTACHED).  The advisor noted that the PEB applied the criteria correctly and assigned the correct rating percentage even given the information noted in the MEB addendum.

The applicant was provided a copy of the opinion for comment or rebuttal.  He did not respond within the given time frame.

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.  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 has provided no evidence that would warrant increasing his disability rating.  The PEB’s concern regarding neurological findings was to ensure his condition had caused no neurological impairments such as are described in appendix B-39 of Army Regulation 635-40 or the VASRD.  In none of the available medical findings was it ever noted the applicant had such symptoms as absent or diminished reflexes, loss of bladder and or bowel control which were neurogenic in origin or neurogenic male sexual dysfunction.  It had been noted that he had recurrent spasms with activity at times, which is consistent (“when moderate with recurring attacks”) with a 20 percent disability rating.  There is no evidence the applicant’s other medical conditions, such as his asthma, made him unfit for duty and so would not have been subject to rating.  

3.  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

__svw___  __vbc___  __bje___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999018218	
SUFFIX		
RECON		
DATE BOARDED	19991202	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	108.02	
2.		
3.		
4.		
5.		
6.