MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:            6 May 1999        
	DOCKET NUMBER:   AR1999021279

	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	
	Ms. Deborah L. Brantley		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Ernest W. Lutz, Jr.		Member	
	Ms. Carol Jo Suiter		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, disability retirement vice disability separation.

APPLICANT STATES:  That the Physical Evaluation Board (PEB) which determined his disability rating did not “assess all relevant information contained in his medical records.”  He contends that they utilized only one VA Disability Rating Code (5292 Spine), when in fact they also should have utilized code 5285 (Vertebra, fracture of, residuals) and 5291 (Spine, limitation of motion of, dorsal). He states that when he appeared before the PEB at Fort Lewis, Washington, he was told “there was only one rating code applied to the entire back and that [his] injury warranted only a 10 percent rating.”  In support of his request he submits extracts from his service medical records, all of which are dated in January 1993, and associated with his January 1993 back operation following a fall from a helicopter.

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

He was commissioned as a USAR second lieutenant on 17 June 1990 and in April 1991 was assigned as a platoon leader with the 824th Quartermaster Company, a Reserve unit at Fort Bragg, North Carolina.

In July 1992 the applicant sustained an “L1 compression fracture following a 50 foot fall from a helicopter” resulting in a 30 to 40 percent loss of vertebral body height.  In January 1993 the applicant underwent a fusion operation to stabilize his back and in December 1993 appeared before a Medical Evaluation Board.  The MEB summary indicated the applicant’s chief complaint was “continued back pain.”  It noted that the applicant’s “post-operative course was uncomplicated” but that seven months after the surgery he “continues to complain of back pain particularly on vigorous physical activity, and on bending over.”  The final diagnosis was “L1 fracture status post rod fusion and continued back pain, secondary to” the primary diagnosis.  The MEB noted the applicant exhibited a “normal gait” during the exam that his “back reveals a well healed incision with no erythema or significant tenderness” and that the “remainder of the exam [was] unremarkable.”  The examining physician also noted that the “thoracic spine films revealed good alignment at the fracture site with intact instrumentation.”  The MEB referred the applicant to a PEB.  The applicant concurred with the findings and recommendation of the MEB on 15 December 1993.

On 26 December 1993, the applicant authored a statement “to whom it may concern.”  He noted in his statement that since his “parachute accident” he has suffered “from constant back pain” which “ranges from sharp pains caused by movements such as bending or stretching to a constant dulling pain when lying in a resting state.”  He also indicated that since the accident he “experienced headaches on a daily basis” and that “the back pain and headaches become more intense as the day progress[es]” and he increases his “daily routine physical activities such as bathing, cooking, driving, etc.”

On 11 January 1994 an informal PEB concluded that the applicant was physically unfit for continued service because of “L1 fracture, status post rod fusion with continued back pain.”  The board rated his disability at 10 percent in accordance with the VA Schedule for Rating Disabilities (VASRD) Code 5299-5295 (not 5292 as the applicant indicated in his application) and recommended that he be separated with disability severance pay.  The applicant non-concurred with the informal board and demanded a formal hearing.

A formal PEB, convened on 18 May 1994, also found the applicant unfit for further military service as a result of the MEB diagnosis, rated the applicant’s condition at 10 percent under VASRD codes 5299-5295, and recommended he be separated “with severance pay if otherwise qualified.”  The applicant concurred with the findings and recommendation of the formal board.

On 1 August 1994 the applicant was separated from the USAR with disability severance pay in pay grade 0-1.

Army Regulation 635-40, which establishes the policies and procedures for disability retirement or separation, states that the VASRD codes are numbers used for showing the basis of the evaluation assigned and for statistical analysis. In the selection of codes, injuries generally will be represented by the number assigned to the residual condition on the basis of which the rating is determined. When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number is “built-up.”  The first two digits will be selected from the part of the schedule most closely identifying the part, or system, of the body involved.  The last two digits will be “99” for all unlisted conditions.  When an unlisted condition is encountered, it is rated under a closely related disease or injury in which not only the functional, but the anatomical localization and symptomatology are closely analogous.  There are no objective medical laboratory testing procedures used to detect the existence of or measure the intensity of subjective complaints of pain, and as such a disability retirement cannot be awarded solely on the basis of pain.

VASRD Code 5295 applies to lumbosacral stain and provides for a 10 percent disability rating when the area shows “characteristic pain on motion.”  

VASRD Code 5292 refers to limitation of motion of the lumbar (the part of the spine between the thorax and the pelvis) spine area and can be rated anywhere from slight (10 percent rating) to severe (40 percent rating).

VASRD Code 5291 refers to limitation of motion of the dorsal (same as posterior in human anatomy) spine area and can be rated anywhere from slight (0 percent rating) to severe (10 percent rating).

VASRD Code 5285 applies to residuals of fracture of vertebra.  The code is utilized when an individual’s condition involves the spinal cord and he/she is bedridden or required to wear a brace or when there is no cord involvement but the individual has abnormal mobility requiring neck brace.  Army Regulation 635-40, paragraph B-37 states that the rating of 10 percent for demonstrable deformity of a vertebral body is intended only for a substantial degree of deformity (that is, greater than 50 percent compression).  It is not added in those instances of insignificant deformity, such as slight shortening of the anterior vertical dimension of the body.  When a successful spinal fusion has been performed because of the deformity, the degree of instability has usually been removed, or so far, reduced, that the addition of 10 percent of the rating is not justified.

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 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 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.  The applicant's disability was properly rated in accordance with the VA Schedule for Rating Disabilities.  His separation with severance pay was in compliance with law and regulation.

2.  The evidence of record does not support the applicant’s contention that unaddressed medical complaints somehow affected the outcome of his Army disability processing.  The applicant, who would have been familiar with his medical ailments, at the time of the MEB and PEB, concurred with the findings of both and provides no evidence that he ever raised any issues other than the fact that he continued to experience pain upon motion following his January 1993 back operation.  As such VASRD Code 5299-5295 (not 5292 as the applicant indicated) was used indicating a rating by analogy to lumbosacral strain.  In other words, at the time of the applicant PEB the analogous rating most closely resembled his condition, i.e., he continued to experience pain when he moved inspite of the fusion operation he underwent after the compression fracture to his L1 vertebra (L1 fracture, status post rod fusion with continued back pain).

3.  The applicant’s own statement indicates he suffered from “constant back pain” which increased with “simple activities….”  There is no evidence, nor does the applicant provided any that his range of motion was limited at the time or that “residuals” of his vertebra fracture required him to wear a brace.  Hence the use of VASRD Codes 5285, 5291 or 5292 would have been inappropriate.

4.  Additionally, the applicant’s 30 to 40 percent compression did not entitle him to an increased rating in view of the fact that the increase was limited to compression greater than 50 percent.

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 submit evidence that would satisfy the aforementioned requirement.

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

___fne__  ___ewl__  ___cjs__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999021279	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990506	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1. 108.00		
2.		
3.		
4.		
5.		
6.