MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:    

	BOARD DATE:            14 April 1999     
	DOCKET NUMBER:   AC98-11558
				   AR1999023899

	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. Kenneth Aucock		Analyst	

  The following members, a quorum, were present:

	Ms. Karen L. Wolff		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Thomas B. Redfern		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, physical disability retirement.  

APPLICANT STATES:  He was originally placed on the temporary disability retired list (TDRL) with a 30 percent disability rating.  Several months later he was reevaulated resulting in his removal from the TDRL, ending in severance pay.  During the entire process he continued to have severe pain in his lower back and neck areas.  He was told he had to take the severance pay.  He believes that the Army did not place a high priority on his disability because of the nature of the accident, being hit by another car, whose driver ran a stop sign.  He can hardly walk or move without pain or difficulty, finds it more difficult to work, and finds himself depressed and full of hopelessness.  He can no longer function appropriately and is having difficulty continuing.  The VA has continued to recognize his severe difficulties and has awarded him a 50 percent service connected disability rating.  He also has letters from his personal doctor, chiropractor, and employer concerning the severity of his neck and lower back problems. 

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

The applicant served in the Air Force for four years.  He enlisted in the Army on 14 February 1984 and was discharged on 11 April 1985 in order to accept a commission in the Army.  He was appointed a Reserve second lieutenant in the infantry on 12 April 1985.  He attained the rank of Captain on 1 July 1989.

The applicant was in a motor vehicle accident on or about 1400 hours on          19 February 1990.  His injury from that accident was determined to be in line of duty. 

On 10 June 1991 a medical evaluation board indicated that the applicant had not been noticeably injured at the time of the accident, had some neck discomfort, but gradually over a period of time he progressively got worse.  He was treated both in the orthopedic clinic and in the neurosurgery clinic.  An MRI suggested a narrowing of the foramen at C5-6 and clinically he presented with a C6 nerve root syndrome.  In view of his failure to improve, he was offered surgery, which he declined.  Additionally, he complained of some low back pain, and right leg pain.  An EMG performed of the right lower extremity suggested an S1 radiculopathy.  An MRI was rather unconvincing as far as any significant pathology in the lumbar spine.  Physical examination revealed that the applicant was somewhat depressed, claiming that he had chronic discomfort.  He appeared to move very slowly and guardedly.  Range of motion seemed quite full.  He seemed to show outward evidence of discomfort as he went through the range of motion.  The examining physician stated that he did not palpate any spasm as she was doing this; and likewise, in his lumbar area, he really did not have much restriction in the range of motion, but did complain of discomfort as he bent forward.  There was no spasm palpated in the lumbar muscles.  Motor examination suggested some give-way weakness in all of the muscle groups in the left upper extremity.  Sensory examination suggested a diffuse C6 dermatome pattern on the left.  Motor exam in the lower extremities was totally normal.  The foramen closure sign on the left was positive in the neck suggesting irritation of the C6 nerve root with dramatic radicular pain radiating into his arms.  Laboratory and X-ray data suggested an S1 radiculopathy of the right lower extremity.  An MRI of the cervical spine suggested narrowing of the foramen at C5-6 on the left.  The MRI of the lumbar spine was essentially normal. 

The applicant had not responded to conservative management and had declined surgery.  Despite his continued physiotherapy he was not getting much better and he felt that he could not maintain the stringent requirements of his specialty.  The applicant’s condition was diagnosed as chronic C6 radiculopathy and chronic lumbar strain.  The MEB recommended that the applicant be referred to a physical evaluation board (PEB).  The applicant concurred, and stated that he did not desire to continue on active duty.

On 20 June 1991 a PEB determined that the applicant’s functional limitations in maintaining agility, caused by his physical impairments (narrowing of C5-6 foramen on the left with positive foramen closure sign suggesting C6 nerve root irritation rated as neuritis; and right lower extremity sciatica with positive EMG), made him unfit to perform the duties required of a Captain as an infantry officer, and that his physical impairments, brought about by neurologic problems, were of such a nature that evaluation of a permanent degree was not possible at that time.  The PEB recommended that he be placed on the TDRL with a disability rating of 30 percent.  The applicant concurred.

The applicant was placed on the TDRL on 2 January 1992 at Madigan Army Medical Center in Washington with a 30 percent disability rating. 

A  1 July 1992 psychological evaluation revealed that the applicant appeared to be genuinely discouraged with his chronic pain, appeared clinically depressed, affectively.  He reported decreased sleep and lack of enjoyment at his current life, with frequent boredom and fear about his ability to ever function normally again.  MMPI-II valid scales suggest a defensive test-taking attitude and that individuals with similar scores tended to be somewhat rigid and moralistic, and tended to overvalue their own worth, tended to utilize repression and denial and lack insight into their own behavior.  His profile, as depicted on a clinical scale configuration, indicated that individuals with that profile tended to convey stress into physical symptoms, using repression and denial excessively, lacking insight and resisting psychological explanations of their problems.  Their behavior is typically conforming and conventional, as they want to be liked and accepted; additionally, the applicant tended to be excessively sensitive and overly responsive to the opinion of others.  He likely felt that he was getting a raw deal from life.  His personality characteristics tended to heighten complaints and hinder recovery.  The diagnostic impression was that of psychological factors affecting physical condition.  Major depression episode was ruled out.
  
The applicant received a TDRL physical examination on 1 July 1992.  His condition was diagnosed as degenerative disk disease of C5-6 with left C6 radiculopathy, mild, without objective neurologic deficit and with a normal electromyogram; and low back pain, mild, without objective neurologic deficit, without significant electromyographic or radiologic abnormality.  The examining physician stated that the applicant had not improved while on the TDRL and still had complaints which made it impossible for him to consider returning to active duty as an infantry officer.  The medical board recommended that he receive final adjudication from the PEB.  The applicant concurred with the medical findings of his periodic physical examination.

On 24 February 1993 a PEB recommended that the applicant receive a             10 percent disability rating for degenerative joint disease, post trauma, C5/6 with C6 radiculopathy, mild, without objective neurological deficit and with normal EMG; and a zero percent rating for low back pain, mild, without objective neurological deficit EMG or radiologic evidence of abnormality.  The PEB found the applicant physically unfit and recommended a combined rating of 10 percent, and that he be separated with severance pay.  He was notified of his rights with respect to the findings and recommendations of the PEB, to include his right of rebuttal, and his right to demand a formal hearing, to present at that hearing, and to be represented by counsel.  On 1 March 1993 the applicant indicated that he did not concur with the findings and recommendations of the board, and requested a formal hearing. 

On 4 March 1993 he was duly notified that a formal hearing before the PEB would take place at Fort Lewis, Washington on 23 March 1993.  However, on   10 March 1993 the applicant waived the formal hearing scheduled for                23 March 1993, and stated that he would accept severance pay.

The applicant was removed from the TDRL on 30 April 1993 with a 10 percent disability rating.  

In a VA rating decision of 8 December 1995, that agency increased the disability rating for degenerative disc disease of the C3-4, C4-5, and C5-6 interspaces from 20 percent disabling to 40 percent effective 1 November 1995; and increased the disability rating for narrowing of the L4-5 disc space posteriorly, from 10 percent to 20 percent effective 1 November 1995.  His combined evaluation was increased from 30 percent to 50 percent disabling.

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.
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, 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.  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.

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.  Continuation on the Temporary Disability Retired List or permanent retirement was precluded since the applicant had completed less than 20 years service and had a combined disability rating of less than 30 percent.

2.  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.    

3.  The applicant's contentions do not demonstrate error or injustice in the disability rating assigned by the Army, nor error or injustice in the disposition of his case by his separation from the service.  There is no evidence that the applicant was told or coerced into taking severance pay, as he contends.  To the contrary, he was notified of the findings and recommendations of the PEB, provided information concerning his rights and the options available to him.  He then demanded a formal hearing, which was scheduled.  Subsequently, he himself waived that formal board, and stated that he would accept severance pay.

4.  The rating action by the VA does not necessarily demonstrate any error or injustice in the Army rating.  The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit.  Any rating action by the VA does not compel the Army to modify its rating.

5.  The VA 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, the applicant'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 him for VA benefits based on an evaluation by that agency.

6.  An award of a VA rating does not establish entitlement to medical retirement or separation.  The VA is not required to find unfitness for duty.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected.  Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.

7.  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

___klw__  __aao___  ___tbr__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-11559/AR1999023899	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990414	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(DENY 	
REVIEW AUTHORITY		
ISSUES         1. 108.00		
2.		
3.		
4.		
5.		
6.