MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           9 February 2000                   
	DOCKET NUMBER:   AR1999028594

	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.

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Deborah S. Jacobs		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:  That his physical disability rating be increased to 30 percent and his discharge be changed to a medical retirement.

APPLICANT STATES:  That he was given a combined rating of 20 percent for three different disabilities.  Each disability should have been given a separate rating and lumbar degenerative disc disease alone given a 20 percent rating with the other disabilities rated at 10 percent.

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

He enlisted in the Regular Army on 15 November 1988.

The applicant was examined by a medical evaluation board (MEB) on                 2 September 1998 for a complaint of low back pain and right leg pain.  He first noticed back pain in 1989.  It would radiate to his lower extremities.  It worsened in 1993.  He also noticed a numbness in his lower extremities.  He had a stress fracture of his right tibia in 1996.  He had limited lumbar mobility and an MRI scan of the lumbar spine showed degenerative disc disease.  His straight leg raise test was negative, his limb length was equal, he had grade 5/5 strength and no signs of atrophy.  The MEB referred him to a physical evaluation board (PEB) for diagnoses of lumbar degenerative disc disease and bilateral stress reaction, right and left tibia with stress fracture of right tibia.

On 22 January 1999, the applicant was evaluated by a PEB.  The PEB found him unfit for duty for back and bilateral leg paid with findings of lumbar degenerative disc disease and bilateral stress reaction of right and left tibia and stress fracture of the right tibia.  He was rated with a 20 percent disability rating for pain.

On 27 January 1999, the applicant concurred in the findings and waived a formal hearing of his case.  On 18 April 1999, the applicant was discharged, with severance pay, for physical disability.

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, paragraph B-24f of that regulation states that often a soldier will be found unfit for any variety of diagnosed conditions which are rated essentially for pain.  Rating by analogy to degenerative arthritis may be assigned in unusual cases with a 20 percent ceiling, either for a single diagnosed condition or for a combination of diagnosed conditions each rated essentially for a pain value.

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 does not have a category of disability for pain.  For VA code 5003, degenerative arthritis, a rating of 10 percent is awarded with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups or 20 percent if there is occasional incapacitating exacerbations.

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.  The applicant’s chief complaint was pain in his back and legs.  While he was diagnosed with degenerative arthritis, there was no evidence 2 or more major joints or 2 or more minor joint groups were involved.  However, the PEB made a pain rating by analogy to degenerative arthritis, as provided for by regulation.  By regulation, the most he could have been rated was 20 percent.

3.  Should the applicant later receive a rating action by the VA greater than 20 percent, that would 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. 

4.  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

__rvo___  __dsj___  __cjs___  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999028594	
SUFFIX		
RECON		
DATE BOARDED	20000209	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	108.02	
2.		
3.		
4.		
5.		
6.