MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           10 February 2000                   
	DOCKET NUMBER:   AR1999028621

	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. Van B. Cunningham		Chairperson	
	Mr. James P. Steuve		Member	
	Mr. Kenneth L. Wright		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 disability rating for her back condition be increased and that her other diagnoses be found to be unfitting.

APPLICANT STATES:  That she was diagnosed with spondylolisthesis secondary to her pars defects and a doctor at Walter Reed Army Medical Center (WRAMC) stated he believed her symptomalogy was only going to worsen.  She submits that the formal physical evaluation board (PEB) failed to properly consider that opinion in determining her appropriate rating and percentage of disability.  She also contends that she did not state or even imply to anyone that she was scheduled for surgery and believes the president of the PEB thought she was a liar and so could not give her a fair and impartial hearing.  The medical evaluation board (MEB) also diagnosed her with irritable bowel syndrome, migraine headaches and hypertension (diagnoses 2 through 4).  Those diagnoses should also have been found unfitting and rated by the PEB.  Supporting evidence is as listed on the attachment to the application.

COUNSEL CONTENDS:  Counsel makes no further contentions with her initial application.

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

She enlisted in the Regular Army on 13 June 1989.  She was awarded and performed duties in military occupational specialty (MOS) 88M (Motor Transport Operator).

On 13 May 1996, the applicant was evaluated by an MEB for a chief complaint of low back pain.  Her medical history noted she had fallen off a truck in 1992 and developed back pain from that point forward.  She was shortly discovered to be pregnant and it was thought her pain might be due to that but the pain continued beyond her pregnancy.  She was found to have a spondylolysis of her L5 on the right in June 1993.  A March 1996 examination reconfirmed a bilateral L5 pars defect and a grade I spondylolisthesis.  Upon examination it was found she had some decreased motion on forward flexion and extension secondary to her pain. She was also found to have a history of hypertension for which she was being treated with medication, migraine headaches for which she was prescribed medication; and a past history of irritable bowel syndrome.  The MEB diagnosed bilateral L5 spondylosysis with Grade 1 L5/S1 spondylolisthesis, symptomatic; irritable bowel syndrome; migraine headaches; and hypertension.  She was referred to a PEB because of the persistent low back pain which had been debilitating to the point of being unable to perform her duties in her MOS.  She agreed with the findings and recommendation.

On 20 May 1996, a member of the neurosurgery service at WRAMC noted “…her symptomatology is only going to worsen and one day she will need to have an L5-S1 fusion.  At current juncture it is not necessary.  What will dictate when and where to do this operation is the degree of pain she has and her inability to tolerate it…”

On 21 May 1996, an informal PEB found the applicant unfit for duty by reason of having bilateral L5 spondylosysis with L5/S1 spondylolisthesis, symptomatic and manifested as pain on motion with a 10 percent disability rating. The other three diagnoses were found to be not unfitting and not rated.  The applicant disagreed and requested a formal hearing with personal appearance.

On 12 June 1996, the applicant withdrew her request for a formal hearing with personal appearance and instead desired to submit a written appeal with additional documents.

On 13 June 1996, the U. S. Army Physical Evaluation Board informed the applicant that the PEB was informed by the Martin Army Community Hospital Physical Evaluation Board Liaison Office that she informed them she was scheduled for back surgery at WRAMC and her formal board required cancellation or rescheduling.  However, a phone call to her physician at WRAMC revealed she was not scheduled for surgery and her condition was stable enough for final adjudication.  The U. S. Army Physical Evaluation Board determined that, in light of this and other information, a formal board was deemed necessary to protect the interests of the government.  

On 21 June 1996, a formal PEB found the applicant unfit for duty by reason of having bilateral L5 spondylosysis with L5/S1 spondylolisthesis, symptomatic and manifested as pain on motion with a 20 percent disability rating. The other three diagnoses were found to be not unfitting and not rated.  She was recommended for separation with severance pay.  The applicant nonconcurred and submitted a rebuttal.  Her appeal is not available but on 15 August 1996, the U. S. Army Physical Disability Agency (USAPDA) reviewed her case and verified the result of the formal board as correct.  

On 4 November 1996, the applicant was discharged by reason of disability with severance pay.  She had completed 7 years, 4 months and 22 days of creditable active service.

In November and December 1996 and January 1997, the applicant obtained four statements/affidavits testifying to her medical conditions.  A soldier who knew her stated her participation in the profile physical fitness group was limited due to her medical condition.  She had a profile due to fractures in her back. She had gone to WRAMC for treatment for her back but came back in a worse condition.  Another soldier who knew her stated she complained about back problems and her condition worsened after her return from WRAMC.  Her husband stated the past year had been difficult because of her condition.  Another individual who knew her stated the applicant had to have surgery on her back because of the pain.  

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.  It provides that the guidelines for applying medical retention qualification standards established in Army Regulation 40-501 are used to refer soldiers to an MEB.  The retention standards and guidelines should not be interpreted to mean that possessing one or more of the listed conditions or physical defects signifies automatic disability retirement or separation form the Army.  The fact that the soldier has one or more defects sufficient to require referral for evaluation, or that these defects may be unfitting for soldiers in a different office, grade, rank or rating, does not justify a decision of physical unfitness.

Army Regulation 40-501 governs medical fitness standards for enlistment, retention and separation, including retirement.  Chapter 3 gives the various medical conditions and physical defects which may render a soldier unfit for further military service.  Paragraph 3-5 governs abdominal and gastrointestinal defects and diseases.  Irritable bowel syndrome is not listed as a defect or disease that renders a soldier unfit for duty.  Paragraph 3-30 governs neurological disorders and states that migraine, tension or cluster headaches, when manifested by frequent incapacitating attacks, are causes for referral to an MEB.  Paragraph 3-23 governs miscellaneous cardiovascular conditions.  It states that hypertensive cardiovascular disease and hypertensive vascular disease are causes for referral to an MEB when diastolic pressure is consistently more than 110mmHG following therapy or if it is associated with more than minimal changes in the brain, heart disease, kidney involvement or grade III changes in the fundi (the bases of organs; in this case, particularly the eyes).  

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 gives a disability rating of 10 percent for a confirmed diagnosis of lumbosacral strain (code 5295) with characteristic pain on motion; 20 percent with muscle spasm on extreme forward bending, loss of lateral spine motion, or unilateral, in standing position; and 40 percent when severe, with listing of whole spine to opposite side, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion.

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.

Title 10, U. S. 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.

In the processing of this case, an advisory opinion (SEE ATTACHED) was obtained from the medical advisor to the Army Review Boards Agency.  That advisory opinion noted the USAPDA upheld the formal PEB decision; that irritable bowel syndrome is not cause for referral to an MEB; that migraine headaches are cause for referral to an MEB if they are manifested by frequent incapacitation attacks, which they were not; and that hypertension is cause for referral to an MEB only if certain standards were met, which they were not.  The advisory opinion concluded that the applicant did receive a full and fair hearing, that the rating percentage was correctly applied and that no new or substantive medical evidence was presented and therefore there was no medical reason to change the disability rating.

The applicant’s counsel rebutted the advisory opinion.  He contended that diagnoses 2 through 4 should have been rated by the PEB and that the opinion does not adequately deal with the issue of whether the 20 percent disability relating to her back condition was sufficient.  He also submits that the decision of the formal PEB was tainted by the apparent belief by the board president that she had misled or lied to the PEB.  It was impossible for her to have received a fair review of her medical conditions from the PEB because the president had an obvious bias against her.  Provided are additional medical documentation dated 1999 concerning her medical conditions (evaluation of joint symptoms).

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’s disability for her back condition was properly rated in accordance with the VASRD.  The VASRD gives a 20 percent rating with muscle spasm on extreme forward bending, loss of lateral spine motion, or unilateral, in standing position, which is what her symptoms and evaluation indicated.  A       40 percent rating would have been appropriate only if her condition had been severe.  Neither her symptoms nor her evaluation indicated she met the criteria of a severe condition.  While the additional medical documentation provided from a 1999 evaluation indicated some joint involvement, no mention of joint pain was mentioned at the time of her separation and so is not appropriate to consider.  

3.  The Board concludes that since the applicant’s disability for her back condition was properly rated, the question of whether or not the president of the PEB was biased against her for any reason is moot.  The Board also notes that the formal PEB properly increased her rating from 10 to 20 percent.  

4.  The applicant’s diagnoses of irritable bowel syndrome, migraine headaches and hypertension were properly found to be not unfitting for duty.  Possession of one or more conditions or physical defects does not signify automatic disability retirement or separation from the Army.  The condition or defect must render the individual physically unfit for duty.  Nowhere in the MEB evaluation, in her appeal of the formal PEB, or in the four statements/affidavits testifying to her medical conditions were any of these conditions mentioned as rendering her unfit to perform her duties.  The Board concludes they did not render her unfit to perform her military duties.  Her separation with severance pay was in compliance with law and regulation.

5.  Any subsequent rating action by the VA 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.  If the applicant’s condition worsens in the future, the VA is responsible for treating her and upgrading her disability rating as appropriate.

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

__vbc___  __jps___  __klw___  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999028621	
SUFFIX		
RECON		
DATE BOARDED	20000210	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	108.02	
2.		
3.		
4.		
5.		
6.