MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:             25 July 2000                 
	DOCKET NUMBER:    AR2000035386

	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. Carl W. S. Chun		Director	
	Mr. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. Ted S. Kanamine		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. John H. Kern		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 disability rating be increased from 20 to at least 30 percent.

APPLICANT STATES:  He wasn’t properly rated by the Army.

In support of his application he submits his VA rating in which he is rated 20 percent disabled for temporomandibular joint condition; 10 percent for foot pain with mild degenerative disease, distal aspect of 1st metatarsal, left foot; 10 percent for foot pain, right foot; 10 percent for chronic lumbar strain; 10 percent for retropatellar pain syndrome, right knee; and 10 percent for retropatellar pain syndrome, left knee, giving him a combined rating of 60 percent disabled.

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

He enlisted in the Regular Army on 20 July 1995, was awarded the military occupational specialty of helicopter repairman, and was promoted to pay 
grade E-3.

On 24 June 1997 a medical evaluation board (MEB) determined that the applicant was medically disqualified due to mechanical low back pain, bilateral anterior knee pain, and bilateral chronic foot pain with no objective etiology.  The MEB referred the applicant’s case to a physical evaluation board (PEB).

On 11 July 1997 an informal PEB convened and determined that the applicant was physically unfit due to chronic pain, low back, both knees and both feet.  The PEB recommended that the applicant be discharged with severance pay, rated 20 percent disabled.

While the record does not show whether the applicant concurred or nonconcurred with that finding and recommendation, it is evident that he concurred due to the absence of a formal PEB.

Army Regulation 635-40 provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board.  Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.  For example, a noncommissioned officer who receives 

above average evaluation reports and passes Army Physical Fitness Tests (which have been modified to comply with the individual’s physical profile limitations) after the individual was diagnosed as having the medical disqualification would probably be found to be fit for duty.  The fact that the individual has a medically disqualifying condition does not mandate the person’s separation from the service.  Fitness for duty, within the parameters of the individual’s grade and military specialty, is the determining factor in regards to separation.  If the PEB determines that an individual is physically unfit, it recommends the percentage of disability to be awarded which, in turn, determines whether an individual will be discharged with severance pay or retired.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.    In this regard, the Army rates only conditions determined to be physically unfitting, thus compensating the individual for loss of a career. 

Army Regulation 635-40, Appendix B, Army Application of the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD), paragraph B-24, VASRD Code 5003, Arthritis, degenerative, hypertrophic and pain conditions rated by analogy to degenerative arthritis, provides that inasmuch as there are no objective medical laboratory testing procedures used to detect the existence of or measure the intensity of subjective complaints of pain, a disability retirement cannot be awarded solely on the basis of pain.  A maximum 20 percent rating by analogy to degenerative arthritis may be awarded as an exception in unusual cases, either for a single diagnosed condition or for a combination of diagnosed conditions each rated essentially for a pain value.  To do otherwise would be to combine pain ratings so as to achieve a percentage of disability that would result in erroneous disability retirement.  (Severe eye pain is an exception).    

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1.  The Army limits the total percentage of disability it will award for pain to 20 percent.  As such, the rating he received for his chronic pain was proper.

2.  The applicant’s other conditions were not determined to be either medically disqualifying or physically unfitting.  Therefore, they were not ratable.

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

___tsk___  ___sk___  ____jhk _  DENY APPLICATION

		   Carl W. S. Chun
		   Director, Army Board for Correction
		   of Military Records

INDEX

CASE ID	AR2000035386	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000825	
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.	108.05	
2.		
3.		
4.		
5.		
6.