MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           7 December 2000                   
	DOCKET NUMBER:   AR2000036306

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Ernest W. Lutz, Jr.		Member	
	Mr. John P. Infante		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 medical separation be changed to a medical retirement.

APPLICANT STATES:  That the VA has awarded him a 60 percent disability rating.  In his rebuttal to the advisory opinion, he stated that it was not his intent that the Army provide for all the disabilities for which the VA has rated him.  However, his lower back pain and his cervical pain were put together as if they were one injury when, in fact, there were two separate injuries.  He is requesting that the two separate injuries get two separate ratings and not be treated as one injury.

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

He had prior service in the Regular Army from 1983 – 1986.  Upon his release from active duty he was transferred to the Army National Guard.  He was discharged from the Army National Guard on 4 February 1991 and he reenlisted in the Regular Army on 5 February 1991.

On 24 March 1998, a medical evaluation board (MEB) examined the applicant for complaints of chronic cervical pain, chronic mechanical lower back pain, mild traumatic brain injury, tinnitus, and dysequilibrium.  The MEB found that the applicant had a full active range of motion in all areas with difficulty due to muscular spasm and radicular pain.  He had positive straight-leg-raises in the lower extremities at 30 degrees bilaterally.  He had residual myofascial pain to the cervical and lumbar areas.  He was first evaluated for low back pain in October 1996.  He was referred for an MRI of the L-spine in January 1998 which showed mild degenerative changes at L3 and L4.  He had also been evaluated for chronic neck pain most significant since a motor vehicle accident he sustained on two separate occasions, the most recent being in December 1997.  He had full range of motion in the neck as well as the back.  An upper extremity and C-spine evaluation on 9 January 1998 found that he had symmetrical strength in both upper extremities without evidence of paresthesias or dysesthesias.  Neurology evaluated him for persistent headaches, neck and shoulder pain and found him to have nonspecific neuropathy radiating from the cervical spinal region.  The examination was found to be within normal limits with the exception of some tenderness to palpation on the left side of the neck in the C4-5 area.  The MEB recommended that he be evaluated by a physical evaluation board (PEB).

On 7 August 1998, an informal PEB found the applicant to be medically unfit by reason of a diagnosis of cervical spine area pain and mechanical low back pain with positive straight leg raising, no neurological deficit, radiographs showing mild degenerative change.  The PEB recommended his separation with severance pay with a disability percentage rating of 20 percent.  The diagnoses of mild traumatic brain injury, tinnitus, and dysequilibrium were found to be not unfitting.  On 13 August 1998, the applicant concurred in the findings and recommendation of the PEB and waived a formal hearing of his case.  

The findings and recommendation of the PEB were approved and on 7 October 1998 he was discharged by reason of disability with severance pay.  (The Board notes that his Certificate of Release or Discharge from Active Duty, DD Form 214, erroneously shows that he entered active duty that period on 7 April 1988, that he had no prior active or inactive service, and that he had an immediate reenlistment on 5 February 1991.)

In 1999, the VA awarded the applicant a 60 percent combined disability rating for facet arthropathy L3-L4 and L4-L5 with limitation of motion (20 percent); cervical spine pain with loss of range of motion (20 percent); dislocation, right shoulder (20 percent); residuals of brain injury (10 percent); and tinnitus (10 percent).

In the processing of this case, an advisory opinion was obtained from the medical advisor to the Army Review Boards Agency.  The applicant rebutted the advisory opinion as noted above.

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 purposes of his employment on active duty.  Appendix B provides that 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.  

Army Regulation 635-40, paragraph B-24 describes degenerative arthritis (VA code 5003) and pain conditions rated by analogy to degenerative arthritis.  It states that often a soldier will be found unfit for any variety of diagnosed conditions which are rated essentially for pain.  In as much 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.  Rating by analogy to degenerative arthritis as an exception to analogous rating policies 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.  

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.  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, 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 this requirement.

2.  The rating action by the VA does 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.  The VA is not required by law to determine medical unfitness for further military service in awarding a disability rating, only that a medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, an individual’s medical condition may be rated by the Army at one level and by the VA at another level. Additionally, the VA may rate conditions separately whereas the Army would be required to combine them.

3.  The MEB found that the applicant had a full active range of motion in all areas, in the neck as well as the back, with difficulty due to muscular spasm and radicular pain.  Mild degenerative changes at the L3 and L4 were found, which is why he was rated under VA code 5003.  However, he was evaluated principally for pain.  Since pain is an unlisted condition and the anatomical localization and symptomatology of his pain were closely analogous to degenerative arthritis, it was properly combined with code 5003 for rating purposes.  This was properly done even though the pain in the two different areas (lower back and cervical spine area) were incurred because of two separate injuries.  

4.  As a regulatory exception to the analogous rating policies, rating of pain 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.  This is what occurred in the applicant’s case.

5.  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.

NOTE:  The Army Review Boards Agency, Support Division, will be directed to administratively correct the applicant’s DD Form 214 for the period ending           7 October 1998 by showing that he entered active duty that period on 5 February 1991 and by making the appropriate changes to items 12 and 18.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__rvo___  __ewl___  __jpi___  DENY APPLICATION

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

INDEX

CASE ID	AR2000036306	
SUFFIX		
RECON		
DATE BOARDED	20001207	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.