MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           8 June 2000                   
	DOCKET NUMBER:   AR2000037824

	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:

	Ms. Shirley L. Powell		Chairperson	
	Ms. Lana E. McGlynn		Member	
	Mr. Arthur A. Omartian		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 discharge with severance pay be changed to a medical retirement.

APPLICANT STATES:  That the VA has rated his disabilities at 50 percent.

COUNSEL CONTENDS:  That it is unclear how it was determined that the applicant’s testicular pain was secondary to his low back condition.  It appears that an error was made in combining the two.  His low back disability clearly met the findings of a 20 percent rating and possibly a 40 percent rating.  The rating for his testicular pain being rated independently of his back would warrant a      10 percent rating.  Thus, his combined evaluation should have been 30 percent.

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

He enlisted in the Regular Army on 18 February 1986.  

In 1994, the applicant was referred to a medical evaluation board (MEB) because of his inability to perform his military duties as a 71M, Chaplain’s Assistant due to back pain and testicular pain.  The applicant described occasional back pain with radiation down to his right foot and difficulty walking or running either because of the back or the testicular pain.  It was determined there was no intrinsic disease process within the testis but rather that that was referred from his back.  He was diagnosed with radiculopathy of the right ilioinguinal nerve, secondary to intervertebral disease at the L4-L5 level.  The MEB found him unfit for duty and recommended referral to a physical evaluation board (PEB).  On 24 March 1994, the applicant agreed with the findings and recommendation.

On 14 April 1994, an informal PEB found the applicant unfit for military service due to chronic back pain with secondary testicular pain under Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) codes 5299 and 5293 at a 10 percent disability rating.  The applicant did not concur and requested a formal hearing.

On 22 June 1994, a formal PEB found the applicant unfit for military service due to chronic back pain with secondary testicular pain under VASRD codes 5299 and 5293 at a 20 percent disability rating.  The applicant did not concur but did not submit a statement of rebuttal.

On 9 September 1994, the applicant was discharged, with severance pay, for disability.

On 16 May 1995, the VA awarded the applicant a 20 percent disability rating for herniated disc L4-L5 and 0 percent for orchalgia (pain in a testis) effective         10 September 1994.  On 17 October 1995, the VA increased the rating for his herniated disc to 40 percent and for his orchalgia to 10 percent, both retroactive to 10 September 1994.

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 prohibits pyramiding.  Pyramiding is the term used to describe the application of more than one rating to any area or system of the body when the total functional impairment of that area or system can be reflected under a single code.  All diagnoses that contribute to total functional impairment of any area or system of the body will be merged with the principal diagnosis for rating purposes.

The 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 code 5293, intervertebral disc syndrome a 60 percent rating when it is pronounced, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm or other neurological findings appropriate to the site of the disease disc; a 40 percent rating when it is severe with recurring attacks and intermittent relief; and a 20 percent rating when it is moderate with recurring attacks.  Only two VASRD codes apply to the testis – 7523, atrophy and 7524, removal.  VASRD code 8730, paralysis of the ilio-inguinal nerve, could be related to a testis condition.

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, 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 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, due to the two concepts involved (i. e., the more stringent standard by which a soldier is determined not to be medically fit for duty versus the standard by which a civilian would be determined to be socially or industrially impaired), an individual’s medical condition may be rated by the Army at one level and by the VA at another level, 

3.  Contrary to counsel’s contention, the MEB determined that there was no intrinsic disease process within the applicant’s testis.  Without such a finding, the Board concludes it was reasonable for the MEB/PEB to determine that his testicular pain resulted from his back condition.  To have rated both conditions when no separate disease process was found would have been pyramiding.  No other VASRD code fit the applicant’s testicular condition.  (VASRD code 8730 relates to paralysis of, not pain in, the ilio-inguinal nerve.)  The evidence from the VA provided by the applicant does not indicate under which code the VA rated his orchalgia.  Again, the VA may assign ratings as it sees fit and any such rating does not require 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

__slp___  __lem___  __aao___  DENY APPLICATION

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

INDEX

CASE ID	AR2000037824	
SUFFIX		
RECON		
DATE BOARDED	20000608	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	108.02	
2.		
3.		
4.		
5.		
6.