MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:            5 October 2000                  
	DOCKET NUMBER:   AR2000040292

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Ms. Shirley L. Powell 		Chairperson	
	Mr. Elzey J. Arledge 		Member	
	Mr. Jaime Perez 		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, the applicant requests physical disability retirement.

APPLICANT STATES:  He was discharged with a 20 percent disability rating on 20 July 1998.  However, at the time of his medical evaluation board (MEB)/physical evaluation board (PEB), his original medical records were lost and not all the evidence was available to substantiate his medical condition.  The original decision was based on limited medical evidence, that was not well founded.  The PEB determination to award him a 20 percent rating was made in a hasty and uninformed manner.  At the least, he should have been placed on the temporary disability retired list (TDRL).    

His original back injury occurred when a wall locker fell on him in the back of a military vehicle on 25 April 1990.  Since his discharge, he has filed a claim with the VA, and his VA physical examination determined that he had an absent ankle jerk along with very limited motion in his back.  Since his separation, his medical condition has degraded tremendously.  Prior to his separation his condition was such that he had moderate to severe nerve damage in his left leg, as substantiated by two electromygrams (EMGs).  He was outfitted with two types of back braces to aid his daily activities.  He was also evaluated and prescribed a TENS unit, which proved ineffective against the severe pain he suffered.  He has undergone four back surgeries to correct his injuries.  The second surgery required care at home while the medical board was ongoing.  He was unable to return to duty and was “subsisted out” from his unit, a condition reserved for the most severe cases where a patient is unable to perform even the most common daily functions for himself.  The third surgery occurred on 13 July 1999 with the temporary placement of a dorsal column stimulator (DCS), and the last was to permanently implant the DCS on 15 July 1999.  Even so, he still has had periodic pain that required medication and sometimes medical help.  He still had weakness and numbness in his left leg and had to use a cane.  On                     16 December 1999 his left leg suddenly gave out and he started to fall, feeling a “crack” in his lower back, with excruciating pain and further numbness in his left leg.  A neurosurgeon determined that some hardware from a previous surgery had moved, but that another surgery to remove the hardware could possibly worsen his medical condition.  He is tentatively scheduled to go to a spine rehabilitation center.  He must use a walker to ambulate in his home and a wheelchair elsewhere.  He feels that another evaluation of his service connected disability is warranted. 

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

The applicant enlisted in the Army for four years on 7 March 1989 and remained on continuous active duty until his discharge in 1998.  

The applicant has had back problems and back pain, culminating in two operations while on active duty, approximately since his entry on active duty.

A 28 April 1989 medical record shows that the applicant stated he hurt his back doing push ups.  He was treated for back pain.  He was treated for mid to lower back pain on 30 October 1989, at which time he stated he was not sure what caused his pain, but that he had fallen about a week ago.  He was again seen for back pain on 1 November 1989.

A 23 March 1990 medical report shows that the applicant was seen for pain to his lumbar region.  The applicant stated that he had lifted heavy items the day prior.  On 4 June and 6 June 1990 the applicant was treated for lower back pain. He was referred to physical therapy on 15 June 1990 because of his low back pain.  A 2 July 1990 medical report shows that the applicant was again treated for his back pain, and also shows that he stated that he had a burning sensation in his feet.  A 16 July 1990 medical report shows the same information.  He was treated for back pain during the months of August and September 1990.

An 18 October 1990 flight physical examination shows that the applicant was medically qualified with a physical profile serial of 1 1 1 1 1 1.  In the report of medical history he furnished for the examination, the applicant stated that he was in good health. 

The applicant was seen for his back pain in October and November 1990.
He was seen again in January 1991.  On 13 March 1991 he underwent a right subcutaneous mastectomy.  He was seen for his back pain four times during the month of May, and numerous times throughout that year.  A 28 August 1991 MRI of his lumbar spine indicated disc degeneration at L4-5.  Definite herniation was not observed.  There was annular bulging present.

A 23 September 1991 flight physical examination shows that the applicant was medically qualified for initial air traffic controller duties with a physical profile serial of 1 1 1 1 1 1.  In the report of medical history he furnished for the examination, the applicant stated that he was in fair health.  That report indicated that he had recurrent back pain for approximately one year.

Medical reports in 1992 show again that he was seen and treated for back pain, leg pain, and pain to his buttock.  He was also treated for pain to his right shoulder.  

A 29 September 1992 flight physical examination shows that the applicant was medically qualified with a physical profile serial of 2 1 1 1 1 1.  In the report of medical history he furnished for the examination, the applicant stated that his health was good.   

A 2 March 1993 medical report shows that he fell while ice skating, hitting the left side of his face and head.  He underwent an operation on 11 March because of a fracture.  Examination after the operation revealed no residual diplopia.  He had an unremarkable postoperative course and was discharged to his unit for five days convalescent leave.

A 2 September 1993 report of medical examination shows that he was medically qualified for duties as an air traffic controller with a physical profile serial of          1 1 1 1 1 1.  A 23 September 1994 report shows that he was medically qualified with a physical profile of 2 1 1 1 1 1.  In the report of medical history he stated that he was in good health.

Medical reports in 1995 show that he was seen and treated for back pain on numerous occasions. 

On 15 November 1995 the applicant underwent surgery for a left subcutaneous mastectomy.  There were no complications.

Medical reports in 1996 show that he was seen and treated for back pain on numerous occasions again.  He received a CT of the lumbar spine in          January 1996.  The report indicated minimal disc bulging at L4-L5, otherwise unremarkable.  On 10 February 1996 he received crutches for walking [for one week].  A 3 April 1996 medical report shows degenerative disc disease L4/L5, and that the applicant had stated that he had pain in his lower back and was unable to sit, that he had occasional pain and numbness in both lower extremities, and that he had a history of falls due to his condition, with the last fall being two months ago. 

On 29 August 1996 the applicant underwent surgery for his back problem.  The operation performed was a fusion, spinal, posterior, L4-5; instrumenation, pedicle screw, with accu-med system, titanium, L4-5; and a bone graft, illiac crest, left.  There were no complications noted.  A 3 September 1996 medical report indicates that the applicant would be discharged [from the hospital] to his home via air evacuation to Keesler Air Force Base, in that his unit was at Fort Rucker, Alabama, with a recommendation of 30 days of convalescent leave. 
 
On 16 October 1996 the applicant received a profile of “3” because of his spinal fusion.  On 22 October 1996 the applicant was seen and treated because of stiffness/pain and numbness (for three days) in both legs, and for lower back pain.

A 7 November 1996 radiologic examination report shows a mild disc space narrowing at both the L3-L4 levels.  The posterior elements and SI joints were otherwise intact.  His condition was diagnosed as status post L4-L5 fusion and early degenerative disc disease at L3-L4 and L4-L5.  A report of                         20 December 1996 indicates that the applicant had fallen on 21 November 1996. That report indicated early hypertrophic changes suspected at L5. 

The applicant continued to be seen and treated for back pain in 1997.  A             1 July 1997 statement from the chief of spine surgery service and orthopaedic surgery services at the Eisenhower Medical Center at Fort Gordon, Georgia indicates that the applicant had new back pain as a result of another injury [November 1996) and it was anticipated that he would undergo further spine surgery.  That doctor recommended that the applicant be allowed to live off post in order to use his orthopaedic mattress.

The applicant underwent surgery on 14 August 1997.  The operation performed included the removal of hardware at L4-5; fusion, interbody, posterior lumbar,   L5-S1; placement, stainless steel isola pedicle system, L5-S1; placement, harms cage, L5-S1; graft, bone, illiac crest; placement, catheter edidural, L4, left; and application and removal, headrest clamp, mayfield.  A postoperative report indicated that the applicant was doing well five days after the operation, eating, walking, and taking care of himself.  He was discharged from the hospital.

A 5 December 1997 report of medical examination shows that the applicant was referred to a medical evaluation board (MEB).  He had a physical profile serial of 1 1 4 1 1 1.  

A MEB narrative summary stated that the applicant had an injury to his back when a wall locker fell across his back while he was in the back of a 2 1/2 ton truck [1990?].  He had low back spasms but did not get to see an orthopedic surgeon for several years.  Evaluated at Fort Rucker in 1996, he was noted to have a degenerative disc at L4-5.  He had surgery on 28 August 1996, with initial relief of his back symptoms.  He sustained a fall on 21 November 1996, and underwent various treatments, to include injections, nonsteriodals, rest, ultrasound, and TENS therapy without significant change.  His symptoms continued and he underwent additional surgery on 14 August 1997.  The summary indicated that the applicant noted that he had continued back pain, that he had to use a cane in order to ambulate with support and comfort, and was not able to sit for long periods of time because of the back pain.  He had difficulty sleeping at night.  His condition was diagnosed at degenerative disc disease,   L4-5, status post posterior spinal fusion, with pseudoarthrosis, status post revision in extension to the sacrum from L4; and radiculopathy, left, with an electromyogram (EMG) verifying left L5 and S1.  

On 27 February 1998 the MEB determined that he be referred to a physical evaluation board (PEB) for determination of fitness for duty.  The applicant concurred with the board’s findings and recommendation.

On 31 March 1998 a PEB determined that the applicant was unable to perform the duties of his military occupational specialty (MOS) because of his back pain and his profile restrictions, and found the applicant physically unfit, recommending a combined rating of 20 percent, and that he be separated with severance pay.  The applicant did not concur and demanded a formal hearing.  

On 6 May 1998 a formal PEB reevaluated the applicant’s medical records and sworn testimony from the applicant.  The finding and recommendation remained unchanged from those of the 31 March 1998 informal board.  

The applicant was forwarded a copy of the formal PEB on 6 May 1998 for his review and possible rebuttal.  He failed to respond.

On 27 May 1998 the applicant requested assistance from a member of congress (MC), providing the history of his back pain, to include his two surgeries, and stating that he experienced pain daily, which he tried to control with medication.  He stated that sometimes he was forced to seek aid from the emergency room at Keesler Air Force Base.  He had a decrease of strength and reflexes in his left leg with constant burning and numbness in his feet and toes.  His harms cage had already moved once, and he felt that it could move again.  He stated that the president of the PEB had informed him that no matter how much pain he endured he could only receive a 20 percent disability rating.  He stated he requested to be placed on the TDRL to monitor his back condition.  He stated that his doctor had recommended that he be sent home so that his family could care for him.  He used a cane to ambulate and required medicine and rest.  Without some medical assistance from the military, he would be unable to get insurance that would completely cover him.  His avenue of future employment would be limited, and returning to school would be difficult.  He has not been fairly evaluated in his disability, with the probability of future medical problems.

In a 17 June 1998 letter to a MC the Army Physical Disability Agency stated that the applicant’s medical board revealed only minor neurological deficits, symmetrical deep tendon reflexes, with only minor muscle deficits to left extensor hallucis longus, anterior tibialis, and peroneal muscle.  His gait was only mildly antalgic and his medical history indicated his post operative course had been stable.  The applicant’s statement that his back implants had been moving was not substantiated by the attending physician; and his statement of urinary incontinence was not supported by any medical evidence.  His request for a rating based on future medical problems is not permitted by law as the rating had to be based on physical findings at the time.  That agency stated that the applicant was awarded a rating of 20 percent based upon his pain, in accordance with Army regulations.  That agency did state that the VASRD code of 5293 used by the PEB was incorrect, and that the code should have been 5299-5295, but that code change did not change the percentage of disability compensation.   

The applicant was discharged from the Army on 20 July 1998.  He had 9 years,   4 months, and 14 days of service.  He received severance pay in the amount of $29,192.40. 

The applicant’s medical records show that he was seen, treated, and evaluated on numerous occasions at the Biloxi VA Medical Center, the New Orleans VA Medical Center, Keesler Medical Center, and Hancock Medical Center, since his discharge.

A 12 November 1998 medical report shows that the applicant had inquired about a neurology consultation and more pain medications.  The applicant had recently fallen down some stairs and stated that he was in constant pain.   
 
A VA radiology diagnostic report on his lumbar spine shows that the applicant was examined on 18 December 1998, that he had fallen twisting his back.  That report indicated that there was no radiographic evidence of an acute fracture or dislocation.  There was a note made of anterior and posterior fusion utilizing transpedicular metallic screws and bone grafts from L5 and S1 with bone graft extending to the transverse process of L4.  There was also a titanium cage in the disc space between L5-S1.  His condition was diagnosed as surgical fusion at L5-S1 level without any evidence of acute fracture or dislocation.

A VA radiology diagnostic report on his cervical spine shows that he was examined on 13 January 1999.  The report stated that there was a good alignment of the cervical spine, that the heights of the vertebrae and interspaces were well maintained, the spinous processes and lateral articulating pillars appeared normal, and that the prevertebral soft tissues were not swollen.

The applicant received an examination of his spine (cervical, thoracic and lumbar) on 24 March 1999 because he claimed service connection for degenerative disc disease and radiculopathy, left foot pain, right shoulder pain, right hip and chronic neck pain.  His condition was diagnosed as chronic neck pain, asymptomatic at the time of the examination; lumbar syndrome with history of degenerative disc disease and radiculopathy – post operative lumbar fusion times two; intermittent painful popping of the right hip – uncertain etiology; and residuals of right shoulder injury. 

A 25 March 1999 X-ray report of the AP and lateral cervical spine indicated a mild uncovertebral joint hypertrophy with no acute abnormality.  An X-ray report of right shoulder indicated that there were no soft tissue, bony, or joint abnormalities; an x-ray report of the AP and lateral lumbar spine indicated internal stabilization of the facets of L5-S1 with normal alignment of the spine; an X-ray of the right hip indicated that there was no soft tissue, bony, or joint abnormalities.

An 18 May 1999 medical record shows that the applicant had a history of low back pain and marked worsening of symptoms and radiculopathy since a fall one month ago. 

A VA radiology diagnostic report of the lumbar spine shows that the applicant was examined on 1 April 1999.  The report indicated surgical changes from posterior fusion of L4 through S1; metallic cage at the L4-5 and L5-S1 levels with associated obliteration of the neural foramen and nonvisualization of the nerve roots on the left at those levels; and surgical screws extending anterior to the sacrum bilaterally.

A VA medical report of 28 June 1999 indicated that the applicant had chronic low back pain and was admitted for a CT myelogram.  That report indicated that the applicant had been seen recently by neurosurgery because of worsening back pain and radicular pain and was advised surgery, but he wanted a second opinion.  A review of his systems was unremarkable except for his chronic low back pain with radicular pains, especially down the left leg to his foot.

A VA radiology diagnostic report of 30 June 1999 shows no disc abnormality at the L3-4; mild, diffuse disc bulge identified with no evidence of focal protrusion or herniation at L4-5 with no significant spinal stenosis or neural foraminal narrowing seen; L5-S1 -  metallic cage identified along the left posterolateral margin of the disc space.  The metallic cage protrusion to the expected location of the left L5-S1 neural foramen and the left L5 nerve root was not visualized – some component of entrapment was not excludable.  The right neural foramen was widely patent and there was no evidence for spinal stenosis.  The posterior fusion hardware at L5-S1 level was noted with no evidence of failure.  Bony fusion from L4 through S1 was also noted. 

A VA medical record shows that the applicant received an operation on             13 July 1999 because of failed back syndrome.  The surgery included the placement of a dorsal column simulator.  He received surgery again two days later.  The procedure performed was the internalization of the dorsal column stimulator xyrel system.  He was discharged to his home in good and stable condition on 16 July 1999.  

A VA medical report shows that the applicant was admitted to a VA hospital on 17 December 1999 and had reported a fall on the morning of his admission with extreme pain in his back and left lower extremity including numbness in the left lower extremity and inability to bear weight on the left leg.  He was treated and was discharged from the hospital in good condition on 24 December 1999.

A 17 January 2000 radiology report of the applicant’s thoracic spine indicated that there was no evidence of fracture or subluxation.  There was a midline small catheter with its tip located at the T8-T9 intervertebral space.
Army Regulation 635-40 establishes the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a soldier’s medical status and duty limitations insofar as duty is affected by the soldier’s status.  A decision is made as to the soldier’s medical qualifications for retention based on the criteria in AR 40-501, chapter 3.  If the MEBD determines the soldier does not meet retention standards, the board will recommend referral of the soldier to a PEB.

Physical evaluation boards are established to evaluate all cases of physical disability equitability for the soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of soldiers who are referred to the board; to evaluate the physical condition of the soldier against the physical requirements of the soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the soldier; and to make findings and recommendation to establish eligibility of a soldier to be separated or retired because of physical disability.

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

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.

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.  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.  The applicant's disability was properly rated in accordance with the VA Schedule for Rating Disabilities.  His separation with severance pay was in compliance with law and regulation.          

2.  Notwithstanding the applicant’s contentions, there is no evidence that the PEB’s recommendation that the applicant be separated with severance pay, was based on limited medical information, and was not well founded.  Nor has the applicant provided any evidence to support his statement that the medical board’s determination was made in a hasty and uninformed manner.  The evidence shows that the MEB and the PEB were aware of the applicant’s medical history, to include the information concerning his two surgeries while on active duty.  The applicant requested and was granted a formal PEB and appeared before that board.  He had the opportunity to respond to that board’s finding and recommendation, but failed to do so. The applicant's contentions do not demonstrate error or injustice in the disability rating assigned by the Army, nor error or injustice in the disposition of his case by his separation from the service.

3.  The Board notes the applicant’s contentions that his condition has deteriorated since his discharge in July 1999.  The evidence shows, however, that the applicant has injured himself by falling on at least three occasions since his discharge, has been treated and evaluated on numerous occasions by the VA, and has undergone two operations by the VA since his discharge.  Although, there is no evidence that the applicant has received a disability rating by the VA,  a rating action by the VA does not necessarily demonstrate any error or injustice in the Army rating.  The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit.  Any rating action by the VA does not compel the Army to modify its rating.

4.  An award of a VA rating does not establish entitlement to medical retirement or separation.  The VA is not required to find unfitness for duty.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected.  Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.

5.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

6.  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.

7.  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

___eja___  ___jp____  ___slp__  DENY APPLICATION

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

INDEX

CASE ID	AR2000040292	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001005	
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.  177 	108.00	
2.		
3.		
4.		
5.		
6.