MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:  13 March 2001
	DOCKET NUMBER:  AR2000042536

	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. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar		Chairperson	
	Mr. John T. Meixell		Member	
	Mr. Donald P. Hupman		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 separation by reason of physical disability rated at 10 percent be changed to retirement by reason of physical disability.

APPLICANT STATES:  That his medical condition was misdiagnosed by his physician which led to an incorrect rating by the Physical Evaluation Board (PEB).  After separation a doctor at the Veterans Administration (VA) further misdiagnosed him.  He has been unable to work since his separation because of his physical condition.  In August 1997 he finally received a proper diagnosis of his progressive medical condition and has been rated at 80 percent disabled by the VA.  The Army should have rated him at 80 percent disabled and awarded him retirement.  In support of his application he submits copies of his PEB, his report of separation 
(DD Form 214), VA examinations, a Social Security earning statement, a private physician’s diagnosis, a VA rating decision, and internet information concerning his medical condition.

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

He enlisted and entered active duty on 10 September 1985.  He completed training as a tank crewman and was assigned to Germany.  He was promoted to pay grade E-5 effective 1 June 1989.

A SF 600 (Chronological Record of Medical Care), dated 14 July 1990, shows that the applicant was seen at an Army health clinic for a follow-up examination.  He had been seen at a German hospital on 13 July 1990 for an injury to his right foot when a tank track fell on his foot.  It was noted that his right great toe was swollen and discolored.  He was given a painkiller and a temporary profile.

A 14 September 1990 radiologic consultation from 14 September 1990 revealed a mild thoracic scoliosis.  There were degenerative, lower thoracic spine changes without joint space narrowing.  An undated Army clinical record (estimated from early October 1990) states that he was treated at the emergency room for severe lower back pain and headaches.  He stated that the pain in his back started in July after some heavy lifting.  His headaches started on 2 September 1990 and neither have been helped by medication.  He also had pain in his left foot.  He denied any trauma but the pain was felt deep inside the foot.  He had a CT scan of his head on 1 October 1990 and the results were pending.

He was admitted to the hospital for treatment of the three symptoms listed above on 4 October 1990 and released on 16 October 1990.  The doctor’s narrative summary shows that he had a 1975 hospitalization for “migraine headaches” and that he quit smoking 2 months ago.

The examination of his back revealed no deformity and was within normal limits.  There was a decreased range of motion with forward flexion.  There was a mild amount of tenderness in the left foot and on x-ray was found to be normal.  The CT scan of his head was found to be unremarkable.  A full psychological evaluation was performed and the diagnostic impression given was “psychological factors effecting his physical condition.”  The headaches were diagnosed as muscle contractions versus vascular in nature.  He was also diagnosed with mechanical acute low back pain and left foot pain of unknown origin.

The applicant was referred to the department of neurology at the Army hospital on 23 October 1990.  His neurologic examination was negative.  An osteopathic examination revealed mild sacroiliac shift caused by a long left leg.  Simple positioning and manipulation caused a much improved correction immediately.  A post manipulation examination revealed a normal osteopathic examination.

An osteopathic consultation sheet from 27 November 1990 noted that the applicant’s lower back pain had returned after a few weeks of his return to duty.  He was again diagnosed with sacroiliac subluxation (dislocation).  It was also noted that osteopathic manipulation gave immediate relief.

From 1 to 3 January 1991 the applicant was provided inpatient care at a German hospital for his continuing symptoms of back pain and headaches.  The consultation sheet for this hospitalization states that a neurological examination was unremarkable.  An x-rays of the lumbar spine shows a mild, S-shaped scoliosis.  The intervertebral space was narrowed at two locations and the rest were normal wide.  All laboratory findings were within normal limits.  He was released to the Army hospital for further diagnostics and therapy.

He was admitted to the Army hospital on 3 January 1991.  On 11 January 1991 the applicant had a bone scan of the thoracic and lumbar spine.  It revealed a 
S-shaped scoliosis of the thoracic and lumbar spine without evidence of any inflamed process, bone spurs, or overgrowths (normal bone growth).

The applicant was released from the hospital on 4 February 1991.  The discharge notes state that he improved marginally during his hospitalization.  His bone scan was shown as normal with results on an MRI pending.

A 5 February 1991 consultation sheet provides the results of the MRI of the lumbar and thoracic spine.  The findings were that he had degenerative changes due to arthritis with no space-occupying lesions noted.  There was no detectable narrowing of the vertebrae.  The impression noted was a history of post-traumatic arthritis and corresponding support reaction.

A 21 February 1991 neurosurgical evaluation was completely normal.  The patient’s symptoms were explained as a result of the degenerative arthritis with a possible psychogenic component.

In a 31 March 1991 statement, the applicant provided a history of his 13 July 1990 injury, recurring pain, and the current diagnosis of degenerative changes to his spine from arthritis.  He believes that the “skeletal disalignment of his spine” was caused by the 13 July 1990 accident when he made an abrupt shift of his position, posture, and weight.  He now feels that his condition has been properly diagnosed.

On 11 April 1991 the applicant went before a Military Occupational Specialty (MOS) Medical Retention Board (MMRB).  The board determined that the applicant should be placed in a probationary status, not to exceed 6 months, for further evaluation.

A 15 April 1991 consultation sheet recounts the applicant’s medical history.  It states that a bone scan revealed mild scoliosis (deviation of the spine) with no inflammation noted.  An MRI revealed no protrusions against the spinal cord or spinal roots.  Degenerative disease could not be ruled out.  Pain medications and physical therapy had only minimal effect.  Since he has been unable to perform his duties as noted by the MMRB, a transfer to Walter Reed Army Medical Center was recommended.

On 23 April 1991 the findings and recommendation of the MMRB were approved. On 10 May 1991 a final clinical diagnosis stated that the applicant should be considered for medical separation based on headaches and back pain related to his July 1990 injury; degenerative changes to the spine; and possible spondylarthrosis (arthritis of the spine).  He was issued a permanent P3 profile for physical capacity limitations.

On 31 May 1991 a Medical Evaluation Board (MEB) reviewed the applicant’s status. The MEB found the diagnosis of migraine headaches, chronic back pain, and degenerative spondyloarthritis and recommended referral to a Physical Evaluation Board (PEB).  The applicant concurred with the MEB findings and recommendation.

The PEB met on 19 July 1991 to consider the applicant’s condition and disposition in the service.  The PEB found the migraine headaches as not unfitting, not ratable. The PEB did find the chronic back pain combined with the degenerative spondyloarthritis as unfitting and rated at ten percent.  The applicant did not concur with the findings and recommendation and requested a formal hearing with personal appearance.  He also requested representation by appointed counsel.  On 25 October 1991 the applicant waived the formal hearing and accepted the PEB determination.

On 14 November 1991 the Physical Disability Branch, Total Army Personnel Command (PERSCOM) issued orders that separated the applicant no later than 12 December 1991.  He was authorized separation pay in the pay grade of E-5 with a disability rating of ten percent.  Effective 11 December 1991 the applicant was separated from active duty under the provisions of Army Regulation 635-40, paragraph 4-24e(3).  He had 6 years, 3 months, and 2 days creditable service.

A 31 January 1992 examination for the VA resulted in a diagnosis of degenerative arthritis of the spine and an undetermined pain in his left foot.  The examination revealed tenderness at the point of palpation in the middorsal spine area without swelling.  Flexion, backward extension, and lateral motion of the neck for cervical spine showed no limitation of range of motion.  There was no tenderness in the left foot area of palpation and no swelling or deformity of the left foot noted.

A 22 September 1998 examination for the VA conducted by a registered nurse states that a July 1998 MRI revealed a small syrnix (an abnormal cavity in the spinal cord) with a mild stenosis (narrowing or stricture of the cervical spine).  The final impression was syringomyelia (abnormal cavities in the spinal cord filled with liquid), most likely post-traumatic.

An office record prepared by a neurosurgeon on 13 January 1999 recounts the applicant’s medical history and the results of a neurologic/physical examination.  The doctor also reviewed multiple previous MRI’s.  The stated results of the examination was a cervical stenosis, moderate with spinal malacia (softening of the tissue), suggestion of traumatic degeneration and a thoracic syrinx.

A 10 December 1999 memorandum from an Army hospital states that the applicant is receiving pain management treatment due to his syringomyelia condition.

A revised rating decision by the VA was conducted on 16 December 1999.  It shows an increase to sixty percent disabled for syringomyelia with degenerative changes.  The VA also rated his cervical spine degenerative disc disease at ten percent.  The applicant is currently rated 100 percent disabled with $2,153 monthly compensation.

The applicant has provided copies from the Internet explaining the symptoms, causes, and diagnosis of syringomyelia.  It states that trauma or congenital developmental problems may result in syringomyelia and can take many years to manifest.  The condition may lie dormant and undetected for years and many people are not diagnosed until mid-life when the syrinx starts to expand.  Routinely, a MRI will show a syrinx in the spinal cord.

In the processing of this case an advisory opinion was obtained from the Army Review Boards Agency (ARBA) medical advisor.  The opinion notes the applicant’s medical history and various diagnostic impressions over the course of the applicant’s treatment.  The medical advisor believes that the available evidence indicates that the syrinx, which led to the more recent diagnosis of syringomyelia, probably did not exist at the time of the PEB but developed as a natural progression of his injury.

The applicant submitted a rebuttal to the advisory opinion.  The applicant believes that he was continually misdiagnosed by Army physicians who should have considered the possibility that he was suffering from syringomyelia, which constitutes negligence.  He states that there is no direct medical evidence that the syrinx did not exist prior to discharge.  The PEB rendered an incorrect rating that must now be corrected.

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 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.

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 disabilities which were incurred in or aggravated by active military service.  VA records were provided to indicate that the applicant has been awarded compensation for medical conditions that the VA has determined to be related to military service.

The VA, which has neither the authority not the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred or exacerbated during military service and subsequently affect the individual’s employability.  Further, unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.

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.  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 with severance pay.  He was properly diagnosed and rated for his medical conditions as they existed at the time.

2.  The evaluation of the applicant's disability by the Physical Disability Agency more appropriately describes his condition upon separation than does the evaluation by the VA 7 years later.  The 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.

3.  The Office of The Judge Advocate General has stated in similar cases that an applicant’s rating from the VA has little to no weight in determining eligibility for disability retirement by the Army in the eyes of the court (Kirwin v. United States, 23 CI.Ct497(1991)).

4.  Placement on the Retired List by reason of physical disability was precluded since the applicant had completed less than 20 years of service and received a disability rating of less than 30 percent.

5.  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.  The foregoing conclusion is supported by the opinion from the ARBA medical advisor.

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 this 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

__jh___  __jm_____  ___dh____  DENY APPLICATION

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

INDEX

CASE ID	AR2000042536	
SUFFIX		
RECON		
DATE BOARDED	20010313	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.