MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            23 AUGUST 2001                  
	DOCKET NUMBER:   AR2000048851

	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	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. John H. Kern		Chairperson	
	Mr. Thomas Lanyi		Member	
	Ms. Paula Mokulis		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, that his Army disability rating be increased to 40 percent and that his records be corrected to show that he was retired by reason of physical disability.

APPLICANT STATES:  In effect, that instead of the 20 percent disability rating he received from the Army his disability should have been rated at 40 percent based on “intervertebral disk syndrome or multi-level degenerative disk disease.”  He notes that the medical evidence presented at his “formal” PEB (Physical Evaluation Board) warranted a rating of 40 percent.  In support of his request he submits extracts from his Army disability proceedings, and a medical opinion rendered in May 1997.

COUNSEL CONTENDS:  That the applicant should be medically retired with a 40 percent disability rating utilizing VASRD (VA Schedule for Rating Disabilities) Code 5293 (intervetebral disc syndrome) vice the 20 percent rating he received utilizing VASRD Code 5299–5295 (chronic low back pain with multi-level degenerative disc disease with paravertebral muscle spasm).  Counsel highlights information contained in the applicant’s service medical records and Army disability proceedings.  He notes, in part, that the applicant “experienced a traumatic injury to his low back” in approximately 1985 and subsequently complained of “episodic severe low back pain.”  By 1996 x-rays “demonstrated degenerative disc disease at L4-5 and L5-S1 intervertebral space” and the applicant received a permanent profile for “back pain/lumbar disc disease” which ultimately prohibited the applicant from “participating in airborne operations and was instructed to avoid prolonged standing for longer than one hour.”  Counsel states, in effect, that the applicant was considered for disability processing by an informal PEB in February 1997 and received a disability rating of 10 percent utilizing VASRD Code 5299–5295.  He disagreed with the informal PEB and a formal PEB convened in May 1997.  The formal PEB did not change the informal PEB’s findings and recommendation.  The applicant submitted a formal rebuttal and submitted an evaluation from a “Board Certified orthopedic surgeon” who concluded the applicant suffered from “severe multi-level degenerative disc disease” and that he “probably warrants a rating more in the realm of 40%…rather than 10%….”  On 9 June 1997 “the formal Physical Evaluation Board granted in part applicant’s rebuttal request and changed applicant’s recommended disability percentage to 20% but left unchanged applicant’s VA diagnostic of 5295….”  Counsel states that the applicant received a medical opinion from an “Army Medical Corps” officer at Fort Bragg who indicated that he had treated the applicant “for chronic low back pain since August of 1997” and noted that he would expect the applicant “to experience constant back pain of moderate to severe intensity for the rest of his life.”  Counsel notes that by October 1998 the applicant’s VA disability rating had been increased from 20 percent to 60 percent retroactive to 1 November 1997, “the date immediately following applicant’s separation from active duty….”  He then cites information contained in the VA rating decision.
Counsel also maintains that the applicant did not receive “a full, fair and impartial hearing.”  He states the applicant and his spouse recounted their recollections of conversations they overheard during his May 1997 formal PEB in an affidavit rendered on 21 May 1997.  The applicant and his spouse indicated they overheard a conversation in which board members commented that the applicant “came in with 10% and he will leave with 10%.”  Counsel supports the applicant’s affidavit with results of a polygraph examination conducted on 4 February 2001.

Counsel concludes by stating that the applicant’s “severe degenerative disc disease in the lumbar area is a form of lumbar spondylosis and similar to that of herniated discs occurring at multiple levels.  Thus, the most analogous VASRD diagnostic code of ‘5293’ or intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy, demonstrable muscle spasm and multiple neurological findings appropriate to the site of the diseased discs with a disability rating of 40%, precisely the same conclusion reached by his orthopedic physician…as well as the most recent rating decision by the Department of Veterans Affairs.”

The issue in this case involves the vertebral (spinal) column which consists of bones (vertebrae) which are numbered in sequence from the 7 cervical vertebrae (C1-C7) in the neck region down and are separated by plates of fibrocartilage called intervertebral disks.  In the lower back area, beneath the 12 thoracic (T1-T12) vertebrae, there are 5 lumbar (L1-L5) vertebrae and 5 sacral (S1-S5) vertebrae.
Low back problems normally are located in the L5-S1 area.

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

He entered active duty on 14 August 1984 and served continuously until his separation by reason of disability on 31 October 1997.  He was promoted to pay grade E-7 in May 1993 and held infantry and special forces engineer specialties during his more than 13 years of continuous active Federal service.

According to various academic and performance evaluation reports the applicant consistently passed the Army’s physical fitness test between March 1988 and March 1997.  He was awarded a Parachutist Badge in 1988, the Special Forces Tab in 1989, a Combat Infantryman Badge in 1990 and a Ranger Tab in 1991.

In February 1994 the applicant was seen by medical personnel for a complaint of lower back pain.  He was seen again by medical personnel in December 1995 for lower back pain, which he noted had been occurring for the past 10 years.

In February 1996 he was given a temporary physical profile for “back pain/lumbar disc disease.”  In March 1996 x-rays showed “findings consistent with post-traumatic or degenerative changes in the L-5 vertebral body, more pronounced on the right side…no evid[ence] of facet arthropathy.”  He was given a permanent profile in April 1996 for “lumbar disc disease (back pain)” which permitted the applicant to take an alternate physical fitness test.  The profile also noted that a “MEB [was] in progress.”

On 24 July 1996 the applicant underwent a physical examination as part of a MEB (Medical Evaluation Board).  His chief complaint is listed as low back pain.  The evaluating physician noted that the applicant began experiencing back pain following a Bradley fighting vehicle accident in 1985.  He noted the applicant reported “episodically severe pain in his lower back that is described as baseline” 4 or 5 on a 10 scale with “occasional severe episodes described as 8/10 intensity.”  The applicant denied “any history of bowel or bladder incontinence, nor any erectile dysfunction” but did note a recent onset of “intermittent paresthesias in the right posterior thigh area.”  The physician indicated that in the applicant’s present condition (significant pain on a daily basis and episodically severe symptoms) he was unable to perform in his present specialty but had indicated a desire to be considered for “reclassification in lieu of separation.”  The evaluating physician concluded the applicant suffered from (1) multi-level degenerative disc disease lumbar spine and (2) chronic low back pain.  He recommended the applicant be referred to a PEB.  

On 30 September 1996 the applicant was referred to neurology.  The evaluating physician concluded that while the applicant suffered from “severe DDD [degenerative disc disease]” there was no evidence of neurological involvement.

An informal PEB, convened on 5 February 1997, recommended the applicant be separated by reason of physical disability with entitlement to severance pay based on his chronic low back pain with multi-level degenerative disc disease (VASRD 5299–5295) rated at 10 percent.  The applicant non-concurred and demanded a formal hearing.  A formal PEB convened on 16 May 1997.  A transcript from the 16 May 1997 hearing indicates that the applicant’s attorney (the same attorney currently representing the applicant to this Board) requested that the PEB consider “either the diagnostic code of 5289, which is ankylosis of the lumbar spine, favorable or unfavorable; or, in the alternative, diagnostic code 5296, lumbo-sacral strain” although he subsequently corrected himself to indicate that he meant diagnostic code 5295.  While the applicant spoke extensively about his back pain there is no mention of any neurological involvement.  The formal PEB ultimately rendered the same findings and recommendation as the informal PEB.

The applicant nonconcurred and submitted a rebuttal.  Included with his rebuttal was a 22 May 1997 medical evaluation conducted by a physician from the Sandhills Orthopaedic and Spine Clinic in Pennsylvania.  That physician noted the applicant occasionally takes Motrin for his back, that he had no bowel or bladder symptoms but did have some numbness “into his right anterior thigh” but no weakness.  The physician noted an “impression” of “severe multi-level degenerative disc disease.”  Based on the May 1997 evaluation the applicant requested that his diagnostic code be changed from “5299/5295” to “5293” and that his disability percentage be changed from 10 percent to 40 percent.

An undated action by the applicant’s chain of command and servicing medical facility approved the applicant’s petition to remain on active duty beyond his scheduled separation date in order to complete his disability processing.  On 
29 May 1997 the applicant requested that his service contract be extended due to his spouse’s pregnancy.  His commander recommended approval noting that the applicant was “fully qualified for requested action.”  The applicant’s request was approved and on 29 May 1997, while the rebuttal to his PEB was pending, the applicant extended his 1992 reenlistment contract for 12 months.  As a result of his extension his scheduled separation date was adjusted to 13 August 1998.

A final PEB, convened on 9 June 1997, increased the applicant’s Army disability rating to 20 percent based on “chronic low back pain with multi-level degenerative disc disease with paravertebral muscle spasm” utilizing VASRD Code 5299–5295.

On 31 October 1997 the applicant was discharged by reason of physical disability and received more than $49,000.00 in disability severance pay.

Based on documents provided by the applicant and his counsel in support of his petition to this Board, it appears the applicant’s back condition was initially rated as 20 percent disabling by the VA following his release from active duty.  However, medical evaluations/statements, rendered in February 1998, March 1998, and October 1998 ultimately resulted in the VA increasing their disability rating to 60 percent retroactive to 1 November 1997.  The VA documents submitted do not identify the specific VASRD Code utilized by the VA to arrive at their rating decision.

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.  Because of differences between Army and VA applications of rating policies, differences in ratings may result.  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.  Conditions which do not render a soldier unfit for military service will not be considered in determining the compensable disability rating unless they contribute to the finding of unfitness.  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.  When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number will be “built-up” using the first two digits from the part of the scheduled most closely identifying the part, or system, of the body involved.  The last two digits will be “99” for all unlisted conditions.

Army Regulation 635-40, Physical Evaluation for Retention, Retirement, or Separation, Appendix B, paragraph B-39, intervertebral disc syndrome (Code 5293) and lumbosacral strain (Code 5295), provides that a 40 or 60 percent disability rating will be predicated upon objective medical findings of neurological involvement, e.g., loss of bladder or bowel control, or sensory loss in an extremity determined by pinprick testing.  Lesser ratings will begin with a zero percent rating for chronic low back pain of unknown etiology (mechanical low back pain).   Demonstratable pain on spinal motion or discovery of back pain etiology will warrant a 10 percent rating unless paravertebral muscle spasms are also present, in which case a 20 percent rating will be awarded.

Army Regulation 635-40 also states that physical examination, laboratory tests, x-rays, and other findings are not, in themselves, ratable.  A rating for a disability must be based on demonstrable impairment of function.

The Army Physical Disability Agency (USAPDA) has noted in advisory opinions in similar cases that confusion frequently arises from the fact that the Army and the DVA use different rating systems.  While both use the Veterans Administration Schedule for rating Disabilities (VASARD), not all of the general policy provisions set forth in the VASARD apply to the Army.  The Army rates only conditions determined to be physically unfitting, because they adversely effect the individual’s ability to perform assigned duties, thus compensating the individual for loss of a career.  The DVA, on the other hand, may rate any service-connected impairment, in order to compensate the individual for loss of civilian employability or social functioning.  The USAPDA has also pointed out that military disability ratings are based upon the degree to which a medical condition effects the ability to perform duty and not upon the diagnosis or name attached to the condition.  By way of comparison, the VA can and does rate an individual for pain in many instances.  The Army can only rate the same painful condition if it impairs the soldier’s ability to perform assigned tasks. 

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 Board notes that throughout the applicant’s disability processing, and during his medical consultations leading up to his disability processing, his chief complaint was low back pain.  That low back pain, which was rated along with his “paravertebral muscle spasm” was the primary basis for his 20 percent disability rating from the Army.  He has not presented any new evidence, which was not available to the PEB at the time, which refutes the fact that his primary impairment stemmed from his chronic low back pain.

2.  The fact that the VA may have subsequently granted a higher disability rating is not evidence that the Army’s rating was in error or unjust.  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 reason or authority for separation.

3.  The Board also notes that a rating of 40 percent or higher under either VASRD Code 5293 or 5295 requires objective medical findings of neurological involvement.  In the absence of such findings the highest rating he could have received would have been 20 percent. The medical evidence of record supports the determination that the applicant’s unfitting condition was properly diagnosed and rated at the time of his separation.

4.  While the applicant contends that he did not receive a full, fair and impartial hearing” there is no indication in the record of the PEB proceedings, nor has he provided any evidence from any disinterested source, which could be used to independently substantiate his contention.

5.  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 that requirement.

6.  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

__JHK   _  ___TL___  ___PM __  DENY APPLICATION

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

INDEX

CASE ID	AR2000048851	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010823	
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.	108.00	
2.		
3.		
4.		
5.		
6.