MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           25 September 2001                   
	DOCKET NUMBER:   AR2001053926

	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. John N. Slone		Chairperson	
	Mr. Lester Echols		Member	
	Mr. Ronald E. Blakely		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 discharge with severance pay be changed to a medical retirement.

APPLICANT STATES:  That within seven months of his separation the VA found his back to be 60 percent disabling.  He provides his Certificate of Release or Discharge from Active Duty, DD Form 214, and the VA rating decision as supporting evidence.

COUNSEL CONTENDS:  That the VA Schedule for Rating Disabilities (VASRD) clearly indicates that functional loss must be considered when rating disabilities of the musculoskeletal system.  The applicant maintains that the Physical Evaluation Board (PEB) did not consider the functional loss in evaluating the degree of his disability.  He was restricted in all axes of range of motion of the low back secondary to his low back pain.  The record also shows that he could not pick up his newborn baby without back pain and could not stand for more than 5 – 10 minutes without moderate to severe back pain.

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

He enlisted in the Regular Army on 10 March 1994.  He completed basic training and advanced individual training and was awarded military occupational specialty 95B (Military Police).  He completed basic airborne training and was awarded skill qualification identifier P (airborne qualified).

It appears the applicant first received a physical profile in April 1999.

The applicant’s noncommissioned officer evaluation report (NCOER) for the period July 1998 – June 1999 shows that his profile did not hinder his duty performance.  His senior rater commented that he had unlimited potential for positions of increased responsibility.  

In November 1999, the applicant was given a permanent L3 profile for status post 2-level spine surgery.  He was given assignment limitations of no strenuous physical activity.  No crawling, stooping, running, marching, or standing for long periods.  No off-road travel or travel in tactical vehicles.  No Army Physical Training Tests, physical training at his own pace and distance.  No rucksack, load bearing equipment belt (LBE) or flak vest.

On 3 December 1999, a Medical Evaluation Board (MEB) diagnosed the applicant with lumbar spondylosis at L4-5 and L5-S1, status post left L4-5 and L5/S1 diskectomies for herniated discs; chronic back pain syndrome secondary to the first diagnosis; hammer toes; chronic patellar femoral syndrome; contact dermatitis involving bilateral forearms; palmar and plantar warts, resolving; status post multiple finger fractures; and seasonal hay fever.   The MEB Narrative Summary indicated the applicant’s chief complaint was chronic low back pain and paresthesias to both legs.  The pain began gradually after a series of hard airborne landings.  Around January 1999, an MRI scan revealed a central L4-5 herniated disc and left paracentral L5-S1 herniated disc.  He had diskectomy surgery on 20 April 1999.  After initially noticing relief of leg pain, the pain returned.  His back pain was getting worse.  A repeat MRI scan revealed no recurrence of his herniated disc.  The MEB referred the applicant to a PEB.  On  3 December 1999, the applicant agreed with the MEB’s findings and recommendation.

On 12 January 2000, a PEB found the applicant unfit for duty due to chronic low back pain with lumbar spondylosis L4/5 and L5/S1 with diskectomies for herniated nucleus pulposus L4/5 and L5/S1.  The other diagnoses were determined to be not unfitting under the VASRD code 5299/5295.  He was given a 10 percent disability rating.  On 7 February 2000, the applicant concurred with the findings and waived a formal hearing of his case.

The applicant’s NCOER for the period July 1999 – March 2000 shows that he was fully capable of performing his assigned duties.  His senior rater again commented that he had unlimited potential for positions of increased responsibility.  

On 17 May 2000, the applicant was discharged, with severance pay, by reason of a disability.

On 26 January 2001, the VA awarded the applicant a combined disability evaluation of 70 percent (low back L4-5 L5-S1 herniated nucleus pulposus, mini laminectomy with bulging disc 60 percent; right and left knee patellofemoral syndrome with post traumatic arthritis 10 percent each knee).

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. 

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.
Department of Defense Instruction (DODI) 1332.39, Application of the Veterans Administration Schedule for Rating Disabilities dated 14 November 1996 implements policy and prescribes procedures for rating disabilities of Service members determined to be physically unfit and who are eligible for disability separation or retirement.  The DODI states that not all the general policy provisions of the VASRD are applicable to the Military Departments.  Many of the policies were written primarily for VA rating boards and are intended to provide guidance under laws and policies applicable only to the VA.  This DODI replaces these sections of the VASRD.  DODI 1332.39 states that under VASRD code 5295 a 10 percent rating shall be warranted when there is demonstrable pain on spinal motion associated with positive radiopgraphic findings.  A 20 percent rating may be awarded if paravertebral muscle spasms are also present; however, such spasms must be chronic and evident on repeated examination.

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.

In the processing of this case, an advisory opinion was obtained from the Medical Advisor to the Army Review Boards Agency.  A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  He did not respond within the given time frame.

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, 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.  The Board notes that even after the PEB action the applicant’s supervisors had indicated on his NCOER that the applicant was fully capable of performing his military duties.  No recurrence of the applicant’s herniated discs was found by MRI.  The chief findings noted in the MEB Narrative Summary were that he had back pain when he moved.  The PEB rated him correctly with a 10 percent disability 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

__jns___  __le____  __reb___  DENY APPLICATION

		    Karl F. Schneider
		    Director, Army Review Boards Agency

INDEX

CASE ID	AR2001053926	
SUFFIX		
RECON		
DATE BOARDED	20010925	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	108.02	
2.		
3.		
4.		
5.		
6.