MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           20 DECEMBER 2001                  
	DOCKET NUMBER:   AR2001058681

	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:

	Mr. John N. Slone		Chairperson	
	Mr. Thomas B. Redfern III		Member	
	Mr. Lester Echols		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, physical disability retirement.  That the PEB (Physical Evaluation Board) rating of 10 percent under VA code 5259 for his left knee be rated at 20 percent under VA code 5258 and/or 5257; that the PEB rating of zero percent for his neck pain under VA code 5003 be rated at             10 percent under VA code 5285, demonstrable deformity of vertebral body and/or 10 percent under VA code 5290, slight limitation of motion of cervical spine; that the PEB rating of zero percent under VA code 5295 for his intermittent mechanical low back pain be rated at 20 percent under the same VA code, with muscle spasm on extreme forward bending, loss of lateral spine motion unilateral, in standing position, or at least 10 percent, with characteristic pain on motion.  Or, he requests a 10-20 percent rating under VA code 5292, slight to moderate limitation of motion of lumbar spine.
  
APPLICANT STATES:  That he withdrew his request for a formal PEB on           13 April 2000, but upon return to his duty station he was strongly encouraged by his counsel and the local DAV (Disabled American Veterans) representative to appeal the ratings.  His counsel had strongly requested that he not proceed with the formal hearing because there was a real possibility that his combined rating would be reduced to zero percent.  Counsel informed him that the medical doctor was biased before the formal hearing took place.  The board’s formal hearing and opportunity for appeal was unjust.  

He states that the board would not consider that he had frequent dislocations and “locking” situations with his left knee, and the board opined that his second surgery removed or repaired all the cartilage in his knee.  He submits a copy of a medical report (Exhibit A to his application) showing that he had an arthroscopic partial medial menisectomy on his left knee on 5 March 2001.  The doctor performing that operation indicated on that report that the applicant had locked medial meniscus with a white-on-white tear, which appeared to be chronic, and which he might have had for a very long time.  He states that he continued to have frequent dislocations and locking episodes since his surgery. 

He states that he certainly has some arthritis in reference to his neck pain but the board should have seen the deformity of the C7 vertebral body fracture where the spinous process was completely severed, which limits his range of motion. The obvious evidence of a severed vertebral body should be evidence of a fracture and the fact that multiple doctors prescribed various medications to treat range of motion and pain should substantiate a higher rating than zero percent.  The VA awarded him a 10 percent rating for status post C7 spinous avulsion fracture on 27 January 2001.

He submits an opinion from a radiologist (Exhibit C) who reviewed his                31 August 2000 CT lumbar spine (taken after the board met), after the Army radiologist down-played the findings and maintained there was nothing wrong with him.  

At  Exhibit B to his request is a 19 April 2000 memorandum to his PEB legal counsel requesting a reconsideration of his case because he felt that new or additional medical evidence could be obtained.  On the reverse of that memorandum he provides an overall picture of his situation explaining his reasoning for his appeal.

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

The applicant was a Signal Corps captain who entered on active duty in 1995.  

Five officer evaluation reports (OERs), the first beginning on 7 October 1995, show that he passed the Army Physical Fitness Test (APFT) on three different occasions, but did not take the test in February 1997 because of his profile.

The applicant’s latest OER, for the 7 month period ending on 15 May 1999, shows that his rater considered his performance as outstanding – must promote; and that his senior rater stated that he was best qualified and his performance was exceptional.  It shows that he passed the APFT in September 1998.

Scorecards show that he passed the APFT on 4 March 1998 with a score of 250, that he failed it on 30 September 1998 with a score of 229, because he only attained 54 points on the 2 mile run (60 points are required to pass each event on the APFT).  A scorecard, however, on 21 October 1998, shows that he did pass the APFT with a score of 257. 

An 8 July 1999 physical profile record shows the applicant had a healed cervical fracture, hay fever (trees, weeds, grasses), and reconstruction and meniscus repair of his right knee.  He was given a permanent physical profile of 1 3 3 1 1 1.

On 8 July 1999 the applicant’s commander provided a statement concerning the applicant’s performance.  He stated that the applicant’s multiple back, right knee, and allergic problems directly hampered his ability to perform his duties.  He stated that the applicant’s chronic debilitating symptoms had increased in severity over a 4-year period causing him not to perform physical training or pass the standard Army Physical Fitness Test.  He stated that the applicant was in some degree of pain at all times, and was taking pain medication for the 4-year period.  He provided a brief history of the applicant’s injuries and allergies, stated 

that the applicant could not walk long distances, run, jump, or leap, do push-ups, sit-ups, wear a helmet, stand for long periods, or sit for extended periods, etc.  He stated that the applicant experiences acute pain when he stands, bends, walks, or sits for extended periods, and that he could not sleep without medication due to his back pain.

A 26 October 1999 MEB addendum from the orthopedic service at Evans Army Community Hospital, Fort Carson, Colorado, indicates that the applicant sustained initial low back injury during airborne operations in 1994, with some intermittent low back symptoms since that time.  The majority of the time, however, the applicant noted no significant problems associated with his lower back and no radiation of pain into the lower extremities.  Previous radiographic studies of the lumbar spine showed no abnormality.  He began noting some posterior neck pain in July 1995, but there was no history of acute injury at that time.  Radiographic studies of the cervical spine did reveal a clay shoveler’s fracture, an avulsion fracture involving the spinous process of C7.  He had some persistence of neck pain posteriorly with some decreased neck range of motion, but it did not affect his ability to perform his duties or pass the standard APFT.  He sustained a left knee injury in March 1996, resulting in an anterior cruciate ligament (ACL) tear, as well as meniscus tears.  He had surgery in April 1997 and surgery again in December 1998.  Following that surgery, locking did not recur.  He had some mild pain involving the medial aspect of the knee, but no giving way of the knee.  He was reluctant to return to running activities for fear of reinjury to the left knee.  He has been unable to perform all his required duties and has been unable to take the standard APFT.  The addendum continued by describing the results of the physical examination, laboratory, and radiology data. The examining physician stated that the applicant had some posterior neck pain with mild limitation of range of motion, and some intermittent low back pain syndromes.  There was no radiation of pain into the upper or lower extremities.  The applicant noted some ongoing anterior and medial pain in his left knee.  
There was no instability of the knee.  The physician stated that it was likely that the meniscus was healed at that point.    

A 6 January 2000 Medical Evaluation Board (MEB) indicated that the applicant complained of chronic neck pain, and that he had a history of clay shoveler’s fracture of the C7 spinous process.  It indicated that he was taking medication on a needed basis for his pain, that he had one major exacerbation of his neck pain since April 1999, and that he was unable to sleep on any type of military cots due to his neck condition.  That summary indicated that the applicant’s other complaint was seasonal rhinitis, that he was currently receiving monthly allergy shots, and that his symptoms were controlled with medication and 

immunotherapy.  He complained of low back pain, which was not active and only episodic in nature.  He complained of a wart on his left wrist.  The allergy service provided a consultation which indicated that the applicant had a history of having hay fever since early childhood, but had never been skin tested and never had any asthma.  The consultation indicated that the applicant would probably continue to do well as far as his hay fever was concerned, recommending that he continue to take his allergy shots and medications.  He had no history of asthma and had normal pulmonary function tests.  

The applicant’s condition was diagnosed as intermittent mechanical low back pain, avulsion fracture of the spinous process at C7, anterior cruciate ligament deficiency left knee, status post anterior cruciate ligament reconstruction in     April 1997, and recurrent left medial meniscus tear, status post arthroscopic repair, December 1998.  

On 21 January 2000 the MEB recommended that the applicant be referred to a PEB.  On 9 February 2000 the applicant stated that he did not agree with the board’s findings and recommendations, stating that they did not include the diagnosis of his allergies.  He also included in his rebuttal comments concerning his low back pain, which severely limited his mobility; his avulsion fracture of the spinous process, causing him severe muscle cramping and spasms from his neck to his middle back with pain radiating into his arms upon movement of his shoulders and the topical pain that he constantly had down the front side of his left leg as a result of his surgeries.  On 11 February 2000 the MEB considered his appeal and confirmed the original findings and recommendations.

A 10 March 2000 PEB recommended that the applicant receive a 10 percent disability rating for his chronic left knee pain status post ACL, reconstruction and repair of the medial and lateral meniscus (April 1997); and subsequent locking, requiring a second medial meniscus repair in December 1998.  It indicated that his left knee had full range of motion, no instability, and was rated as analogous to symptomatic semilunar cartilage.  The PEB recommended a zero percent rating for his intermittent mechanical low back pain, stating that examination was essentially normal, as were X-rays.  His condition was rated for slight subjective symptoms only.  It recommended a zero percent rating for his chronic neck pain, secondary to avulsion fracture of the spinous process of C7, stating that there was some limitation of motion due to pain.  His condition was rated for pain. 

The PEB indicated that his allergic rhinitis was considered and found to be not unfitting and not ratable.  The board found the applicant physically unfit and recommended a combined rating of 10 percent and that he be separated with severance pay.

The applicant did not concur with the findings and recommendations of the board and demanded a formal hearing and a counsel appointed to represent him.  
On 16 March 2000 he provided a rebuttal, requesting a reevaluation of his left knee, and stating that his knee or his range of motion would never be the same again as a result of his injuries.  He requested that his low back pain be reconsidered for a higher disability percentage, stating that he could not sit for more than a few hours, was unable to stand up straight, that walking caused regular sharp pain in his hip, and that he could not sleep due to his lower back pain.  He stated that he had objective symptoms that verified a problem in his lower back, and that he not only had pain, but loss of functionality and mobility that would limit him the rest of his life.  He requested that his C7 spinal neck fracture be reconsidered for a higher disability rating, disputing the MEB findings by his orthopedist indicating that his neck injury did not limit his ability to complete the APFT.  He stated that was not so in that his sit-up and push-up scores had declined severely over time and that he was unable to perform those functions on his last try at the APFT.  He stated that he could not sleep at night, that he was on prescription drugs, and that reaching up or stooping down caused great cramping in his arms, neck, and throughout his spinal column.  He stated that his range of motion was zero during his spasmodic attacks, and that he had to use a prescription muscle relaxer and Motrin, along with another prescription drug to lessen the cramping and the pain.  He requested that his allergies be reconsidered for inclusion and a disability rating, in that he would have to take shots and remain close to a medical facility, limiting his ability to be in remote areas for any length of time.  He stated that he did not have the problems before his assignment to Georgia where it became exacerbated.  He stated that his commander felt that his physical limitations kept him from establishing the proper leadership role, and that it was logical to conclude that his limitations would also keep him from performing day to day functions as a civilian.  He stated that the Army had a responsibility to share in the future treatment of his injuries.  
   
On 29 March 2000 the applicant was notified to appear before a formal hearing on 13 April 2000.

In a 13 April 2000 memorandum to the President of the PEB the applicant withdrew his demand for a formal PEB, and that based upon the advice of counsel, accepted the PEB rating of 10 percent, with the understanding that an increase of his rating to 20 percent would not change his financial status.  He stated the he reserved the right to submit a request for reconsideration should he discover any new or additional evidence.

The applicant was discharged from the Army on 20 July 2000 because of physical disability.  He received severance pay of $23015.24.

Army Regulation 635-40 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 MEB 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, 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.

Congress established the VA Schedule for Rating Disabilities (VASRD) as the standard under which percentage rating decisions are to be made for disabled military personnel.  Percentage ratings in the VASRD represent the average loss in earning capacity resulting from diseases and injuries.  The ratings also represent the residual effects of these health impairments on civil occupations.  

Part 4, paragraph 4.1 of the VASRD states that the rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The percentage ratings represent as far as can practicably be determine the average impairment in earning capacity resulting from such disease and injuries and their residual conditions in civil occupations.

Army Regulation 635-40 states in pertinent part that not all of the general policy provisions of the VASRD apply to the Army, and that Section I of Appendix B replaces or modifies paragraphs of the VASRD.

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 6 January 2000 MEB, after consultation from the allergy service and orthopedic service at Evans Army Community Hospital, diagnosed his condition as intermittent mechanical low back pain, avulsion fracture of the spinous process at C7, anterior cruciate ligament deficiency of his left knee, and recurrent left medial meniscus tear.  His rebuttal to those findings were considered by the MEB.  That board stood by its findings and recommendations.  The ensuing PEB did award him a 10 percent rating for his left knee pain, and awarded him a zero percent rating for his low back pain and his neck pain.  He rebutted those findings but provided no medical evidence to refute the findings.  The applicant’s statement that his opportunity for appeal was unjust has no basis in fact.  Furthermore, there is no evidence nor has the applicant provided any, to substantiate the allegation that the medical doctor was biased.  He demanded a formal PEB, as was his right, but subsequently withdrew that request, accepting the decision of the PEB.      

2.  The medical evidence of record supports the determination that the applicant's unfitting condition was properly diagnosed and rated at the time of his discharge.  There is no evidence to the contrary.  His 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 release from active duty.
He has submitted neither probative evidence nor a convincing argument in support of his request.   

3.  The fact that the VA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish physical unfitness for Department of the Army purposes.
The award of VA compensation does not mandate disability retirement or separation from the Army.  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.  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. Consequently, due to the two concepts involved, the applicant's medical condition, although not considered medically unfitting for military service at the time of processing for discharge may be sufficient to qualify him for VA benefits based on an evaluation by that agency. 

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

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

__JNS __  __TBR   _  ___LE___  DENY APPLICATION

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

INDEX

CASE ID	AR2001058681	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20011220	
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.